Freewood Associates, Ltd. v. Davie County Zoning Board of Adjustment

222 S.E.2d 910 (1976) 28 N.C. App. 717

FREEWOOD ASSOCIATES, LTD.
v.
DAVIE COUNTY ZONING BOARD OF ADJUSTMENT.

No. 7522SC759.

Court of Appeals of North Carolina.

March 17, 1976.

Peebles & McConnell by Joel C. McConnell, Jr., and Stafford R. Peebles, Jr., Winston-Salem, for petitioner-appellant.

Davie County Atty., John T. Brock, Mocksville, Womble, Carlyle, Sandridge & Rice by Roddey M. Ligon, Jr., Winston-Salem, for respondent-appellee.

CLARK, Judge.

If the findings of fact made by the Board of Adjustment are supported by the evidence, the findings are conclusive. But that determination by the superior court is its conclusion upon a question of law and is reviewable by the appellate courts. In re Campsites Unlimited, 287 N.C. 493, 215 S.E.2d 73 (1975).

Freewood applied to the Board of Adjustment for a conditional use permit for use of their premises as a "family campground". Upon denial of the permit on 1 July 1974, Freewood applied for a nonconforming use permit as a family campground. A "conditional use permit" is distinct from a "variance" in that it is granted for a public or quasi-public purpose, such as cemeteries or recreational parks, rather than to obviate unnecessary hardship or other conditions for which a variance may be granted. 101 C.J.S. Zoning § 274. A "nonconforming use permit" is granted for the continuance of an existing use notwithstanding the zoning ordinance does not permit similar uses in the area in which the property so used is located. 101 C.J.S. Zoning § 180.

The continuation of a nonconforming use is permitted to avoid hardship to the landowner who incurred such expense in the development of his property, or has incurred a contractual obligation, to the extent that he has acquired a vested right to carry on the existing use. In North Carolina it has been established that one of the requisites for a nonconforming use permit is that the expenses be incurred in good faith. In re Campsites, supra; Town of Hillsborough v. Smith, 276 N.C. 48, 170 S.E.2d 904 (1969); Stowe v. Burke, 255 N.C. 527, 122 S.E.2d 374 (1961).

All the evidence for Freewood tends to show that it intended at the time it purchased the land in December 1972 to use the property for a nudist camp, and that continuously thereafter it had so intended to use it. However, the intended use was deliberately concealed from the public and was not disclosed to the Board of Adjustment until elicited by cross-examination of an officer of Freewood at a hearing before the Board on the application of Freewood for a conditional use permit to operate a family campground. Thereafter, in this and subsequent hearings before the Board of Adjustment, the petitioner offered evidence of the intended use of its property as a nudist camp and its expenses incurred in development of the premises for the intended use, and the Board also heard evidence opposing the use of the premises as a nudist camp.

Nevertheless, we think it important that the use of the property be stated truthfully and accurately in the application for a permit to a Board of Adjustment. Broadly, the purpose of a zoning is to limit the use of land in the interest of the public welfare. It is based on the exercise of police power, and generally may be exercised only after adequate public notice and hearing, and this notice should correctly inform the public and the Board of Adjustment of the use that the applicant proposes to make of the premises.

In the case before us, it was apparently assumed that if a permit was granted for use, conditional on nonconforming, of the premises as a family campground, then the petitioner had the right to use the premises as a nudist camp. There is a significant difference between a "family campground" and a "nudist camp" as commonly understood by the public. Those who would support or oppose the operation of a family campground may not support or oppose a nudist camp. Too, the inadequate and improper designation in the application of the proposed use of the premises does not properly raise the issues before the Board. For example, the existing use must be a lawful one to qualify as a nonconforming use, and the proposed use must be a lawful one to qualify as a conditional use. There may be no question that use as a family campground is lawful, but there may be a serious question that use as a nudist camp is unlawful and in violation of G.S. 14-190.9, commonly referred to as the indecent exposure statute. See Anno., 94 A.L.R. 2d 1353, 1379. But this issue was not raised in this case, possibly because the proposed use was inaccurately designated in the application as "family campground" rather than "nudist camp".

We conclude that since the applications for conditional use and nonconforming use permits designated the proposed use of the premises as "family campground" but at the hearing it was established that the proposed use was a "nudist camp", the designated use was so inaccurate, and the variance in the designated use and the intended use so substantial, that the Board of Adjustment could not lawfully grant either a conditional use or nonconforming use permit for use of the premises as a family campground.

The judgment denying the conditional and nonconforming use permits is

Affirmed.

VAUGHN and MARTIN, JJ., concur.