An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1063


Filed: 17 June 2003



v .                             Union County
                                No. 01 CVS 522


    Appeal by petitioner from order entered 3 April 2002 by Judge Christopher M. Collier in Superior Court, Union County. Heard in the Court of Appeals 20 May 2003.

    Clark, Griffin & McCollum, L.L.P., by Joe P. McCollum, Jr., for petitioner-appellant.

    The McGee Law Firm, L.L.P., by Sam McGee and Perry, Bundy, Plyer & Long, L.L.P., by H. Ligon Bundy, for respondent- appellee.

    WYNN, Judge.

    Ethridge Z. Smith appeals a Superior Court determination that the Board of Adjustment for the town of Stallings, North Carolina, did not commit reversible legal or factual error in holding that the Town's Zoning Enforcement Officer was not authorized to change or amend conditional use permits issued under a former Union County Ordinance. As a result of this determination, the trial court ordered Mr. Smith to remove an unlawful addition to his non- conforming property. After reviewing the record, we find no error.    The underlying facts tend to show that before the Stallings' Town Council enacted a zoning ordinance (“Town Zoning Ordinance”) on 10 September 1990, property in Stallings was regulated under an ordinance created by the Union County Commissioners (“County Ordinance”). In 1988, while his property was subject to the County Ordinance, Mr. Smith applied to the Union County Board of Adjustment for a conditional use permit   (See footnote 1)  to construct a 7200 square foot automobile body and repair shop. On 3 October 1988, the County Board granted his application.
    Under the 1990 enactment of the Town Ordinance, Stallings prohibited the construction and use of “automobile body shops”. Nonetheless, on 26 February 1998, Mr. Smith filed a Zoning Permit Application with Stallings seeking a permit to construct an addition to his non-conforming structure. On 17 March 1998, Anthony Roberts, the Town Zoning Administrator, sent Mr. Smith a letter informing him that:
        On February 26, 1998 you sent me a zoning permit application in which you wanted to expand your business . . . . As per our conversation with you I told you that an automobile repair shop is a conditional use . . . .
        Upon further review, I have determined that automobile body shops are not allowed . . . . Your existing body shop is [] considered a non-conforming use . . . . As per Section 10.4 of [the] Stallings ZoningOrdinance, you may keep your existing structure[] but you [are] not allowed to expand the existing structure[].

        You have [an] option[] to remedy this matter. [You can] seek a text amendment that would allow for an automobile repair shop in [your] zoning district.

    On 6 May 1998, Mr. Smith filed a petition with Stallings proposing a text change to the Town Ordinance, which would permit the enlargement of structures housing non-conforming situations. On 6 July 1998, the Town Council unanimously denied Mr. Smith's petition.
    On 28 November 2000, Tom Ripplemeyer, the Town's Zoning Enforcement Officer, inspected Mr. Smith's automobile repair shop and determined that Mr. Smith had made the additions despite the Town Ordinance and the Town Council's 6 July 1998 determination. On that same date, Mr. Ripplemeyer sent Mr. Smith a letter advising him that:
        A letter advising you that expansion of the existing buildings on your property would not be allowed . . . was mailed to you on March 17, 1998. Your Zoning Permit Application was denied at that time. Since then, additions have been made to the existing structure in violation of the [Town Ordinance]. To correct the violation, all additions must be removed from the premises.

Evidence in the record reveals that these additions were made by 26 February 1998. Furthermore, the additions consisted of enclosing a previously unenclosed area and the construction of several car- ports.
    On 12 December 2000, Mr. Smith appealed the decision of the Zoning Enforcement Officer to the Town Board of Adjustment. At thehearing, Mr. Smith through his attorney, Joe P. McCollum, argued that Section 14.8 of the Town Ordinance authorized the Zoning Enforcement Officer to change or amend conditional use permits previously issued under the County Ordinance in order to authorize enlargement of Smith's property. Seemingly, Mr. Smith sought to challenge the determination of Anthony Roberts, the Zoning Administrator, that the property was “non-conforming” rather than “conditional use” property. Under the theory advanced by Mr. Smith, the matter would need to be remanded for a determination, in the Zoning Enforcement Officer's discretion, of whether or not to amend or change Mr. Smith's conditional use permit issued by the County. After hearing arguments from both sides, the “Board [found] that Section 14.8 [did] not authorize the . . . Zoning Enforcement Officer to change or amend a Conditional Use Permit issued by the [County]. Rather, it authorizes the Zoning Enforcement Officer to change or amend a Conditional Use Permit which has been issued by the [Town] under the Town Ordinance.” Accordingly, the Board ordered Mr. Smith to remove his unauthorized non-conforming structures.
    On 11 December 2001, the Superior Court granted Mr. Smith's petition for a writ of certiorari. On 4 April 2002, the court heard arguments of counsel, reviewed the record, and affirmed the Board's decision. From that decision, Mr. Smith appeals.
    Fundamentally, Mr. Smith contends the trial court committed prejudicial error by upholding the Board's determination that the Zoning Enforcement Officer did not have the authority to amend orchange conditional use permits granted under the County Ordinance. He relies upon Section 14.8 of the Town Ordinance which provides:
        Any conditional use permit so authorized shall be perpetually binding to the property included in such permit unless subsequently changed or amended by the Town Council. However, minor changes in the detail of the approved application which . . . will not increase the gross floor area of any non- residential use by the smaller of ten (10) percent or ten thousand (10,000) square feet . . . may be made with the approval of the Zoning Enforcement Officer. . . .

Accordingly, Mr. Smith argues that the clear language of the Town Ordinance gives the Zoning Enforcement Officer the discretionary power to amend conditional use permits. We disagree.
    We note, at the onset, that Mr. Smith's argument appears to be moot. “Whenever, during the course of litigation it develops that the relief sought has been granted, or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law.” In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978). Here, Mr. Smith argues that the Zoning Enforcement Officer had the discretion to amend or change his conditional use permit. However, the Zoning Enforcement Officer never exercised this discretion, and, on and before the present appeal, the Officer has stated that he would not use his discretion, if any, to allow an extension of Mr. Smith's permit. Accordingly, even if we were to set aside the Superior Court order, the relief requested by Mr. Smith appears to be unavailable.    Moreover, even assuming this matter is not moot, Mr. Smith's interpretation of the Town Ordinance is erroneous. Although the Zoning Enforcement Officer is granted discretion to amend or change conditional use permits issued “by the Town Council,” Mr. Smith was issued a conditional use permit by the County. Upon the enactment of the Town Ordinance, all existing conditional use permits issued by the County pursuant to the County Ordinance were transformed into either conforming or non-conforming situations under the Town Ordinance. Thus, Mr. Smith's conditional use permit was transformed into a “non-conforming situation” regulated by Section 10 of the Town Ordinance. Under this section, Mr. Smith's “non- conforming situation, that [was] otherwise lawful on the effective date of [the Town Ordinance could] be continued, subject to the restrictions and qualifications set forth in” the subsections of Section 10. Of relevance to the case sub judice, Section 10.4(5) provides that:
        Physical alteration of Non-conforming Structure or Structures containing Non- conforming Use is unlawful if it results in (a) an increase in the total amount of space devoted to Non-conforming use . . . (c) the enclosure of previously unenclosed areas, even though those areas are or were used in connection with the non-conforming activity.

Here, the record reveals that Mr. Smith's physical alterations increased the total area devoted to non-conforming use and enclosed areas dedicated to non-conforming use. Accordingly, neither the Zoning Enforcement Officer, the Board, nor the trial court erred in determining that the Zoning Enforcement Officer lacked the authority to amend or change Smith's conditional use permit issuedby the County under the County Ordinance. Instead, the plain language of the statute clearly relegated Smith's conditional use permit, issued on the County's authority, to a non-conforming use when the Town Ordinance took legal effect. Therefore, this assignment of error is overruled.
    Mr. Smith next contends the trial Court committed reversible error by denying his motion for a continuance because the appellee supplemented the record three days before the hearing. He argues the supplemented pages caused him to be unprepared for the hearing.     “The decision to grant or deny a continuance is subject to the trial court's discretion, and will not be overturned absent an abuse of that discretion.” Barker Indus. v. Robin O. Gould, 146 N.C. App. 561, 563, 553 S.E.2d 227, 229 (2001) (citing State v. Call, 353 N.C. 400, 415, 545 S.E.2d 190, 200 (2001)). “An abuse of discretion is a decision manifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision.” Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998).
    In this case, Mr. Smith fails to show that the supplemented record prejudiced his legal position. Furthermore, the record reveals that the trial court did give Mr. Smith an additional four hours to prepare for the hearing. Consequently, we find no error.
    Mr. Smith next contends the trial court erred “by not concluding that the Board of Adjustment had not made sufficient findings of fact in its order.” However, in his brief, Mr. Smith addresses the trial court's failure to make findings of fact ratherthan the Board's failure.   (See footnote 2)  Specifically, Mr. Smith notes language in the trial court's order that: “After considering arguments from counsel . . . it appears to the Court as follows.” Based upon the word “appears”, Mr. Smith argues the “Court did not make any findings of fact” as required. This argument is without merit.
    In this case, the trial court was sitting as an appellate court rather than as a finder of fact. See Coastal Ready-Mix Co., Inc. v. Nags Head, 299 N.C. at 626-27, 265 S.E.2d at 383 (“In proceedings of this nature, the superior court is not the trier of fact. Such is the function of the town board.”); N.C. Gen. Stat. § 160A-388(e). Accordingly, this assignment of error is overruled.
    After carefully reviewing Smith's remaining assignments of error, we find that they are without merit.
    Judges McCCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
    In fact, Smith received a permit entitled a “special use permit.” However, our Supreme Court has made it clear that the terms “special use permit” and “conditional use permit” are to be used interchangeably. Coastal Ready-Mix Concrete Co., Inc. v. Board of Commissioners, 299 N.C. 620, 622, 270 S.E.2d 379, 381 (1980).
Footnote: 2
    Notably, the Board's findings of fact were detailed and extensive.

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