North Carolina Grandfathered Zoning Nonconforming Uses

The general rule in North Carolina is that, if a landowner is using land in a certain way prior to the enactment of a zoning ordinance, then the prior use may continue even if the new zoning laws do not allow for the prior use. Examples might be use of the land for business operations in a newly zoned residential area or the existence of certain buildings that are no longer allowed by dimension or lot placement. These prior uses are "grandfathered," but are, at the same time, deemed to be nonconforming. Further, the general rule is that such grandfathered nonconforming uses must essentially remain static (although there are exceptions, and the specific rules will depend on the language in the local zoning ordinance).

A good example comes from the case of Whitehurst v. Alexander County, Case No. COA15-265 (NC Court of Appeals February 2, 2016) (unpublished). In that case, William Sipes owned a 1.5-acre tract of land on Fisherman's Cove Lane in Taylorsville, North Carolina. In 1982, Sipes began using his property to operate a business for repairing watercraft engines and boats. Part of his business involved the storage of boats, equipment, salvage parts and scrap metal.

In 2000, Jeffery Whitehurst bought the adjacent property for a residence. At the time of purchase, a line of pine trees, shrubbery and vegetation located on Sipes' land obstructed Whitehurst's view of the boats, equipment, scrap metal and salvage parts located on Sipes' property.

In 2001, the Alexander County Board of Commissioners enacted a countywide zoning plan that zoned the properties located on Fisherman's Cove Lane for exclusive residential use. However, since Sipes' boat repair business was a preexisting commercial enterprise, his use was grandfathered, but became a nonconforming use of property. The new zoning ordinance allowed Sipes to continue is nonconforming use as long as it was not "enlarged or extended" in any way.

After enactment of the zoning ordinance, Sipes constructed structures with awnings that covered areas where he previously parked boats. Sipes also increased the number of boats, equipment and salvage parts located on his property. Finally, Sipes cleared the line of pine trees and brush that obstructed Whitehurst's view of the boats and materials stored on Sipes' land.

Whitehurst was presumably unhappy and reported Sipes to the zoning enforcement department claiming that Sipes had expanded his nonconforming business use. A violation of zoning citation was issued which Sipes appealed to the Zoning Board. After a hearing, the Board ruled in favor of Sipes concluding that he had not "enlarged or extended" his business.

Whitehurst appealed the Board's decision to the local Superior Court by filing a petition for writ of certiorari and a complaint for a declaratory judgment. The Superior Court agreed with the Board and denied Whitehurst any relief. Whitehurst then appealed to the North Carolina Court of Appeals which agreed with the Superior Court and affirmed the Board's decision.

In so holding, the Court of Appeals held that the Board had made its decision based on substantial evidence. For example, the Board had reviewed aerial photographs from before the enactment of the ordinance and after. The Board also made specific findings including the fact that, although Sipes had added new buildings, they were located in areas of the property where his boat repair operations had historically been located. As another example, the Board found that removing the pine trees was not relevant to the issue since no boats, equipment or scrap was subsequently stored or placed in those areas. Whitehurst also claimed that Sipes had expanded his business by accumulating a pile of scrap aluminum. But the Board found that Sipes had historically stored scrap metal on his property and that the scrap pile of aluminum was not different from other piles of scrap metal. The Board also made a finding that there was no evidence of an increase in the traffic volumes, air pollution, water pollution, noise pollution, disruptions to the neighborhood or adverse effects on the health, safety, or welfare of the residents of the area.

In reviewing the record, the Court of Appeals affirmed the Board's decision. Sipes' boat repair business was a nonconforming use that was grandfathered because it preexisted the 2001 zoning ordinance. Further, the court deferred to the Board's decision to deem Sipes' changes to his property to not be violations of the ordinance. The court held this to be a proper exercise of the Board's discretionary authority.

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For more information, and to schedule a confidential consultation with experienced and dedicated zoning and land use attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning and condemnation legal matters in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.