dissenting.
I cannot concur in the majority opinion. The majority states that because the $400,000 grain facility did not exist on 2 June 1975, when the zoning law was effective, or on 23 November 1980, when the owners’ property was rezoned to H-I, it cannot be a nonconforming use. This narrow interpretation of the zoning law overlooks basic legal principles and in effect leaves the landowners without a remedy, and defeats the interests of the people of Union County as expressed by their zoning board of adjustment.
When the county commissioners rezoned the subject property to H-I, heavy industrial, on 23 November 1980, the landowners had a right to rely upon the validity of the ordinance. They were not obligated to delay the lawful use of their property until the uncertain conclusion of a lawsuit on 1 March 1983, more than two years after the rezoning.
*69Amendments to zoning ordinances are presumed to be valid, and parties who assert their invalidity bear the burden of proof. Allgood v. Town of Tarboro, 281 N.C. 430, 189 S.E. 2d 255 (1972); Heaton v. City of Charlotte, 277 N.C. 506, 178 S.E. 2d 352 (1971). Having a valid building permit based upon a valid amendment to the zoning ordinance, the owners in good faith constructed a grain storage facility upon the property, at a cost in excess of $400,000.
The decision of the Court of Appeals declaring the amendment to the zoning ordinance to be null and void had the effect of rezoning the subject property to R-20. While it is true that the courts do not have the authority to zone real property, the action of the Court of Appeals in this case had that effect. Otherwise, the bizarre result would obtain whereby the subject property would be free of all zoning restrictions. As the majority states, the result of the order was that “the entire tract remained subject to the original R-20” zoning.
I can see no difference in the result reached, whether the property is rezoned by the county or whether the decision of the Court of Appeals resulted in a change in the zoning of the property. By either means the H-I zoning was eliminated and the owners’ present utilization of the property was recognized by the zoning board of adjustment as a valid nonconforming use.
Under the facts of this case, in determining that the landowners were entitled to a nonconforming use permit under the ordinance, the Board necessarily had to find that the issuance of the permit was valid under the “vested rights” doctrine.
The issuance of the building permit alone created no vested right; it merely authorized the owners to act. But where the owners in good faith exercised their privilege granted by the permit at a time when the act was lawful, they will be protected. Warner v. W & O, Inc., 263 N.C. 37, 138 S.E. 2d 782 (1964).
The law accords protection to nonconforming users who, relying on the authorization given them, have made substantial expenditures in an honest belief that the project would not violate declared public policy. It does not protect one who makes expenditures with knowledge that the expenditures are made for a purpose declared unlawful by duly enacted ordinance.
Id. at 43, 138 S.E. 2d at 786-87.
*70This Court also held:
It is the rule in this State that the issuance of a building permit, to which the permittee is entitled under the existing ordinance, creates no vested right to build contrary to the provisions of a subsequently enacted zoning ordinance, unless the permittee, acting in good faith, has made substantial expenditures in reliance upon the permit at a time when they did not violate declared public policy. . . . When, at the time a builder obtains a permit, he has knowledge of a pending ordinance which would make the authorized construction a nonconforming use and thereafter hurriedly makes expenditures in an attempt to acquire a vested right before the law can be changed, he does not act in good faith and acquires no rights under the permit.
Keiger v. Board of Adjustment, 281 N.C. 715, 719, 190 S.E. 2d 175, 178 (1972) (citations omitted). In so holding, this Court implicitly recognized that the substantial economic value of the improvement to the property justifies the continued existence of the facility as a nonconforming use.
Here, there is no evidence that the owners did not act in good faith. The owners were issued the building permit prior to the institution of the declaratory judgment action seeking to invalidate the amendment to the zoning ordinance. The construction of the grain storage facility was completed in May 1981, seven months before the decision of the superior court and almost two years before the filing of the Court of Appeals decision, 1 March 1983, that declared the amendment to be null and void. It is to be noted that the Court of Appeals did not declare that the amendment was void ab initio, but accorded the amendment its proper presumption of validity and affirmed the judgment of the trial court “that the rezoning ... is declared null and void and of no effect.” Godfrey v. Union Co. Bd. of Commissioners, 61 N.C. App. 100, 103, 300 S.E. 2d 273, 275 (1983).
Certainly, the facility itself and the expenditure of at least $400,000 is substantial in amount. The owners had no way to predict whether the lawsuit would be pursued to judgment, much less what the outcome of the case would be.
Plaintiffs could have protected their interests in the declaratory judgment action by obtaining an injunction prohibiting the *71owners from constructing pursuant to their building permit. A concomitant bond would have protected the rights of the owners, who were parties to the declaratory judgment action. By so doing, the present litigation probably would not have been necessary.
I conclude that the facts of this appeal are within the holding of this Court in Town of Hillsborough v. Smith, in which Justice Lake, speaking for the Court, stated:
We, therefore, hold that one who, in good faith and in reliance upon a permit lawfully issued to him, makes expenditures or incurs contractual obligations, substantial in amount, incidental to or as part of the acquisition of the building site or the construction or equipment of the proposed building for the proposed use authorized by the permit, may not be deprived of his right to continue such construction and use by the revocation of such permit, whether the revocation be by the enactment of an otherwise valid zoning ordinance or by other means ....
276 N.C. 48, 55, 170 S.E. 2d 904, 909 (1969) (emphasis added). I submit that “by other means” includes the changing of a zoning ordinance by court action, such as occurred in our case. The court action caused a change in the zoning ordinance of Union County to the same effect and degree as would be done by an amendment to the ordinance.
The majority refuses to address the “vested rights” issue, arguing that it is not properly before us. All parties relied upon and argued the issue. The board of adjustment did indeed consider the “vested rights” doctrine without referring to it by name. The Board found: “That subsequent to said rezoning [to H-I] the then owner obtained a building permit and constructed on the site a grain storage and transfer facility and the offices that go with it at considerable expense.” In affirming the decision of the Board, the superior court approved this finding. The issue was then squarely presented to the Court of Appeals and this Court. Under these circumstances, I find that the “vested rights” issue has been properly presented to this Court by the parties and that we should resolve it.
Although the majority holds that the Court of Appeals erred in addressing the “vested rights” issue, it devotes four and one-*72half pages to a discussion of the doctrine. My Brother Meyer thereafter includes a three-page footnote analyzing the issue with respect to this appeal and predicting that if the issue “is litigated,” it will probably be determined in the plaintiffs’ favor. It thus appears that the majority has in effect decided the “vested rights” issue, all the while denying the propriety of such action.
The zoning board of adjustment held that the owners’ use of the property was a nonconforming use and was entitled to continuation under the zoning ordinance of Union County. The superior court and the Court of Appeals affirmed this holding. I vote to affirm the decision of the Court of Appeals and allow this nonconforming use to continue.