concurring in part and dissenting in part.
I concur in the result reached by the majority in parts I, IIB, and IIC of their opinion. I respectfully dissent from part IIA of the majority’s opinion as I would hold that petitioners’ actual use of the Wood-Mizer portable band saw does not violate the Zoning Ordinance.
IIA.
Petitioners argue that the Board’s decision was not supported by competent evidence, and is arbitrary and capricious. I agree. Section 19-6 of the Zoning Ordinance defines the term “accessory use”:
Accessory use or structure: A use or structure on the same lot with, and of a nature customarily incidental and subordinate to, the principal use or structure (i.e. pump house, home occupation, tool shed, detached garage, storage shed, garage apartment, and other uses as determined by the Code Enforcement Officer).
*711All of the evidence presented shows that petitioners used the Wood-Mizer saw for non-commercial and non-industrial purposes, as well as for the construction of a fully permitted hobby woodworking shop to be located on their property.
I disagree with the majority that because the saw is powered by a forty-horsepower diesel engine; is twenty-six feet four inches in length, six feet six inches -wide, seven feet seven inches high; includes the use of a trailer, backhoe, front-end loader, and dump truck; and is capable of cutting logs twenty-one feet long by three inches in diameter automatically converts the use of the Wood-Mizer saw into an industrial use or involves a manufacturing process. Adopting the reasoning of the majority would allow the City to prohibit petitioners’ private automobile, with a 200 horsepower engine and a twenty gallon gas tank, because it could be used as a commercial taxicab.
Construction necessarily requires heavy equipment to complete the improvements, such as bulldozers, dump trucks, and front-end loaders for clearing and grading of the land, as well as cranes to set trusses on the structure. Here, the record shows that the backhoe, front-end loader, and dump truck were also legally located on petitioners’ 3.2 acre tract, as petitioners legally operate a well drilling business on their property. The Board’s and majority’s focus is solely on the size and possible uses of the saw, not its actual use by petitioners. Their assertions are insufficient to prohibit petitioners’ nonindustrial use of their saw.
The conclusion of the Board that “[t]he use of the sawmill on the Dobo property is not a permitted use during the construction of the accessory structure on the property” is not supported by substantial, competent evidence. There is no evidence in the record that petitioners’ use of the Wood-Mizer saw to construct a fully permitted woodworking hobby shop is not a permitted use during construction. Testimony by the Code Enforcement Officer that the use of the saw would not be customary is speculative as he further testified that he does not enforce the building code. See C. C. & J. Enter., Inc. v. City of Asheville, 132 N.C. App. 550, 553, 512 S.E.2d 766, 769, disc. review improvidently allowed, 351 N.C. 97, 521 S.E.2d 117 (1999) (speculative assertions or mere expression of opinion about the possible effects of granting a permit are insufficient to support the findings of a quasi-judicial body).
This Court in Tucker v. The Mecklenburg Cty. Zoning Bd. of Adjust., 148 N.C. App. 52, 557 S.E.2d 631 (2001), addressed a similar *712issue involving the operation of a dog kennel by respondents on their residentially zoned property. The zoning ordinance in Tucker permitted the operation of a private kennel as an accessory use and prohibited the operation of a commercial kennel. While in all respects the kennel operated by respondents could have been used as a commercial kennel, the Board of Adjustment found that because the dogs were adopted and not sold, the kennel was not a commercial kennel but a private kennel permitted as an accessory use under the zoning ordinance. Id. at 57, 557 S.E.2d at 635-36. This Court agreed and reversed the trial court’s order finding the kennel to be a commercial kennel in violation of the zoning ordinance. Id. at 60, 557 S.E.2d at 636.
Here, the evidence clearly establishes that petitioners used the saw primarily for the construction of a permitted and allowed hobby woodworking shop behind their home and occasionally for the cutting of lumber for friends without charge. There is no evidence that the actual use of the saw by petitioners is for industrial or manufacturing purposes nor that it is not “of a nature that is customarily incidental and subordinate to” the residential use of their property. The actual use of the saw in this case is an accessory use and does not violate the Zoning Ordinance. Counsel for respondent conceded that the construction of the hobby shop is fully permitted and is an allowed accessory use of petitioners’ residentially zoned property. Accordingly, I would hold that the Board’s decision was not supported by substantial, competent evidence and was arbitrary and capricious.
Petitioners argue that if we scratch the surface facts, it is readily apparent that this action is a thinly veiled attempt by the residents of the adjoining subdivision to impose de facto restrictive covenants onto petitioners’ property that were never bargained for nor agreed to by petitioners.
The general rule is that a zoning ordinance, being in derogation of common law property rights, should be construed in favor of the free use of property. See Yancey v. Heafner, 268 N.C. 263, 266, 150 S.E.2d 440, 443 (1966); City of Sanford v. Dandy Signs, Inc., 62 N.C. App. 568, 569, 303 S.E.2d 228, 230 (1983). Zoning regulations are not a substitute for private restrictive covenants. If the subdivision residents believe that petitioners’ use of their property is unreasonable, their remedy is an action in nuisance, not to enlist the City as an accomplice by incessant complaints about their neighbor.
*713The record shows that petitioners have owned, used, and lived on their property for half a century. The recent addition of an exclusive, walled, and gated subdivision on adjoining property does not convert petitioners’ lawful use into an illegal one, simply because petitioners’ use is inconsistent with the permitted uses -within the adjoining subdivision.
Purchasers of lots in a subdivision development, located in formerly rural areas that are rapidly urbanizing, have the duty to inform themselves of uses on adjoining, but unrestricted, property that may not compliment the restrictions and uses that subdivision residents privately covenant among themselves and that apply solely within the confines of their development.
Petitioners further object to the irrelevant statements made by the adjoining neighbors to the Board as to noise and smell from petitioners’ property, burning by petitioners on their property, and junk on petitioners’ property. The record clearly shows and counsel for respondent conceded that despite numerous visits to petitioners’ property, no violation of the penal noise ordinance was found or other ordinances. While there is no indication that the Board’s decision was based on this testimony, speculative opinions such as these fail to constitute substantial competent evidence to support a finding that the petitioners’ use was not an accessory use. See C.C. & J., 132 N.C. App. at 553, 512 S.E.2d at 769. There is no competent evidence in the record that petitioners’ actual use of the Wood-Mizer saw did not constitute an accessory use under the Zoning Ordinance. I would reverse the superior court’s order, affirming the 3-2 decision of the Board, and dissent from part IIA of the majority’s opinion.