In re W. P. Rose Builders Supply Co., 202 N.C. 496 (1932)

April 6, 1932 · Supreme Court of North Carolina

202 N.C. 496

In the Matter of Appeal of W. P. ROSE BUILDERS SUPPLY COMPANY; A. T. GRIFFIN MANUFACTURING COMPANY; GEORGE S. DEWEY, Trading as DEWEY BROTHERS; BROWN PAVING COMPANY, and JAMES E. BRYAN.

(Filed 6 April, 1932.)

1. Municipal Corporations H a — Rules for construction of municipal ordinances.

In construing an ordinance the language used will be interpreted in tbe light of surrounding circumstances and tbe words employed will be given tbeir ordinary meaning and significance, and in tbis case involving tbe interpretation of a clause in a zoning ordinance exempting from its operation buildings started witbin ninety days under permits previously granted, tbe word “started” is beld to mean “commenced” or “begun.”

3. Municipal Corporations H b — Whether property in this case came within exemption in zoning ordinance held question for jury.

Where a municipal zoning ordinance divides a city into zones and prescribes uniform regulations as to buildings in tbe respective zones, but provides that it shall not affect buildings for which permits bad been issued prior to its enactment if work under such permits was started within ninety days after tbe operative date of tbe ordinance: Helé, where a permit for a filling station is granted prior to tbe enactment of tbe ordinance and tbe owner, in good faith, before tbe expiration of tbe ninety days, places filling station equipment and supplies on tbe premises with tbe intention of operating tbe station in conformity with tbe authority previously given: Helé, whether tbe filling station bad been started as contemplated in tbe exemptive clause of tbe ordinance is a question for tbe jury, and it may not be decided as a matter of law, and tbe fact that tbe city board of adjustment was clothed with certain discretionáry powers does not affect tbe owner’s rights under tbe ordinance.

3. Same — Exemptions in zoning ordinances should be construed in favor of property owners.

Zoning ordinances are in derogation of tbe right of private property, and where exemptions appear in favor of tbe property owner, they should be liberally construed in favor of such owner.

Civil actioN, before Crammer, J., at August Mixed Term, 1931, of WayNE.

Tbe plaintiffs are tbe owners of a brick building on tbe corner of George and Walnut streets in tbe city of Goldsboro, wbicb was constructed during tbe latter part of 1928 and tbe early part of 1929 as a Union Bus Station and cafeteria. Tbis building became vacant in December, 1929. On 2 December, 1929, tbe owners of tbe building appeared before tbe board of aldermen of tbe city of Goldsboro and asked for a permit “to install two gas pumps in tbe present Union Bus Station.” Tbe minutes of tbe board show tbe following witb respect to sucb request: “After some discussion, upon motion of Alderman Waters, duly seconded, this location was exempted from the restricted district, and permit was granted, such installation to be in conformity witb' ordinances governing filling stations.” On 21 July, 1930, tbe board of aider-men of the city of Goldsboro duly adopted a zoning ordinance, which became effective on 15 August, 1930. This ordinance divided the city into five zones, and the property of plaintiffs was included in zone 1. In this zone no building was to be constructed or used “for any industrial or manufacturing purposes except retail stores, tailor shops,” etc. It was further provided that “no building or land in zone 1 shall be used for any trade or industry that is noxious or offensive by reason of emission of odor, dust, smoke, gas fumes, vibration or noise.”

Section 14 of the zoning ordinance in part provides: “It is not intended by this ordinance to repeal, abrogate, annul or in any way to impair or interfere with any existing provisions of law or ordinance, or any rules, regulations or permits previously adopted or issued or which shall be adopted or issued pursuant to law relating to the use or construction of building or premises.” Section 17 of said zoning ordinance provides: “Nothing herein contained shall require any change in the plans, construction, size or designated use of any building, structure or part thereof for which a building permit has been granted by the building inspector before this ordinance becomes effective and the construction of which from such plans shall have been started within 90 days after this ordinance becomes effective,” etc.

The building inspector of the city of Goldsboro refused to grant to the plaintiffs a permit for the installation of gasoline pumps and other filling station equipment in said building. The city brought a suit to restrain the owners from completing the gasoline filling station, and from the judgment rendered both parties appealed to the Supreme Court. This cause is reported in 200 N. C., 405, 157 S. E., 58. Thereafter the matter was heard by the board of adjustment, which rendered its decision in June, 1931. Said board found the following facts: “(a) That prior to the adoption of the zoning ordinance of the city of Golds-boro the owners of said property applied to the board of aldermen of the city of Goldsboro for permission to install two gasoline tanks on the premises, and the board of aldermen of the city of Goldsboro voted favorably on this application; (b) that after the adoption of the zoning-ordinance a city official advised the owners of said property that if the property owners should act upon this authority of the board within ninety days from the effective date of the zoning law that they would not have to apply for a building permit; (c) that the only attempt of the owners of the property to act under whatever authority was granted by tbe board o£ aldermen, witbin 90 days from tbe effective date of tbe zoning law, was to placel in tbe building on tbe premises goods to be sold but of a'filling station and grease dispenser; (d) tbat a filling station cannot be operated in 'Zone 1 Business’ of tbe city of Goldsboro unless it comes witbin tbe exceptions set forth in said ordinance, wbicb do not apply to tbe premises in question.”

Thereupon tbe board of adjustment voted three to two approving tbe refusal of tbe building inspector to grant a permit. Tbe plaintiffs by certiorari, appealed from tbe order of tbe board of adjustment to tbe Superior Court. Many affidavits were filed, and after bearing tbe pleadings and affidavits, tbe trial judge, after considering tbe entire case, was “of tbe opinion tbat tbe decision of tbe board of adjustment is in all respects proper, and tbat each of tbe grounds of error set out in tbe petition for writ of certiorari should be disallowed and overruled.”

From tbe foregoing judgment plaintiffs appealed.

Kermeth 0. Boyall and Andrew 0. McIntosh for plaintiffs.

D. G. Humphrey, J. F. Thomson and Dickinson & Freeman for city of Goldsboro.

Beogden, J.

Tbe plaintiffs assert:

1. Tbat tbe zoning ordinance is unconstitutional.

2. Tbat tbe property owned by them is exempted from tbe operation of tbe ordinance.

Tbe last utterance of this Court upon zoning ordinances is contained in Elizabeth City v. Aydlett, 201 N. C., 602. In this case tbe philosophy of zoning ordinances is expounded and applied. All tbe usual grounds of assault upon tbe zoning theory were discussed with abundant citation of supporting authority. Moreover, tbe opinion draws a clear line of demarcation between tbe principles of law applicable to tbe zoning-ordinance of Goldsboro and those governing cases similar to Clinton v. Oil Co., 193 N. C., 432, 137 S. E., 183; MacRae v. Fayetteville, 198 N. C., 51, 150 S. E., 628, .and others of like import. It is deemed unnecessary to decide tbe constitutionality of tbe entire zoning ordinance upon tbe particular facts imesented by this record, if, as a matter of fact, tbe property of plaintiffs is exempt from tbe operation of tbe ordinance by tbe terms thereof. Hence, tbe inquiry arises: Are tbe restrictions of tbe zoning ordinance applicable to tbe property of plaintiffs upon tbe facts disclosed?

On 2 December, 1929, before tbe zoning ordinance became effective, tbe board of aldermen of tbe city of Goldsboro excepted tbe property of plaintiffs from tbe restricted district and granted a permit to install “two gas pumps in the present Union Eus Station.” The zoning ordinance became effective on 15 August, 1930, and the plaintiffs had 90 days from said date, under section 17 of the ordinance, to act upon the permit theretofore granted by the city. On 11 November, three days before the expiration of the time limit, plaintiffs placed upon the. premises “a grease dispenser and goods to be sold out of a filling station.” It will be observed that section 17 of the ordinance uses the expression: “And the construction of which from such plans shall have been started within 90 days after this ordinance becomes effective.” The plaintiffs' contend that the placing of a grease dispenser and certain merchandise upon the premises constituted “construction . . . started.” In other words, if plaintiffs had a permit to use the property for a certain purpose and placed upon the premises, in good faith, goods and equipment essential to such purpose, does such act bring them within the exemption of section 17 in the sense that the construction has started, or to compress the question in a smaller compass, when does construction start ?

Manifestly, it serves no useful purpose to pick words to pieces and put them under a microscope in order to develop or disclose occult and. peculiar meaning. The law is disposed to interpret language in the light of surrounding circumstances and. to give to words their ordinary meaning and significance. The word “started” used in section 17, interpreted in its setting, is doubtless synonymous with commence or begin. In Words & Phrases, First Series, Yol. 2, it is said: “The commencement” of a building within the mechanic’s lien law, is the doing of some act upon the ground on which the building is to be erected, and in pursuance of a design to erect, the result of which act would make known to a person viewing the premises, from observation alone,-that the erection of a building on that land had been commenced. Work done in breaking the ground for a cellar is a commencement of a building, because it must have changed the appearance of the ground so as to show the purpose of the work.

Courts are divided upon the question as to whether the placing of material upon a building site is a commencement of the building. The Texas Court in Terry et al. v. Texas Co., 228 Southwestern, 1019, held that the placing of timbers for the erection of a derrick and machinery, including boiler, on the ground where an oil well was to be drilled, complied with the provisions requiring a person “to commence to drill,” a well within a certain period. The Iowa Court in Graw v. Manning, 7 N. W., 150, discussed the meaning of the word “started.” The statute in question provided in substance that if a debtor “started to leave the state” his property exemption was restricted to wearing apparel. The Court in discussing the meaning of the word “started,” said 'that it “does not mean tbe actual setting out on a journey, but means tbe commencement of tbe enterprise or undertaking; and one wbo bad placed bis wagon close to tbe bouse ready to be loaded witb goods and a part of tbe goods were placed in boxes out of tbe bouse and tbe appearance in tbe bouse indicated a state of preparation for moving will be deemed to bave 'started’ to remove from tbe state.”

So, in tbe present case, if tbe plaintiffs, in good faitb, and in pursuance of a permit granted from tbe city of Goldsboro, bad placed filling station equipment and supplies upon tbe premises witb tbe intention of operating sucb station in full conformity witb tbe authority previously granted, then it cannot be said, as a matter of law, that tbe construction bad not started before tbe expiration of tbe time limit.

Zoning ordinances are in derogation of tbe right of private property, and where exemptions appear in favor of the property owner, they should be liberally construed in favor of sucb owner. Furthermore, it is to be noted that filling stations eo nomine are not expressly excluded from zone 1.

While tbe board of adjustment is clothed witb certain power and discretion in determining questions affecting tbe administration of zoning ordinances, nevertheless in tbe case at bar, tbe controversy involves tbe inquiry as to whether under tbe facts and circumstances tbe zoning ordinance precludes tbe plaintiffs from installing tbe gas pumps in accordance witb tbe permit from tbe city.

Tbe plaintiffs contend that prior to tbe effective date of tbe ordinance they bad started or begun tbe installation of tbe gas pumps in good faitb. Tbe city denies sucb contention.

Thus, an issue of fact is produced for tbe determination of a jury.

Reversed.