In Re Appeal of O'Neal , 243 N.C. 714 ( 1956 )

92 S.E.2d 189 (1956) 243 N.C. 714

Application and Appeal of W. B. O'NEAL and Alice O'Neal Cook, Before the Board of Adjustment of the Zoning Ordinance of the City of Charlotte, North Carolina.

No. 241.

Supreme Court of North Carolina.

April 11, 1956.

David Craig, Jr., Charlotte, for petitioners, appellants.

John D. Shaw, Charlotte, for respondents, appellees.

BOBBITT, Justice.

The original zoning power of the State reposes in the General Assembly. Marren v. Gamble, 237 N.C. 680, 75 S.E.2d 880. It has delegated this power to the "legislative body" of municipal corporations. G.S. § 160-172 et seq. Within the limit of the power so delegated, the municipality exercises the police power of the State. City of Raleigh v. Fisher, 232 N.C. 629, 61 S.E.2d 897. Zoning ordinances are upheld when, but only when, they bear a "substantial relation to the public health, safety, morals, or general welfare." Euclid, Ohio, v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 121, 71 L. Ed. 303, 54 A.L.R. 1016; Nectow v. City of Cambridge, 277 U.S. 183, 48 S. Ct. 447, 72 L. Ed. 842; State of Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 49 S. Ct. 50, 73 L. Ed. 210, 86 A.L.R. 654.

The power to zone, conferred upon the "legislative body" of a municipality, is subject to the limitations of the enabling act. Marren v. Gamble, supra, State v. Owen, 242 N.C. 525, 88 S.E.2d 832. The "legislative body" of a municipality cannot delegate such power to a board of adjustment or to a zoning commission. James v. Sutton, 229 N.C. 515, 50 S.E.2d 300; Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128, 168 A.L.R. 1; Harrington & Co. v. Renner, 236 N.C. 321, 72 S.E.2d 838. Hence, a board of adjustment may not "permit a type of business or building prohibited by the ordinance, for to do so would be an amendment of the law and not a variance of its regulations." Lee v. Board of Adjustment, supra [226 N.C. 107, 37 S.E.2d 132], and cases cited.

The 1951 zoning ordinance of the City of Charlotte, hereafter called the 1951 ordinance, specifies the Uses Permitted in each of the several districts or zones. Any use not permitted, expressly or impliedly, is a violation thereof; and such violation is a misdemeanor. By express provision, a nursing home is a permitted use in a Residence 2 District. It is not a permitted use in a Residence 1 District.

Petitioners' property, located in a Residence 1 District, has been operated as a nursing home in violation of the zoning ordinance unless they were lawfully entitled to continue such non-conforming use by reason of the exemption set forth in the 1951 ordinance under the caption, "Section IX—Non-Conforming Uses," which provides:

"The lawful use of any building or land existing at the time of the adoption of this ordinance may be continued, but not enlarged or extended although the use of such building or land does not conform to the regulations of the district in which such use is maintained. An existing non-conforming use of a building or premises may be changed to another non-conforming use of the same or higher classification, but may not at any time be changed to use of a lower classification.

"No non-conforming use may be reestablished in any building or on any premises where such non-conforming use has been discontinued for a period of one year.

"Any non-conforming building or structure damaged by fire, explosion, flood, riot or act of God may be reconstructed and used as before any such calamity, provided such reconstruction takes place within one year of the calamity."

Our task is to construe the quoted provision of the 1951 ordinance as applied to the factual situation here presented. Our chief concern is to ascertain the legislative intent. City of Greensboro v. Smith, 241 N.C. 363, 85 S.E.2d 292. The rules applicable to statutes apply equally to the construction and interpretation of an ordinance adopted by the "legislative body" of a municipality. Yokley, Zoning Law and Practice, Second Edition, sec. 184.

Unpopularity, harshness and doubtful constitutionality of an ordinance, absent such provision, ordinarily prompt the inclusion of some provision in such ordinances permitting the continuance of a non-conforming use. Yokley, op. cit., sec. 50.

We agree with the contention of appellees that the two-story frame building when operated by petitioners as the Hillcrest Manor Nursing Home must be considered an institutional building and that when so considered it does not comply with the requirements of the 1936 North Carolina Building Code. It is noted that the 1936 North Carolina Building Code, by reason of its ratification and adoption by Ch. 280, Public Laws of 1941, has the force of law. See opinion of Parker, J., in Lutz Industries, Inc., v. Dixie Home Stores, 242 N.C. 332, 88 S.E.2d 333. Moreover, misapprehension as to the applicability of the 1936 North Carolina Building Code and delay in its enforcement does not bar enforcement of its requirements now. See City of Raleigh v. Fisher, supra. Indeed, the fact that the said building code provisions can be enforced now is the cause of petitioners' dilemma. If this were not so, petitioners could continue operation of Hillcrest Manor Nursing Home as in the past.

Even so, we are inclined to the view that the City Council, by the words "lawful use" in Section IX of the 1951 ordinance, had reference only to the provisions of the prior zoning ordinance or ordinances of the City of Charlotte.

The subject matter of the 1951 ordinance is zoning, nothing else. Section IX, dealing with Non-Conforming Uses, concerns nonconforming uses in respect of zoning, not in respect of provisions of a building code, State or local. If the use of the building or land was or is unlawful as violative of any statute or ordinance dealing with a different subject matter, such use may be prohibited under the terms of such other statute or ordinance.

Section IX of the 1951 ordinance, as we construe it, applies if, at the time of the adoption of said ordinance, the use then being made of the building or land was non-conforming in respect of the zoning regulations then enacted but lawful in respect of zoning regulations, if any, theretofore in force. Hence petitioners are entitled to the rights under Section IX of the 1951 ordinance of those whose non-conforming use of buildings or lands was lawful in respect of zoning regulations at the time of the adoption of said ordinance. See City of Raleigh v. Fisher, supra [232 N.C. 629, 61 S.E.2d 899], where the 1944 ordinance provision permitting "``continuance of any use of land or buildings which now legally exists'" afforded no protection to property owners then using their property in violation of the provisions of the prior zoning ordinance.

Under Section IX of the 1951 ordinance, petitioners' use of their building and land "may be continued, but not enlarged or extended although the use * * * does not conform to the regulations of the district in which such use is maintained." Appellees contend that Section IX does not permit new construction. Thus, the argument runs, since petitioners cannot comply with the requirements of the 1936 North Carolina Building Code without new construction, either by way of reconstructing the present building or by constructing a new building, the benefits of Section IX are not available to them. We are inclined to the view that, as applied to the factual situation here presented, this interpretation goes beyond the intention of the lawmaking body.

"We believe it may best be said that zoning serves a two-fold purpose—one, to preserve the true character of a neighborhood by excluding new uses and structures prejudicial to the restricted purposes of the area, and gradual elimination of such existing structures and uses; and, second, to protect an owner's property or existing residence, business or industry from impairment which would result from enforced accommodation to new restrictions." Yokley, op. cit. sec. 11. It would seem that reasonable interpretation requires that we seek to achieve a fair balance between these two somewhat conflicting purposes.

Appellees cite Goodrich v. Selligman, 298 Ky. 863, 183 S.W.2d 625; Colati v. Jirout, 186 Md. 652, 47 A.2d 613; Cole v. City of Battle Creek, 298 Mich. 98, 298 N.W. 466; State ex rel. Miller v. Cain, 40 Wash.2d 216, 242 P.2d 505.

In the Goodrich case, the ordinance provision as to the continuance of non-conforming use prohibited structural alterations; and the applicant was denied the right to tear down old structures and erect entirely new ones. In the Colati case, the applicant was denied the right to raze and remove his buildings and build anew on a much larger scale. In the Cole case, decision turned on the ordinance provision as to non-conforming use which, as in the Goodrich case, prohibited structural alterations. In State ex rel. Miller v. Cain, the ordinance provision as to the continuance of non-conforming use prohibited structural alterations; and the applicant was denied the right to construct new and larger nonconforming buildings in the place of an existing non-conforming building.

Cases noted below point in a different direction.

In Bruning Bros. v. Mayor and City Council of Baltimore, 199 Md. 602, 87 A.2d 589, 590, the decision is stated accurately in this headnote: "Where corporation had begun construction of a paint factory as nonconforming use at time zoning ordinance was passed restricting area to residential uses, subsequent proposal of corporation to build an additional two story building to its factory would merely constitute a change in a non-conforming use and not an extension thereof and was therefore permissible."

In A. L. Carrithers & Son v. City of Louisville, 250 Ky. 462, 63 S.W.2d 493, the decision is stated accurately in the headnote as follows: "Enlargement of milk plant in four-family zoning district to inclose space for relocating can-washing and by-products rooms to comply with health ordinance, not being a vital change of the building in its fundamental purpose, held not within zoning ordinance prohibiting ``structural alterations'."

In In re Gilfillan's Permit, 291 Pa. 358, 140 A. 136, the line separating the residential and business districts ran through applicant's lot. Applicant's lumber plant was located in the business district. The portion of the land in the residential district was vacant and used solely as a space in which to pile lumber. It was held that he was entitled to a permit to build a cement block storage building on the vacant land then in the residential district, such additional construction not being detrimental to the public welfare, safety and health.

It is noted that, in the Colati case, the Court of Appeals of Maryland took the view that the non-conforming use provision of the Baltimore ordinance was to be strictly construed against the extension of nonconforming uses. This Court, in opinion by Brogden, J., when dealing with an exemptive clause in a zoning ordinance, said: "Zoning ordinances are in derogation of the right of private property, and, where exemptions appear in favor of the property owner, they should be liberally construed in favor of such owner." In re Rose Builders' Supply Co., 202 N.C. 496, 163 S.E. 462, 464.

Suffice it to say that decisions in other jurisdictions, which depend largely on the wording of the particular statutes and ordinances then under consideration, reach divergent conclusions and are not controlling. Decisions are many and varied, often limited to the particular set of facts immediately before the court. See Annotation: "Zoning: changes, after adoption of zoning regulations, in respect of nonconforming existing use." 147 A.L.R. 167, and supplemental decisions. Some ordinances, in respect of the non-conforming use provision, fix definite time limits for the absolute termination of such non-conforming use. City of Los Angeles v. Gage, 127 Cal. App. 2d 442, 274 P.2d 34; State ex rel. Dema Realty Co. v. McDonald, 168 La. 172, 121 So. 613, certiorari denied 280 U.S. 556, 50 S. Ct. 16, 74 L. Ed. 612. Others, as indicated above, expressly prohibit structural alterations. Of the cases cited above, only the Carrithers case deals with additional construction made necessary in order to comply with the requirements of a separate and distinct ordinance.

We must keep in mind that we are here concerned with the meaning of this particular ordinance provision, to wit, Section IX, not with general and divergent views as to what such exemptive provisions as to non-conforming uses in zoning ordinances should contain. Our function is to interpret Section IX, not to legislate.

It is noted first that no time limit is placed upon the continuance of the non-conforming use. It is noted further that there is no express prohibition as to structural alterations. It seems clear that the words, "continued," "enlarged," "extended," were intended to refer primarily, although not exclusively, to the purpose for which the building and land were then being used. Obviously, the words "enlarged" or "extended" do not refer to the land itself; and the identical language is used in relation to any "building or land." This interpretation has support in the succeeding sentence, which provides: "An existing non-conforming use of a building or premises may be changed to another non-conforming use of the same or higher classification, but may not at any time be changed to use of a lower classification." A further provision of Section IX provides: "Any non-conforming building or structure damaged by fire, explosion, flood, riot or act of God may be reconstructed and used as before any such calamity, * * *"

Even so, as applied to the facts before us, we think Section IX must be construed to confine the non-conforming use to its then scale of operation. Obviously, it was not contemplated that petitioners, then operating a nursing home for the accommodation of 27 patients or less, would be permitted to construct a large institutional building for the accommodation of 200 patients or more. Thus, the size of the new facility and the scale of its operation would have to conform substantially to the nonconforming use existent when the 1951 ordinance was adopted.

It is noted further that the new construction proposed by petitioners is not by reason of their choice or voluntary act, but is necessary to meet the requirements of the 1936 North Carolina Building Code. Hence, decision here need not extend beyond such a factual situation.

So far as the nursing home ban in a Residence 1 District is concerned, we conclude that petitioners have the legal right to construct or reconstruct a fireproof building where their present frame building is situated, or in lieu thereof to construct a fireproof building elsewhere on said Lot 1, subject to the limitation that the reconstructed or new building in respect of the accommodations provided will provide facilities for the operation of a nursing home on substantially the same scale as that heretofore operated by petitioners.

Neither the application for permit nor the findings of fact certified by the Board of Adjustment disclose in detail petitioners' plans with reference to the proposed new building. A plat attached to the application shows only the location of the proposed building on said Lot 1. It appears therefrom that the proposed building would be located to the rear of the present two-story frame building, that is, farther from Sharon Lane.

When questioned at the hearing before the Board of Adjustment, Mr. O'Neal stated petitioners' plans, to the extent they had been formulated, as follows:

"I am planning to build a fireproof building of 5700 square feet. Have not planned the exact interior arrangement of the building. Have planned 12 to 14 bedrooms to accommodate around 24 patients. I propose a kitchen. The present kitchen will not be used. Have made no definite plans. The laundry will remain in the old building. We propose to use the old building for porches, sitting rooms, T.V. and other recreation facilities. We have ten bedrooms in the old building and propose 12 to 14 in the new building. We do not propose to use the old building for overflow. The only recreation factors planned are not in the old building. I have a big sitting room planned. The proposed building will be about 100 feet long. The exact dimensions are shown by the plat. I rented this piece of land for several years and bought it in 1941. I have been operating at this location since 1938. The building is a two-story frame building sitting back about 80 or 100 feet from Sharon Road.

"I have no plans for tearing down the old building. Cannot use it for my present operation. My plan is to continue to use the old building in connection with the new building in the daytime only. There will be a breezeway connecting the two buildings. I have actually laid out the interior of the building only to the architect. The plat attached to the application is the only thing I have in the way of a drawing describing the building and it is the only drawing submitted to the Building Inspection Department in the nature of a description of what we propose to build. The drawing shows a breezeway with a roof between the old and new buildings. The 24-room addition is shown only by four lines on the paper. I do not have any plans here with me."

If, upon submission of detailed plans and specifications, it appears that the new fireproof building will be a facility, comparable in size for the operation of a nursing home on substantially the same scale as that in operation when the ordinance was adopted, the permit for the construction and occupation thereof within such limitations should be granted as a matter of right. If this should occur, the question may then arise as to whether the present two-story frame building must be used for residential purposes only in conformity with Residence 1 District restrictions, or whether the facts presented are such that the Board of Adjustment, in its discretion, will permit limited use thereof by patients resident in the new building for some or all of the purposes indicated in Mr. O'Neal's statement. In such case, it will be for the Board of Adjustment to determine whether, in its discretion, it will so exercise the power conferred upon it by Section XI of the 1951 ordinance, to wit:

"5. To vary or modify upon appeal any of the regulations or provisions of this ordinance relating to the use, construction or alteration of buildings or structures or the use of land, where in a specific case owing to special conditions a literal enforcement of the strict letter of the ordinance would result in unnecessary hardship, so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done."

Thus, whether petitioners will be permitted to construct a fireproof building to be used as a nursing home in lieu of the present two-story frame building will depend solely upon their legal right to do so under Section IX as interpreted herein. As to this, there is no need or occasion for a variance permit. A variance permit is another matter. Application for a variance permit invokes the discretionary power of the Board of Adjustment. Lee v. Board of Adjustment, supra; National Lumber Products Co. v. Ponzio, 133 N.J.L. 95, 42 A.2d 753. Quaere: Do the provisions in the 1951 ordinance (Section XI—Board of Adjustment) and in G.S. § 160-178, which require the concurring vote of four members of the Board to reverse any order, requirement, decision or determination of the administrative official, e. g., the Building Inspector, relate solely to matters within the discretionary power of the Board?

For the reasons stated, the judgment of the court below is vacated; and the cause is remanded so that further proceedings may be had, if petitioners are so advised, in relation to an amended application setting forth in detail their plans and specifications for the proposed new building to the end that such amended application may be considered in relation to the law as stated herein.

Error and remanded.