City of Brevard v. Ritter , 14 N.C. App. 207 ( 1972 )

188 S.E.2d 41 (1972) 14 N.C.App. 207

CITY OF BREVARD, a Municipal Corporation, and L. C. Case, Building Inspector of the City of Brevard
v.
John F. RITTER et al.

No. 7229SC332.

Court of Appeals of North Carolina.

April 26, 1972.

Williams, Morris & Golding, by James N. Golding, Asheville, for plaintiff appellees.

Van Winkle, Buck, Wall, Starnes & Hyde, by Emerson D. Wall, Asheville, for defendant appellant.

MORRIS, Judge.

Appellant excepts to findings of fact numbered 23 and 24 as follows:

"23. That the defendant, John F. Ritter, intends to utilize the new construction in conjunction with the other airport facilities located upon the aforementioned premises, and such construction will in fact constitute an enlargement or expansion of said airport facilities in violation of Section 70 of the Brevard Zoning ordinance entitled ``Nonconforming uses.'"

24. That said structure does not constitute any of the permitted or authorized uses designated by Sections 50 and 51 of the Brevard Zoning ordinance, and this Court specifically finds that such construction does not constitute ``any camp, park, picnic area, golf course or similar recreational use' under either Section 50 or 51 of the Brevard Zoning ordinance."

and to conclusions of law numbered 1 and 2 as follows:

"1. That the building presently under construction by the defendant, John F. Ritter, with the assistance of the Charles Morgan Company, is in violation of Sections 50, 51 and 70 of the Brevard Zoning ordinance, and such construction is unlawful and should be restrained.

2. That the construction of a pilot lounge or clubhouse and auxiliary hangar constitutes an enlargement and extension of a noncomforming use in violation of Section 70 of the Brevard Zoning ordinance, since no such structure now exists and such construction does not constitute the repair or remodeling of any existing structure."

These exceptions and an exception to the signing and entry of the judgment are grouped by appellant into two assignments of error. We do not separate them for the purpose of discussion.

The property of appellant is admittedly covered by § 51 of the Brevard Zoning Ordinance entitled "R-2 Medium-Density Residential District". The declared purposes of this type district are, among others, to provide for quiet liveable medium density single and two family neighborhoods, to encourage the discontinuance of nonconforming uses, and to prohibit any use which would substantially interfere with the development or continuation of single and two family dwellings. Uses permitted are two family dwellings and any use permitted in the R-1 Low Density Residential District. These uses are single family dwellings; farms and related agricultural uses; and camps, parks, picnic areas, golf courses and similar recreational uses.

It is also conceded that the airport on the property is a nonconforming use. Section 70 of the ordinance provides that the nonconforming use may be continued but specifically provides that it may not be extended.

Appellant urges that the facts pleaded and stipulated do not support the finding that the new construction will constitute an enlargement or expansion of the airport facilities, and therefore, it was error for the court to conclude that § 70 had been violated. We do not agree.

It is clear from the facts stipulated that the building under construction is to contain approximately 3,000 square feet, is completely new construction and is not connected in any way to any of the existing structures on the land. It could not, in any way, be regarded as repair, rebuilding, or alteration of any existing structure. Neither could it be considered as a replacement for any existing structure. It would contain, in addition to the lounge or club, space for the storage of an airplane. Ritter purchased all of the physical improvements on the property for $600. Exhibit No. 7, before the Court and a part of the stipulated facts, is a letter addressed to the Board of Aldermen of Brevard requesting the rezoning of the property. It bears the signature "John F. Ritter", and contains the following: "The reason we would like this area rezoned is so that the present airport facility can be expanded and improved." Exhibit No. 9, also before the Court and a part of the stipulated facts, is a copy of the minutes of the meeting of the Board of Aldermen on 13 December 1971. At that meeting, Ritter stated "Very few planes would be coming in and out, perhaps triple as to the present number." We think the evidence plenary to support the court's findings of fact.

In re O'Neal, 243 N.C. 714, 92 S.E.2d 189 (1956), is not authority for appellant's position.

Nor do we find merit in appellant's position that the building he proposes to create is a lawful recreational use within the meaning of the permitted use contained in § 50.2 of the Zoning Ordinance, to wit: "camps, parks, picnic areas, golf courses, and similar recreational uses." "It is a well-settled rule of construction, applicable to statutes and ordinances, that under the doctrine ejusdem generis, when enumerations by specific words or terms are used, and they are followed by general words or terms, the general shall be held to refer to the same classification as the specific.. . ." Bryan v. Wilson, 259 N.C. 107, 110, 130 S.E.2d 68 (1963), quoting from Chambers v. Zoning Board of Adjustment, 250 N.C. 194, 108 S.E.2d 211 (1959). The term "similar recreational uses" must obviously refer to something in the nature of a camp, a park, a picnic area, or a golf course. We find no similarity in the operation of a private airport and construction of a pilot's lounge and auxiliary hangar to the activities of a camp, a park, a picnic area, or a golf course.

Affirmed.

MALLARD, C. J., and PARKER, J., concur.