In Re Couch

128 S.E.2d 409 (1962) 258 N.C. 345

In the Matter of Leamon F. COUCH, The Bemac Corporation, Fred M. Duncan and wife, Gladys S. Duncan.

No. 670.

Supreme Court of North Carolina.

December 12, 1962.

Blackwell M. Brogden, Durham, for petitioners, appellants.

Claude V. Jones, Durham, for Board of Adjustment of City of Durham, respondent, appellee.

Newsom, Graham, Strayhorn & Hedrick, Josiah S. Murray, III, Durham, for Ralph N. Strayhorn, amicus curia.

HIGGINS, Justice.

We may disregard the petitioners' technical objection that the building inspector should have passed on the application for the permit without referring it to the Board of Adjustment for advice. Likewise, we may disregard the contention of the protestants that the Board has passed on the question in its discretion.

The petitioners contend they were entitled to the permit as a matter of right. The ordinance involved was passed in 1951. At that time a service station devoted exclusively to washing automobiles was unknown. Practically every filling station performed this service where water in sufficient quantity was available. We think Sections (3) and (5) of the ordinance, when construed together, contemplate the washing of automobiles as a permitted activity on the part of automobile service stations selling gasoline and oil, and doing light repair work.

The service certainly is a commercial use properly incidental to the needs of a local residential neighborhood. The City Director of General Services certified: "This property is located in a C-1 Commercial Zone which permits along with other uses service stations where normally cars are washed."

The petitioners propose to erect a building which admittedly meets all the requirements of the building code. The intended use is the only objection. Apparently if the proprietor were to sell gasoline, oil and minor accessories, and to make minor repairs and wash cars, the petitioners would be entitled to the permit. Certainly, according to the Director, washing cars is a permissible use in the zone, if done in connection with the other activities named.

On the theory that the whole includes all the parts, we think the petitioners have the right to erect a building for any one or more of the permitted uses. "The law is disposed to interpret language in the light of surrounding circumstances and to give to words their ordinary meaning and significance. * * * 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 W. P. Rose Builders' Supply Co., 202 N.C. 496, 163 S.E. 462; In re O'Neal, 243 N.C. 714, 92 S.E.2d 189; Penny v. City of Durham, 249 N.C. 596, 107 S.E.2d 72.

The many cases cited by the attorney for the City and by the Amicus Curiae involve matters passed on by zoning and other boards as discretionary matters. The petitioners' showing entitled them to the requested building permit as a matter of right. The Superior Court will remand the proceeding to the proper City authorities, directing that a permit issue, unless cause for denial has arisen since the hearing.

The judgment of the Superior Court of Durham County is

Reversed.