Southern Equipment Co., Inc. v. Winstead

342 S.E.2d 524 (1986)

SOUTHERN EQUIPMENT COMPANY, INC., D/B/A Ready Mixed Concrete Company
v.
Cecil WINSTEAD, Morris Newkirk, Raymond Smith, Preston Wells, Jr., and John K. Sykes, Members of the Board of Adjustment of the Town of Mount Olive, North Carolina, and the Board of Adjustment of the Town of Mount Olive, North Carolina.

No. 858SC833.

Court of Appeals of North Carolina.

May 6, 1986.

Dees, Smith, Powell, Jarrett, Dees & Jones by William A. Dees, Jr., Goldsboro, for petitioner-appellee.

Vickory & Hawkins by C. Branson Vickory, Mount Olive, for respondents-appellants.

PHILLIPS, Judge.

This appeal turns upon the sense in which the word "ceases" is used in the foregoing ordinance, which forfeits the right to use non-conforming property under the conditions stated therein. As is commonly known the word "cease" has two meanings; one of which indicates a final condition, but the other does not. The definition most frequently given by the dictionaries in widest use is "[t]o come to an end; to stop." Webster's New International Dictionary (2d ed. 1953) at page 429. Terminate is a synonym of the first, discontinue of the second. The difference between the two definitions in the context of this case is both significant and decisive; for while the manufacturing of cement on the premises involved was stopped for more than six months it did not end. Thus, if the word cease was used in the sense of just stopping the forfeiture lies; otherwise it does not. There is nothing in the provision quoted or in the zoning ordinance as a whole to indicate that in enacting the ordinance the Town legislative body equated the mere failure to operate a non-conforming business with its cessation. On the other hand, there is a strong indication in a companion subsection of the same ordinance that the word cease was used in a more stringent sense. We therefore hold that petitioner's valuable property right was not forfeited by mere inactivity for six months and affirm the judgment of the Superior Court. This conclusion is in keeping with the time honored maxim that the law does not favor forfeitures and statutes authorizing them must be strictly construed. 37 C.J.S. Forfeitures Sec. 4, p. 8 (1943); U.S. v. One 1936 Model Ford Coach, 307 U.S. 219, 226, 59 S. Ct. 861, 865, 83 L. Ed. 1249, 1255 (1939). Subsection (4) of the same ordinance makes discontinuing the use of non-conforming property another ground for forfeiture as follows:

(4) If a nonconforming use of a building and/or land is discontinued or abandoned for 12 consecutive months or for 24 months during any four (4) year period. (As used herein, the word "discontinued" means that the owner or party responsible for the use of the property cannot demonstrate that he had a clear intent to continue using the property for the nonconforming purpose and that he had augmented that intent by making every reasonable effort to continue to have the property so used. A demonstration of intent would be a reasonable and continuous effort to sell or rent the property for the nonconforming purpose.)

Obviously, if the legislative body regarded the mere failure to operate a non-conforming business for 6 months as a ceasing within the purview of subsection (2) that automatically forfeited the right to operate in the future, the above enactment permitting forfeitures under some circumstances for a failure to use the non-conforming property for 12 consecutive months would serve no purpose whatever.

Affirmed.

HEDRICK, C.J., and JOHNSON, J., concur.