County of Durham v. Maddry & Co.

WHICHARD, Judge.

The sole issue is whether defendants’ operation of a minor automotive repair garage is a permitted use within the Highway Commercial Zone applicable to their property. We hold that it is.

According to the Durham County Zoning Ordinance, the operation of a “[g]asoline service station where . . . the repair, replacement or adjustment to vehicles shall be limited to minor accessory parts” is a permitted use within the Highway Commercial Zone. Durham County Zoning Ordinance, Highway Commercial District, Sec. XIII. Under In Re Couch, 258 N.C. 345, 128 S.E. 2d 409 (1962), which we find controlling, “[o]n the theory that the whole includes all the parts, [defendants] have the right to erect a building for any one or more of the permitted uses.” Id. at 346, 128 S.E. 2d at 411. In Couch the petitioners were allowed to erect and operate a car wash because washing of automobiles was “a permitted activity on the part of automobile service stations selling gasoline and oil, and doing light repair work,” which stations the applicable zone permitted. Id., 128 S.E. 2d at 410. Since the ordinance here permits a service station to do minor repairs in a Highway Commercial Zone, under the Couch rationale a garage devoted exclusively to minor repairs should also be permitted in that zone.

Plaintiff notes that the Village Commercial Zone, Durham County Zoning Ordinance, Sec. XIV, specifically provides for the operation of a business devoted exclusively to automobile repairs. In light of the holding in Couch, however, we see no reason to limit the operation of a garage for minor repairs to the Village Commercial District.

Nor are policy reasons for doing so apparent. In addition to gasoline service stations, the uses permitted in a Highway Commercial Zone (Sec. XIII) include mobile home courts, tourist camps, restaurants, offices, clinics, medical and dental laboratories, retail stores, wholesale distributors, barber and beauty shops, shoe repair shops, banks, laundry and dry cleaning pick-up stations, recreation establishments and clubs, sales rooms for nurseries or greenhouses, truck terminals, and billboards. Given the type and diversity of uses permitted in this zone, we find no rational basis for permitting minor car repairs if defendants sell gas but not if they only repair vehicles. Moreover, it has long been the rule that zoning ordinances are in derogation of the right of private property and where possible should be construed in favor of freedom of use. In Re Application of Construction Co., 272 N.C. 715, 718, 158 S.E. 2d 887, 890 (1968).

Defendants concede that they are in violation of State Building Code Sec. 105.6(h) since they converted their building without final inspection by the County. They also conceded in oral argument that they are in violation of Subsection 3, Sec. XIII of the Zoning Ordinance, supra, which requires that “[a]utomobiles or similar vehicles shall not be parked or stored for the purpose of removing parts or for the purpose of making major or extensive repairs.”

We thus reverse and remand, directing that defendants may be enjoined from operation of a minor automotive repair garage on their premises only for as long as they remain in violation of the State Building Code or the Durham County Zoning Ordinance, supra, concerning parked vehicles. This directive shall apply unless cause for a permanent injunction, for reasons other than those on which the instant injunction is based, have arisen since the hearing below.

Reversed and remanded.

Chief Judge Hedrick and Judge PARKER concur.