Lee v. Board of Adjustment of City of Rocky Mount

• Citation: 37 S.E.2d 128,226 N.C. 107
• Decision Date: 27 February 1946
• Docket Number: 92
• Parties: LEE et al. v. BOARD OF ADJUSTMENT OF CITY OF ROCKY MOUNT. In re Application of EDMONDSON.
• Court: United States State Supreme Court of North Carolina

37 S.E.2d 128

226 N.C. 107

LEE et al. v. BOARD OF ADJUSTMENT OF CITY OF ROCKY MOUNT.

In re Application of EDMONDSON.

No. 92

Supreme Court of North Carolina

February 27, 1946

[Copyrighted Material Omitted]

Petition for writ of certiorari to review an order of the Board of Adjustment of the City of Rocky Mount.

Rocky Mount has a zoning ordinance which creates a district for residential purposes only, designated as Zone 5. The ordinance prohibits the erection within said zone of any structure which is 'intended or designed to be used, in whole or in part, for any industrial, manufacturing, trade or commercial purpose' with certain exceptions not pertinent to this appeal.

H H. Duke, Jr., owns a lot located at the corner of Daughtry Street and Highway 64 directly in front of the residence of petitioners and within said zone. He gave an option to purchase to S. L. Edmondson who thereupon applied to the City Building Inspector for a permit to erect thereon buildings suitable for and to be used as a grocery store-service station. The Building Inspector declined to issue the permit for the reason that the proposed buildings are designed to be used for a nonconforming purpose. Edmondson appealed to the City Board of Adjustment.

The Board of Adjustment heard the appeal, resisted by 40-odd owners of property in Zone 5, and 'concluded that to reject this permit would work a great hardship on the applicant, and that no damage would be sustained by adjoining property owners if the permit were granted. ' It thereupon ordered, by unanimous vote, 'that permit be issued by the Building Inspector allowing the two buildings to be erected as above set out.'

On application of petitioners Lee and wife, Bone, J., on January 23, 1946, issued a writ of certiorari returnable before him immediately. The Board of Adjustment made immediate answer to the writ as required by the order and the cause came on for hearing January 24, 1946, at which time judgment was entered affirming the order of the Board of Adjustment so that 'the applicant, S. L. Edmondson, be and he is hereby authorized to immediately begin the construction of his store and service station, in accordance with the permission granted in said order of the Board of Adjustment.'

It was further ordered that the 'action' be dismissed at the cost of the petitioners. Petitioners excepted and appealed.

Wilkinson & King and Battle, Winslow & Merrell, all of Rocky Mount, for appellants.

F. S. Spruill, of Rocky Mount, for appellee.

BARNHILL Justice.

The statute, G.S. Art. 14, Chap. 160, under authority of which Rocky Mount adopted its zoning ordinance, provides that every decision of the Board of Adjustment shall be subject to review by proceedings in the nature of certiorari. G.S. s 160-178. But the writ of certiorari as permitted by this statute is a writ to bring the matter before the court upon the evidence presented by the record itself for review of alleged errors of law. In re Pine Hill Cemeteries, Inc., 219 N.C. 735, 15 S.E.2d 1.

The decisions of the Board are final, subject to the right of the courts to review errors in law and to give relief against its orders which are arbitrary, oppressive, or attended with manifest abuse of authority. Harden v. Raleigh, 192 N.C. 395, 135 S.E. 151; Appeal of Parker, 214 N.C. 51, 197 S.E. 706; In re Pine Hill Cemeteries, Inc., supra; Pue v. Hood, 222 N.C. 310, 22 S.E.2d 896; Mullen v. Louisburg, 225 N.C. 53, 33 S.E.2d 484.

Likewise an exception to the judgment presents the single question whether the facts found and admitted are sufficient to support the judgment entered. Rader v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609; Fox v. Cramerton Mills, Inc., 225 N.C. 580, 35 S.E.2d 869.

So then decision here must rest upon the facts as they appear upon the face of the record. These facts are as heretofore stated.

Do they disclose that (1) the conclusion of the Board of Adjustment that to reject the application for a permit to erect nonconforming buildings upon the lot, for the purchase of which applicant holds an option, would work a great hardship on him is unwarranted and erroneous as a matter of law; (2) the Board of Adjustment exceeded its authority in permitting the erection of buildings intended and designed to be used for trade and commercial purposes on a lot located within a district zoned for residences only?

These are the real questions posed for decision. We are constrained to answer each in the affirmative.

In the issuing of building permits the building inspector, a purely administrative agent, must follow the literal provisions of the zoning regulations. The statute, G.S. s 160-172, authorizes and the municipal board created, a Board of Adjustment so that an applicant who thinks he requires some amelioration of the strict letter of the law may have a forum in which he may be heard.

Acting upon its interpretation of the statute authorizing its creation, G.S. s 160-172, the Board of Adjustment, upon the appeal of the respondent, 'concluded that to reject this permit would work a great hardship on the applicant,' and ordered that a permit issue. In this there was error.

An option in relation to land grants the right to elect, within a stipulated period, to buy or not to buy. The applicant optionee merely has the right of choice granted by his option. He possesses no present right to erect a building on the lot described in his contract. To withhold from him a permit to do what he has no present right to do cannot, in law, impose an 'undue and unnecessary hardship' upon him.

The appellants in their brief express it in this manner: 'Edmondson cannot be hurt or suffer any hardship whichever way the case goes. He uses a long-handle spoon (option) to sample the Edgemont pot. If the mixture is too hot for him he can drop the spoon. ' Be that as it may, the withholding of a permit to build imposes no undue hardship upon him so long as he has no present right to build.

Even if it be conceded that the applicant occupies a position which entitles him to apply for a building permit, its denial, on this record, imposes no unnecessary hardship.

'The courts have * * * gradually concluded that the deprivation of better earning by means of a nonconforming use is not an unnecessary hardship within the meaning of the law. Value is not the proper criterion. ' Bassett, Zoning, 127; Elizabeth City v. Aydlett, 201 N.C. 602, 161 S.E. 78. It is erroneous to base a conclusion that the denial of an application would work an unnecessary hardship because the applicant could earn a better income from the type of building proposed. Bassett, Zoning, 143.

The financial situation or pecuniary hardship of a single owner affords no adequate grounds for putting forth this extraordinary power affecting other property owners as well as the public. Appeal of Parker, supra; Prusik v. Board of Appeal, 262 Mass. 451, 160 N.E. 312; Thayer v. Board of Appeals, 114 Conn. 15, 157 A. 273; Norcross v. Board of Appeal, 255 Mass. 177, 150 N.E. 887; People v. Walsh, 131 Misc. 581, 227 N.Y.S. 570; In re Mark Block Holding Corp., 141 Misc. 818, 253 N.Y.S. 321.

'Unnecessary hardship' as used in the statute does not embrace the restriction of the desire to perform an act which would abrogate the very intent and purpose of the ordinance, amend, if not partially repeal, an act regularly adopted by the local Legislature, and create a means by which the entire ordinance could be frustrated at will by limitless exceptions. In re Mark Block Holding Corp., supra. It cannot be construed to include a hardship imposed upon all alike so as to effectuate the primary purpose and intent of the legislative body. Elizabeth City v. Aydlett, supra.

The board of adjustment authorized in the zoning statute, G.S. s 160-178, is an administrative agency, acting in a quasi-judicial capacity. In re Pine Hill Cemeteries, supra. Its main function is to grant variance permits in exceptional cases, subject to court review. G.S. s 160-178. In the exercise of this discretion, however, it is not left free to make any determination whatever that appeals to its sense of justice. It must abide by and comply with the rules of conduct provided by its charter--the local ordinance enacted in accord with and by permission of the State zoning law.

Indeed the power of the board is expressly limited by the statute. It may 'determine and vary' the application of the zoning regulations as set forth in the ordinance. G.S. s 160-172. And upon hearing on...