Chambers v. Zoning Bd. of Adjustment of Winston-Salem

• Decision Date: 29 April 1959
• Docket Number: WINSTON-SALE,No. 391,C,391
• Citation: 108 S.E.2d 211,250 N.C. 194
• Parties: , 74 A.L.R.2d 412 William A. CHAMBERS, James Hartman, John H. Hartman, W. L. Swain, A. E. Killian, Roy G. Saunders and Charles Hamm, Jr. v. ZONING BOARD OF ADJUSTMENT OFarl Dull, Jr., C. C. Smithdeal, Jr., Clyde D. Weatherman, Roy Setzer and A. T. Harrington.
• Court: North Carolina Supreme Court

Page 211

108 S.E.2d 211

250 N.C. 194, 74 A.L.R.2d 412

William A. CHAMBERS, James Hartman, John H. Hartman, W. L Swain, A. E. Killian, Roy G. Saunders and Charles Hamm, Jr. v. ZONING BOARD OF ADJUSTMENT OF WINSTON-SALEM, Carl Dull, Jr. C. C. Smithdeal, Jr., Clyde D. Weatherman, Roy Setzer and A. T. Harrington.

No. 391

Supreme Court of North Carolina.

April 29, 1959

Eugene H. Phillips, Winston-Salem, for petitioners-appellants.

Womble, Carlyle, Sandridge & Rice, by H. Grady Barnhill, Jr., Winston-Salem, for respondents-appellees.

HIGGINS, Justice.

The City of Winston-Salem, acting through its proper authorities, adopted a zoning code and appointed a Board of Adjustment as provided in G.S. § 160-172 and succeeding sections. By § 48-2 of its zoning code, the city was divided into 10 'classes of districts,' four of which (A-1, A-2, B, and C) are residential. The two first designated are the more restricted. The only difference in the building restrictions of zones A-1 and A-2 are set forth in paragraph (c) of the Zoning Code, § 48-13. The section provides that after hearing, the Board of Adjustment may authorize the issuance of a permit for the construction of multi-family dwellings, not more than two and one-half stories high, as integral parts of a large-scale housing project in a residential A-2 district, provided: '(1) The area for development is not less than ten acres and, when fronting upon an existing street or streets of record, the area extends throughout the block, from intersecting street to intersecting street; (2) the total coverage of the net land area (exclusive of streets) does not exceed eighteen per cent; (3) the number of dwelling units per acre does not exceed eighteen; (4) the same front yards are provided as are required for other buildings in the residence 'A-2' districts, and the same provisions are observed in respect to the location of garages and other outbuildings; (5) garage or other satisfactory automobile storage space is provided on the premises, sufficient to accommodate one car for each building unit contained within the development. The board of adjustment may waive side, rear, and front yard requirements, * * *.' (Emphasis added.)

At a regular meeting of the Zoning Board of Adjustment held November 4, 1958, the multi-family dwelling project came up for consideration at an open hearing. In explaining the plans, the director of the planning board stated: 'It was the opinion of the Planning Board that the buildings were properly located and that the provision of on-street parking along the wide (34-foot) paved roads was adequate.' (Emphasis added.)

We are unable to find in the record any evidence as to the plan for garage or automobile storage space, except that which is reported by the approval memorandum of the Planning Board and the oral statement to the same effect made in the meeting by the Planning Board director. Of course, neither the Housing Authority nor the Planning Board, nor the Zoning Board had authority to waive a requirement of the zoning ordinance. The ordinance, 48-13, provides that the Board of Adjustment may waive side, rear, and front yard requirements which are designated as (4), but there is no such authority to waive the requirement number (5)--garage and automobile storage space. Does on-street parking along a 34 foot wide paved road comply with condition (5)? There is no provision whatever for a garage for even one automobile. Certainly on-street parking does not qualify as a garage. Does it qualify as 'other satisfactory automobile storage space?' It is a well-settled rule of construction, applicable to statutes and ordinances, that under the doctrine 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. See Note 20, 28 C.J.S. p. 1049. The term 'other automobile storage space,' following 'garage,' refers to something in the nature of a garage or of that classification. But if we eliminate the word 'garage,' it would be difficult even then to treat on-road or onstreet parking as satisfactory atuomobile storage space. The storage of an automobile must mean more than leaving it parked on the street. The requirement for garage or other satisfactory automobile storage space was ordained by the city...