Donnelly v. Board of Adjustment of Village of Pinehurst

• Decision Date: 07 August 1990
• Docket Number: No. 8920SC607,8920SC607
• Citation: 394 S.E.2d 246,99 N.C.App. 702
• Court: North Carolina Court of Appeals
• Parties: Gerald DONNELLY, Petitioner, v. BOARD OF ADJUSTMENT OF the VILLAGE OF PINEHURST, Respondent.

Page 246

394 S.E.2d 246

99 N.C.App. 702

Gerald DONNELLY, Petitioner, v. BOARD OF ADJUSTMENT OF the VILLAGE OF PINEHURST, Respondent.

No. 8920SC607.

Court of Appeals of North Carolina.

Aug. 7, 1990.

Douglas R. Gill, Southern Pines, for petitioner-appellant.

Brown, Robbins, May, Pate, Rich, Scarborough & Burke by W. Lamont Brown, Pinehurst, for respondent-appellee.

SARAH ELIZABETH PARKER, Judge.

This appeal involves the Board of Adjustment of the Village of Pinehurst's denial of a variance to allow petitioner to maintain a fence across the rear of his lot in violation of local zoning ordinances. Petitioner owns Lot 109, Travis Lane in Pinehurst, North Carolina. The lot fronts on Travis Lane and abuts State Highway 211 on the rear. Highway 211 separates Pinehurst from Taylortown, a recently incorporated municipality. The highway is a heavily traveled road. The property across the highway from petitioner's property is zoned commercial and includes an electric power substation and an electric supply store. Sometime prior to 27 April 1988 petitioner built a fence across the rear of this lot to screen it from Highway 211 and the commercial properties. The fence was approximately six feet high and it was placed on a one- to two-foot earth berm, yielding a fence approximately seven feet higher than the normal level of the surrounding ground. The fence was constructed of closely spaced, narrow, wooden slats, with each slat shaped at the top. The slats were affixed to horizontal members. Petitioner built the fence without applying for, or receiving, a building permit in advance. Sometime after he had finished construction of the fence, petitioner requested a variance from the building and zoning inspector for the Village. The inspector denied the variance and petitioner appealed to the Board of Adjustment of the Village of Pinehurst (herein "the Board"). On appeal to the Board, petitioner argued that the fence was permitted under the zoning ordinance and, in the alternative, that a variance should be granted. The Board denied the appeal on the grounds that the fence violated the zoning ordinance.

Donnelly then petitioned the Superior Court for a writ of certiorari. The writ was granted, and the trial court affirmed the denial of the variance.

Petitioner brings forward three assignments of error. First, petitioner assigns error to the court's conclusion that petitioner's lot was a "through lot" under the ordinance, requiring a variance for a rear fence higher than 3 1/2 feet. Second, petitioner contends that the trial court erred in determining that the fence was a "stockade fence" rather than a "picket fence" as defined by the ordinance. Finally, petitioner asserts that the court erred in failing to remand to the Board of Adjustment because petitioner contends that the Board failed to make findings or conclusions to support the denial of the variance.

The grant or denial of a variance is the exercise of the board's quasi-judicial power. In exercising this power the board investigates the facts. See In re Markham, 259 N.C. 566, 131 S.E.2d 329, cert. denied, 375 U.S. 931, 84 S.Ct. 332, 11 L.Ed.2d 263 (1963). General Statute 160A-388 states that "[e]very decision of the board [of adjustment] shall be subject to review by the superior court by proceedings in the nature of certiorari." G.S. 160A-388(e). In reviewing the decision of the board under this statute, the Superior Court sits as an appellate court. See Concrete Co. v. Board of Commissioners, 299 N.C. 620, 626-27, 265 S.E.2d 379, 383 (1980).

As to his first assignment of error, petitioner contends that, under the definitions contained in the Pinehurst Zoning Ordinance, his lot was not a "through lot"; therefore, his construction of a six-foot fence across the rear of the lot was not a violation of the zoning ordinance, and he should not have been required to apply for a variance before a building permit was issued to him. The Pinehurst Zoning Ordinance provides:

6.10.1(a) Fences and walls or similar structures not over three feet six inches (3' 6"') may project into or may enclose any front or side yard, and fences or walls, or similar structures enclosing rear yards may be six feet (6') high. If a property owner's rear lot line borders on the side lot line of another property owner, the side yard height limitation of three feet six inches (3'6"') applies to any fence erected on such property line for the length contiguous to said side yard.

....

6.10.6 Fences or walls or similar structures on through lots are to be limited to three feet six inches (3'6"') in height.

The ordinance defines a "through lot" as "[a]n interior lot having frontage on two streets." A "street" is defined as "[a] thoroughfare which affords the principal means of access to abutting property, including avenue, place, way, drive, lane, boulevard, highway, road and any other thoroughfare, except an alley." (Emphasis added.) Petitioner concedes that his lot fronts on Travis Lane and abuts State Highway 211 on the rear. There was also evidence that Highway 211 connects with Travis Lane, giving petitioner indirect access to his property by way of Highway 211. Petitioner argues, however, that Highway 211 is not a "street" within the definition of the ordinance because Highway 211 is a restricted access highway, he cannot gain direct access from Highway 211, and his only access to the lot is from Travis Lane.

"A zoning ordinance, like any other legislative enactment, must be construed so as to ascertain and effectuate the intent of the legislative body." In re Application of Construction Co., 272 N.C. 715, 718, 158 S.E.2d 887, 890 (1968) (citing Bryan v. Wilson, 259 N.C. 107, 130 S.E.2d 68 (1963)). Our Supreme Court has held that, with regard to zoning ordinances, "[t]he best indicia of [legislative] intent are the language of the statute or ordinance, the spirit of the act and what the act seeks to accomplish." Concrete Co. v. Board of Commissioners, 299 N.C. at 629, 265 S.E.2d at 385.

Given these indicia of legislative intent, both the Board and the trial court, in our opinion, were correct in determining that petitioner's lot was a "through lot" as defined by the ordinance and that a variance would be required for petitioner to maintain a fence greater than three feet six inches in height across the rear of the lot. The language of the ordinance clearly indicates that an interior lot bordered by a lane and a highway is a "through lot". The spirit of the ordinance is to preserve the appearance of the town with particular regard to the fact that Pinehurst greatly profits from maintaining the golf and vacation trade. This spirit is apparent throughout the ordinance. In addition to the section governing the height of fences on "through lots" (6.10.6), there are also sections promoting the use of hedges, shrubs and trees in lieu of fences and walls (6.10.5), restricting fences or walls on lots abutting lakes or golf courses (6.10.2 and 6.10.3), and requiring extensive screening of visually offensive structures such as commercial fencing (6.10.7), residential vehicular parking (6.12), and outdoor spas (6.13). We recognize that "through lots" are highly visible lots since they border on two thoroughfares. With regard to "through lots" the goal of the ordinance is to regulate not only the fences on these lots, but also to require mandatory front, rear and side yards and to prohibit any encroachment of architectural features into these yards. Pinehurst Zoning Ordinance § 6.5. Regardless of whether petitioner has direct access to his lot from Highway 211, the highway abuts his property and the public has "visual access" to his lot from both the highway and from Travis Lane. Petitioner was, therefore, properly required to seek a variance for his fence.

Moreover, as the evidence before the Board showed, petitioner's fence was in excess of six feet in height and also violated 6.10.1(a) which is applicable to any lot and limits rear yard fences to six feet in height.

Second, petitioner assigns error to the trial court's determination that his fence was a "stockade fence" rather than a "picket fence." The Pinehurst Zoning Ordinance permits only the following types of fences on individual residential lots: picket, post and rail, wrought iron, brick, and stone. Sections 5.3.9 and 6.10.1(b). The ordinance provides that "[t]he purpose of [the section designating acceptable types of fencing] is to allow fences within districts which are architecturally compatible with each other, preserving the flexibility of fences in the rural areas." Section 6.10.1(b). The types of fences are not further defined by the ordinance.

Petitioner contends that his fence is a "picket fence" because it is comprised of numerous, narrow, vertical boards, "dog-eared at the top" and affixed to horizontal members. In support of his contention petitioner points to the following definition of "picket fence" and "picket" appearing in Webster's New World Dictionary:

picket fence, a fence made of upright pales or stakes.

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