In re W.P. Rose Builders' Supply Co.

• Decision Date: 06 April 1932
• Docket Number: 104.
• Citation: 163 S.E. 462,202 N.C. 496
• Parties: In re W. P. ROSE BUILDERS' SUPPLY CO. et al.
• Court: North Carolina Supreme Court

163 S.E. 462

202 N.C. 496

In re W. P. ROSE BUILDERS' SUPPLY CO. et al.

No. 104.

Supreme Court of North Carolina

April 6, 1932

Appeal from Superior Court, Wayne County; Cranmer, Judge.

Action by W. P. Rose Builders' Supply Company and others against City of Goldsboro. From a judgment affirming decision of Board of Adjustment approving building inspector's refusal to grant building permit, plaintiffs appeal.

Reversed.

Language of ordinance is interpreted in light of surrounding circumstances, and words are given their ordinary meaning.

The plaintiffs are the owners of a brick building on the corner of George and Walnut streets in the city of Goldsboro, which was constructed during the latter part of 1928 and the early part of 1929 as a Union Bus Station and cafeteria. This building became vacant in December, 1929. On December 2 1929, the owners of the building appeared before the board of aldermen of the city of Goldsboro and asked for a permit "to install two gas pumps in the present Union Bus Station." The minutes of the board show the following with respect to such request: "After some discussion upon motion of Alderman Waters, duly seconded, this location was exempted from the restricted district, and permit was granted, such installation to be in conformity with ordinances governing filling stations." On July 21 1930, the board of aldermen of the city of Goldsboro duly adopted a zoning ordinance, which became effective on August 15, 1930. This ordinance divided the city into five zones and the property of plaintiffs was included in zone 1. In this zone no building was to be constructed or used "for any industrial or manufacturing purpose except retail stores, tailor shops," etc. It was further provided that "no building or land in Zone 1 shall be used for any trade or industry that is noxious or offensive by reason of emission of odor, dust, smoke, gas fumes, vibration or noise."

Section 14 of the zoning ordinance in part provides: "It is not intended by this ordinance to repeal, abrogate, annul or in any way to impair or interfere with any existing provisions of law or ordinance, or any rules, regulations or permits previously adopted or issued or which shall be adopted or issued pursuant to law relating to the use or construction of building or premises." Section 17 of said zoning ordinance provides: "Nothing herein contained shall require any change in the plans, construction, size or designated use of any building, structure or part thereof for which a building permit has been granted by the Building Inspector before this ordinance becomes effective and the construction of which from which plans shall have been started within 90 days after this ordinance becomes effective," etc.

The building inspector of the city of Goldsboro refused to grant to the plaintiffs a permit for the installation of gasoline pumps and other filling station equipment in said building. The city brought a suit to restrain the owners from completing the gasoline filling station, and from the judgment rendered both parties appealed to the Supreme Court. This cause is reported in City of Goldsboro v. W. P. Rose Builders Supply Co., 200 N.C. 405, 157 S.E. 58. Thereafter the matter was heard by the board of adjustment, which rendered its decision in June, 1931. Said board found the following facts: (a) That prior to the adoption of the zoning ordinance of the city of Goldsboro the owners of said property applied to the board of aldermen of the city of Goldsboro for permission to install two gasoline tanks on the premises, and the board of aldermen of the city of Goldsboro voted favorably on this application; (b) that after the adoption of the zoning ordinance a city official advised the owners of said property that, if the property owners should act upon this authority of the board within 90 days from the effective date of the zoning law, they would not have to apply for a building permit; (c) that the only attempt of the owners of the property to act under whatever authority was granted by the board of aldermen, within 90 days from the effective date of the zoning law, was to place in the building on the premises goods to be sold out of a filling station and grease dispenser; (d) that a filling station cannot be operated in "Zone 1 Business" of the city of Goldsboro unless it comes within the exceptions set forth in said ordinance, which do not apply to the premises in question.

Thereupon the board of adjustment voted three to two approving the refusal of the building inspector to grant a permit. The plaintiffs, by certiorari, appealed from the order of the board of adjustment to the superior court. Many affidavits were filed, and, after hearing the pleadings and affidavits, the trial judge, after considering the entire case, was "of the opinion that the decision of the Board of Adjustment is in all respects proper, and that each of the grounds of error set out in the petition for writ of certiorari should be disallowed and overruled."

From the foregoing judgment plaintiffs appealed.

Kenneth C. Royall, of Goldsboro, and Andrew C....