Rea Const. Co., Application of, 461

• Citation: 272 N.C. 715,158 S.E.2d 887
• Decision Date: 02 February 1968
• Docket Number: No. 461,461
• Court: United States State Supreme Court of North Carolina
• Parties: Application of REA CONSTRUCTION COMPANY for Permit to Build Asphalt Mixing Plant in the City of Statesville.

Page 887

158 S.E.2d 887

272 N.C. 715

Application of REA CONSTRUCTION COMPANY for Permit to Build

Asphalt Mixing Plant in the City of Statesville.

No. 461.

Supreme Court of North Carolina.

Feb. 2, 1968.

Fleming, Robinson & Bradshaw, Charlotte, for petitioner appellant.

L. Hugh West, Jr., Statesville, for respondent appellee.

LAKE, Justice.

In the issuance of building permits, a city building inspector acts as an administrative agent and must follow the provisions of the zoning ordinance. Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128, 168 A.L.R. 1. Where the applicant meets all the requirements of the ordinance he is entitled to the issuance of a permit as a matter of right and it may not lawfully be withheld. Mitchell v. Barfield, 232 N.C. 325, 59 S.E.2d 810. A board of adjustment, authorized by G.S. § 160--178, is also an administrative agency which acts in a quasi-judicial capacity, its principal function being to issue variance permits so as to prevent injustice by a strict application of the ordinance. Lee v. Board of Adjustment, supra. The board is not a law making body and has no power to amend the zoning ordinance either to permit the construction of a building prohibited by the ordinance or to prohibit the construction of one permitted by the ordinance. In re Markham, 259 N.C. 566, 131 S.E.2d 329; Bryan v. Wilson, 259 N.C. 107, 130 S.E.2d 68; Chambers v. Zoning Board of Adjustment, 250 N.C. 194, 108 S.E.2d 211, 74 A.L.R.2d 412: In re O'Neal, 243 N.C. 714, 91 S.E.2d 189; James v. Sutton, 229 N.C. 515, 50 S.E.2d 300; Lee v. Board of Adjustment, supra. Thus, if the ordinance of the City of Statesville permits the construction in an M--1 general industrial district of the proposed asphalt plant, the building inspector acted properly in the issuance of the building permit in this instance and the Board of Adjustment had no authority to revoke the permit. We turn, therefore, to the ordinance to see whether such a building is authorized in such district.

A zoning ordinance, like any other legislative enactment, must be construed so as to ascertain and effectuate the intent of the legislative body. Bryan v. Wilson, supra. A zoning ordinance, however, is in derogation of the right of private property and provisions therein granting exemptions or permissions are to be liberally construed in favor of freedom of use. In re Couch, 258 N.C. 345, 128 S.E.2d 409; In re Appeal of W. P. Rose Builders' Supply Co., 202 N.C. 496, 163 S.E. 462.

The ordinance in question first states, in general terms, that it is intended to permit in an M--1 general industrial district any use which is not 'inherently obnoxious to urban areas because of noise, odors, smoke, light, dust or the use of dangerous materials.' (Emphasis added.) It does not, however, stop with this declaration of intent. It goes further and expressly provides that 'mixing plants for concrete or paving materials' are...