State v. Roberson, (No. 326.)

• Citation: 150 S.E. 674,198 N.C. 70
• Decision Date: 11 December 1929
• Docket Number: (No. 326.)
• Court: North Carolina Supreme Court
• Parties: STATE . v. ROBERSON.

150 S.E. 674

(198 N.C. 70)

STATE .

v.ROBERSON.

(No. 326.)

Supreme Court of North Carolina.

Dec. 11, 1929.

Appeal from Superior Court, Durham County; Sinclair, Judge.

Willie Roberson was charged with a breach of the zoning ordinances and building code of the city of Durham, and, from the judgment rendered, he appeals. No error.

Victor S. Bryant, of Durham, for appellant.

S. C. Chambers, of Durham, for City of Durham.

ADAMS, J. Certain zoning ordinances were enacted by the city council of the city of Durham and became effective on May 18, 1926. Under these ordinances certain residence zones, business zones, and industrial zones were designated and set apart for the purposes therein set forth. The following is a part of section 1: "No building or premises shall be erected, altered or used for any other purpose than a purpose permitted in the zone in which such building shall be erected, except in conformity with the regulations herein prescribed for the zone in which such building is located." Section 2 permits in the residence zones the erection of certain buildings therein described and in effect prohibits the erection therein of buildings of any other class. The building erected by the defendant Is not one of those permitted by this section. Section 5 of the Building Code, which went into effect November 1, 1925, provides that the erection, construction, or alteration of any building, structure, or part thereof shall not be commenced until a written permit is issued, and that the work shall strictly conform to the application and plans; also that the inspector of buildings shall have power to revoke any permit in case of a false statement or misrepresentation of any material fact relating to the erection, alteration, or removal of a building. Section 10 is as follows: "Upon completion of any new building, structure or alteration to any building or structure, provided no violation of this code exist, the Inspector of Buildings shall issue to the owner a Certificate of Occupancy of the building or part thereof, showing that the provisions of this code have been complied with, and no building can be occupied until such certificate has been issued."

The defendant erected a store and automobile service station near the eastern corporate limits of the city in one of the B residence zones. Before doing so he applied to the building inspector for a permit which was refused. He then appealed from the building inspector's decision to the board of adjustment, and the board sustained the inspector's ruling and denied the defendant's application. The defendant thereafter completed and operated his store and filling station without having a permit. A warrant was issued from the recorder's court charging the defendant with a breach of the zoning ordinances and the building code. The defendant assailed the ordinance on the ground that it is unreasonable and unconstitutional.

He offered to show that within the radius of a quarter of a mile from his premises there is only one store and no filling station; that with the exception of another building there is neither a store nor a filling station within a radius of a half mile; and that there are only three other business places within three-quarters of a mile from his property. This evidence was excluded, and the jury were instructed to return a verdict of guilty if they found the facts to be as shown by all the evidence. The question is whether there is error in this instruction.

The exclusion of the evidence must be approved, for the reason that the defendant by failing to pursue his statutory remedy is...