250 N.C. 194 | N.C. | 1959
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-l 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
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 wins 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 ejusdem generis, when enumerations 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 2, C.J.S., 28, 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 on-street parking as soMs-
The respondents make an appealing argument that the court should be liberal in the construction of the zoning ordinance because of the dire need for better facilities to meet urgent housing needs. The petitioners stress with equal earnestness the annoyances, loiss of property values, etc., this project in the area which is classified as Residential A-2 would cause them and their neighbors. Both arguments involve policy. They are political — not legal. The question of laiw involved in the appeal is whether the plan providing for 'On the roads parking •space which .the Planning Board and the Zoning Board of Adjustment “deem adequate” is a substantial compliance with the requirement (c) (5) of Zoning Ordinance 48-13. The wording of the ordinance leaves little .or no doubt as to -its meaning, and to approve the plan on the present showing would/ be -to eliminate (5) in its entirety. If .the provision is to be removed, it -should -be done by the authority that ordained it — the city council.
It is plain from tire record that we are dealing with a highly controversial project. In passing on the legality of (5), we must assume the city .council said what it meant and meant what it said.
Valid reason .appeal's for the requirements as to garage and storage space. In -a -project with 293 family housing units, we may assume that many children of all age groups will be playing in and around the premises; and that many .automobiles will be used by the occupants. We may assume also that children, heedless of danger, will be darting into tire streets from behind parked automobiles, creating a situation the dangers of which are obvious. Whether the parking plan contemplates the use of tire present four perimeter -streets or the building of others, the difference in the danger involved would be -one of degree only.
We conclude the evidence before the Adjustment Board, and -consequently before Judge Olive, was insufficient to show the plans for the proj ect were -in substantial compliance with the garage and storage provision -of -the zoning ordinance.
The appellant has argued the zoning ordinances -involved are invalid for want of authority to enact them -and for failure to set up standards for enforcement. These contentions are without merit. Harden v. Raleigh, 192 N.C. 395, 135 S.E. 151; Kinney v. Sutton, 230 N.C. 404, 53 S.E. 2d 306. On the other hand, the appellee has argued
Under the foregoing authorities, .and for the reasons assigned, the order of the Superior Court of Forsyth County is set aside. The proceeding will be remanded to the Board of Adjustment with direction that the Board withhold approval until the plans show substantial compliance with provision (c) (5) of the zoning ordinance.
Reversed.