Undеr Durham County’s zoning ordinance, effective January 16, 1956, the county is divided into “eighteen (18) classes of districts,” one being “Village Residence District.” Defendant’s property, described below, is in a “Village Residence District.”
In 1954, defendant purchased “one big lot,” “a narrow strip of land,” fronting 409 feet on the northwest (referred to for convenience as north) side of East Geer Street (Old Oxford Highway) and extending north between approximately parallel lines to the right of way of a railroad. The depth on the west side was approximately 75 feet and on the east side approximately 30 feet. Defendant’s said property is in Oak Grove Township, Durham County.
In 1955, defendant constructed on said property a'combination filling station, store and dwelling. It was defendant’s declared intention, “when he could build it,” to construct a dwelling on the portion of his property described below.
The lot directly involved, referred to as the subject lot, fronts 60 feet on the north side of East Geer Street. It is the west portion of defendant’s property. According to the map designated defendant’s Exhibit 1, the subject lot extends north between approximately parallel lines 75.25 feеt on the west side and 61.12 feet on the east side to the railroad right of way. It contains approximately 4,000 square feet. The west portion of defendant’s store building is 15 feet east of what would be the east wall of the proposed dwelling.
In 1960, defendant applied to the Zoning Administrator for a permit to construct а brick-veneer dwelling on the subject lot. According to defendant’s Exhibit 8, the dimensions of the proposed dwelling would be 38 feet (approximately parallel with East Geer Street) by 28 feet. Plaintiff’s application was denied. The record indicates the Board of Adjustment (in June or July, 1960) upheld the Administrator’s decision. Later, рlaintiff renewed his application. Upon denial *282 thereof, defendant appealed to the Board of Adjustment. The Board of Adjustment, at a meeting оn March 26, 1962, considered defendant’s appeal and his application for a variance permit. It upheld the Administrator’s decision and denied defendant’s application for a variance permit. Defendant did not apply for certiorari to review said decision of the Board of Adjustment.
On July 24, 1962, defendant notified the Administrator that he “was going to build the house on the sаid lot despite the ruling” of the Board of Adjustment. On or about July 25, 1962, plaintiff commenced construction thereof. Upon defendant’s refusal to desist, plaintiff, on July 30, 1962, instituted this аction.
There was evidence tending to show that defendant, in connection with said 1955 improvements, dug a well and installed a septic tank; that the water and sеwerage systems then installed (if and when connected) were sufficient to take care of another house; and that in the years 1958-1961 defendant was 'permitted, to have а trailer on a part of what is now the subject lot and to connect utilities thereto. However, defendant testified: “The actual starting of the foundation to the present house was in July 1962.”
Durham County’s comprehensive zoning ordinance was adopted pursuant to statutory authority. Session Laws of 1949, Chapter 1043; Session Laws of 1959, Chapter 1006, now codified (1963 Cumulative Supplement) as G.S. Chapter 153, Article 20B, Section 153-266.10 et seq.
“The presumption is that the zoning ordinance as a whole is a prоper exercise of the police power, . . .”
Kinney v. Sutton,
“The mere fact that a zoning ordinance seriously depreciates the value of complainant’s property is not enough, standing alone, to еstablish its invalidity.”
Helms v. Charlotte,
The zoning ordinance, in respect of “REQUIRED LOT AREA” in a “Village Residence District,” provides: “Each dwelling together with its accessory buildings, hereafter erected shall be located on a lot having an area of not less than 15,000 square feet аnd an average width of not less-than 75 feet, except that a dwelling may be erected on a lot or plot having less than the forégoing minimum area and width, prоvided the same existed under one ownership by virtue of a recorded *283 plat or deed at the time of the passage of this ordinance.” The area of the subject lot is less than 15,000 square feet and its average width is less than 75 feet. When 'the ordinance was adopted, the subj ect lot was not owned (and is not оwned) as an individual lot but as the, western portion of the property on which defendant constructed his filling station, store and dwelling.
The zoning ordinance, in respеct of “COMPLETIONS AND RESTORATIONS OF EXISTING BUILDINGS,” provides: “Nothing herein contained shall require any change in the plans, construction or designated use of a building under construction at the time оf the passage of this ordinance and the construction of which shall have been diligently prosecuted within a year of the said effective date and the ground story framework of which, including the second tier of beams shall be completed within such year, and which entire building shall have been completed within twо years from the date of the passage of this ordinance.” Defendant started the foundation for the proposed dwelling on the subject lot some six аnd a half years after passage of the ordinance.
It is- unnecessary to consider ordinance requirements in respect of front, side and rear yаrds.
The zoning ordinance, in respect of “PERMITS,” in pertinent part, provides: “No . . . building or part thereof shall be built, . . . until application has been made and the рroper permit has been obtained from the Zoning Administrator, in accordance with the provisions of this Ordinance, and upon plans approved by him.”
Thе legislative authority having determined the ordinance provisions are “in the interest of the public health, safety, morals, or general welfare,”
In re Appeal of Parker,
Moreover, with reference to the adverse decision by the Board of Adjustment, the applicable statutes provide: “Every decision of such board shall be subj ect to review by the superior court by proceedings in the nаture of
certiorari.”
G.S. 153-266.17; Session Laws of 1949, Chapter 1043, Section 8. The decision of the Board of Adjustment is not subject to collateral attack. As stated by Adams, J., in
S. v. Roberson,
The relevant enabling acts provide for enforcement оf the provisions of a zoning ordinance by injunction. Session Laws of 1949, Chapter 1043, Section 9; G.S. 153-266.18.
Since all the evidence tends to show the construction by defendant of the proposed dwelling on the subject lot would constitute a violation of Durham County’s zoning ordinance, plaintiff was entitled to a peremptory instruction. McIntosh, North Carolina Practice and Procedure, § 574.
Defendant’s assignments of error have been considered and are overruled.
No error.