In Re W. P. Rose Builders Supply Co.
163 S.E. 462
N.C.
1932
Check Treatment
Beogden, J.

Tbe plaintiffs assert:

1. Tbat tbe zoning ordinance is unconstitutional.

2. Tbat tbe property owned by them is exempted from tbe operation of tbe ordinance.

Tbe last utterance of this Court upon zoning ordinances is contained in Elizabeth City v. Aydlett, 201 N. C., 602. In this case tbe philosophy of zoning ordinances is expounded and applied. All tbe usual grounds of assault upon tbe zoning theory were discussed with abundant citation of supporting authority. Moreover, tbe opinion draws a clear line of demarcation between tbe principles of law applicable to tbe zoning-ordinance of Goldsboro and those governing cases similar to Clinton v. Oil Co., 193 N. C., 432, 137 S. E., 183; MacRae v. Fayetteville, 198 N. C., 51, 150 S. E., 628, .and others of like import. It is deemed unnecessary to decide tbe constitutionality of tbe entire zoning ordinance upon tbe particular facts imesented by this record, if, as a matter of fact, tbe property of plaintiffs is exempt from tbe operation of tbe ordinance by tbe terms thereof. Hence, tbe inquiry arises: Are tbe restrictions of tbe zoning ordinance applicable to tbe property of plaintiffs upon tbe facts disclosed?

On 2 December, 1929, before tbe zoning ordinance became effective, tbe board of aldermen of tbe city of Goldsboro excepted tbe property of plaintiffs from tbe restricted district and granted a permit to install *499 “two gas pumps in the present Union Eus Station.” The zoning ordinance became effective on 15 August, 1930, and the plaintiffs had 90 days from said date, under section 17 of the ordinance, to act upon the permit theretofore granted by the city. On 11 November, three days before the expiration of the time limit, plaintiffs placed upon the. premises “a grease dispenser and goods to be sold out of a filling station.” It will be observed that section 17 of the ordinance uses the expression: “And the construction of which from such plans shall have been started within 90 days after this ordinance becomes effective.” The plaintiffs' contend that the placing of a grease dispenser and certain merchandise upon the premises constituted “construction . . . started.” In other words, if plaintiffs had a permit to use the property for a certain purpose and placed upon the premises, in good faith, goods and equipment essential to such purpose, does such act bring them within the exemption of section 17 in the sense that the construction has started, or to compress the question in a smaller compass, when does construction start ?

Manifestly, it serves no useful purpose to pick words to pieces and put them under a microscope in order to develop or disclose occult and. peculiar meaning. The law is disposed to interpret language in the light of surrounding circumstances and. to give to words their ordinary meaning and significance. The word “started” used in section 17, interpreted in its setting, is doubtless synonymous with commence or begin. In Words & Phrases, First Series, Yol. 2, it is said: “The commencement” of a building within the mechanic’s lien law, is the doing of some act upon the ground on which the building is to be erected, and in pursuance of a design to erect, the result of which act would make known to a person viewing the premises, from observation alone,-that the erection of a building on that land had been commenced. Work done in breaking the ground for a cellar is a commencement of a building, because it must have changed the appearance of the ground so as to show the purpose of the work.

Courts are divided upon the question as to whether the placing of material upon a building site is a commencement of the building. The Texas Court in Terry et al. v. Texas Co., 228 Southwestern, 1019, held that the placing of timbers for the erection of a derrick and machinery, including boiler, on the ground where an oil well was to be drilled, complied with the provisions requiring a person “to commence to drill,” a well within a certain period. The Iowa Court in Graw v. Manning, 7 N. W., 150, discussed the meaning of the word “started.” The statute in question provided in substance that if a debtor “started to leave the state” his property exemption was restricted to wearing apparel. The Court in discussing the meaning of the word “started,” said 'that it “does *500 not mean tbe actual setting out on a journey, but means tbe commencement of tbe enterprise or undertaking; and one wbo bad placed bis wagon close to tbe bouse ready to be loaded witb goods and a part of tbe goods were placed in boxes out of tbe bouse and tbe appearance in tbe bouse indicated a state of preparation for moving will be deemed to bave 'started’ to remove from tbe state.”

So, in tbe present case, if tbe plaintiffs, in good faitb, and in pursuance of a permit granted from tbe city of Goldsboro, bad placed filling station equipment and supplies upon tbe premises witb tbe intention of operating sucb station in full conformity witb tbe authority previously granted, then it cannot be said, as a matter of law, that tbe construction bad not started before tbe expiration of tbe time limit.

Zoning ordinances are in derogation of tbe right of private property, and where exemptions appear in favor of the property owner, they should be liberally construed in favor of sucb owner. Furthermore, it is to be noted that filling stations eo nomine are not expressly excluded from zone 1.

While tbe board of adjustment is clothed witb certain power and discretion in determining questions affecting tbe administration of zoning ordinances, nevertheless in tbe case at bar, tbe controversy involves tbe inquiry as to whether under tbe facts and circumstances tbe zoning ordinance precludes tbe plaintiffs from installing tbe gas pumps in accordance witb tbe permit from tbe city.

Tbe plaintiffs contend that prior to tbe effective date of tbe ordinance they bad started or begun tbe installation of tbe gas pumps in good faitb. Tbe city denies sucb contention.

Thus, an issue of fact is produced for tbe determination of a jury.

Reversed.