The zoning ordinance under consideration was adopted pursuant to the authorizing act, which was originally enacted by the General Assembly of 1923 and which is now codified as Article 14 of Chapter 160 of the General Statutes.
The appellant asserts initially that he is entitled to the certificate of occupancy sought by him as a mattеr of right because the proposed use conforms to the use regulations prescribed by the ordinance for the district in which the premises at 1122 East Morehead Strеet are situated.
The zoning ordinance does not expressly stipulate that property in a residence 2 district may be put to use as a restaurant or a publiс dining-room. Hence, the operation of such a business cannot constitute a permitted use in such an area under the ordinance unless it can qualify as an authоrized commercial activity under Section III (A-2), which permits “accessory uses and buildings” and “commercial activities, if carried on by members of the immediate family, and nоt more than two employed persons are permitted.” The operation of a restaurant or a public dining-room for profit is undoubtedly a commercial аctivity for it is an undertaking relating to commerce or trade. 15 O.J.S., p. 576. But a restaurant or a public dining-room operated by an occupant of premises with the assistance of not less than nine employed persons does not find a place within the narrow category of commercial activities sanctioned by Sectiоn III (A-2) of the zoning ordinance. The number of employed persons involved, in and of itself, excludes such an enterprise from the commercial activities permitted by this section. Thus, it appears that the proposed use of the premises in question is prohibited as a nonconforming use by the provisions of the ordinance relating to residence 2 districts. .
The appellant maintains secondarily, however, that the Legislature has not authorized a municipality to adopt a zoning ordinance рrohibiting
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the operation of a restaurant or a public dining-room in a residential area, and that the provisions of the ordinance invoked by the respondents аnd interveners on this phase of the controversy are void as being in excess of the power granted to the legislative body of the City of Charlotte by the authorizing statutes if such provisions are construed to bar the operation of a restaurant or a public dining-room in a residence 2 district. This contention overlooks the phrаseology of G.S. 160-172 expressly providing that “for the purpose of promoting health, safety, morals, or the general welfare of the community, the legislative body of сities and incorporated towns is hereby empowered to regulate and restrict the height, number of stories, and sizes of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes.” The power vested in municipalities by the zoning statute “to regulate and restrict the . . . use of buildings, structures and land for trade, industry, residence or other purposes” includes authority to exclude a business, otherwise lawful, from a residential district.
Elizabeth City v. Aydlett,
The appellant contends finally that the provisions of the zoning ordinance prohibiting the use of the premises in question for a restaurаnt or a public dining-room bear no substantial relation to the health, safety, morals, or general welfare of the community; constitute arbitrary, unreasonable, and discriminatory restrictions upon the property rights of the appellant in such premises; and deprive the appellants of their property without due procеss of law in contravention of Article I, Section 17, of the State Constitution, and the Fourteenth Amendment to the Federal Constitution.
The enabling act authorizing cities and towns tо enact zoning ordinances expressly recognizes the established principle of constitutional law that zoning measures must find their justification in some aspect of the police power of the State exerted in the interest of the public. G.S. 160-172. A number of our cases have explicitly or implicitly sustained zoning ordinances, which wеre adopted under the authority of our enabling act and which established restricted residential districts, as being within the police power.
Lee v. Board of Adjustment,
The zoning ordinance under consideration covers all land, buildings and structures in the City of Charlotte and is designed by the legislative
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body of the municipality to promote the health, safety, morals and genеral welfare of the entire community by separating the commercial and industrial districts of the city from those which are set apart for other purposes, such as art galleries, churches, hospitals, libraries, museums, parks, playgrounds, residences, and schools. The presumption is that the zoning ordinance as a whole is a prоper exercise of the police power, and the appellant has the burden of showing that the provisions of the ordinance forbidding the operation of restaurants or public dining-rooms in the restricted residential district in question bear no substantial relation to the health, safety, morals, or general welfare of the сommunity.
In re Appeal of Parker, supra; American Wood Products Co. v. Minneapolis,
The objection that the provisions of the zoning ordinance prohibiting the use of the premises in question for a restaurant or public dining-room constitute arbitrary, unreasonable and discriminatory restrictions upоn the property rights of the appellant in such premises is untenable. They are aptly phrased to secure their object,
i.e.,
to establish and preserve a restricted residential district free from substantial commercial and industrial activities. They are uniform and operate alike on all property within the territory affeсted.
Wake Forest v. Medlin,
Since it appears that tbe zoning regulations prohibiting the use of property within the restricted residential district in question as a restaurant or public dining-room bears a substantial relation to the health, safety, morals or general welfare of the community and are not arbitrary, unreasonable, or discriminatory in character, it follows that they do not deprive the appellant of his prоperty without due process of law in violation of Article I, Section 17, of the State Constitution or the Fourteenth Amendment to the Federal Constitution.
In re Appeal of Parker, supra; Village of Euclid, Ohio, v. Ambler Realty Co.,
For the reasons given, the judgment of the Superior Court is
Affirmed.