{ "id": 4740017, "name": "VIRGINIA M. FARR v. THE BOARD OF ADJUSTMENT OF THE CITY OF ROCKY MOUNT, NORTH CAROLINA", "name_abbreviation": "Farr v. Board of Adjustment", "decision_date": "1986-11-04", "docket_number": "No. 214A86", "first_page": "493", "last_page": "498", "citations": [ { "type": "official", "cite": "318 N.C. 493" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "340 S.E. 2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": -1 }, { "cite": "79 N.C. App. 754", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523650 ], "year": 1986, "opinion_index": -1, "case_paths": [ "/nc-app/79/0754-01" ] }, { "cite": "158 S.E. 2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "890", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "272 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574464 ], "year": 1968, "pin_cites": [ { "page": "718", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0715-01" ] }, { "cite": "337 S.E. 2d 581", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720611 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0309-01" ] }, { "cite": "326 S.E. 2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "73 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523033 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/73/0228-01" ] }, { "cite": "340 S.E. 2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "opinion_index": 0 }, { "cite": "79 N.C. App. 754", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523650 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/79/0754-01" ] } ], "analysis": { "cardinality": 440, "char_count": 11170, "ocr_confidence": 0.826, "pagerank": { "raw": 6.087085966315723e-08, "percentile": 0.3785321074703583 }, "sha256": "77fb311fdc7a8d4f919d2ff1081ed049fb78738e6aa34bd96caf0aee86d66868", "simhash": "1:9e7df7ea67968141", "word_count": 1851 }, "last_updated": "2023-07-14T18:03:08.889643+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "VIRGINIA M. FARR v. THE BOARD OF ADJUSTMENT OF THE CITY OF ROCKY MOUNT, NORTH CAROLINA" ], "opinions": [ { "text": "MITCHELL, Justice.\nThe issue before us is whether a zoning ordinance of the City of Rocky Mount prohibits the residential use of an accessory building by members of the family of the owner of the property. We hold that it does not.\nThe facts of this case are not disputed. In May 1982, the petitioner, Mrs. Virginia M. Farr, purchased property in Rocky Mount which included a house and two detached buildings. One of the detached buildings is occupied as a residence by Mrs. Farr\u2019s son, his wife, and two children. Mrs. Farr resides in the main building which is on the front of the property. The building in which her son resides is located at the rear of the property. The property is located in an R-10 zone in the City of Rocky Mount and is restricted to single family residential use.\nIn December 1982, the City Building Inspector notified Mrs. Farr that the residential use of the detached building by her son was in violation of the City of Rocky Mount zoning ordinance. The notice ordered her to cease using the said accessory building as a residence and notified her of her right to appeal to the Rocky Mount Zoning Board of Adjustment.\nMrs. Farr appealed to the Board of Adjustment which heard the matter and upheld the decision of the Building Inspector. She then filed a petition for writ of certiorari with the Superior Court, Nash County, seeking reversal of the decision of the Board of Adjustment. After a hearing, Judge Donald L. Smith remanded the matter to the Board of Adjustment for the entry of findings of fact and conclusions of law. The matter came on for a rehearing before the Board of Adjustment which made detailed findings and conclusions supporting its prior decision. Thereafter, the matter was again transferred to the Superior Court pursuant to the original petition for writ of certiorari. A hearing was conducted in the Superior Court by Judge John B. Lewis, Jr., who entered an order affirming the decision of the Board of Adjustment.\nThe petitioner, Mrs. Farr, appealed to the Court of Appeals which concluded that neither the findings of the trial court nor the record as a whole supported the holding that petitioner was in violation of the zoning ordinance and vacated the judgment of the Superior Court. 73 N.C. App. 228, 326 S.E. 2d 382 (1985). The Court of Appeals seems to have based its decision on the supposition that Mrs. Farr was not violating the zoning ordinance because her use of the building in question was a prior non-conforming use. Further, the Court of Appeals stated in obiter dictum that the provisions of the ordinance as applied by the Board of Adjustment and the Superior Court were unconstitutional. Chief Judge Hedrick dissented, and the respondent Board of Adjustment appealed to this Court as matter of right.\nThis Court vacated the decision of the Court of Appeals by a per curiam opinion, 315 N.C. 309, 337 S.E. 2d 581 (1985), in which we concluded that the Court of Appeals had decided the case \u201con the basis of the principle of \u2018prior non-conforming use,\u2019 an issue not raised or briefed by the parties to this action and not supported by the record.\u201d Id. We remanded the case to the Court of Appeals for its initial consideration of the issue raised there by the petitioner, Mrs. Farr.\nUpon remand, the Court of Appeals did not discuss Mrs. Farr\u2019s contentions that the ordinance did not prohibit the use to which she had put her property, but simply stated that those contentions \u201care without merit and should be overruled.\u201d 79 N.C. App. 754, 340 S.E. 2d 521 (1986). After again making reference to the principle of prior non-conforming use, the Court of Appeals appears to have held that the ordinance in question is unconstitutional as applied by the Board and the Superior Court in this case.\nChief Judge Hedrick again dissented expressing his opinion that the ordinance in question is not unconstitutional. Id. He further stated: \u201cI do not believe the majority has addressed the principal\u2018issue raised on appeal as to whether the occupancy of the accessory building as a residence by the petitioner\u2019s son is a violation of the ordinance.\u201d Id. The Board of Adjustment again appealed as a matter of right.\nThe principal issue which must be addressed on appeal in this case is whether the zoning ordinance of the City of Rocky Mount prohibits Mrs. Farr from allowing her son and his family to live in the detached building on her property. The respondent Board argues that two sections of the ordinance are applicable. The Board first points to Section VILA, Note 2, which provides that: \u201cAn accessory use in a . . . R-10 . . . district shall not include the residential occupancy of an accessory building except by domestic employees employed on the premises and the immediate families of such employees . . . .\u201d (emphasis added). We conclude that this section does not prohibit the petitioner\u2019s use of her property at issue.\nAssuming the detached building is an accessory building as admitted during oral arguments before this Court, the owners of the property are entitled to live there. Section IV of the zoning ordinance includes the following: \u201cBuilding, accessory: A detached subordinate structure operated and maintained under the same ownership and located on the same lot as the main building. No such building may be inhabited or used by other than the owners ... or their employees.\u201d This section of the ordinance prohibits only those other than owners from inhabitating or using accessory buildings, and by clearest implication permits accessory buildings to be used and inhabited by owners. We conclude that the term \u201cowners\u201d in the context of zoning ordinances such as that before us must be construed as including the holder of title to the property and members of the title holder\u2019s family, such as Mrs. Farr\u2019s son, his wife, and children. Therefore, we further conclude that Section IV permits the residential occupancy of accessory buildings by owners and their families.\nSection VILA relied upon by the respondent Board and previously quoted herein merely provides that an \u201caccessory use\u201d shall not include residential occupancy by others than servants and their families. Mrs. Farr\u2019s use is not an accessory use, as that term is defined in Section IV as follows: \u201cUse, accessory. A use incidental to and customarily associated with the use-by-right and located on the same lot with the use-by-right . . . .\u201d Here, the use of the accessory building by Mrs. Farr\u2019s family is not a use \u201cincidental to and customarily associated with the use-by-right . . . .\u201d The use-by-right prescribed in the ordinance for property located in an R-10 zone is single family residential use. The use by Mrs. Farr\u2019s family in the present case is the use-by-right, i.e., single family residential use. Therefore, since the use of the accessory building by Mrs. Farr\u2019s family is not an accessory use under Section IV, the limitation on accessory uses contained in Section VILA has no application.\nThe Board has also argued that Mrs. Farr is in violation of Section VI.C of the ordinance, which provides in pertinent part that \u201cin no case shall there be more than one main building . . . on the lot nor more than one main use (e.g. commercial, industrial or residential) per building and lot . . . .\u201d This section does not prohibit the use of the accessory building here by Mrs. Farr\u2019s family for residential purposes. Mrs. Farr is not in violation of this section because there is only one main building, in which she herself resides, and one main use, which is residential.\nThis Court has long recognized that:\nA zoning ordinance, like any other legislative enactment, must be construed so as to ascertain and effectuate the intent of the legislative body. ... A zoning ordinance, however, is in derogation of the right of private property and provisions therein granting exemptions or permissions are to be liberally construed in favor of freedom of use.\nIn re Application of Construction Co., 272 N.C. 715, 718, 158 S.E. 2d 887, 890 (1968) (citations omitted). We conclude that the manner in which we have construed the ordinance before us in this case both effectuates the original intent of the body adopting the ordinance and complies with the rule of liberal construction in favor of freedom of use of private property.\nBecause we find that the petitioner, Mrs. Farr, is not in violation of the ordinance, it is not necessary for us to reach the issue she has raised concerning the constitutionality of the ordinance.\nFor the foregoing reasons \u2014 entirely differing from those relied upon by the majority in the Court of Appeals \u2014we conclude that the result reached by the Court of Appeals was correct. Accordingly, the holding of the Court of Appeals, in its decision as modified herein, is affirmed.\nModified and affirmed.", "type": "majority", "author": "MITCHELL, Justice." } ], "attorneys": [ "Fitch, Butterfield & Wynn, by G. K. Butterfield, Jr., for petitioner appellee.", "Dill, Fountain & Hoyle, by Randall B. Pridgen, for respondent appellant." ], "corrections": "", "head_matter": "VIRGINIA M. FARR v. THE BOARD OF ADJUSTMENT OF THE CITY OF ROCKY MOUNT, NORTH CAROLINA\nNo. 214A86\n(Filed 4 November 1986)\n1. Municipal Corporations \u00a7 30.11\u2014 zoning ordinance \u2014 accessory building \u2014 use as residence by owner\u2019s son \u2014 ordinance not violated\nA zoning ordinance of respondent city did not prevent petitioner from allowing her son and his family to live in a detached building on her property where the ordinance provided that no accessory building could \u201cbe inhabited or used by other than the owners ... or their employees,\u201d and \u201cowners\u201d must be construed as including the holder of title to the property and members of the titleholder\u2019s family.\n2. Municipal Corporations 8 30.11\u2014 zoning ordinance \u2014 accessory building used as residence \u2014no accessory use \u2014ordinance not violated\nA provision of respondent\u2019s zoning ordinance that an \u201caccessory use\u201d shall not include residential occupancy by others than servants and their families did not apply to bar petitioner\u2019s son and his family from living in an accessory building on petitioner\u2019s property, since the ordinance defined \u201caccessory use\u201d as \u201c[a] use incidental to and customarily associated with the use-by-right and located on the same lot with the use-by-right,\u201d but use of the accessory building in this case was not an accessory use, but was instead the use-by-right itself, i.e., single-family residential use.\n3. Municipal Corporations \u00a7 30.11\u2014 zoning ordinance \u2014 one main building \u2014 one use for lot \u2014 ordinance not violated\nThere was no merit to respondent\u2019s contention that petitioner was in violation of its zoning ordinance which provided that \u201cin no case shall there be more than one main building ... on the lot nor more than one main use . . . per building and lot,\u201d since in this case there was only one main building, in which petitioner herself resided, and one main use, which was residential, and use of an accessory building by petitioner\u2019s family for residential purposes did not violate the ordinance.\nOn appeal of a decision of the Court of Appeals, 79 N.C. App. 754, 340 S.E. 2d 521 (1986), which vacated a judgment of Lewis, J. entered 8 August 1983 in Superior Court, NASH County. Heard in the Supreme Court 14 October 1986.\nFitch, Butterfield & Wynn, by G. K. Butterfield, Jr., for petitioner appellee.\nDill, Fountain & Hoyle, by Randall B. Pridgen, for respondent appellant." }, "file_name": "0493-01", "first_page_order": 517, "last_page_order": 522 }