Donnelly v. Board of Adjustment of Village of Pinehurst

394 S.E.2d 246, 99 N.C. App. 702, 1990 N.C. App. LEXIS 816
CourtCourt of Appeals of North Carolina
DecidedAugust 7, 1990
Docket8920SC607
StatusPublished
Cited by8 cases

This text of 394 S.E.2d 246 (Donnelly v. Board of Adjustment of Village of Pinehurst) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Donnelly v. Board of Adjustment of Village of Pinehurst, 394 S.E.2d 246, 99 N.C. App. 702, 1990 N.C. App. LEXIS 816 (N.C. Ct. App. 1990).

Opinions

PARKER, Judge.

This appeal involves the Board of Adjustment of the Village of Pinehurst’s denial of a variance to allow petitioner to maintain a fence across the rear of his lot in violation of local zoning ordinances. Petitioner owns Lot 109, Travis Lane in Pinehurst, North Carolina. The lot fronts on Travis Lane and abuts State Highway 211 on the rear. Highway 211 separates Pinehurst from Taylortown, a recently incorporated municipality. The highway is a heavily traveled road. The property across the highway from petitioner’s property is zoned commercial and includes an electric power substation and an electric supply store. Sometime prior to 27 April 1988 petitioner built a fence across the rear of this lot to screen it from Highway 211 and the commercial properties. The fence was [704]*704approximately six feet high and it was placed on a one- to two-foot earth berm, yielding a fence approximately seven feet higher than the normal level of the surrounding ground. The fence was constructed of closely spaced, narrow, wooden slats, with each slat shaped at the top. The slats were affixed to horizontal members. Petitioner built the fence without applying for, or receiving, a building permit in advance. Sometime after he had finished construction of the fence, petitioner requested a variance from the building and zoning inspector for the Village. The inspector denied the variance and petitioner appealed to the Board of Adjustment of the Village of Pinehurst (herein “the Board”). On appeal to the Board, petitioner argued that the fence was permitted under the zoning ordinance and, in the alternative, that a variance should be granted. The Board denied the appeal on the grounds that the fence violated the zoning ordinance.

Donnelly then petitioned the Superior Court for a writ of cer-tiorari. The writ was granted, and the trial court affirmed the denial of the variance.

Petitioner brings forward three assignments of error. First, petitioner assigns error to the court’s conclusion that petitioner’s lot was a “through lot” under the ordinance, requiring a variance for a rear fence higher than 3V2 feet. Second, petitioner contends that the trial court erred in determining that the fence was a “stockade fence” rather than a “picket fence” as defined by the ordinance. Finally, petitioner asserts that the court erred in failing to remand to the Board of Adjustment because petitioner contends that the Board failed to make findings or conclusions to support the denial of the variance.

The grant or denial of a variance is the exercise of the board’s quasi-judicial power. In exercising this power the board investigates the facts. See In re Markham, 259 N.C. 566, 131 S.E.2d 329, cert. denied, 375 U.S. 931, 84 S.Ct. 332, 11 L.Ed.2d 263 (1963). General Statute 160A-388 states that “[e]very decision of the board [of adjustment] shall be subject to review by the superior court by proceedings in the nature of certiorari.” G.S. 160A-388(e). In reviewing the decision of the board under this statute, the Superior Court sits as an appellate court. See Concrete Co. v. Board of Commissioners, 299 N.C. 620, 626-27, 265 S.E.2d 379, 383 (1980).

As to his first assignment of error, petitioner contends that, under the definitions contained in the Pinehurst Zoning Ordinance, [705]*705his lot was not a “through lot”; therefore, his construction of a six-foot fence across the rear of the lot was not a violation of the zoning ordinance, and he should not have been required to apply for a variance before a building permit was issued to him. The Pinehurst Zoning Ordinance provides:

6.10.1(a) Fences and walls or similar structures not over three feet six inches (3'6") may project into or may enclose any front or side yard, and fences or walls, or similar structures enclosing rear yards may be six feet (6') high. If a property owner’s rear lot line borders on the side lot line of another property owner, the side yard height limitation of three feet six inches (3'6") applies to any fence erected on such property line for the length contiguous to said side yard.
6.10.6 Fences or walls or similar structures on through lots are to be limited to three feet six inches (3'6") in height.

The ordinance defines a “through lot” as “[a]n interior lot having frontage on two streets.” A “street” is defined as “[a] thoroughfare which affords the principal means of access to abutting property, including avenue, place, way, drive, lane, boulevard, highway, road and any other thoroughfare, except an alley.” (Emphasis added.) Petitioner concedes that his lot fronts on Travis Lane and abuts State Highway 211 on the rear. There was also evidence that Highway 211 connects with Travis Lane, giving petitioner indirect access to his property by way of Highway 211. Petitioner argues, however, that Highway 211 is not a “street” within the definition of the ordinance because Highway 211 is a restricted access highway, he cannot gain direct access from Highway 211, and his only access to the lot is from Travis Lane.

“A zoning ordinance, like any other legislative enactment, must be construed so as to ascertain and effectuate the intent of the legislative body.” In re Application of Construction Co., 272 N.C. 715, 718, 158 S.E.2d 887, 890 (1968) (citing Bryan v. Wilson, 259 N.C. 107, 130 S.E.2d 68 (1963)). Our Supreme Court has held that, with regard to zoning ordinances, “[t]he best indicia of [legislative] intent are the language of the statute or ordinance, the spirit of the act and what the act seeks to accomplish.” Concrete Co. v. Board of Commissioners, 299 N.C. at 629, 265 S.E.2d at 385.

[706]*706Given these indicia of legislative intent, both the Board and the trial court, in our opinion, were correct in determining that petitioner’s lot was a “through lot” as defined by the ordinance and that a variance would be required for petitioner to maintain a fence greater than three feet six inches in height across the rear of the lot. The language of the ordinance clearly indicates that an interior lot bordered by a lane and a highway is a “through lot.” The spirit of the ordinance is to preserve the appearance of the town with particular regard to the fact that Pinehurst greatly profits from maintaining the golf and vacation trade. This spirit is apparent throughout the ordinance. In addition to the section governing the height of fences on “through lots” (6.10.6), there are also sections promoting the use of hedges, shrubs and trees in lieu of fences and walls (6.10.5), restricting fences or walls on lots abutting lakes or golf courses (6.10.2 and 6.10.3), and requiring extensive screening of visually offensive structures such as commercial fencing (6.10.7), residential vehicular parking (6.12), and outdoor spas (6.13). We recognize that “through lots” are highly visible lots since they border on two thoroughfares. With regard to “through lots” the goal of the ordinance is to regulate not only the fences on these lots, but also to require mandatory front, rear and side yards and to prohibit any encroachment of architectural features into these yards. Pinehurst Zoning Ordinance § 6.5.

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Donnelly v. Board of Adjustment of Village of Pinehurst
394 S.E.2d 246 (Court of Appeals of North Carolina, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
394 S.E.2d 246, 99 N.C. App. 702, 1990 N.C. App. LEXIS 816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donnelly-v-board-of-adjustment-of-village-of-pinehurst-ncctapp-1990.