MacPherson v. City of Asheville

Annotate this Case

196 S.E.2d 200 (1973)

283 N.C. 299

Robert H. MacPHERSON et al. v. The CITY OF ASHEVILLE et al.

No. 28.

Supreme Court of North Carolina.

May 9, 1973.

*204 Roberts & Cogburn by Max O. Cogburn, Asheville, for plaintiff appellants.

Patla, Straus, Robinson & Moore, P. A. by Robert J. Robinson, Asheville, for The City of Asheville, defendant appellee.

Shuford, Frue & Sluder by Gary A. Sluder, Asheville, for The Kingston Corporation and The Ervin Co., defendant appellees.

HUSKINS, Justice:

Rule 25(d) of the Rules of Civil Procedure provides: "In case of any transfer of interest other than by death, the action shall be continued in the name of the original party; but, upon motion of any party, the court may allow the person to whom the transfer is made to be joined with the original party." (Emphasis added) The Ervin Company moved that it be made a party defendant pursuant to Rule 25(d). Since the movant was not a party to the action, plaintiffs contend it could not properly make such motion and that the court erred in allowing it. This is the basis for plaintiffs' first assignment of error.

Plaintiffs sought a permanent order restraining the City of Asheville from issuing The Kingston Corporation or its successors or assigns a building permit for the construction of the Spruce Hill Apartments. A temporary restraining order to that effect was issued by Judge Anglin. When The Ervin Company as parent corporation of The Kingston Corporation became the owner of the legal title to the land upon which the Spruce Hill Apartments were to be constructed, it became, by virtue of that transfer, the "successor" against whom injunctive relief was sought. In our view, The Ervin Company was then a necessary party to a complete determination of this action and, aside from Rule 25(d), the court had full authority, on its own motion, to bring The Ervin Company in as a necessary party. Whether the court acted on its own motion or in response to motion of The Ervin Company is of no legal significance under the facts of this case. When a complete determination of a claim cannot be made without the presence of other parties, the court is required to bring them in. Rule 19(a) and (b), Rules of Civil Procedure; Strickland v. Hughes, 273 N.C. 481, 160 S.E.2d 313 (1968); Garrett v. Rose, 236 N.C. 299, 72 *205 S.E.2d 843 (1952). Plaintiffs' sole objection is that the motion was made by The Ervin Company. We fail to see how this irregularity, if such it be, could have prejudiced plaintiffs. The record shows that The Ervin Company became the owner of the legal title to the land in question on 15 March 1972, prior to service of plaintiffs' complaint upon The Kingston Corporation. The Ervin Company thus became the party plaintiffs really needed to enjoin. It would seem, therefore, that plaintiffs' cause was aided, not injured, by making The Ervin Company a party defendant, thus binding it to obey the court's decree. This assignment is overruled.

Plaintiffs contend the trial court erred in concluding as a matter of law that The Kingston Corporation, at the time it applied for approval of its site plan for the Spruce Hill Apartments project, had a sufficient interest in the land to qualify as "owner" within the purpose and intent of Section 9C of the Zoning Ordinance. We now examine the soundness of this contention.

The ordinance in question does not specify at what point in time one becomes an "applicant" for approval of a site plan. Plaintiffs contend that The Kingston Corporation became an applicant when it submitted its site plan to the Asheville Planning and Zoning Commission on 9 November 1971. From this, plaintiffs argue that since Kingston then had no interest whatsoever in the land to be developed (its option of 15 May 1971 having expired on 15 September 1971 and not having been renewed until 14 November 1971), it was not an owner when it became an applicant. Hence, plaintiffs argue, an essential condition precedent to the issuance of a building permit has not been met.

In the alternative, plaintiffs contend that even if The Kingston Corporation did not become an applicant until the public hearing on the site plan was held by the Asheville City Council on 17 February 1972, nevertheless it was not then an "owner" of the land to be developed since it was at that point only the prospective vendee under an executory contract of sale executed on 13 January 1972 by those who were then the record owners.

While we do not think it necessary to reach these contentions of plaintiffs in order to dispose of the case, we shall discuss them, assuming arguendo but not deciding, that (1) if The Kingston Corporation were not an owner at the time it became an applicant this would in fact vitiate all subsequent proceedings involving the application, and (2) plaintiffs "as citizens and residents of the City of Asheville residing in and owning residential real property in Ward 8" have standing to assert Kingston's non-ownership in bar of the issuance of a building permit. We express no opinion on either of these arguable questions but merely assume them to be true in order to reach plaintiffs' contentions.

The ordinance requires that before a building permit may issue, a site plan must be "submitted to and approved by City Council. Prior to such approval, the City Council shall obtain the recommendations of the Asheville Planning and Zoning Commission. . . ." Nothing in this language requires the applicant to submit his site plan to the Planning and Zoning Commission, and the fact that defendant did so on 9 November 1971 did not make it an "applicant." Instead, the quoted language makes it apparent that one does not become an "applicant" until he submits his site plan to the City Council itself. This occurred in this case on 17 February 1972 when Kingston formally tendered its plan for the Council's approval. Accordingly, plaintiffs' first argument is without merit. The fact that Kingston had no interest in the land on 9 November 1971 is immaterial.

By 17 February 1972 The Kingston Corporation was the prospective vendee of the land to be developed under a binding executory contract of sale. As such, it was regarded by the Asheville City Council as an *206 "owner" within the meaning of the ordinance.

Where an issue of statutory construction arises, the construction adopted by those who execute and administer the law in question is relevant and may be considered. Such construction is entitled to "great consideration," Gill v. Commissioners, 160 N.C. 176, 76 S.E. 203 (1912); or to "due consideration," Faizan v. Insurance Co., 254 N.C. 47, 118 S.E.2d 303 (1961). It is said to be "strongly persuasive," Shealy v. Associated Transport, 252 N.C. 738, 114 S.E.2d 702 (1960), or even "prima facie correct," In re Vanderbilt University, 252 N.C. 743, 114 S.E.2d 655 (1960). Moreover, the construction given a statute by the legislature, while not binding on the courts, is entitled to "great weight." Kornegay v. Goldsboro, 180 N.C. 441, 105 S.E. 187 (1920); Sash Co. v. Parker, 153 N.C. 130, 69 S.E. 1 (1910).

Generally, ". . . the rules to be applied in construing municipal ordinances are the same as those applied in the construction of statutes enacted by the legislature. Ordinances must receive a reasonable construction and application, and the primary rule for their interpretation and construction is that the intention of the municipal legislative body is to be ascertained and given effect." 56 Am.Jur.2d Municipal Corporations, Etc. § 398 (1971). Such is the rule with us. "The rules applicable to the construction of statutes are equally applicable to the construction of municipal ordinances." Cogdell v. Taylor, 264 N.C. 424, 142 S.E.2d 36 (1965). As stated by Justice Sharp in Bryan v. Wilson, 259 N.C. 107, 130 S.E.2d 68 (1963): "The basic rule for the construction of ordinances is to ascertain and effectuate the intention of the municipal legislative body."

Applying the foregoing principles to the construction of Section 9C of the Zoning Ordinance in question, we conclude that the intent of the Asheville City Council when it adopted said ordinance is accurately reflected by its own interpretation thereof, to wit: The term "owner" connotes not only the absolute owner of the property but also the equitable owner, or prospective vendee.

This interpretation accords with decisions elsewhere construing the term "owner" with respect to applications for building permits. In Scheer v. Weis, 13 Wis.2d 408, 108 N.W.2d 523 (1961), the applicant for a building permit to construct a dwelling on certain lots had entered into a contract to purchase the lots in question. The plaintiff owned land across the street and sought an injunction to restrain the issuance of the permit. The ordinance required the application to be made "by `the owner or his agent.'" Held: "The vendee under a contract to purchase land is the equitable owner and is the `owner' for many purposes. We think that the vendee is an owner for the purpose of applying for a building permit under the village ordinance." See also 62 C.J.S. Municipal Corporations § 227(3)c (1949): "Only a person having a right to erect the structure for which a building permit is sought is entitled thereto, but the application need not be made by the absolute owner of the property. . . . In a proper case it may be made by a person having only a contract to purchase the property if he has the consent and approval of the owner.. . ."

For the reasons stated we think the trial judge's conclusion that the word "owner" was not intended by the Asheville City Council to be restricted to the absolute owner of the property and that The Kingston Corporation legally qualified as "owner" within the meaning and intent of Section 9C of the Zoning Ordinance, was correct and should be upheld.

Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128 (1946), strongly relied on by plaintiffs, is factually distinguishable. There, a municipal board of adjustment granted a variance permit on the ground that to reject the permit would work a great hardship on the applicant. It *207 was held that the board of adjustment had, in effect, amended the zoning ordinance, thereby exceeding its authority. As an alternative ground for decision the court stated that an optionee cannot successfully apply for a variance permit since he "possesses no present right to erect a building on the lot described in his contract. To withhold from him a permit to do what he has no present right to do cannot, in law, impose an `undue and unnecessary' hardship upon him." Plaintiffs rely on this portion of the decision, but to no avail. The applicant in Lee was not required to be the "owner" of the land. In addition, the applicant there was merely an optionee, not a prospective vendee under a binding contract of sale. Plaintiffs' second assignment of error is overruled.

Plaintiffs having failed to show facts entitling them to the relief sought, the action was properly dismissed.