# Donnelly v. Board of Adjustment of Village of Pinehurst

> Court of Appeals of North Carolina · August 7, 1990 · 99 N.C. App. 702

URL: https://www.frixlaw.com/law-library/cases/9565880

## Case

- **Full name:** GERALD DONNELLY, PETITIONER v. BOARD OF ADJUSTMENT OF THE VILLAGE OF PINEHURST, Respondent
- **Court:** Court of Appeals of North Carolina
- **Decided:** August 7, 1990
- **Citations:** 99 N.C. App. 702; 394 S.E.2d 246; 1990 N.C. App. LEXIS 816
- **Precedential status:** Published
- **Opinion:** Dissent by Eagles
- **Judges:** Sarah Elizabeth Parker
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Judge EAGLES
dissenting.
I respectfully dissent. As the majority notes, when interpreting zoning ordinances, we should give words their ordinary meaning and significance. Penny v. Durham, 249 N.C. 596, 600 , 107 S.E.2d 72, 76 (1959). The ordinary meaning and significance of “access to abutting property” as used in the ordinance’s definition of a “street” is not satisfied by mere “visual access or being able to look at or onto the property.” In this context “access” means the right to ingress and egress without restriction. Dept. of Transportation v. Craine, 89 N.C. App. 223, 229 , 365 S.E.2d 694, 699 , dismissal allowed and disc. rev. denied, 322 N.C. 479 , 370 S.E.2d 221 (1988).
“In real property law, the term ‘access’ denotes the right vested in the owner of land which adjoins a road or other highway to go and return from his own land to the highway without obstruction.” Black’s Law Dictionary 13 (5th edition 1979); see also Dept. of Transportation v. Craine, 89 N.C. App. 223 , 365 S.E.2d 694 (1988).
Here, because “street” is defined by the ordinance 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” and “through lot” is defined by ordinance as an “interior lot having frontage on two streets,” I conclude that petitioner’s lot is not a through lot because it does not have frontage on two streets. Since there is no vehicular access from Highway 211 to petitioner’s lot, his lot is not a through lot as defined by the ordinance. Accordingly his rear fence is subject to a six foot height limitation and the order of the Board of Adjustment was erroneously entered. The superior court erred when it affirmed the Board’s order.
I am sensitive to the aesthetic concerns which motivate the Village of Pinehurst Board of Adjustment in construing their fence ordinance. However, our courts have consistently held that when municipalities restrict the rights of private citizens in the use of their own property, our municipal ordinances must be construed narrowly against the municipality. Penny v. Durham, 249 N.C. 596, 601 , 107 S.E.2d 72, 76 (1959).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9565880. Public record. Not legal advice.