dissenting.
While I agree with the majority that the trial court acted without authority in imposing the civil penalty, I would not require the defendants to dismantle the deck.
Section 21-8.3 of the Code of the Town of Pine Knoll Shores provides that “No building may be constructed nearer than 30 feet to the mean high water mark of any interior waterway canal to include decks and porches.” Section 21-2 defines “Building”
“Building” shall mean any structure built for the support, shelter or enclosure of persons, animals, chattels or property of any kind, which has enclosing walls for fifty percent or more of its parameter. The term “building” shall be construed as if followed by the words “or parts thereof” including porches, decks, carports, garages, sheds, roof extensions and overhangs and any other projections.
(Emphasis added). The definition of “Building” contained in Section 21-2 suggests that the thirty foot set back restriction applies only to “decks” projecting or extending from another structure. The restriction is in my view at least ambiguous in application to the construction at issue here. Zoning ordinances are in derogation of the right to property, In Re Conch, 258 N.C. 345, 346, 128 S.E.2d 409, 411 (1962), and where possible should be construed in favor of freedom of use. In Re Application of Construction Co., 272 N.C. 715, 718, 158 S.E.2d 887, 890 (1968). I therefore agree with the trial court that the Evans have not violated Section 21-8.3 of the Code of Pine Knoll Shores.
Section 21-8.1 of the Zoning Ordinance states: “Only single family residences shali be erected.... No other separate structures shall be permitted.” The term “structure” is defined in Section 21-2 of the zoning ordinance as “anything constructed or erected requiring location on land except fences, mailboxes, flagpoles, lampposts, doghouses, birdhouses, and well pump covers.”
Zoning ordinances must be construed to ascertain and effectuate the intent of the legislative body. Id. The apparent intent of this ordinance is to restrict each lot to one residence as well as to preserve an uncluttered appearance. While aesthetic considerations may serve as a basis for zoning regulations, restrictions must be reasonably related to the purpose they are designed to serve. State v. Jones, 305 N.C. 520, 530-31, 290 S.E.2d 675, 681 *87(1982). To apply section 21-8.1 to prohibit the flat and unobstructive construction of the Evans’ deck would be to impose a restriction unrelated to any clearly reasonable purpose and as such would render the ordinance vague and overbroad in its application. Zoning laws should be upheld only insofar as they reasonably regulate or restrict use of private property and accomplish the purpose for which they are intended. See Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325 (1968). I would uphold the trial court’s determination that this zoning ordinance does not clearly prohibit the construction at issue.
The trial court ruled against defendants only for failing to “apply for, receive or post a permit” for construction. However, the record shows that Mrs. Evans appeared before the community appearance committee on 8 June 1987, and the plaintiff’s complaint admits that the defendants officially applied for a permit on 14 July 1987 and that this application was denied because the city determined that the construction would violate the thirty foot set back rule.
Insofar as the construction violates neither the thirty foot set back rule nor the prohibition against separate structures, the town wrongfully denied the permit. While the defendants should have appealed the town’s denial of their permit before resuming construction, ordering the defendants to dismantle an improvement for which they should have received and still should receive a permit, violates the principle that the court should avoid economic waste where possible. See LaPierre v. Samco Development Corporation, 103 N.C. App. 551, 406 S.E.2d 646 (1991); Warfield v. Hicks, 91 N.C. App. 1, 11, 370 S.E.2d 689, 695 (1988), disc. rev. denied, 323 N.C. 629, 374 S.E.2d 602 (1988). Were we to strike the civil penalty remedy and leave the remainder of the trial court’s ruling intact, defendants will be required to dismantle the deck but can then reapply for and receive a permit to rebuild the same.
I would reverse the trial court’s directed verdict for the plaintiff town and remand the case to the trial court to determine whether an order should issue requiring the town to issue a building permit nunc pro tunc.