Marren v. Gamble

75 S.E.2d 880 (1953)

237 N.C. 680

MARREN et ux. v. GAMBLE et al.

No. 525.

Supreme Court of North Carolina.

May 6, 1953.

*882 Parker Whedon, Charlotte, for plaintiffs, appellants.

Cochran, McCleneghan & Miller, Charlotte, for defendants C. F. Gamble and wife, Martha Brite Gamble, appellees.

John D. Shaw, Charlotte, for defendants, City of Charlotte and H. N. Sutton, Chief Building Inspector of City of Charlotte, appellees.

ERVIN, Justice.

The General Assembly has delegated to the legislative body of a municipality the power to promulgate zoning regulations "For the purpose of promoting health, safety, morals or the general welfare of the community". G.S. § 160-172.

G.S. § 160-173 is in these words: "For any or all said purposes it may divide the municipality into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this article; and within such districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of building throughout each district, but the regulations in one district may differ from those in other districts: Provided, however, that when at any intersection of streets in the corporate limits of any city or town the said legislative body of the said city or town promulgates any certain regulations and/or restrictions for the erection, construction, reconstruction, alteration, repair or use of buildings, structures or land on two or more of said corners at said intersection, it shall be the duty of such legislative body upon written application from the owner of the other corners of said intersection to redistrict, restrict and regulate the remaining said corners of said intersecting streets in the same manner as is prescribed for the erection, construction, reconstruction, alteration, repair or use of buildings, structure or land of the other said corners for a distance not to exceed one hundred and fifty feet from the property line of said intersecting additional corners."

The Charlotte City Council did not gang aglee in taking the position that under the proviso of G.S. § 160-173, C. F. Gamble and Martha Brite Gamble possessed the legal right to require the rezoning of their corner from residential to business use because the other three corners of the intersection had already been zoned for business use by the general zoning ordinance. This being so, the plaintiffs have no legal ground for complaint unless the statutory proviso offends the organic law.

The plaintiffs assert initially that the proviso of G.S. § 160-173 delegates the power to legislate to a private person in violation of Section 1 of Article 2 of the Constitution of North Carolina. They offer these arguments to sustain this position: The power to zone or rezone is legislative. The statutory proviso compels the legislative body of the municipality to rezone the corner of an intersection at the demand of its owner whenever the conditions enumerated in the proviso exist. Hence, the proviso, in reality, delegates the legislative power to rezone the corner to its owner rather than the legislative body of the municipality.

These arguments lack substance. When it delegates zoning power to a municipality, the General Assembly may prescribe the conditions under which the power is to be exercised. State ex rel. Holcombe v. City of Lake Charles, 175 La. 803, 144 So. 502; Leahy v. Inspector of Buildings, 308 Mass. 128, 31 N.E.2d 436; 62 C.J.S., Municipal Corporations, § 226(2). In the final analysis, the proviso of G.S. § 160-173 does this, and nothing more. When its phraseology is reduced to simple terms, it merely declares that whenever the legislative body of a municipality zones two or more corners at an intersection of streets in the corporate limits of the municipality in a certain way, "it shall be the duty of such legislative body upon *883 written application from the owner of the other corners" of the intersection to rezone such other corners in the same manner. It does not undertake to authorize or permit the owner of the other corners to exercise any legislative power. To be sure, the proviso of G.S. § 160-173 confers upon the owner of the other corners a legal right to require the legislative body of the municipality to rezone his corners in the manner set forth whenever the conditions specified in the proviso exist. But this legal right is created by the General Assembly itself to enforce its own motion as to how corners at street intersections should be zoned.

In enacting a zoning ordinance a municipality is engaged in legislating and not in contracting. City of Raleigh v. Fisher, 232 N.C. 629, 61 S.E.2d 897; Kinney v. Sutton, 230 N.C. 404, 53 S.E.2d 306; Clifton Hills Realty Co. v. City of Cincinnati, 60 Ohio App. 443, 21 N.E.2d 993. As a consequence, a zoning ordinance fixing the boundaries of zones does not result in a contract between the municipality and property owners precluding the municipality from afterwards changing the boundaries if it deems a change to be desirable. Hollearn v. Silverman, 338 Pa. 346, 12 A.2d 292. Moreover, a zoning ordinance does not vest in a property owner the right that the restrictions imposed by it upon his property or the property of others shall remain unaltered. Nusbaum v. City of Norfolk, 151 Va. 801, 145 S.E. 257; Eggebeen v. Sonnenburg, 239 Wis. 213, 1 N.W.2d 84, 138 A.L. R. 495. For these reasons, zoning regulations may be amended or changed when such action is authorized by the enabling statute and does not contravene constitutional limitations on the zoning power.

The plaintiffs concede that the proviso of G.S. § 160-173 is sufficient in phraseology to authorize the amendment to the zoning regulations applicable to the corner owned by C. F. Gamble and Martha Brite Gamble. They insist, however, that the proviso is void even if it does not involve an unconstitutional delegation of legislative power to private persons. They contend that it impinges on the law of the land clause of Section 17 of Article 1 of the North Carolina Constitution, and the due process of law clause of the Fourteenth Amendment to the United States Constitution in two particulars. The first is that it bears no substantial relation to the health, safety, morals, or general welfare of the community, and the second is that it denies to owners of adjacent or nearby property any real opportunity to be heard on the question as to whether or not the other corners at the intersection ought to be rezoned in the same manner as the two or more corners are zoned.

Much of the perplexity arising on this aspect of the case vanishes when the statutory proviso is viewed in proper perspective. The proviso is not restricted in its operation to a single street intersection in a single city. It applies with impartiality to all the street intersections in all the municipalities enacting zoning ordinances under the zoning power delegated to them by the statutes embodied in Article 14 of Chapter 160 of the General Statutes. When proper regard is had to this circumstance, it becomes obvious that the proviso is well designed to promote the public welfare. The proviso is based on the sound concept that ordinarily all the property cornering on a given street intersection is subject to peculiar conditions of a kindred nature. It is calculated to prevent discrimination and promote uniformity in zoning property having substantially the same character. It has, moreover, a strong tendency to permit every owner of land cornering on a street intersection to put his land to the use to which it is best adapted.

The complaint discloses inferentially that before it passed the amendment to the general zoning ordinance, the Charlotte City Council gave the plaintiffs and other interested citizens a public hearing after notice on the only question committed to its determination by the proviso of G.S. § 160-173, that is to say, whether or not two or more corners at the intersection of the Plaza and East 35th Street were zoned in the same manner. In so doing, the Charlotte City Council met statutory requirements respecting an adequate notice and a public hearing. G.S. § 160-175.

*884 The plaintiffs assert, however, that these statutory requirements do not satisfy the demands of the law of the land clause of the State Constitution and the due process of law clause of the Fourteenth Amendment to the Federal Constitution. They argue that these clauses invalidate the proviso of G.S. § 160-173 because it denied to owners of adjacent or nearby property any real opportunity to be heard on the question whether or not the other corners at an intersection ought to be rezoned in the same manner as the two or more corners are zoned.

An analysis of this argument reveals its paradoxical character. When it is reduced to ultimate terms, the argument comes to this: Whenever the General Assembly delegates zoning power to a municipality and commands the municipality to zone corner lots in a certain way at all street intersections where specified conditions exist, the General Assembly must permit the municipality to pass judgment on the wisdom of the command in relation to each included intersection, and to disobey the command in respect to any included intersection in case it concludes obedience to the command at such intersection would be foolish; otherwise, the General Assembly violates the law of the land clause of the State Constitution and the due process of law clause of the Fourteenth Amendment to the Federal Constitution.

This argument is insupportable. The constitutional provisions invoked by the plaintiffs do not subordinate the State to the agency of its own creation, and compel the State to permit its creature to disobey its laws simply because its creature deems its laws to be wanting in wisdom. All of the original zoning power of the State reposes in the General Assembly. Leahy v. Inspector of Buildings, supra; Bradley v. Zoning Adjustment Board of Boston, 255 Mass. 160, 150 N.E. 892, 893. Since the proviso of G.S. § 160-173 has a reasonable tendency to promote the public good, it represents a valid exercise of this power, and is entitled to implicit obedience.

The amendment to the general zoning ordinance does not deprive the plaintiffs of any of their legal rights. The resultant diminution in the value of their property is a misfortune which they must suffer as members of organized society.

The judgment sustaining the demurrer is affirmed.