Lathan v. UNION COUNTY BD. OF COM'RS

267 S.E.2d 30 (1980)

47 N.C. App. 357

Joseph D. LATHAN v. UNION COUNTY BOARD OF COMMISSIONERS and Union County and Gladys Nesbit and Keith A. Nesbit.

No. 7920SC1181.

Court of Appeals of North Carolina.

June 17, 1980.

*31 Joe P. McCollum, Jr., Monroe, for plaintiff-appellee.

Griffin, Caldwell & Helder by Thomas J. Caldwell and H. Ligon Bundy, Monroe, for defendants-appellants Union County Board of Commissioners and Union County.

Smith, Smith, Perry & Helms by Henry B. Smith, Jr., Monroe, for defendants-appellants Gladys Nesbit and Keith A. Nesbit.

HARRY C. MARTIN, Judge.

Appellants assign as error the trial court's entering summary judgment on behalf of plaintiff and denying appellants' motion for summary judgment. The court granted judgment in favor of plaintiff "as a matter of law in that the property described in the petition was spot zoned by the defendant, Union County Board of Commissioners."

There is no controversy as to the facts disclosed by the evidence in this case. The only controversy involves the legal significance of the facts; therefore, this action is a proper case for summary judgment. See Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972), in which the validity of a City of Raleigh zoning ordinance was determined on summary judgment. Based on the materials before it, the trial court in the present case ruled that the Nesbit property had been spot zoned. We affirm this ruling.

In the Blades case, the Court defined the concept of spot zoning as follows:

A zoning ordinance, or amendment, which singles out and reclassifies a relatively small tract owned by a single person and surrounded by a much larger area uniformly zoned, so as to impose upon the small tract greater restrictions than those imposed upon the larger area, or so as to relieve the small tract from restrictions to which the rest of the area is subjected, is called "spot zoning."

280 N.C. at 549, 187 S.E.2d at 45. Spot zoning is beyond the authority of the municipality or county in the absence of a clear showing that a reasonable basis exists for such distinction. Id. The question for our determination, then, is whether the record clearly discloses a reasonable basis for spot zoning the Nesbit property. If such a clear showing does not exist, the court appropriately granted summary judgment for plaintiff.

The only evidence in the record that would arguably tend to show a reasonable basis for the rezoning is found in defendants' exhibits. Keith Nesbit stated in an affidavit "[t]hat Cane Creek flows through the property and a substantial portion of the property is unsuitable for residential structures and developments because of the fact that it is too low." Similarly, in the minutes of the Union County Board of Commissioners' meeting, held 6 November 1978, are found the reasons for a favorable recommendation by the Union County Planning Board:

*32 "(1) Because of how long it has been there. (2) You can't tell a man that he can't grow and will have to go up U.S. 74 to expand. (3) How long they have had the land."

In addition, the zoning maps reveal that a small district, between one and two acres in size, is located across Rocky River Road from the Nesbit property and is zoned B-3, general business district. Two roads, one gravel and one paved, border portions of the Nesbit property; defendants argue that this factor makes the property "peculiarly suited for industrial use" and "sets it apart from the adjoining property."

We think that this evidence falls short of being a clear showing that a reasonable basis exists for spot zoning the Nesbit property. The county, therefore, acted beyond its authority, and the trial court was correct in granting summary judgment for plaintiff on the basis of the unlawful spot zoning.

Affirmed.

WEBB and WELLS, JJ., concur.