Godfrey v. Union County Bd. of Com'rs

300 S.E.2d 273 (1983)

61 N.C. App. 100

Frank B. GODFREY, Joe N. Sutton, O. Fred Howey and Billups Hood v. UNION COUNTY BOARD OF COMMISSIONERS, Union County and James Dennis Rape.

No. 8220SC258.

Court of Appeals of North Carolina.

March 1, 1983.

*275 Joe P. McCollum, Jr., Monroe, for plaintiffs.

Griffin, Caldwell, Helder & Steelman, P.A., by C. Frank Griffin and Thomas J. Caldwell, Monroe, for defendants.

WELLS, Judge.

By its three assignments of error and two arguments, defendant challenges Judge Kivett's finding of fact number five and his single conclusion of law.

While we perceive that Judge Kivett's finding of fact number five may be more in the nature of a conclusion, we need not dwell on that aspect of his order. There is no dispute as to the underlying evidence in this case or the facts established by that evidence. The only controversy involves the legal significance of the evidence and the facts. See, e.g., Lathan v. Board of Commissioners, 47 N.C.App. 357, 267 S.E.2d 30, disc. rev. denied, 301 N.C. 92, 273 S.E.2d 298 (1980). The dispositive question before us is, therefore, whether the evidence and facts in this case support Judge Kivett's conclusion and judgment that the rezoning in this case constituted "spot zoning" and should therefore be set aside. We hold that Judge Kivett was correct in his conclusion and judgment and therefore affirm.

There is no dispute that at the time the Rape tract was rezoned Union County had in effect a comprehensive land use and development plan. While such plans may be appropriately modified after their adoption, such changes must be made consistently with the overall purposes contemplated by the adoption of the plan, and not to accommodate the needs or plans of a single property owner. As our Supreme Court stated in Blades v. City of Raleigh:

The whole concept of zoning implies a restriction upon the owner's right to use a specific tract for a use profitable to him but detrimental to the value of other properties in the area, thus promoting the most appropriate use of land throughout the municipality, considered as a whole. The police power, upon which zoning ordinances must rest, permits such restriction upon the right of the owner of a specific tract, when the legislative body has reasonable basis to believe that it will promote the general welfare by conserving the values of other properties and encouraging the most appropriate use thereof. (cites omitted).

280 N.C. 531, 187 S.E.2d 35 (1972).

In the case now before us, the evidence before the trial court clearly showed that the whole intent and purpose of Mr. Rape's application for rezoning was to accommodate his plans to relocate his grain bin operation, not to promote the most appropriate use of the land throughout the community.

There is no dispute that Mr. Rape's tract of land is surrounded on all sides by property zoned for single family residences. As our Supreme Court stated in Blades, supra,

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." It is beyond the authority of the municipality, in the absence of a clear showing of a *276 reasonable basis for such distinction. (cites omitted).

Defendant County contends that the Rape property has characteristics that distinguish it from the property adjoining it. Judge Kivett correctly did not view the evidence as supporting this contention. While the evidence clearly does show that the Rape property has certain characteristics that make it suitable for industrial use, i.e., paved public highway and a railroad on the tract and public water available, viewed in the context of the general characteristics of the area in which it is located, the Rape tract is essentially similar to the property or land that surrounds it and the characteristics of the Rape tract provide no reasonable basis for zoning it differently from the surrounding property.

We are persuaded that the attempted rezoning here constituted both "spot zoning" and "contract" zoning, Blades, supra, and was therefore invalid.

For the reason given, the judgment of the trial court is

Affirmed.

VAUGHN, C.J., and BRASWELL, J., concur.