City of Winston-Salem v. Robertson

344 S.E.2d 838 (1986)

CITY OF WINSTON-SALEM v. Donald R. ROBERTSON and wife, Alice F. Robertson.

No. 8621SC169.

Court of Appeals of North Carolina.

July 1, 1986.

Womble Carlyle Sandridge & Rice by Roddey M. Ligon, Jr., and Gusti W. Frankel, Winston-Salem, for plaintiff-appellant.

Allman, Spry, Humphreys and Armentrout by C. Edwin Allman and James W. Armentrout, Winston-Salem, for defendants-appellees.

WHICHARD, Judge.

Plaintiff-City contends the court erred in failing to find that closing one of defendants' two driveways on Ogburn Avenue represents a legitimate exercise of plaintiff-City's police power which does not require compensation. Defendants concede that ordinarily such action by the City "in *839 eliminating one of the two ingress and egress ways from [Ogburn Avenue] would be a legitimate use of the City's police power." However, citing Petroleum Marketers v. Highway Commission, 269 N.C. 411, 152 S.E.2d 508 (1967), defendants contend, in essence, that the court did not err in finding a taking because plaintiff-City's approval for these driveway locations in 1969 constituted a binding agreement between the parties fixing access to Ogburn Avenue at those points.

We hold that the question is controlled by Haymore v. Highway Comm., 14 N.C. App. 691, 189 S.E.2d 611, cert. denied, 281 N.C. 757, 191 S.E.2d 355 (1972). In Haymore this Court held that the granting of a driveway permit by the State Highway Commission did not vest an irrevocable property right in plaintiff-landowners which could not thereafter be taken without compensation. 14 N.C.App. at 695-96, 189 S.E.2d at 614-15. The Court reasoned:

It is true that compensation must be paid where under a right-of-way agreement the owner retains the right of access at a particular point and is subsequently refused access at that point. Petroleum Marketers v. Highway Commission, 269 N.C. 411, 152 S.E.2d 508; Kirkman v. Highway Commission, 257 N.C. 428, 126 S.E.2d 107; Williams v. Highway Commission, 252 N.C. 772, 114 S.E.2d 782; Realty Co. v. Highway Comm., 1 N.C.App. 82, 160 S.E.2d 83. In such instances, the right of continuing access at a particular point is a property right acknowledged by the State as a part of the consideration for the right-ofway agreement. The granting of an application for a driveway permit is not a contract. It is a regulatory action taken by the State for safety purposes and cannot be compared with a right-of-way agreement in which the property owner reserves access at a particular point.

Id. at 696, 189 S.E.2d at 615. The Court also stated:

[T]he Commission requires driveway permits for the purpose of assuring that a proposed driveway will be constructed in a safe manner and so as not to endanger travel upon the highway. This is an exercise of the general police power, and the granting of the permit does not vest an irrevocable property right in the property owner.

Id. at 695, 189 S.E.2d at 614-15.

Following Haymore, we hold that plaintiff-City's mere approval of defendants' Ogburn Avenue driveway location in 1969 was not an "agreement" between the parties but "a regulatory action taken by [plaintiff-City] for safety purposes [which] cannot be compared with a right-of-way agreement in which the property owner reserves access at a particular point." Id. The trial court thus erred in finding a taking which required compensation by plaintiff-City. Accordingly, the order is reversed, and the cause is remanded for entry of an order in favor of plaintiff-City.

Reversed and remanded.

PHILLIPS and MARTIN, JJ., concur.