Penny v. City of Durham

Annotate this Case

107 S.E.2d 72 (1959)

249 N.C. 596

W. H. PENNY and wife, Pauline B. Penny, Roy S. Whitfield and wife, Bernice Whitfield, Thomas H. McCauley, E. Weldon Herndon and wife, Robena J. Herndon, Irving W. Page and wife, Eula P. Page, and J. P. Carlton and wife, Ivey M. Carlton, v. CITY OF DURHAM, a Municipal Corporation, Edison H. Johnson, Building and Plumbing Inspector of the City of Durham, and Northland Investment Company. Inc., a Corporation.

No. 666.

Supreme Court of North Carolina.

February 25, 1959.

Reade, Fuller, Newsom & Graham, Durham, for plaintiffs, appellants.

C. V. Jones, Durham, for appellees City of Durham and Edison H. Johnson, Building Inspector.

E. C. Brooks, Jr., E. K. Powe and Eugene C. Brooks, III, Durham, for appellee Northland Investment Company, Inc.

MOORE, Justice.

A demurrer admits, for the purpose of testing the pleadings, the truth of factual averments properly alleged and such relevant inferences of fact as may be deduced *75 therefrom, but it does not admit any legal inferences or conclusions of law asserted by the pleader. Bailey v. McGill, 247 N.C. 286, 100 S.E.2d 860.

In the court below the plaintiffs based their case upon the alleged illegality of the rezoning ordinance of 2 December, 1957. As set out in the judgment appealed from, plaintiffs assigned as the sole ground for their contention that said ordinance is illegal "that their property is directly opposite the property which was rezoned by said ordinance, within the meaning of G.S. § 160-176, which requires the affirmative vote of three-fourths of the members of the City Council to change a zone when the owners of twenty per cent or more of the lots directly opposite the area, the zone of which is sought to be changed, filed written protest against such change; and that since said ordinance did not receive a three-fourths vote * * * it was not validly adopted * * *."

The pertinent part of G.S. § 160-176 is as follows: "Such regulations, restrictions and boundaries (fixed by a zoning ordinance) may from time to time be amended, supplemented, changed modified or repealed. In case, however, of a protest against such change signed by the owners of twenty per cent or more * * * of the area of the lots * * * directly opposite thereto extending one hundred feet from the street frontage of such opposite lots, such amendment shall not become effective except by favorable vote of three-fourths of all the members of the legislative body of such municipality." The portion in parentheses was inserted by us for sake of clarity.

It will be observed that the rezoning ordinance in question did not receive a favorable vote of three-fourths of all the members of the Durham City Council, but was adopted by a majority vote of seven to five. If the property of plaintiffs is "directly opposite" the rezoned property of defendant, Northland, the rezoning ordinance is invalid. If not "directly opposite," such ordinance is valid. It is to be kept in mind that Club Boulevard and the buffer strip 150 feet wide intervenes between the property of plaintiffs and Northland's rezoned property.

The fact that Northland owns both the "buffer strip" and the rezoned area and that both are parts of one tract of land makes no difference in this case. We must consider the matter in the same manner as if these areas were under separate ownership. The "Zoning Regulations" provide that the City "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." G.S. § 160-173. To hold that zoning district lines must coincide with property lines, regardless of area involved, would be to render the act largely ineffective.

To reach a solution, it is necessary to determine the meaning of the expression "directly opposite" as used under the circumstances in this case. Webster's New International Dictionary, Second Edition, Unabridged, defines "opposite" as "on opposite sides; in an opposed position. Across an intervening space from and usually facing or on the same level with; as * * * to live opposite the post office." It defines "directly" to mean, "in a straight line; at right angles to a surface; Vertically, as opposed to obliquely; without anything intervening; straightway; next in order."

If the statute had used the word "opposite" alone, clearly it could be said that plaintiffs' property and the rezoned property are opposite in the sense of being "across an intervening space" from each other, or in the sense of being "on opposite sides" of the intervening space. This definitive analysis, however, if carried to its logical conclusion, might lead to an absurdity. In this sense two tracts of land several miles apart might be said to lie opposite across any given number of intervening areas.

*76 Even if the foregoing application is made of the word "opposite," this word is qualified by the word "directly," and some meaning must be given to the word "directly" when used conjunctively with the word "opposite." To express it another way, the legislature would not have used the word "directly" as a mere redundancy; it was intended to modify, limit or enlarge the word "opposite." It seems to us that the only definitions of "directly" that would, under the circumstances in this case, really modify "opposite" are: "without anything intervening; next in order."

So it is our opinion that the expression "directly opposite" when applied to the lands in this case means those tracts of land on opposite sides of the street with only the street intervening. This seems to be the most natural and logical and best understood application of the expression. With reference to zoning "the law is disposed to interpret language in the light of surrounding circumstances and to give to words their ordinary meaning and significance." In re W. P. Rose Builders' Supply Co., 202 N.C. 496, 163 S.E. 462, 464.

In the case of Sunbury Steam Ferry & Tow-boat Company v. Grant, 2 Monag., Pa., 287, 15 A. 706, 707, a charge of the lower court was approved as to what was "opposite" the town of Sunbury. The trial court said: "Suppose you were to move this town straight across the river, what would you strike? That is just what is opposite." The charge further stated: "Of course, taken literally, everything in this world is opposite something else, and if you take this broad signification the whole western hemisphere is opposite to the town of Sunbury, if you keep widening it out; but the act does not mean that."

The word "directly" is defined, "in a direct way; without anything intervening; not by secondary, but by direct, means" in the following cases, though the factual situations are quite different: Clark v. Warner, 85 Okl. 153, 204 P. 929, 934; Olsen v. Standard Oil Co., 188 Cal. 20, 204 P. 393, 396; Provident Life & Accident Ins. Co. v. Campbell, 18 Tenn.App. 452, 79 S.W.2d 292, 296. See also Black's Law Dictionary.

The case of Montebello Land Co. v. Frank Novak Realty Co., 167 Md. 185, 172 A. 911, 913, is directly on all fours with the instant case. The statutory provisions involved are the same as in G.S. § 160-176. In that case the rezoned land had between it and the street on the south a parcel of land 222 feet and more in width. In deciding that the plaintiff owners across the street had no standing to require a three-fourths vote of the City Council, the court said: "* * * the plaintiff is not the owner of any lots or area of land within 100 feet of any boundary line of the area included in the change proposed by the new ordinance that became effective upon its passage. All of the land of the plaintiff is south of Thirty-Fifth street, and the area of the lots included in the proposed change is everywhere at least 222 feet north of Thirty-Fifth street, so the width of that street and a parcel of land 220 feet wide are between the plaintiff's land and the area changed."

It must be kept in mind that "Zoning ordinances are in derogation of the right of private property, and, where exemptions appear in favor of the property owner, they should be liberally construed in favor of such owner." In re W. P. Rose Builders' Supply Co., supra.

The rezoning ordinance of 2 December, 1957, in question in this case was regularly adopted and is legal and valid. Upon the record before us, the "buffer strip" is still zoned for one-family residence usage. Whatever the ultimate intention of Northland, the law is adequate to meet any exigency that may arise.

In view of the decision in this case, it is unnecessary to discuss or decide the right to injunctive relief in situations similar to the one at bar, should ordinances be declared invalid.