Armstrong v. McInnis

142 S.E.2d 670 (1965)

264 N.C. 616

Roy G. ARMSTRONG et al. v. Lynn W. McINNIS, Administrator of the Estate of Hervie N. Williard, et al.

No. 693.

Supreme Court of North Carolina.

June 18, 1965.

*675 Schoch, Schoch & Schoch, High Point, for plaintiffs, appellants.

Morgan, Byerly, Post & Keziah, High Point, for defendants, appellees.

Knox Walker, High Point, for defendant City of High Point.

DENNY, Chief Justice.

The appellants' first assignment of error is to the refusal of the trial court to submit issues of fact, allegedly raised by the pleadings, to a jury.

The General Assembly has delegated its police powers to enact zoning regulations to municipal corporations. G.S. § 160-172; Strong's North Carolina Index, Vol. III, Municipal Corporations, §§ 25 and 26, page 409, et seq.; In re O'Neal, 243 N.C. 714, 92 S.E.2d 189; 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.

*676 In City of Raleigh v. Fisher, supra, this Court said:

"In enacting and enforcing zoning regulations, a municipality acts as a governmental agency and exercises the police power of the State. Kinney v. Sutton, 230 N.C. 404, 53 S.E.2d 306; City of Elizabeth City v. Aydlett, 201 N.C. 602, 161 S.E. 78; State v. Roberson, 198 N.C. 70, 150 S.E. 674. The police power is that inherent and plenary power in the state which enables it to govern and to prohibit things hurtful to the health, morals, safety, and welfare of society. Drysdale v. Prudden, 195 N.C. 722, 143 S.E. 530; Skinner v. Thomas, 171 N.C. 98, 87 S.E. 976. L.R.A.1916E, 338. In the very nature of things, the police power of the State can not be bartered away by contract, or lost by any other mode."

In the case of In re Pine Hill Cemeteries, Inc., 219 N.C. 735, 15 S.E.2d 1, the City of Durham had adopted a comprehensive zoning ordinance. The Board of Adjustment entered an order granting a certificate of occupancy for a nonforming use, and the petitioner applied to the Superior Court for a writ of certiorari, which was granted. The trial judge, on motion of petitioner, remanded the cause to the Board of Adjustment with instructions to take further evidence and to find such further facts as might be found therefrom, and upon the facts found, to make a new determination. This Court held:

"While it may be that the board has authority, on proper showing, to reopen or rehear for the consideration of additional evidence, it has the exclusive right to determine when and upon what conditions this shall be done. The court will not substitute its judgment for that of the board. Nor will it undertake to exercise discretion vested by law in the board. "Furthermore, in the hearing below on the writ of certiorari, the judge was sitting as an appellate court. As such, he was authorized to review questions of law and legal inference arising on the record. The broad discretionary powers vested in him as a trial judge were absent. "It follows that the court below was without authority to remand the cause for a rehearing except for errors of law committed by the Board. Nor could he require the Board to enter a new determination in the absence of clear legal error or oppressive and manifest abuse of discretion."

As we interpret the record before us, the questions for determination are questions of fact and not issues of fact. Horton v. Redevelopment Commission, 262 N.C. 306, 137 S.E.2d 115; Housing Authority of City of Wilson v. Wooten, 257 N.C. 358, 126 S.E.2d 101.

In the case of In re Housing Authority, 235 N.C. 463, 70 S.E.2d 500, this Court said:

"Indeed, so extensive is this discretionary power of housing commissioners that ordinarily the selection of a project site may become an issuable question, determinable by the court, on nothing short of allegations charging arbitrary or capricious conduct amounting to abuse of discretion. * * * "Conceding, as we may, that the issuable question thus presented was a question of fact reviewable by the presiding Judge, Madison County Railway Co. v. Gahagan, 161 N.C. 190, 76 S.E. 696; McIntosh, North Carolina Practice and Procedure, pp. 542, 543, nevertheless, it was within the discretionary power of the Judge to submit the question to the jury for determination. * * *"

In the instant case, the trial judge held in his discretion that the questions presented were questions of fact and should be heard by the court without a jury, and in this ruling we concur. The trial judge below, *677 like the trial judge in In re Pine Hill Cemeteries, Inc., supra, insofar as the hearings before the Planning and Zoning Commission and the hearings before the City Council of the City of High Point were concerned, and the official records as to what transpired in said meetings in connection with the adoption of the zoning ordinance under attack, was sitting as an appellate court and was authorized only to review questions of law and legal inferences arising on the record.

This assignment of error is overruled.

Assignment of error No. 2 is based upon the mandatory provisions of the Code of Ordinances of the City of High Point, § 22-16.2, which require, among other things, that Planned Industrial Parks "* * shall be located between heavy industrial areas and residential areas and in areas served by major thoroughfares that are not feasible for medium to heavy industrial development because of the proximity to residential areas * * *," and the contention that the findings of fact and conclusions of law are insufficient to support the proposed rezoning. We do not concur with the defendants' contentions in this respect. It is argued that since the southern boundary of the Williard Tract is the right of way and tracks of the Southern Railway Company for a distance slightly in excess of 1,000 feet, that the Williard property does not lie between an industrial area and a residential area. There is no dispute about the fact that approximately 400 acres of land immediately to the south of the Williard property, separated only by the right of way of the Southern Railway and Kivett Drive, which runs parallel with the railroad, have been zoned for heavy industry, designated as Industrial 6. Furthermore, some industries in this area are located on the south side of Kivett Drive.

It is conceded that the 200 acre tract of the Williard property is bounded on the north by Highway 29A-70A for a distance of 1,332 feet, and that the average length and depth between the highway on the north and the Southern Railway on the south is approximately 5,550 feet. The area to the east of the Williard property, including Roy G. Armstrong's lands, was previously zoned as Residential A-20. However, except for the Armstrong home, where he has lived since 1938, his property is like the Williard property, unurbanized. To the west of the Williard Tract the area is zoned as residential, except in the area to the northwest of the property there exists a combination of commercial and residential properties.

In the case of In re Appeal of Parker, 214 N.C. 51, 197 S.E. 706, the petitioner attacked the validity of a zoning ordinance adopted by the City of Greensboro. From a judgment upholding the ordinance, the petitioner excepted and appealed. This Court, speaking through Barnhill, J., later C. J., said:

"The courts will not invalidate zoning ordinances duly adopted by a municipality unless it clearly appears that in the adoption of such ordinances the action of the city officials `has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense.' * * * "When the most that can be said against such ordinances is that whether is was an unreasonable, arbitrary or unequal exercise of power is fairly debatable, the courts will not interfere. In such circumstances the settled rule seems to be that the court will not substitute its judgment for that of the legislative body charged with the primary duty and responsibility of determining whether its action is in the interest of the public health, safety, morals or general welfare. * * * Harden v. [City of] Raleigh, supra (192 N.C. 395, 135 S.E. 151), in which the court quotes with approval from Rosenthal v. [City of] Goldsboro, 149 N.C. 128, 62 S.E. 905, 20 L.R.A.,N.S., 809 as follows *678 (135 S.E. p. 153): `It may now be considered as established with us, that our courts will always be most reluctant to interfere with these municipal governments in the exercise of discretionary powers, conferred upon them for the public weal, and will never do so unless their action should be so clearly unreasonable as to amount to an oppressive and a manifest abuse of their discretion. This position is, we think, supported by the better reason, and is in accord with the decided weight of authority.' * * * "The petitioner complains that the ordinance is an arbitrary and unreasonable restriction upon the petitioner's property rights. That he, due to the particular circumstances of his case, may suffer hardship and inconvenience by an enforcement of the ordinance is not sufficient ground for invalidating it. * * * The fact that the ordinance is harsh and seriously depreciates the value of complainant's property is not enough to establish its invalidity. * * *"

This assignment of error is likewise overruled.

Assignment of error No. 3 is directed to the alleged noncompliance with the mandatory provisions of the Code of Ordinances of the City of High Point, § 22-16.3, which require, among other things, that "(a) The developer shall produce evidence that the district is needed and there is a demand for such district in the area proposed and that intended uses in said district will provide a harmonious relationship between such use and uses in adjacent districts."

In our opinion, the developers offered ample evidence to support the findings of fact with respect to the need for a Planned Industrial Park District in the City of High Point, and we so hold. Furthermore, whether or not such a park is needed and its establishment was in the public interest, involved discretionary power exercised by the City Council of the City of High Point in its governmental capacity. In re Markham, 259 N.C. 566, 131 S.E.2d 329.

The appellants contend that the action of the City Council of the City of High Point in adopting the ordinance creating the Planned Industrial Park District was a "mere sham, to cover the City's unconscionable misuse of governmental power," in that it, the appellants contend, made tentative commitments to Singer Fidelity, Inc., which concern wanted to purchase a part of the Williard property as a site provided it was zoned as a Planned Industrial Park District, before the application was filed.

There is plenary evidence not only that Singer Fidelity, Inc. was interested in purchasing a site from the Williard heirs, but that the Chamber of Commerce of the City of High Point, and local real estate men had received many inquiries about whether or not such an area was available. If there had not been inquiries or requests for sites in a Planned Industrial Park District, doubtless neither the Zoning Commission nor the City Council would have taken any action to establish such an area. In our opinion, this assignment of error is without merit and is overruled.

Assignment of error No. 4 purports to challenge the legality of the action of the City Council of the City of High Point in its attempt to rezone the Williard property on the ground that, as a matter of law, such action was unreasonable, arbitrary or capricious, and not in furtherance of the public health, safety, morals or general welfare, and any findings of fact or conclusions of law to the contrary are erroneous.

This assignment of error seems to be based largely upon the fact that on 29 April 1963 the Williard Heirs filed with the Planning and Zoning Commission of the City of High Point an application for rezoning the entire 200 acre tract of the Williard property from Residential A-20 to Planned Industrial Park District, and plaintiffs, consisting of more than 20% of the adjacent *679 property owners (see Finding of Fact No. 5), pursuant to the provisions of G.S. § 160-176, filed a protest with the Planning and Zoning Commission; whereupon, on 2 August 1963, the City Council unanimously rejected the application. Thereafter, on 19 August 1963, the Williard Heirs filed an application with the Planning and Zoning Commission for a new and different plan for rezoning the Williard Tract from Residential A-20 to Planned Industrial Park District. This plan was different from the original plan in that it relocated the zoning lines at least 101 feet from adjoining residentially zoned property, et cetera (see Findings of Fact Nos. 7 and 8).

The creation of a buffer zone of 101 feet around the outer edge of the Williard Tract, which buffer zone is to remain zoned as Residential A-20, is permissible. Penny v. City of Durham, 249 N.C. 596, 107 S.E.2d 72.

In the last cited case, we upheld the creation or establishment of a buffer strip or zone 150 feet wide, to remain zoned for residential purposes, and further held the ordinance valid which had been adopted by only a majority of the members of the City Council of the City of Durham, rezoning the remainder of the property involved for business purposes. This Court said:

"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. * * * "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 McKinney v. City of High Point, 239 N.C. 232, 79 S.E.2d 730, this Court said:

"* * * The adoption of a zoning ordinance does not confer upon citizens living in a Residence A Zone, as therein defined, any vested right to have the ordinance remain forever in force, inviolate and unchanged. "A zoning ordinance is not a contract between the municipality and its citizens. * * * The adoption of such ordinance is a valid exercise of the police power * * *, which is not exhausted by its use. "It being a law enacted in the exercise of the police power granted the municipality, no one can acquire a vested right therein. * * * It is subject to amendment or repeal at the will of the governing agency which created it."

This assignment of error is overruled.

The appellants' final assignment of error is to the findings of fact and conclusions of law that the rezoning ordinance was adopted in accordance with the Code of Ordinances of the City of High Point.

The appellants do not challenge the validity of Councilman Carrick's vote on the ground that he had been convicted of a felony in 1938, and that his citizenship had not been restored in the manner provided by Chapter 13 of the General Statutes of North Carolina (see Findings of Fact Nos. 9 and 10).

*680 The Council of the City of High Point is composed of eight councilmen and a mayor. Five members of the Council, including Virgil P. Carrick, voted in favor of the adoption of the rezoning ordinance and two members of the Council and the Mayor voted against the adoption of the ordinance.

Mayor Mehan challenged Councilman Carrick's vote and declared "the motion to rezone the Williard property was defeated because of insufficient majority voting for it." The City Attorney called attention to the fact that it required only five favorable votes to adopt the ordinance and that five votes had been cast for its adoption and the ordinance had passed. Councilman Bencini made a motion that Councilman Carrick's vote be declared valid on the zoning vote. This motion was duly seconded, and upon a roll call vote, Councilmen Bencini, Carrick, Clapp, Hancock, Koonce and Shelton voted for the motion; Mayor Mehan voted against it, and Councilman Eshelman abstained. One member of the Council was absent.

The appellants contend that the Mayor's ruling on Carrick's right to vote was final and could not be overthrown by appeal to the Council to override his ruling. In this we do not concur. G.S. § 128-6 provides:

"Any person who shall, by the proper authority, be admitted and sworn into any office, shall be held, deemed, and taken, by force of such admission, to be rightfully in such office until, by judicial sentence, upon a proper proceeding, he shall be ousted therefrom, or his admission thereto be, in due course of law, declared void."

We hold that Mayor Mehan had no right to deny Councilman Carrick's right to vote. Upon his election, and after having been sworn in as a member of the City Council of the City of High Point, Carrick was a de facto councilman until he was removed from said office in a quo warranto proceeding or otherwise removed therefrom as provided by law. In re Wingler, 231 N.C. 560, 58 S.E.2d 372, and cited cases.

There are some inconsistencies in the allegations, contentions and arguments of the appellants. On the one hand, they argue that there is no need or justification for the creation of a Planned Industrial Park District in the City of High Point. They further contend there is no assurance that the East Belt Line as contemplated by the City of High Point and the State Highway Commission will ever be built to serve this property (see Finding of Fact No. 4). Yet, they allege in their complaint that prior to the request for rezoning the Williard property it had a value of approximately $2,000 per acre; that if the rezoning ordinance is upheld, the value of the Williard land will be increased by $10,000 per acre; therefore they allege, these plaintiffs and other citizens of High Point will be required to pay about $360,000 for approximately 36 acres of land within the Planned Industrial Park District that will be required for the right of way of the proposed East Belt Line. What proof could be more conclusive of the need for a Planned Industrial Park District than that property within such district will immediately be in such demand that its value will be increased five fold by being included in such a district?

The burden was upon the appellants to show that the action of the City Council of the City of High Point was arbitrary and capricious to such an extent as to amount to an abuse of discretion. We find no evidence on this record of an abuse of discretion on the part of the City Council of the City of High Point, or that the members thereof or any of them acted in bad faith in connection with the adoption of the contested ordinance.

The judgment of the court below is

Affirmed.