Allred v. City of Raleigh
| Decision Date | 20 January 1971 |
| Docket Number | No. 11,11 |
| Citation | 178 S.E.2d 432,277 N.C. 530 |
| Court | North Carolina Supreme Court |
| Parties | Clarence M. ALLRED et al., Plaintiffs, v. The CITY OF RALEIGH, North Carolina, Travis H. Tomlinson, Mayor and Member ofthe City Council of the City of Raleigh, North Carolina, and George B. Cherry,Seby B. Jones, William M. Law, Clarence E. Lightner, Alton L. Strickland, andWilliam H.Worth, Members of the City Council of Raleigh, North Carolina, and Blue RidgeGardens, Inc., Defendants, Seby B. Jones, Mayor of the City of Raleigh, North Carolina, and Jesse O.Sanderson, Thomas W. Bradshaw, Jr., and Robert W. Shoffner, Members of the CityCouncil of the City of Raleigh, North Carolina, Additional Defendants. |
John V. Hunter, III, Raleigh, for plaintiff appellants.
Donald L. Smith and Broxie J. Nelson, Raleigh, for defendant appellee City of Raleigh.
Bailey, Dixon, Wooten & McDonald by J. Ruffin Bailey, Wright F. Dixon, Jr., and John N. Fountain, Raleigh, for defendant appellee Blue Ridge Gardens, Inc.
Plaintiffs alleged no procedural irregularity in the adoption of the Ordinance. They attack it, Inter alia, on the ground it exceeds and conflicts with the authority conferred by the enabling legislation.
A duly adopted rezoning ordinance is presumed to be valid. Controversies in respect of facts pertinent to its validity present questions of fact for determination by the superior court judge. Zopfi v. City of Wilmington, 273 N.C. 430, 438, 160 S.E.2d 325, 333. Here, the evidence discloses no conflicts as to essential facts.
The original zoning power of the State reposes in the General Assembly. Marren v. Gamble, 237 N.C. 680, 75 S.E.2d 880. It has delegated this power to the 'legislative body' of municipal corporations. G.S. § 160--172 et seq.; In re Markham, 259 N.C. 566, 131 S.E.2d 329, and cases cited. The power to zone, conferred upon the 'legislative body' of a municipality, is subject to the limitations of the enabling act. Marren v. Gamble, supra; State v. Owen, 242 N.C. 525, 88 S.E.2d 832. Within the limits of the powers so delegated, the municipality exercises the police power of the State. Raleigh v. Fisher, 232 N.C. 629, 61 S.E.2d 897.
G.S. § 160--172, in pertinent part, provides: 'For the purpose of promoting health, safety, morals or the general welfare of the community, the legislative body of cities and incorporated towns is hereby empowered to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and the use of buildings, structures and land for trade, industry, residence or other purposes.'
G.S. § 160--173 provides: (Our italics.)
G.S. § 160--174 provides: (Our italics.)
G.S. § 160--175, in pertinent part, provides: 'The legislative body of such municipality shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established and enforced, and from time to time amended, supplemented or changed.'
G.S. § 160--176, in pertinent part, provides: 'Such regulations, restrictions and boundaries may from time to time be amended, supplemented, changed, modified or repealed.'
G.S. § 160--22 and G.S. § 160--177 provide for the appointment of a planning board (commission). This board (commission) has no legislative, judicial or quasi-judicial power. Its recommendations do not restrict or otherwise affect the legislative power of the 'legislative body,' I.e., the city council. In re Markham, supra, 259 N.C. at 571, 131 S.E.2d at 334.
G.S. § 160--178 authorizes the appointment of a board of adjustment whose powers include the following: 'Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of such ordinance, the board of adjustment shall have the power, in passing upon appeals, to vary or modify any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures or the use of land, so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.' Decisions relating to hardship variances by a board of adjustment are not germane to the question before us. Here, we are concerned with rezoning, not with variances within a particular zone.
The provisions of the charter of the City of Raleigh which confer authority in respect of zoning and which provide, Inter alia, for a City Planning Commission are in accord with the provisions of the cited General Statutes.
The cited General Statutes and the charter of the City of Raleigh confer upon the City Council of Raleigh legislative power to enact A comprehensive zoning ordinance. The validity of comprehensive zoning ordinances has been recognized by the Supreme Court of the United States and by this Court. Euclid, Ohio v. Amber Realty Company, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016 (1926); In re Appeal of Parker, 214 N.C. 51, 55, 197 S.E. 706, 709; In re O'Neal, 243 N.C. 714, 719, 92 S.E.2d 189, 192, and cases cited.
Section 1 of Chapter 24 of the Raleigh Code, a comprehensive zoning ordinance, provides: 'It is deemed necessary in order to preserve and promote the health, comfort, convenience, good order, better government, safety and morals, and in order to promote the systematic future development of the city, the economic and industrial prosperity, prevent or relieve congestion, either of population or traffic, control the fire hazard, preserve the natural and historic features of the city and beautify the same, to divide the city into districts or zones and to make regulations therefor in accordance with a comprehensive plan for the use and development of all parts of the city, designed to insure a fair and adequate division of light and air among buildings, protect the residence districts, conserve property values, facilitate adequate provisions of water, sewerage, schools, parks, and other public requirements, and to encourage the most appropriate use of land throughout the city.'
For the purposes set forth in Section 1, Section 4 divides the city into thirteen classes of districts or zones, inclusive of five residential districts or zones designated R-4, R-6, R-10, R-20 and R-30.
In R-4, the permitted structures for residential use are restricted to 'single-family dwelling unit(s)' with this exception: 'Townhouse developments and unit-ownership developments,' as defined elsewhere in the Ordinance, are permitted 'when approved as planned unit developments of fifty (50) acres or more under Chapter 20 of this Code.'
In R-6, the permitted uses include all uses permitted in R-4. Additional permitted uses in R-6 include '(t)wo (2) family dwelling, multi-family dwelling, townhouses or apartment houses, each on its own lot, fronting on a public street, provided no dwelling shall contain more than eight (8) units on any one (1) story'; '(g)roup housing developments and apartment projects which comply with section 24--42'; and '(h)ospital, sanitarium, rest home, home for the aged provided that such use shall exclude the insane, feebleminded, or chronic alcoholic.'
In R-10, the permitted uses include all uses permitted in R-6. Additional uses (subject to...
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