Armstrong v. McInnis, 693

• Decision Date: 18 June 1965
• Docket Number: No. 693,693
• Citation: 142 S.E.2d 670,264 N.C. 616
• Court: North Carolina Supreme Court
• Parties: Roy G. ARMSTRONG et al. v. Lynn W. McINNIS, Administrator of the Estate of Hervie N. Williard, et al.

Page 670

142 S.E.2d 670

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.

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.

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 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 (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...