Durham County v. Addison, 665

• Decision Date: 12 June 1964
• Docket Number: No. 665,665
• Citation: 136 S.E.2d 600,262 N.C. 280
• Court: North Carolina Supreme Court
• Parties: COUNTY OF DURHAM, v. Elmore L. ADDISON.

Page 600

136 S.E.2d 600

262 N.C. 280

COUNTY OF DURHAM, v.Elmore L. ADDISON.

No. 665

Supreme Court of North Carolina.

June 12, 1964

Robert D. Holleman, Durham, for plaintiffappellee.

H.F. Seawell, Jr., Carthage, for defendantappellant.

BOBBITT, Justice.

Under Durham County's zoning ordinance, effective January 16, 1956, the county is divided into 'eighteen (18) classes of districts,' one being 'Village Residence District.'Defendant's property, described below, is in a 'Village Residence District.'

In 1954, defendant purchased 'one big lot,''a narrow strip of land,' fronting 409 feet on the northwest (referred to for convenience as north) side of East Geer Street (Old Oxford Highway) and extending north between approximately parallel lines to the right of way of a railroad.The depth on the west side was approximately 75 feet and on the east side approximately 30 feet.Defendant's said property is in Oak Grove Township, Durham County.

In 1955, defendant constructed on said property a combination filiing station, store and dwelling.It was defendant's declared intention, 'when he could build it,' to construct a dwelling on the portion of his property described below.

The lot directly involved, referred to as the subject lot, fronts 60 feet on the north side of East Geer Street.It is the west portion of defendant's property.According to the map designated defendant's Exhibit 1, the subject lot extends north between approximately parallel lines 75.25 feet on the west side and 61.12 feet on the east side to the railroad right of way.It contains approximately 4,000 square feet.The west portion of defendant's store building is 15 feet east of what would be the east wall of the proposed dwelling.

In 1960, defendant applied to the Zoning Administrator for a permit to construct a brick-veneer dwelling on the subject lot.According to defendant's Exhibit 8, the dimensions of the proposed dwelling would be 38 feet (approximately parallel with East Geer Street) by 28 feet.Plaintiff's application was denied.The record indicates the Board of Adjustment(in June or July, 1960) upheld the Administrator's decision.Later, plaintiff renewed his application.Upon denial thereof, defendant appealed to the Board of Adjustment.The Board of Adjustment, at a meeting on March 26, 1962, considered defendant's appeal and his application for a variance permit.It upheld the Administrator's decision and denied defendant's application for a variance permit.Defendant did not apply for certiorari to review said decision of the Board of Adjustment.

On July 24, 1962, defendant notified the Administrator that he'was going to build the house on the said lot despite the ruling' of the Board of Adjustment.On or about July 25, 1962, plaintiff commenced construction thereof.Upon defendant's refusal to desist, plaintiff, on July 30, 1962, instituted this action.

There was evidence tending to show that defendant, in connection with said 1955 improvements, dug a well and installed a septic tank; that the water and sewerage systems then installed (if and when connected) were sufficient to take care of another house; and that in the years 1958-1961defendant was permitted to have a trailer on a part of what is now the subject lot and to connect utilities thereto.However, defendant testified: 'The actual starting of the foundation to the present house was in July 1962.'

Durham County's comprehensive zoning ordinance was adopted pursuant to statutory authority.Session Laws of 1949, Chapter 1043; Session Laws of 1959, Chapter 1006, now codified (1963 Cumulative Supplement) as G.S. Chapter 153, Article 20B, Section 153-266.10 et seq.

'The presumption is that the zoning ordinance as a whole is a proper exercise of the police power, * * *.'Kinney v. Sutton, 230 N.C. 404, 411, 53 S.E.2d 306, 310, and cases cited.The burden to show otherwise rests upon a property owner who asserts its invalidity.City of Raleigh v. Morand, 247 N.C. 363, 368, 100 S.E.2d 870.

'The mere fact that a zoning ordinance seriously depreciates the value of complainant's property is not enough, standing alone, to establish its invalidity.'Helms v. City of Charlotte, 255 N.C. 647, 651, 122 S.E.2d 817, 820;Kinney v. Sutton, supra.Here, the subject lot is only a portion of defendant's property; and it does not appear that defendant's property, considered as a whole, has been adversely affected by the zoning ordinance.

The zoning ordinance, in respect of 'REQUIRED LOT AREA' in a 'Village Residence District,' provides: 'Each dwelling together with its accessory buildings, hereafter erected shall be located on a lot having an area of not less than 15,000 square feet and an average width of not less than 75 feet, except that a dwelling may be erected on a lot or plot having less than the foregoing minimum area and width, provided the same existed under one ownership by virtue of a recorded plat or deed at the time of the passage of this ordinance.'The area of the subject lot is less than 15,000 square feet and its average width is less than 75 feet.When the ordinance was adopted, the subject lot was not owned (and is not owned) as an individual lot but as the wastern portion of the property on which defendant constructed his filling...