Ellis, Application of

• Decision Date: 16 December 1970
• Docket Number: No. 1,1
• Citation: 178 S.E.2d 77,277 N.C. 419
• Court: North Carolina Supreme Court
• Parties: Application of John H. ELLIS, Jr., and wife, Frances N. Ellis, by Fred D. Curl, Agent, for Special Exception under the Guilford County Zoning Ordinance.

Page 77

178 S.E.2d 77

277 N.C. 419

Application of John H. ELLIS, Jr., and wife, Frances N.

Ellis, by Fred D. Curl, Agent, for Special

Exception under the Guilford County

Zoning Ordinance.

No. 1.

Supreme Court of North Carolina.

Dec. 16, 1970.

Turner, Rollins, Rollins & Suggs, by Elizabeth O. Rollins, Greensboro, for applicants Ellis, appellants.

Ralph A. Walker, W. B. Trevorrow, Greensboro, for defendant appellee.

SHARP, Justice.

Applicants, Mr. and Mrs. John H. Ellis, Jr., own a tract of land containing 11.85 acres in Jefferson Township, Guilford County. The county's comprehensive zoning ordinance (ordinance) locates this property in a R--20 zoning district, which is 'primarily for single-family residences with provisions for two-family and multifamily residences on large lots.' Ordinance § 1--3. The declared purpose in R--20 districts is 'to encourage the construction of and the continued use of land for residential purposes; to prohibit commercial and industrial uses of land and to prohibit any other use which would substantially interfere with the development of land for residential purposes in the district; to encourage the discontinuance of existing uses that would not be permitted as new uses in the districts; and to insure that residential development, not having access to a public water supply and dependent upon septic tanks and outdoor privies for sewage disposal, will occur at densities low enough to insure a healthful environment.' Ordinance § 5--2A.

Ordinance § 3--10 provides that, subject to certain specified conditions, 'a mobile home park may be established as a special exception in certain districts as prescribed by Article IV of the ordinance.' Among the conditions is the requirement that the applicant submit a site plan which meets the detailed specifications for the establishment and use of the park contained in Ordinance § 3--10 A--M and also any other 'reasonable and appropriate conditions or requirements necessary to accomplish the purpose of this ordinance' which the board of adjustment might impose. Ordinance § 3--10 N. Finally, the board of adjustment must approve the plan and grant the special exception.

Article IV of the ordinance permits mobile-home parks in R--20 districts subject to the provisions of Ordinance § 6--13B and operation 'in accordance with the provisions of Section 3--10 and the Guilford County Board of Health's regulations relating to the establishment and operation of mobile homes.'

On 24 April 1969 applicants petitioned the board of adjustment of Guilford County for a permit to establish a mobile-home park containing 33 spaces on their 11.85-acre tract. It is stipulated that applicants have complied with Section 3--10 and that they have satisfied every specific requirement of the ordinance. At the time the application was filed Ordinance § 16--13B provided, Inter alia, that the board of adjustment could not grant a special exception until, after fifteen days notice and advertisement, it had held a public hearing and then made findings that (1) it had authority to grant the special exception applied for, and (2) its granting of the special exception would 'not adversely affect the public interest.' These last two requirements were contained in Ordinance § 6--13B(4). However, requirement (2) was invalidated on 12 March 1969 by the decision of this Court in Jackson v. Guilford County Board of Adjustment, 275 N.C. 155, 166 S.E.2d 78.

In Jackson, the board of adjustment had issued a special-exception permit for a mobile-home park over the protest of the plaintiffs. On appeal protestants asserted that the provision of the ordinance purporting to confer authority upon the board to grant a special exception was a delegation of legislative power in contravention of N.C. Const., art. II, § 1. We held that a property owner's right to a special-exception permit cannot be made to hinge upon whether the board considers the proposed structure beneficial or harmful to the community. Such power would subject the board to the pressures of individuals or groups who, for an infinite variety of reasons, might oppose the permit, and enable it to make a different rule of law in every case. G.S. § 153--266.17, which empowers the commissioners to authorize the board of adjustment to permit special exceptions 'in the classes of cases or situations and in accordance with the principles, conditions safeguards, and procedures specified in the ordinance,' does not purport to confer such unbridled discretion upon it.

In Jackson, however, we upheld the issuance of the permit. The ordinance specifically declares that the invalidity of any portion of it shall not affect the validity of remaining portions. Thus, the applicant, who had complied with the specific requirements of Ordinance § 3--10 A--M and the additional requirements which the board of adjustment imposed as being reasonably necessary to accomplish the declared purposes of the ordinance, was entitled to the special-exception permit.

On 28 April 1969, four days after appellants in this case had filed their application with the board of adjustment, the county commissioners adopted the following resolution without complying with the procedure for amendments prescribed in Ordinance §§ 6 and 7.

'RESOLUTION OF COUNTY COMMISSIONERS

'WHEREAS, the Board of Adjustment of Guilford County has heretofore held public hearings and determined public interest in connection with special exceptions under the Guilford County Zoning Ordinance; and

'WHEREAS, the Supreme Court of North Carolina has recently held that the Board of Adjustment does not have the authority to determine public interest and consider this as a part of their decision in special exception cases; and

'WHEREAS, Guilford County Board of Commissioners feels that public interest should be heard and considered in all questions involving a special exception to the Guilford County Zoning Ordinance; and

'WHEREAS, Guilford County Board of Commissioners desires that all cases involving special exceptions be referred to the Board of County Commissioners in order the public hearings may continue to be held;

'NOW, THEREFORE, BE IT RESOLVED:

'1. That the Board of County Commissioners do hereby declare until further notice that it will hear all requests for special exceptions under Guilford County Zoning Ordinance;

'2. That the proper officials shall give notification and advertise that a public hearing will be held and a decision made by the Guilford County Board of Commissioners;

'3. That where in the Zoning Ordinance the Board of Adjustment is referred to in connection with special exceptions, the Board of County Commissioners shall be substituted instead until further notice;

'4. That this resolution shall be effective with all requests for special exceptions that have not previously to this date been determined and ruled upon by the Guilford County Board of Adjustment.

'The foregoing resolution was adopted by the Board of County Commissioners of Guilford County on April 28, 1969.'

On 26 May 1969, after due notice, the commissioners held a public hearing on appellants' application. At the hearing a number of landowners and residents within a half-mile radius of appellants' property opposed the application on the ground that a mobile-home park would depreciate land values and would, therefore, be detrimental to the community. At the conclusion of the hearing the commissioners denied the application without stating any reason and without making any findings whatever.

The Superior Court, upon appellants' application, issued its writ of certiorari to review the action of the commissioners, and the matter was heard by Judge Crissman. He concluded as a matter of law 'that the County Board of Commissioners had the authority to grant such an application for a special exception, but at the same time had the authority to deny such an application.' He rendered judgment affirming the commissioners' denial of the permit and dismissing the writ of certiorari. Petitioners appealed to the Court of Appeals and moved ...