Freeland v. Orange County, 848

• Decision Date: 10 April 1968
• Docket Number: No. 848,848
• Citation: 273 N.C. 452,160 S.E.2d 282
• Court: North Carolina Supreme Court
• Parties: John S. FREELAND, Sr., and wife, et al. v. ORANGE COUNTY et al.

Page 282

160 S.E.2d 282

273 N.C. 452

John S. FREELAND, Sr., and wife, et al. v. ORANGE COUNTY et al.

No. 848.

Supreme Court of North Carolina.

April 10, 1968.

Alonzo B. Coleman, Jr., Hillsborough, for plaintiff appellants.

Graham, Levings & Cheshire, Hillsborough, for defendant appellees.

BOBBITT, Justice.

The record indicates plaintiffs, when the case was heard in the superior court, contended the published notice (Exhibit 'B') was insufficient. However, this contention is not brought forward in plaintiffs' brief and is deemed abandoned. The sale contention now presented by plaintiffs is that the public hearing on January 25, 1967, did not meet the requirements of G.S. § 153--266.16.

This is not an action in which some specific provision of a zoning ordinance is under attack. Plaintiffs attack the ordinance as void in its entirety. They contend that, because of the asserted failure of the county commissioners to comply strictly with statutory provisions, the purported ordinance was not legally adopted, should be treated as nonexistent and enforcement thereof should be enjoined.

Plaintiffs alleged enforcement of certain provisions of the ordinance will cause hardship and loss to plaintiffs Freeland, Childs and Wright. The stipulated facts disclose that Childs has obtained the relief he sought through administrative procedures. Presumably, the Freelands and Wright have not sought relief through administrative procedures. The portion of the stipulated facts relating to the plight of the Freelands and of the Wrights is not germane to the question plaintiffs pose for decision on this appeal.

After proper notice, the well-attended public hearing of January 25, 1967, was held, all five county commissioners being present, in accordance with the following provision of G.S. § 153--266.15: 'On receipt of a zoning plan from the county planning board, the board of commissioners shall hold a public hearing thereon, after which it may adopt the zoning ordinance and map as recommended, adopt it with modifications, or reject it.'

G.S. § 153--266.16 provides: 'Whenever in this article a public hearing is required, all parties in interest and other citizens shall be given an opportunity to be heard. A notice of such public hearing shall be given once a week for two successive calendar weeks in a newspaper published in the county, or, if there be no newspaper published in the county, by posting such notice at four public places in the county, said notice to be published the first time or posted not less than fifteen days prior to the date fixed for said hearing.'

The complaint alleged the Freelands, Childs and Wright owned property in the portion of Chapel Hill Township covered by the ordinance. It was stipulated the Freelands and Wright owned property in this portion of Chapel Hill Township. As to all other plaintiffs, the allegations and stipulations are that they own property 'within Orange County.' It would seem plaintiffs Freeland and Wright should be regarded as 'parties in interest' and all other plaintiffs as 'other citizens' as those terms are used in G.S. § 153--266.16. It does not appear that any of the 'approximately 200 persons' referred to in the stipulations who, in response to Mr. Coleman's inquiry, 'indicated that they had not spoken but would like to have been heard if time had been allotted to them,' were persons who owned property in the portion of Chapel Hill Township covered by the ordinance. Hence, such persons would seem to fall into the category of 'other citizens' as that term is used in G.S. § 153--266.16.

In the construction of G.S. § 153--266.16, our chief concern is to...