Frizzelle v. Harnett County

• Decision Date: 19 May 1992
• Docket Number: No. 9111SC247,9111SC247
• Parties: Roscoe FRIZZELLE, Martin B. Barefoot, Debbie Baas, Johnnie J. Chalmers, William N. Stewart, L.V. Bethea, Richard D. Stevens, Foster Matthes, Melvin Stewart, Thomas L. Hayes, Ronnie Thorne, Calvin Douglas, Benny J. Phillips, Wayne G. Currin, Linwood Turner, and Others, Plaintiffs, v. HARNETT COUNTY, Lloyd Stewart, Bill Shaw, Rudy Collins, Mack Reid Hudson, Mayo Smith, County Commissioners, the Harnett County Zoning Board of Adjustments, H.L. Sorrell, C.P. Tarkington, Blount Whiteside, Dan Andrews, and Harold Allen, Defendants.
• Court: North Carolina Court of Appeals

Page 421

416 S.E.2d 421

106 N.C.App. 234

Roscoe FRIZZELLE, Martin B. Barefoot, Debbie Baas, Johnnie J. Chalmers, William N. Stewart, L.V. Bethea, Richard D Stevens, Foster Matthes, Melvin Stewart, Thomas L. Hayes Ronnie Thorne, Calvin Douglas, Benny J. Phillips, Wayne G Currin, Linwood Turner, and Others, Plaintiffs, v. HARNETT COUNTY, Lloyd Stewart, Bill Shaw, Rudy Collins, Mack Reid Hudson, Mayo Smith, County Commissioners, the Harnett County Zoning Board of Adjustments, H.L. Sorrell, C.P Tarkington, Blount Whiteside, Dan Andrews, and Harold Allen, Defendants.

No. 9111SC247.

Court of Appeals of North Carolina.

May 19, 1992.

Edgar R. Bain and Alton D. Bain, Lillington, for plaintiffs-appellants.

W. Glenn Johnson and W.A. Johnson, Lillington, for defendants-appellees.

JOHNSON, Judge.

Plaintiffs, contesting the validity of the Harnett County zoning ordinance as to the southern section of the county, first argue that the trial court erred in granting defendants' motion for summary judgment because the notices of the hearing prior to the enactment of the zoning ordinance on 18 July 1988 were neither reasonable nor adequate to apprise plaintiffs and other landowners within the southern section of Harnett County of the pending process of adopting a zoning ordinance; therefore, the notices were in contravention of G.S. § 153A-323 (1987) and due process of law.

Summary judgment is properly granted if the pleadings, depositions, interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that a party is entitled to summary judgment as a matter of law. Johnson v. Insurance Co., 300 N.C. 247, 252, 266 S.E.2d 610, 615 (1980).

General Statute § 153A-323 provides that before adopting or amending any ordinance authorized by Article 18, the board of commissioners shall hold a public hearing on the ordinance or amendment. The statute further provides that the board shall cause notice of the hearing to be published once a week for two successive calendar weeks and that the notice shall be published not less than ten days nor more than twenty-five days before the date fixed for the hearing. It is not disputed that the Board caused notices to be published prior to its enactment of the zoning ordinance on 18 July 1988. Plaintiffs-appellants contend, however, that the notices published were insufficient and inadequate, failing to comply with G.S. § 153A-323 and due process of law.

As a guarantee of due process, parties whose rights are to be affected are entitled to be heard. In re Wilson, 257 N.C. 593, 596, 126 S.E.2d 489, 491 (1962); State v. Wheeler, 249 N.C. 187, 193, 105 S.E.2d 615, 621 (1958); In re Gupton, 238 N.C. 303, 304, 77 S.E.2d 716, 717 (1953). Consequently, notice is an essential element of due process. Forman & Zuckerman, P.A. v. Schupak, 38 N.C.App. 17, 247 S.E.2d 266 (1978). In North Carolina, due process requires adequate notice and an opportunity to be heard. Id. The required notice must be reasonably calculated under all circumstances to apprise interested parties of the pendency of the action or proceeding and afford them an opportunity to present their objections. Id.; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950). The notice must also reasonably convey the required information, as well as afford a reasonable time for those interested to make their appearance. Id.

In the case sub judice, the first notices published were not adequate. The first notices, published prior to 18 July 1988, were entitled: "NOTICE OF PUBLIC HEARING ON ZONING ORDINANCE AND ZONING MAP FOR THE FIRST QUADRANT." The title of this notice indicated that the zoning ordinance was only for the first quadrant. The conjunction "and" allowed the reasonable inference that the hearing for the zoning ordinance and the zoning map was exclusively for residents of the first quadrant. We find the notice title misleading, and are of the opinion that it failed to adequately apprise those landowners in the southern section of the county that their rights might be affected by the proposed zoning ordinance. We find the notices inadequate notwithstanding the language included in the body of the notice, which attempts to explain that the hearing is for Harnett County residents, but goes on to speak of soliciting only "the views of residents in the first zoning quadrant on the district boundaries and zoning map of this quadrant."

Defendant county argues that plaintiff landowners did in fact have notice of the zoning ordinance, which is evidenced by the presence of some plaintiffs and one plaintiff's attorney at the hearing. There is no evidence in the record which shows that all of the plaintiffs or landowners in the southern section of Harnett County had actual notice of the intended purpose of the hearing or were represented at the hearing. In the absence of such evidence, we are unwilling to hold that all interested parties had notice consistent with procedural due process. We do recognize, however, that such notice was not necessary since the county's intent at that time was to zone only the northern section of the county. Moreover, defendant county gave proper notice to the residents of the southern section of the county in the second notices which were published after the enactment of the zoning ordinance on 18 July 1988. Those notices, published in October of 1988, stated that there would be a hearing on the zoning map for the southern half of Harnett County. Plaintiffs, at this hearing, had the opportunity to present their objections to the zoning map as it pertained to their section of the county.

Plaintiffs also complain that when the second notices were published regarding hearings for zoning of the southern section, the notices related only to the map, not to the enactment or extension of the ordinance to the southern half of the county. The notices stated:

NOTICE OF PUBLIC HEARING ON THE ZONING MAP FOR THE SOUTHERN HALF OF HARNETT COUNTY.... The purpose of this hearing is to solicit the views of the residents of Harnett County on the proposed Zoning Map for the Southern half of the county[.] In addition, the hearing will also address an amendment to the Zoning Ordinance Text which would add a fourth Residential District to the Zoning Ordinance.

We find plaintiffs' argument unpersuasive. The mere mentioning of the map implies that there is an accompanying zoning ordinance text. Moreover, G.S. § 153A-344 (1987) only requires the zoning agency to prepare both the map and zoning ordinance; the statute does not require that both be mentioned in the title of the legal notice. We find that the residents of the southern section of Harnett County did have adequate notice and an opportunity to prepare and present their objections to the pending process. This assignment of error is overruled.

Plaintiffs next argue that the county failed to conform to the provisions of G.S. § 153A-344 in enacting the zoning ordinance as it pertains to the southern section of the county. General Statute § 153A-344 provides that in order to exercise the power granted under the zoning portion of Article 18, the county shall create or designate a planning agency which shall then prepare a proposed zoning ordinance, including both the full text of such ordinance and maps showing proposed district boundaries. Plaintiffs argue the county's failure to have a zoning map for those areas south of the Cape Fear River prior to 18 July 1988, is fatal. We disagree, recognizing that county-wide zoning may be undertaken on an area by area basis pursuant to G.S. § 153A-342 (1987) which provides:

A county may divide its territorial jurisdiction into districts of any number, shape, and area that it may consider best suited to carry out the purposes of this Part.... A county may determine that the public interest does not require that the entire territorial jurisdiction of the county be zoned and may designate one or more portions of that jurisdiction as a zoning area or areas[.]

Applying this statute to the instant case, we conclude that G.S. § 153A-342 does not require the county to have a zoning map for the entire county when its objective is to implement zoning on an area by area basis. General Statute § 153A-344, which requires the planning agency to prepare a zoning ordinance including both the full text of the ordinance and a map showing the proposed district boundaries, must be read in conjunction with G.S. § 153A-342. A reading of the two statutes together indicates that the full text of the ordinance and only a map of the area then being zoned is required. Plaintiffs' argument that the ordinance is invalid because there was no map of the southern half of the county available at the public hearing on 18 July 1989, therefore, is without merit.

Plaintiffs also contend that the county failed to follow the proper procedures to extend the ordinance to the southern section of the county by amendment pursuant to G.S. § 153A-343 (1987), G.S. § 153A-344, and the terms of the zoning ordinance.

General Statute § 153A-344 provides:

Zoning regulations and restrictions and zone boundaries may from time to time be amended, supplemented, changed, modified, or repealed. Whenever territory is added to an existing designated zoning area, it shall be treated as an amendment to the zoning ordinance for...