Harden v. City of Raleigh
| Citation | 135 S.E. 151,192 N.C. 395 |
| Decision Date | 27 October 1926 |
| Docket Number | 255. |
| Parties | HARDEN v. CITY OF RALEIGH et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wake County; Barnhill, Judge.
Suit for writ of mandamus by Luta B. Harden against the City of Raleigh and another. Case heard, by consent, as upon a writ of certiorari. Judgment for plaintiff, and defendants appeal. Reversed.
The plaintiff owns a lot on the corner of Hillsboro street and Ashe avenue in the city of Raleigh, and in December, 1924 she applied to the building inspector for a permit to construct thereon a gasoline filling station, filing with her application plans and specifications as required by the ordinances of the city. Her application was denied, and she brought suit praying that a writ of mandamus issue requiring the defendants to grant her permission to build the proposed filling station on the described lot. The case was heard by consent on the plaintiff's appeal from the decision of the board of adjustment as upon a writ of certiorari, and it was adjudged that the act of the Legislature providing for the zoning of the city is constitutional and that the ordinances passed pursuant to the act are valid. It was further adjudged that the plaintiff's lot is in a neighborhood business district; that the ordinances do not prohibit the construction of a filling station in such districts; that the defendants have permitted filling stations to be constructed in such districts; that the board of adjustment has exercised its discretion in individual cases and not on any general or specific regulation or rule and that the defendants could not exercise an arbitrary discretion in individual cases. For these reasons it was finally adjudged that the permit be issued and the plaintiff be granted leave to build the filling station on her lot as prayed. The defendants excepted and appealed.
Manning & Manning and Wiley G. Barnes, all of Raleigh, for appellants.
Wm. B Jones, of Raleigh, for appellee.
At the special session of 1921 the General Assembly enacted a public-local law applicable to the counties of Buncombe and New Hanover, providing for the establishment of planning commissions in the cities and towns therein, and thereafter amended the act by including the county of Wake. Pub. Loc. Laws (Ex. Sess.) 1921, cc. 169, 246. The powers thus conferred were enlarged and extended by a general law empowering cities and towns to adopt zoning and other regulations. Public Laws 1923, c. 250; 3 C. S. § 2776(r) et seq.
The plaintiff assailed these several acts and the ordinances adopted by the city pursuant thereto on the ground that they conflict with the organic law; but this question is not before us for the reason that the trial court decided this point against the plaintiff and she did not appeal from the adverse ruling.
The act of 1923, supra, is comprehensive; it contains a grant of powers not contained in the other acts. For the purpose of promoting health, safety, morals, and the general welfare the General Assembly delegated these powers to the legislative body of cities and towns-the power to regulate the location and use of buildings for trade, industry, or residence, to prescribe uniform districts for each kind or class of buildings, to provide the manner in which such restrictions shall be enforced, and to amend, supplement, change, modify, or repeal such restrictions or regulations, to appoint a board of adjustment who may review, reverse, affirm, or modify any administrative order, requirement, decision, or determination appealed from, and to vary or modify any of the regulations or provisions of any ordinance relating to the construction of buildings, so that the spirit of the ordinance shall be observed and substantial justice done. 3 C. S. §§ 2776(r)-276...
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