Heaton v. City of Charlotte

• Citation: 277 N.C. 506,178 S.E.2d 352
• Decision Date: 20 January 1971
• Docket Number: No. 68,68
• Court: United States State Supreme Court of North Carolina
• Parties: George D. HEATON and Wife, Emily W. Heaton, Jules A. Buxbaum and wife, Renee N. Buxbaum, William C. Bean and wife, Delores B. Bean, John Cole Hatcher and wife, Anne S. Hatcher, John F. Bos and wife, Beverly G. Bos, Charles F. Mock and wife, Elizabeth Mock, v. The CITY OF CHARLOTTE, a municipal corporation, the Ervin Company, acorporation, Crescent Land and Timber Corporation, a corporation, and W. H.Jamison, superintendent of Building Inspection for the City of Charlotte.

Page 352

178 S.E.2d 352

277 N.C. 506

George D. HEATON and Wife, Emily W. Heaton, Jules A. Buxbaum and wife, Renee N. Buxbaum, William C. Bean and wife Delores B. Bean, John Cole Hatcher and wife, Anne S Hatcher, John F. Bos and wife, Beverly G. Bos, Charles F Mock and wife, Elizabeth Mock, v. The CITY OF CHARLOTTE, a municipal corporation, the Ervin Company, acorporation, Crescent Land and Timber Corporation a corporation, and W. H.Jamison, superintendent of Building Inspection for the City of Charlotte.

No. 68.

Supreme Court of North Carolina.

Jan. 20, 1971.

Paul B. Guthery, Jr., and Ray W. Bradley, Charlotte, for plaintiffs appellants.

Ervin, Horack & McCartha by William E. Underwood, Jr., Charlotte, for The Ervin Co.

William I. Ward, Jr., Charlotte, for Crescent Land and Timber Corp.

Henry W. Underhill, Jr., Charlotte, for City of Charlotte and W. H. Jamison.

BRANCH, Justice:

Appellants first contend that the amendment to the zoning ordinance is invalid because it was altered after the initial hearing without additional notice or further hearing.

The notice of and the proceedings at the initial hearing are not challenged.

A municipality has no inherent power to zone its territory and possesses only such power to zone as is delegated to it by the enabling statutes, G.S. § 160--172 Et seq. The authority to enact zoning ordinances is subject to the limitations imposed by the enabling statute and by the Constitution. These limitations forbid arbitrary and unduly discriminatory interference with property rights in the exercise of such power. Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325. Thus, a zoning ordinance or an amendment thereto which is not adopted in accordance with the enabling statutes is invalid and ineffective. Kass v. Hedgpeth, 226 N.C. 405, 38 S.E.2d 164; Eldridge v. Mangum, 216 N.C. 532, 5 S.E.2d 721. However, a municipal zoning ordinance will be presumed to be valid, and the burden is on the complaining party to show it to be invalid. Zopfi v. City of Wilmington, supra; Helms v. City of Charlotte, 255 N.C. 647, 122 S.E.2d 817.

G.S. § 160--175 provides:

'Method of procedure.--The legislative body of such municipality shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established, and enforced, and from time to time amended, supplemented or changed. However, no such regulation, restriction or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have 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 such municipality, or, if there be no newspaper published in the municipality, by posting such notice at four public places in the municipality, said notice to be published the first time or posted not less than fifteen days prior to the date fixed for said hearing.'

According to our research, the precise question here presented has not been decided by this Court. We therefore turn to other jurisdictions for enlightenment.

In Klaw v. Pau-Mar Construction Co., 11 Terry 487, 50 Del. 487, 135 A.2d 123, the Delaware Supreme Court interpreted an enabling statute substantially like our own G.S. § 160--175. The Delaware statute, 22 Del.C. § 304, states:

'The legislative body of the municipality shall provide for the manner in which the regulations and restrictions and the boundaries of the districts shall be determined, established, and enforced, and from time to time amended, supplemented, or changed. However, no such regulations, restrictions, or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least fifteen days notice of the time and place of such hearing shall be published in an official paper or a paper of general circulation in such municipality.'

A public hearing concerning apartment house zoning was held after notice according to the Delaware statute, and the ordinance was finally enacted with two changes which were made after the public hearing, without further hearing or notice. The principal change consisted of reducing the areas in which apartments could be placed and permitted 40% Of a lot to be occupied by buildings rather than 30% As originally proposed. In holding that there had been compliance with the notice provisions of the enabling act, the Delaware Court, in part, stated:

'* * * The only absolute requirement with respect to the notice to be given contained in § 304 is of 'the time and place of such hearing.' There is no provision in the section specifically requiring advance notice in detail of what the proposed regulations will accomplish.

'We think the sole requirement of 22 Del.C. § 304 is what is specifically set forth, viz, that it is proposed to amend the zoning ordinance in certain general aspects, and that at a certain time and place a public hearing will be held so that interested persons may appear and be heard either in support of or in opposition to the proposal. We have read the published notice of the hearing in this case and are of the opinion that it complies with the law.

'The increase of the bulk requirement from 30% To 40% Is not a change of such magnitude as to require the whole matter being commenced again. As a matter of fact, the requirement of the enabling law, that a hearing be held at which citizens may protest, implicitly contemplates that changes might be made in the original proposal as a result of such hearings. This, we think, is what actually happened and this, we think, is what the law contemplates shall happen. Our opinion in this respect is supported by authorities from other jurisdictions. Cf. Town of Burlington v. Dunn, 318 Mass. 216, 61 N.E.2d 243, 168 A.L.R. 1181; Walker v. Board of County Com'rs, 208 Md. 72, 116 A.2d 393; Ciaffone v. Community Shopping Corp., 195 Va. 41, 77 S.E.2d 817, 39 A.L.R.2d 757; City of Corpus Christi v. Jones, Tex.Civ.App., 144 S.W.2d 388.'

In Neuger v. Zoning Board, 145 Conn. 625, 145 A.2d 738, the plaintiffs attacked an amendment to a zoning ordinance on the ground that the adopted amendment differed radically from the originally noticed proposal. They contended that there was no legal hearing according to the City's charter, which required a public hearing on amendments to zoning regulations after notice published in an official paper stating time, place and purpose of the hearing. The notice published set forth that the amendments proposed would define a shopping center and would make possible the location of a liquor store in every such center. The definition of a shopping center included the requirement that it must be on land under single ownership. After a public hearing, the zoning board eliminated from the definition of a shopping center the requirement of single ownership and added a requirement that only one liquor store could be opened in each center. The changes resulted from objections voiced at the public hearing. The Connecticut Court, finding compliance with the provisions for public hearing and notice, in part, stated:

'* * * To be adequate, the notice is required to fairly and sufficiently apprise those who may be affected of the nature and character of the action proposed, to make possible intelligent preparation for participation in the hearing. * * * The very purpose of the hearing was to afford an opportunity to interested parties to make known their views and to enable the board to be guided by them. It is implicit in such a procedure that changes in the original proposal may ensue as a result of the views expressed at the hearing. (Citations omitted) Notice of a hearing is not required to contain an accurate forecast of the precise action which will be taken upon the subject matter referred to in the notice.'

The Virginia Supreme Court of Appeals considered the notice provision of a zoning enabling statute similar to our own statute in the case of Ciaffone v. Community Shopping Corp., 195 Va. 41, 77 S.E.2d 817. We quote the pertinent portion of that decision:

'The defendant's initial contention is that the C--1 area on the map included in the notice of public hearing differs from the C--1 area on the maps included as a part of the amended ordinance. Code § 15--859 provides that '* * * no such regulation, restriction or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. * * * ' This statutory provision means only that parties in interest and citizens must be apprised of the proposed changes to be acted upon so they can be present to state their views. It does not require that the notice contain an accurate forecast of the precise action which the county board will take upon the subjects mentioned in the notice of hearing.'

In Kalvaitis v. Village of Port Chester, Sup., 235 N.Y.S.2d 44, the changes effected in amendment to a zoning ordinance between initial notice and final enactment consisted of the elimination of certain lots to be rezoned, an increase in the maximum square footage per dwelling, an increase in the maximum permissible height of buildings, an increase in required open space, and an increase in the required distances between buildings. The Court, overruling surrounding landlords' objections as to lack of notice, stated:

'Logic appears to dictate that if the only person adversely affected by change does not object, others whose rights are not infringed by the change may not do so. (Cites)'

Similarly, the notice procedures were upheld in Naylor v. Salt Lake City Corporation, 17 Utah 2d 300, 410 P.2d 764, where the notice prior to the public hearing stated that the area in question was subject to be rezoned for 'commercial' purposes, but the area was rezoned 'busine...