Helms v. City of Charlotte

• Decision Date: 22 November 1961
• Docket Number: No. 243,243
• Citation: 122 S.E.2d 817,255 N.C. 647
• Parties: , 96 A.L.R.2d 439 Richard F. HELMS v. CITY OF CHARLOTTE, a Municipal Corporation, and C. W. Edge, Chief Building Inspector.
• Court: North Carolina Supreme Court

Page 817

122 S.E.2d 817

255 N.C. 647, 96 A.L.R.2d 439

Richard F. HELMS v. CITY OF CHARLOTTE, a Municipal Corporation, and C. W. Edge Chief Building Inspector.

No. 243

Supreme Court of North Carolina.

Nov. 22, 1961

John G. Newitt, Charlotte, for plaintiff.

John D. Shaw and John T. Morrisey, Charlotte, Sr., for defendants.

MOORE, Justice.

As a general rule a zoning ordinance of a municipality is valid and enforceable if it emanates from ample grant of power by the Legislature to the city or town, if it has a reasonable tendency to promote the public safety, health, morals, comfort, welfare and prosperity, and if its provisions are not arbitrary, unreasonable or confiscatory. 'But there is always a marginal area where it is difficult to say that the preference of the public interest over private interest opposing zoning is reasonable and constitutional. In this marginal area each case must be determined on its own facts.' McQuillin: Municipal Corporations, Vol. 8, s. 25.43, pp. 96, 97. When it is shown that a zoning ordinance has been adopted by the governing board of a municipality, there is a presumption in favor of the validity of the ordinance and the burden is upon the complaining property owner to show its invalidity or inapplicability. Raleigh, City of v. Morand, 247 N.C. 363, 100 S.E.2d 870.

The mere fact that a zoning ordinance seriously depreciates the value of complainant's property is not enough, standing alone, to establish its invalidity. 'When the most that can be said against such ordinances is that whether it was an unreasonable, arbitrary or unequal exercise of power is fairly debatable, the courts will not interfere. In such circumstances the settled rule seems to be that the court will not substitute its judgment for that of the legislative body charged with the primary duty and responsibility of determining whether its action is in the interest of the public health, safety, morals or general welfare.' In re Appeal of Parker, 214 N.C. 51, 55, 197 S.E. 706, 709.

Plaintiff contends that Ordinance No. 368 of the City of Charlotte, which purports to change the classification of the greater part of the area of his lots from 'Industrial' to 'Residence 1,' is invalid and ineffective for the reason that it was adopted without notice and opportunity to be heard or with 'such limited notice that due process of law has not been observed.'

The only notice of a public hearing on the proposal to adopt Ordinance No. 368 was two publications in the Charlotte News, one on Saturday, January 26, 1957, and the other on Saturday, February 2, 1957, for a hearing to be held February 13, 1957. No notice was served on Mr. Love, the then owner of lots 1 and 2 in block 3 of Greenville Heights. Neither he nor plaintiff had any actual knowledge of the public hearing or the adoption of the ordinance. The advertisements gave a boundary description of the area proposed for rezoning but did not refer to plaintiff's property by lot and block number or by reference to a map. The owner was not named in the publications.

No zoning '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 * * *.' G.S. § 160-175. '* * * (R)egulations, restrictions and boundaries may from time to time be amended, supplemented, changed, modified or repealed. * * * The provisions of the previous section relative to public hearings and official notice shall apply equally to all changes or amendments.' G.S. § 160-176.

Plaintiff does not suggest that the statutory requirements for giving notice were not complied with. He insists that the notice required by the statute is insufficient and does not meet the requirements of due process. We do not agree. This identical question was before the Virginia Court in Blankenship v. City of Richmond, 188 Va. 97, 49 S.E.2d 321, 323 (1948). The Virginia statute is in all material particulars similar to ours. Michie's Code (Va.1942), §§ 3091(4), 3091(5). Notice of a public hearing on a proposed amendment to the zoning ordinances was given by advertisement in a local newspaper. The Court held the notice sufficient and stated: 'The fact that the complainants did not see the notice certainly cannot affect the validity of the ordinance in question when everything required by the statute was done before its adoption. It is a matter of almost daily occurrence that rights are affected and the status of relationships is changed upon the giving of similar notice, but no one may successfully contend that acts predicated upon such notice are rendered invalid because persons affected did not see the notice in the newspaper.' This is in accord with the prevailing majority view throughout the country. See Walker v. Town of Elkin, 254 N.C. 85, 118 S.E.2d 1; Braden v. Much, 403 Ill. 507, 87 N.E.2d 620 (1949). The case of Walker v. City of Hutchinson, Kansas, 252 U.S. 112, 77 S.Ct. 200, 1 L.Ed. 2d 178 (1956), relied on by plaintiff, relates to a materially different statutory requirement and is readily distinguishable.

An official of the City of Charlotte mistakenly issued to plaintiff a permit to install subterranean oil tanks on the property in question five months after the adoption of Ordinance No. 368. In exercising the purported privilege thus conferred, plaintiff incurred expense of approximately $5,500.00. These facts do not estop the City of Charlotte from insisting upon the enforcement of the ordinance. A municipality cannot be estopped to enforce a zoning ordinance against a violator by the conduct of its officials in encouraging or permitting the violation. Raleigh, City of v. Fisher, 232 N.C. 629, 635, 61 S.E.2d 897, and cases there cited.

Irwin Creek crosses the east end of plaintiff's lot 2. The Creek is one of the boundaries of the district described in Ordinance No. 368. A part of the description is: '* * * thence in an easterly direction with said margin (of Oaklawn Avenue) * * * to Irwin Creek; thence in a southerly direction with the Creek about 1,350 feet * * *.' Thus the middle or thread of the stream is the boundary of the district described in the Ordinance in question. Rose v. Franklin, 216 N.C. 289, 291, 4 S.E.2d 876. Therefore, that portion of lot 2 of plaintiff's property lying to the east of the center of Irwin Creek is in an 'industrial' district. Lot 1 and the remainder of lot 2 are situate within the area described in Ordinance No. 368. But it is not a prerequisite for the validity of a zoning ordinance, and it is not required by statute, that zoning district lines coincide with property lines. Penny v. Durham, 249 N.C. 596, 600, 107 S.E.2d 72; Ciaffone v. Community Shopping Center, 195 Va. 41, 77 S.E.2d 817 (1953).

Finally, plaintiff contends that Ordinance No. 368 involves the destruction of all practical use and value of his lots, and as to his property the ordinance is void. It is his contention that the findings of fact and conclusions of law by the court, insofar as they relate to the practicality of the use of the lots for residential purposes under the provisions of the zoning ordinances and building code of the City of Charlotte, and other pertinent facts and circumstances, are insufficient to support the judgment.

'It is a general rule that zoning cannot render private property valueless. The burdens of government must be equal. In other words, if the application of a zoning ordinance has the effect of completely depriving an owner of the beneficial use of his property by precluding all practical uses or the only use to which it is reasonably adapted, the ordinance is invalid. * * * A zoning of land for residential purposes is unreasonable and confiscatory and therefore illegal where it is practically impossible to use the land in question for residential purposes.' McQuillin: Municipal Corporations, Vol. 8, s. 25.45, pp. 104, 105.

Oschin v. Redford Township, 315 Mich. 359, 24 N.W.2d 152, 154 (1946) involves an unplotted strip of land fronting on a street 540 feet and having a depth of 36 feet. In 1940 a fence was built around the property and a steel shed was erected thereon. The property was used for lumber storage until 1944. Plaintiffs acquired the property in 1945 and opened a lumber and building supply business thereon the same year. The plaintiffs were notified that such use of the property would be prohibited by reason of a township zoning ordinance adopted in 1942 which included this property in a residential district. The zoning ordinance provided for a front yard as to residence property of a minimum depth of 25 feet and for a rear yard minimum depth of 20 feet for a one-story building and of 25 feet for a two-story building. The ordinance also provided for discretionary variations or waivers of set-back requirements with respect to dwellings. At the trial, to illustrate the alleged utility of the property for residential purposes, defendant offered in evidence a sketch or drawing providing a living room, kitchen, bedroom, bathroom and bed closet, and a front yard having a depth of 15 feet, and a rear yard having a depth of 9 feet. A witness testified: 'In my opinion a house of that type would be salable. There are numerous people who would like to have single bedroom homes. * * * You could add another bedroom and a full sized * * * (bath) and you might be able to work out a three bedroom...