Jackson v. Guilford County Bd. of Adjustment

• Decision Date: 12 March 1969
• Docket Number: No. 6,6
• Citation: 166 S.E.2d 78,275 N.C. 155
• Court: North Carolina Supreme Court
• Parties: H. T. JACKSON, Roy Bumpass, G. C. Smith, and Sanford Smith, Appellants, v. GUILFORD COUNTY BOARD OF ADJUSTMENT Under the Zoning Ordinance of GuilfordCounty, Dr. Robert M. Fox, Chairman; S. R. Stafford, Paul Phipps, OrvieHayworth, Howard S. Waynick, regular Members; William H. Lanier, R. MackPeoples, alternateMembers; and Lester O. Jones, Appellees.

Page 78

166 S.E.2d 78

275 N.C. 155

H. T. JACKSON, Roy Bumpass, G. C. Smith, and Sanford Smith, Appellants, v. GUILFORD COUNTY BOARD OF ADJUSTMENT Under the Zoning Ordinance of GuilfordCounty, Dr. Robert M. Fox, Chairman; S R. Stafford, Paul Phipps, OrvieHayworth, Howard S. Waynick regular Members; William H. Lanier, R. MackPeoples alternateMembers; and Lester O. Jones, Appellees.

No. 6.

Supreme Court of North Carolina.

March 12, 1969.

Cannon, Wolfe, Coggin & Taylor, Greensboro, for plaintiff appellants.

J. Howard Coble and David I. Smith, Greensboro, for defendant appellees.

LAKE, Justice.

The mere fact that one's proposed lawful use of his own land will diminish the value of adjoining or nearby lands of another does not give to such other person a standing to maintain an action, or other legal proceeding, to prevent such use. Harrington & Co. v. Renner, 236 N.C. 321, 72 S.E.2d 838; 1 Am.Jur.2d, Adjoining Landowners, § 2. If, however, the proposed use is unlawful, as where it is prohibited by a valid zoning ordinance, the owner of adjoining or nearby lands, who will sustain special damage from the proposed use through a reduction in the value of his own property, does have a standing to maintain such proceeding. Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325; Harrington & Co. v. Renner, supra.

The courts, at the suit of a landowner so threatened with injury, may not compel a city or other governmental unit to exercise a zoning authority conferred upon it by statute, or prevent it from amending or repealing a valid zoning ordinance previously adopted by it. Zopfi v City of Wilmington, supra; In Re Markham, 259 N.C. 566, 131 S.E.2d 329; McKinney v. City of High Point, 239 N.C. 232, 79 S.E.2d 730. If, however, that which purports to be an amendment permitting a use of property forbidden by the original ordinance is, itself, invalid, the prohibition upon the use remains in effect. In that event, the owner of other land, who will be specially damaged by sich proposed use, has standing to maintain a proceeding in the courts to prevent it. See: Zopfi v. City of Wilmington, supra; Crozier v. County Commissioners of Prince George's County, 202 Md. 501, 97 A.2d 296, 37 A.L.R.2d 1137; Annot., 37 A.L.R.2d 1143.

Similarly, the order of a board of adjustment purporting to grant an exception to a valid zoning ordinance, which order is in excess of the authority of such board, leaves the proposed use within the prohibition of the ordinance and, therefore, unlawful. Thus, the appellants are proper parties to attack in this proceeding the validity of the order of the Board of Adjustment. Their contention is that the county zoning ordinance forbids the proposed use of the Jones land without a properly granted exception and the Board of Adjustment has no authority to grant the exception.

Counties have no inherent authority to enact zoning ordinances. In Harrington & Co. v. Renner, supra, this Court conceded, for the purpose of the question then before it, that the General Assembly may, under the Constitution of North Carolina, empower a county board of commissioners to enact ordinances providing for zoning districts in the rural areas of the county, but expressly stated it did not decide that question since, at that time, the General Assembly had not undertaken to do so. Subsequently, the General Assembly enacted Article 20B, Ch. 153, of the General Statutes, which expressly confers such power upon the boards of county commissioners. County ordinances, adopted pursuant to this Act of the General Assembly, have been treated as valid legislative enactments in at least three decisions of this Court, in none of which was the authority of the General Assembly to delegate the power questioned. Michael v. Guilford County, 269 N.C. 515, 153 S.E.2d 106; Austin v. Brunnemer, 266 N.C. 697, 147 S.E.2d 182; Durham County v. Addison, 262 N.C. 280, 136 S.E.2d 600.

In Harrington & Co. v. Renner, supra, this Court recognized that 'the General Assembly may delegate power to a municipal corporation to enact zoning ordinances in the exercise of police power of the State,' and innumerable decisions of this Court have recognized such power in cities and towns by virtue of G.S. § 160--172 et seq. The authority of the General Assembly to delegate to municipal corporations power to legislate concerning local problems, such as zoning, is an exception (established by custom in most, if not all, of the states) to the general rule that legislative powers, vested in the General Assembly by Art. II, § 1, of the Constitution of North Carolina, may not be delegated by it. 16 Am.Jur.2d, Constitutional Law, §§ 250, 251. This Court has held that this exception to the doctrine of non-delegation is not limited to a delegation of such legislative authority to incorporated cities and towns, but extends, as to other types of local matters, to a like delegation to counties and other units established by the General Assembly for local government. Efird v. Board of Com'rs. for Forsyth County, 219 N.C. 96, 12 S.E.2d 889; Tyrrell County v. Holloway, 182 N.C. 64, 108 S.E. 337; Smith v. Board of Trustees, 141 N.C. 143, 53 S.E. 524. See also, State v. Smith, 265 N.C. 173, 143 S.E.2d 293. We perceive no basis for a distinction in this respect between municipal corporations and counties. We, therefore, hold that the General Assembly may, notwithstanding Art. II, § 1, of the Constitution of North Carolina, confer upon county boards of commissioners power to adopt zoning ordinances otherwise valid.

G.S. § 153--266.10, 'for the purpose of promoting health, safety, morals, or the general welfare,' confers upon the board of county commissioners of any county the power 'to regulate and restrict * * * the location and use of buildings, structures, and land for trade, industry, residence or other purposes, except farming.' It further provides:

'Such regulations may provide that a board of adjustment may determine and vary their application in harmony with their general purpose and intent and In accordance with general or specific rules therein contained. Such regulations may also provide that the board of adjustment or the board of county commissioners may issue special use permits or conditional use permits in the classes of cases or situations and In accordance with the principles, conditions, safeguards, and procedures specified therein, and may impose reasonable and appropriate conditions and safeguards upon such permits.' (Emphasis added.)

G.S. § 153--266.11 provides that the board of county commissioners for such purposes 'may divide the county, or portions of it * * * into districts * * * and within such districts It may regulate and restrict the erection, construction, reconstruction, alteration, repair, or use of buildings, structures, or land.' (Emphasis added.)

G.S. § 153--266.17 provides that if the board of commissioners exercises these powers, it 'shall provide for the appointment of a board of adjustment' and that 'the zoning ordinance may provide that the board of adjustment may permit special exceptions to the zoning regulations in the classes of cases or situations and in accordance with the principles, conditions, safeguards, and procedures Specified in the ordinance.' (Emphasis added.)

These provisions are substantially the same as those in G.S. § 160--172 et seq., conferring zoning powers upon municipal corporations. Under those statutes, this Court had held that the legislative body of the municipal corporation may not delegate to the municipal board of adjustment the power to zone; that is, the power originally vested in the General Assembly to legislate with reference to the use which may be made of land and the structures which may be erected or located thereon. In Re O'Neal, 243 N.C. 714, 91 S.E.2d 189; James v. Sutton, 229 N.C. 515, 50 S.E.2d 300. In Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128, 168 A.L.R. 1, it is said that G.S. § 160--172 et seq., confer no legislative authority upon such municipal board of adjustment and thus such board 'is not left free to make any determination whatever that appeals to its sense of justice.' It follows that a county zoning ordinance may not delegate such legislative powers to the county board of adjustment.

Admittedly, the line dividing administrative powers which may be delegated from legislative powers which may not be delegated is not sharp and clearly defined. Consequently, decisions by this Court and by other courts as to its location have not been entirely harmonious. However, the governing principle, applicable to the delegation of powers by the General Assembly to State agencies, is also applicable to determine what powers may be conferred by a city or county upon its board of adjustment in a zoning ordinance. That principle has been thus stated in Carolina-Virginia Coastal Highway v. Turnpike Authority, 237 N.C. 52, 74 S.E.2d 310:

'Since legislation must often be adapted to complex conditions involving numerous details with which the Legislature cannot deal directly, the constitutional inhibition against delegating legislative authority does not deny to the Legislature the necessary flexibility of enabling it to lay down policies and establish standards, while leaving to designated governmental agencies and administrative boards the determination of facts to which the policy as declared by the Legislature shall apply. * * *

'Here we pause to note the distinction generally recognized between a delegation of the power to make a law, which necessarily includes a discretion as to what it shall be, and the conferring of authority or discretion as to its execution. The first may not be done, whereas the latter, if adequate guiding standards are laid down, is permissible under certain circumstances. * * *

'In short, while the Legislature may delegate the power to find facts or determine the existence or nonexistence of a factual situation or condition on which the...