Keiger v. Winston-Salem Bd. of Adjustment

• Decision Date: 29 January 1971
• Docket Number: No. 33,WINSTON-SALEM,33
• Citation: 178 S.E.2d 616,278 N.C. 17
• Court: North Carolina Supreme Court
• Parties: Charles F. KEIGER and Mamilee Enterprises, Incorporated v. TheBOARD OF ADJUSTMENT J. A. Hancock, Roy Setzer, C. C.Smithdeal, Jr., John Manning, William F. Thomas, Sam Ogburn and Mrs. MarthaCates, and the Winston-Salem-Forsyth County Planning Board, F. Gaither Jenkins,Zeb B. Stewart, A.L. Evans, Hampton D. Haith, Clifton E. Pleasants, H. C. Porter, J. C. Smith, M.C. Benton, Jr., David W. Darr.

Page 616

178 S.E.2d 616

278 N.C. 17

Charles F. KEIGER and Mamilee Enterprises, Incorporated v. The WINSTON-SALEM BOARD OF ADJUSTMENT J. A. Hancock, Roy Setzer, C. C.Smithdeal, Jr., John Manning, William F Thomas, Sam Ogburn and Mrs. MarthaCates, and the Winston-Salem-Forsyth County Planning Board, F. Gaither Jenkins,Zeb B. Stewart, A.L. Evans, Hampton D. Haith Clifton E. Pleasants, H. C. Porter, J. C. Smith, M.C Benton, Jr., David W. Darr.

No. 33.

Supreme Court of North Carolina.

Jan. 29, 1971.

R. Kason Keiger, Winston-Salem, for petitioner appellants.

Womble, Carlyle, Sandridge & Rice by William F. Womble and Zeb E. Barnhardt, Winston-Salem, for respondent appellees.

BOBBITT, Chief Justice.

The principal constitutional question presented is whether the denial of petitioners' application for the special use permit constituted an unlawful exercise of legislative power by the Board of Adjustment in violation of Article II, Section 1, of the Constitution of North Carolina.

The original zoning power of the State reposes in the General Assembly. Marren v. Gamble, 237 N.C. 680, 75 S.E.2d 880. It has delegated this power to the 'legislative body' of municipal corporations. G.S. § 160--172 et seq.; In re Markhan, 259 N.C. 566, 131 S.E.2d 329, and cases cited. Within the limits of the power so delegated, the municipality exercises the police power of the State. Raleigh v. Fisher, 232 N.C. 629, 61 S.E.2d 897. The power to zone, conferred upon the 'legislative body' of a municipality, is subject to the limitations of the enabling act. Marren v. Gamble, supra; State v. Owen, 242 N.C. 525, 88 S.E.2d 832.

G.S. § 160--172 provides: 'For the purpose of promoting health, safety, morals or the general welfare of the community, the legislative body of cities and incorporated towns is hereby empowered to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes. 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 local legislative body 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.' (Our italics.)

G.S. § 160--173 provides: 'For any or all said purposes it may divide the municipality into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this article; and within such districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of building throughout each district, but the regulations in one district may differ from those in other districts.'

G.S. § 160--174 provides: 'Such regulations shall be made in accordance with a comprehensive plan and Designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, scholls, parks and other public requirements. Such regulations shall be made with reasonable consideration, amoung other things, as to the character of the district and its peculiar suitability for particular uses, And with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality.' (Our italics.)

G.S. § 160--175 relates to the method of procedure by 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,' by '(t)he legislative body of such municipality.'

G.S. § 160--178 authorizes the 'legislative body' to provide for the appointment and compensation of 'a board of adjustment' and prescribes the procedures and functions of such board.

Here, the Board of Aldermen, Winston-Salem's 'legislative body,' determined that the construction of a mobile home park is A conditional permissible use of land in a B--3 zone. In addition, it prescribed with particularity the conditions prerequisite to the issuance of a special or conditional use permit for the construction of a mobile home park. The nature of the prescribed requirements is indicated by the following brief excerpt, Viz.: 'The zoning lot for a mobile home park shall be not less than two and one-half acres. Any mobile home park shall contain not fewer than ten mobile home spaces for initial development. The maximum number of mobile homes per gross acre in a mobile home park shall be ten. Mobile homes shall be parked or harbored in such a manner that neither the end-to-end clearance nor the lateral clearance between mobile homes, inculding enclosed extensions thereof, shall be less than 20 feet and no mobile home shall be located nearer than 20 feet to any building on the premises.'

In accordance with the authority conferred by the italicized portion of G.S. § 160--172, the Ordinance provides for the issuance by the Board of Adjustment of a special or conditional use permit for the construciton of a mobile home park on land located in a B--3 zone upon the applicant's compliance with prescribed requirements.

Section 29--19.A.2.c(1), entitled 'Special Use Permits,' is quoted in full in the opinion of the Court of Appeals. The decisions of the Superior Court and of the Court of Appeals are based on these provisions thereof: 'In acting upon an application for a special use permit, the Board of Adjustment shall consider, and base its decision upon, the information submitted, the findings of the City-County Planning Board, The purpose and intent of this ordinance, and the public interest. No provision of this ordinance shall be interpreted as conferring upon the Board of Adjustment the authority to approve an application for a special use permit for any use except as authorized in Section 29--7.F and 29--11.B. In approving an application for the issuance of a special use permit, the Board of Adjustment may impose additional reasonable and appropriate conditions and safeguards to protect the public health, safety, morals, and general welfare, the value of neighboring properties, and the health and safety of neighboring residents.' (Our italics.)

The Board of Adjustment did not attempt to 'impose additional reasonable and appropriate conditions and safeguards' but unconditionally denied petitioners' application for a special or conditional use permit.

The application for the special or conditional use permit here involved was filed subsequent to our decision in Jackson v. Guilford County Board of Adjustment, 275 N.C. 155, 166 S.E.2d 78. Jackson involved the comprehensive zoning ordinance adopted by the board of commissioners of Guilford County pursuant to authority conferred by Article 20B, Chapter 153, of the General Statutes of North Carolina, codified as G.S. § 153--266.10 et seq. G.S. § 160--172 and G.S. § 160--173 confer upon the legislative bodies of cities and incorporated towns essentially the same authority as that conferred upon boards of county commissioners by G.S. § 153--266.10 and G.S. § 153--266.11, respectively, quoted in pertinent part in Jackson. It was held in Jackson: 'So much of Section 6--13B of this ordinance as requires the Board of Adjustment to deny a permit for the establishment of a mobile home park in the A--1 Agricultural District unless it finds 'that the granting of the special exception will not adversely affect the public interest' is, therefore, beyond the authority of the Board of County Commissioners to enact and so is invalid.'

In the light of Jackson, the Superior Court and the Court of Appeals treated as invalid the portion of...