MacRae v. City of Fayetteville

• Decision Date: 04 December 1929
• Docket Number: 291.
• Parties: MacRAE v. CITY OF FAYETTEVILLE et al.
• Court: North Carolina Supreme Court

150 S.E. 810

198 N.C. 51

MacRAE v. CITY OF FAYETTEVILLE et al.

No. 291.

Supreme Court of North Carolina

December 4, 1929

Appeal from Superior Court, Cumberland County; Sinclair, Judge.

Application by Charles B. MacRae against the City of Fayetteville and another for writ of mandamus to compel issuance of building permit for construction of gasoline filling station. From the judgment granting the writ, defendants appeal. Affirmed.

Municipal ordinances must be uniform, fair, and impartial in their operation, where private property is involved.

This is an application for a writ of mandamus, under C. S. § 866 against the city of Fayetteville and its building inspector to issue a permit to plaintiff, authorizing him to construct a filling station upon a certain lot of plaintiff's in the city of Fayetteville, at the intersection of Hay street and Hinsdale avenue, being a lot 153 feet on Hay street and 100 feet on Hinsdale avenue. The summons was issued June 22 1929, and duly served on defendants, and complaint and amended complaint duly filed, setting forth certain ordinances, which plaintiff prayed to be declared void, and that defendant building inspector grant permit. The material part of answers of defendants is to the effect that the ordinances are valid under the police power given the city of Fayetteville and that the action be dismissed.

The judgment rendered by the court below is as follows: "This cause coming on to be heard before his honor, N. A. Sinclair, judge, at Chambers, and being heard upon the verified complaint and answers, and upon affidavits filed by plaintiff and defendants, and upon argument of counsel, and the court being of the opinion that the ordinances set out in the complaint and the amended complaint are invalid: It is therefore, upon the motion of Rose & Lyon and James MacRae, attorneys for plaintiff, considered and adjudged that the building inspector of the city of Fayetteville be and he is hereby ordered and directed to issue a permit to the plaintiff for the construction of a filling station, upon the land described in the complaint, subject to the conformance by the plaintiff with the building laws of the state of North Carolina. Done at Fayetteville, N. C., this 13th day of July, 1929."

The defendants excepted to the judgment as signed, and assigned error and appealed to the Supreme Court. The other necessary facts will be set forth in the opinion.

Robinson, Downing & Downing, of Fayetteville, for appellants.

Rose & Lyon, of Fayetteville, for appellee.

CLARKSON J.

The question for our determination is the validity of the following ordinance:

"Section 1. That it shall be unlawful for any person, firm or corporation to install, build, construct or erect, alter or repair any building, place or structure to be used as what is commonly known as a gasoline service station where gasoline and oils are kept and sold, nearer to any dwelling than 250 feet, within the corporate limits of the City of Fayetteville, provided that this ordinance shall not apply to service stations already established and to the erection of any stations where a permit has already been issued by the city.

"Section 2. Any person, firm or corporation violating the provisions of this ordinance shall, upon conviction before the mayor, be fined $25.

"Section 3. That this ordinance shall be in force and effect from and after its ratification." This ordinance was adopted June 24, 1929.

Of the ordinance, which was first sought by plaintiff to be declared invalid, defendants in their brief say: "To be perfectly frank with this court, we do not contend for the validity of the ordinance." We do not consider that ordinance.

After this application for the writ of mandamus was instituted, the defendant city of Fayetteville passed the above ordinance mentioned on June 24, 1929. The facts undisputed on the record are to the effect that the lot upon which it is sought to erect a gasoline station is on Hay street, one of the longest in the city, and a portion runs through the business section, and a large portion runs through the residential section, and the lot is near the center of the oldest residential section, and that the nearest filling station to the lot is more than 1,700 feet. The affidavit of James MacRae, made July 13, 1929, was to the effect: That the property has an incumbrance on it of approximately $15,000, and a heavy and substantial payment will be due in August, 1929. That diligent efforts have been made to rent the property for residential purposes, but the efforts have been in vain. That the property has been vacant for approximately 12 months and no revenue has been derived therefrom. That, unless the contract for sale be consummated with the Standard Oil Company, it is highly probable that plaintiff will be unable to discharge incumbrances against the same, resulting in the loss of the property. It was also in evidence that property in that vicinity was growing less valuable and desirable for residential purposes, as the tendency of business was to travel westwardly, and the property was becoming more valuable and desirable for business purposes. It was in evidence that the Standard Oil Company will erect upon the premises a thoroughly modern and up-to-date filling station, constructed from the best material, equipped with every safety device, under a general scheme, plan, and type of architecture in keeping with the cleanliness and beauty of that portion of the city of Fayetteville in which the property is located, and that the cost of said building and improvements will be between $8,000 and $10,000. In the event a permit is granted, the same would be so constructed as to comply with the building laws of the state of North Carolina and the regulations of the city of Fayetteville.

There was evidence to the effect that the erection of the filling station would constitute "a hazard and eyesore," and would materially effect the desirability of the entire vicinity for residential purposes. It was in evidence that a survey of the filling stations now operating in the city of Fayetteville has been made, and that as a result thereof it appears that there are 24 of such stations within the corporate limits of said city, and that 23 of them are located within 250 feet of residences used and...