Marren v. Gamble

• Decision Date: 06 May 1953
• Docket Number: No. 525,525
• Citation: 75 S.E.2d 880,237 N.C. 680
• Parties: MARREN et ux. v. GAMBLE et al.
• Court: North Carolina Supreme Court

Page 880

75 S.E.2d 880

237 N.C. 680

MARREN et ux. v. GAMBLE et al.

No. 525.

Supreme Court of North Carolina.

May 6, 1953.

Parker Whedon, Charlotte, for plaintiffs, appellants.

Cochran, McCleneghan & Miller, Charlotte, for defendants C. F. Gamble and wife, Martha Brite Gamble, appellees.

John D. Shaw, Charlotte, for defendants, City of Charlotte and H. N. Sutton, Chief Building Inspector of City of Charlotte, appellees.

ERVIN, Justice.

The General Assembly has delegated to the legislative body of a municipality the power to promulgate zoning regulations 'For the purpose of promoting health, safety, morals or the general welfare of the community'. G.S. § 160-172.

G.S. § 160-173 is in these words: '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: Provided, however, that when at any intersection of streets in the corporate limits of any city or town the said legislative body of the said city or town promulgates any certain regulations and/or restrictions for the erection, construction, reconstruction, alteration, repair or use of buildings, structures or land on two or more of said corners at said intersection, it shall be the duty of such legislative body upon written application from the owner of the other corners of said intersection to redistrict, restrict and regulate the remaining said corners of said intersecting streets in the same manner as is prescribed for the erection, construction, reconstruction, alteration, repair or use of buildings, structure or land of the other said corners for a distance not to exceed one hundred and fifty feet from the property line of said intersecting additional corners.'

The Charlotte City Council did not gang aglee in taking the position that under the proviso of G.S. § 160-173, C. F. Gamble and Martha Brite Gamble possessed the legal right to require the rezoning of their corner from residential to business use because the other three corners of the intersection had already been zoned for business use by the general zoning ordinance. This being so, the plaintiffs have no legal ground for complaint unless the statutory proviso offends the organic law.

The plaintiffs assert initially that the proviso of G.S. § 160-173 delegates the power to legislate to a private person in violation of Section 1 of Article 2 of the Constitution of North Carolina. They offer these arguments to sustain this position: The power to zone or rezone is legislative. The statutory proviso compels the legislative body of the municipality to rezone the corner of an intersection at the demand of its owner whenever the conditions enumerated in the proviso exist. Hence, the proviso, in reality, delegates the legislative power to rezone the corner to its owner rather than the legislative body of the municipality.

These arguments lack substance. When it delegates zoning power to a municipality, the General Assembly may prescribe the conditions under which the power is be exercised. State ex rel. Holcombe v. City of Lake Charles, 175 La. 803, 144 So. 502; Leahy v. Inspector of Buildings, 308 Mass. 128, 31 N.E.2d 436; 62 C.J.S., Municipal Corporations, § 226(2). In the final analysis, the proviso of G.S. § 160-173 does this, and nothing more. When its phraseology is reduced to simple terms, it merely declares that whenever the legislative body of a municipality zones two or more corners at an intersection of streets in the corporate limits of the municipality in a certain way, 'it shall be the duty of such legislative body upon written application from the owner of the other corners' of the intersection to rezone such other corners in the same manner. It does not undertake to authorize or permit the owner of the other corners to exercise any legislative power. To be sure, the proviso of G.S. § 160-173 confers upon the owner of the other corners a legal right to require the legislative body of the municipality to rezone his corners in the manner set forth whenever the conditions specified in the proviso exist. But this legal right is created by the General Assembly itself to enforce its own motion as to how corners at street intersections should be zoned.

In enacting a zoning ordinance a municipality is engaged in legislating and not in contracting. City of Raleigh v. Fisher, 232 N.C. 629, 61 S.E.2d 897; Kinney v. Sutton, 230 N.C. 404, 53 S.E.2d 306; Clifton Hills Realty Co. v. City of Cincinnati, 60 Ohio App. 443, 21 N.E.2d 993. As a consequence, a zoning ordinance fixing the boundaries of zones does not result in a contract between the municipality and property owners precluding the municipality from afterwards changing the boundaries if it deems a change to be desirable. Hollearn v. Silverman, 338 Pa. 346, 12 A.2d 292. Moreover, a zoning ordinance does not vest in a property owner the right that the restrictions...