Penny v. City of Durham

• Decision Date: 25 February 1959
• Docket Number: No. 666,666
• Citation: 249 N.C. 596,107 S.E.2d 72
• Parties: W. H. PENNY and wife, Pauline B. Penny, Roy S. Whitfield and wife, Bernice Whitfield, Thomas H. McCauley, E. Weldon Herndon and wife, Robena J. Herndon, lrving W. Page and wife, Eula P. Page, and J. P. Carlton and wife, lvey M. Carlton, v. CITY OF DURHAM, a Municipal Corporation, Edison H. Johnson, Building and Plumbing lnspector of the City of Durham, and Northland lnvestment Company, lnc., a Corporation.
• Court: North Carolina Supreme Court

Page 72

107 S.E.2d 72

249 N.C. 596

W. H. PENNY and wife, Pauline B. Penny, Roy S. Whitfield and wife, Bernice Whitfield, Thomas H. McCauley, E. Weldon Herndon and wife, Robena J. Herndon, lrving W. Page and wife, Eula P. Page, and J. P. Carlton and wife, lvey M. Carlton, v. CITY OF DURHAM, a Municipal Corporation, Edison H. Johnson Building and Plumbing lnspector of the City of Durham, and Northland lnvestment Company, lnc., a Corporation.

No. 666

Supreme Court of North Carolina.

Feb. 25, 1959

Reade, Fuller, Newsom & Graham, Durham, for plaintiffs, appellants.

C. V. Jones, Durham, for appellees City of Durham and Edison H. Johnson, Building Inspector.

E. C. Brooks, Jr., E. K. Powe and Eugene C. Brooks, III, Durham, for appellee Northland Investment Company, Inc.

MOORE, Justice.

A demurrer admits, for the purpose of testing the pleadings, the truth of factual averments properly alleged and such relevant inferences of fact as may be deduced therefrom, but it does not admit any legal inferences or conclusions of law asserted by the pleader. Bailey v. McGill, 247 N.C. 286, 100 S.E.2d 860.

In the court below the plaintiffs based their case upon the alleged illegality of the rezoning ordinance of 2 December, 1957. As set out in the judgment appealed from, plaintiffs assigned as the sole ground for their contention that said ordinance is illegal 'that their propery is directly opposite the property which was rezoned by said ordinance, within the meaning of G.S. § 160-176, which requires the affirmative vote of three-fourths of the members of the City Council to change a zone when the owners of twenty per cent or more of the lots directly opposite the area, the zone of which is sought to be changed, filed written protest against such change; and that since said ordinance did not receive a three-fourths vote * * * it was not validly adopted * * *.'

The pertinent part of G.S. § 160-176 is as follows: 'Such regulations, restrictions and boundaries (fixed by a zoning ordinance) may from time to time be amended, supplemented, changed modified or repealted. In case, however, of a protest against such change signed by the owners of twenty per cent or more * * * of the area of the lots * * * directly opposite thereto extending one hundred feet from the street frontage of such opposite lots, such amendment shall not become effective except by favorable vote of three-fourths of all the members of the legislative body of such municipality.' The portion in parentheses was inserted by us for sake of clarity.

It will be observed that the rezoning ordinance in question did not receive a favorable vote of three-fourths of all the members of the Durham City Council, but was adopted by a majority vote of seven to five. If the property of plaintiffs is 'directly opposite' the rezoned property of defendant, Northland, the rezoning ordinance is invalid. If not 'directly opposite,' such ordinance is valid. It is to be kept in mind that Club Boulevard and the buffer strip 150 feet wide intervenes between the property of plaintiffs and Northland's rezoned property.

The fact that Northland owns both the 'buffer strip' and the rezoned area and that both are parts of one tract of land makes no difference in this case. We must consider the matter in the same manner as if these areas were under separate ownership. The 'Zoning Regulations' provide that the City '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.' G.S. § 160-173. To hold that zoning district lines must coincide with property lines, regardless of area involved, would be to render the act largely ineffective.

To reach a solution, it is necessary to determine the meaning of the expression 'directly opposite' as used under the circumstances in this case. Webster's New International Dictionary, Second Edition, Unabridged, defines 'opposite' as 'on opposite sides; in an opposed position. Across an intervening space from and usually facing or on the same level with; as * * * to live opposite the post office.' It defines 'directly' to mean, 'in a straight line; at right angles to a surface; Vertically, as opposed to obliquely; without anything intervening; straightway; next in order.'

If the statute had used the word 'opposite' alone, clearly it could be said that plaintiffs' property and the rezoned property are opposite in the sense of being 'across an intervening space' from each other, or in the sense of being 'on opposite sides' of the intervening space. This definitive analysis, however, if carried to its logical conclusion,...