Shuford v. Town of Waynesville
| Decision Date | 21 September 1938 |
| Docket Number | 20. |
| Citation | 198 S.E. 585,214 N.C. 135 |
| Parties | SHUFORD et al. v. TOWN OF WAYNESVILLE et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Haywood County; J. H. Clement, Judge.
Proceedings by W. E. Shuford and another against the Town of Waynesville and others under the Uniform Declaratory Judgment Act to determine the right to erect a filling station. From a judgment against the plaintiffs, plaintiffs appeal.
Reversed. This is an action instituted by the plaintiffs under Chapter 102, Pub.Laws 1931, known as the Uniform Declaratory Judgment Act, to determine their right to erect a filling station on certain property in the town of Waynesville under a building permit issued by the building inspector of said town and notwithstanding the terms of an ordinance adopted by the municipal authorities.
The plaintiff W. E. Shuford owns and has leased to the plaintiff Sinclair Refining Company a certain parcel of land situate on the west side of Main Street in said town. A building permit was duly issued, authorizing the plaintiff to erect a filling station on said premises to cost approximately $6,000. Plans have been prepared and the plaintiffs are now ready to commence the erection of said building, but the said authorities have notified them to desist. In prohibiting the erection of said building the city authorities are acting under and by virtue of the terms of an ordinance adopted by the governing authorities of said town in July, 1936 subsequent to the issuance of the building permit. This ordinance is as follows:
"Be it ordained by the Mayor and Board of Aldermen of the Town of Waynesville:-
Section 1. That in pursuance to Chapter 250 of the Public Laws of the State of North Carolina, of 1923, and other statutes relating thereto, and for the purpose of promoting the health, safety and welfare of the community, be it ordained that the Town of Waynesville be divided in the method provided by said statutes, into zones.
Section 2. That there shall be set aside and established as the first zone, to be known as the Business Section 'A', that portion of Main Street lying south of Depot Street and north of Church Street, and that the remainder of said town be hereafter set aside and established in separate zones as may be determined pursuant to said statutes.
Section 3. That within the limits and fronting on said Main Street between Depot Street and Church Street, named as Business Section 'A' no gasoline service or filling station shall be built, enlarged or reconstructed, and the construction and erection of business houses or other buildings within said district shall be permitted only in accordance with the rules and regulations established for said zones.
Section 4. That any person, firm or corporation violating any provision of this ordinance shall be guilty of a misdemeanor and upon conviction shall be fined $50.00 for each and every offense."
After institution of this action the Governing Board of the Town of Waynesville adopted a Comprehensive Zoning Ordinance under the provisions of Article 11(C) of Chapter 56 of the Consolidated Statutes, Supp.1924, § 2776(r) et seq., which is a codification of Chapter 250, P.L.1923, and acts amendatory thereof. The latter ordinance appoints a Zoning Commission and a Board of Adjusters as provided by said act. The Zoning Commission thus appointed has not zoned said town or recommended the boundaries of various original districts or adopted appropriate regulations to be enforced therein; nor has it filed any final report with the legislative body of said town. The plaintiffs tendered additional findings of fact which the court declined to make and the plaintiffs excepted. The plaintiffs likewise tendered judgment requesting the court to conclude as a matter of law that the ordinances in question are void and unenforceable, for that: (a) Same were not passed and promulgated as required by statute; (b) same are unreasonable, discriminatory and in violation of the State and Federal Constitution; (c) they are designed to operate retrospectively insofar as the plaintiffs are concerned by seeking to disturb vested rights. The court declined to sign this judgment and the plaintiffs excepted. The court signed the judgment against the plaintiffs, as appears of record, and the plaintiffs excepted and appealed.
Lee & Lee, of Asheville, for appellants.
Morgan & Ward, of Waynesville, for appellees.
Governing authorities of municipal corporations in North Carolina were first vested with authority to adopt zoning ordinances by Chap. 250, P.L.1923. This act requires that ordinances adopted under authority thereof shall: (a) be made in accordance with a comprehensive plan; (b) provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established and enforced; (c) provide for the appointment of a commission to be known as the Zoning Commission to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein; (d) provide for the appointment of a Board of Adjustment to hear and decide appeals from and review any order, requirement, decision or determination made by administrative official charged with enforcement of any ordinance adopted pursuant to this act. It further provides that no regulation, restriction or boundary determined or established by proper authorities under said ordinance shall become effective until after a public hearing upon fifteen days' notice is had, and that such hearing shall not be held until after the zoning commission has filed its final report recommending the boundaries of the various original districts and appropriate regulations to be enforced therein.
The original ordinance adopted July 15, 1936, is not in accord with a comprehensive plan and does not provide for the zoning of the town as a whole. It merely sets aside and establishes approximately one block of the business section of said town as "business section, Zone A." No provision for hearing or appeal is provided. No zoning commission or board of adjustment is appointed or provided for.
When measured by the requirements of the act of the Legislature, under authority of which it purports to have been adopted, it appears that the ordinance does not substantially comply with the terms of said legislation. It cannot be upheld under that act.
The adoption of the second ordinance will not avail the defendants. The Town of Waynesville has not been zoned thereunder and plaintiffs' property has not been placed in any restricted zone or area. The zoning commission has not filed a report recommending boundaries of the various original districts and appropriate regulations to be...
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