State v. Joyner

• Decision Date: 31 January 1975
• Docket Number: No. 112,112
• Parties: STATE of North Carolina v. Roy JOYNER.
• Court: North Carolina Supreme Court

Page 320

211 S.E.2d 320

286 N.C. 366

STATE of North Carolina v. Roy JOYNER.

No. 112.

Supreme Court of North Carolina.

Jan. 31, 1975.

Atty. Gen. Robert Morgan by Richard N. League, Asst. Atty. Gen., Raleigh, for the State.

Craige, Brawley by C. Thomas Ross, Winston-Salem, for defendant-appellant.

MOORE, Justice.

Defendant assigns as error the failure of the trial court to quash the warrant on the ground that the ordinance on which it is based is unconstitutional.

A defendant charged with a violation of an ordinance may challenge the constitutionality of such ordinance by a motion to quash the warrant since there can be no sufficient statement of a criminal offense in a charge of violation of an unconstitutional statute or ordinance. State v. Atlas, 283 N.C. 165, 195 S.E.2d 496 (1973); State v. Brewer, 258 N.C. 533, 129 S.E.2d 262 (1963).

As stated by Justice Lake in State v. Vestal, 281 N.C. 517, 189 S.E.2d 152 (1972):

'In passing upon such motion, the court treats the allegations of fact in the warrant, or indictment, as true and considers only the record proper and the provisions of the statute or ordinance. State v. Lee, 277 N.C. 242, 176 S.E.2d 772; State v. McBane, 276 N.C. 60, 170 S.E.2d 913; State v. Cooke, 248 N.C. 485, 103 S.E.2d 846; State v. Andrews, 246 N.C. 561, 99 S.E.2d 745. . . .'

Defendant does not question the validity of the entire ordinance. Instead, he questions only the section which provides for termination of certain nonconforming uses. Defendants takes the position that the Court of Appeals should have reversed the trial court's refusal to quash the warrant on the ground that section 29--11 G of the Winston-Salem zoning ordinance he is charged with violating is contrary to the Fifth and Fourteenth Amendments of the Constitution of the United States in that it deprives him of his property without due process of law and represents a taking of his property without compensation.

The zoning power of municipalities is derived from the State. As stated in Keiger v. Board of Adjustment, 278 N.C. 17, 178 S.E.2d 616 (1971):

'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 Markham, 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.'

On 17 September 1968, G.S. § 160--172 in pertinent part provided:

'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. . . .' (Emphasis added.)

G.S. § 160--173 provided:

'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.' (Emphasis added.)

G.S. § 160--174 provided:

'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, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration, among 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 Encourging the most appropriate use of land throughout such municipality.' (Emphasis added.)

Acting under the broad authority given the city by these statutes, a comprehensive zoning ordinance was adopted by the Board of Aldermen of Winston-Salem pursuant to these statutes and Chapter 677 of the 1947 Session Laws of North Carolina as amended. The section under which defendant was convicted was a part of that ordinance.

A duly adopted rezoning ordinance is presumed to be valid. Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432 (1971); Schloss v. Jamison, 262 N.C. 108, 136 S.E.2d 691 (1964). And the burden is on the complaining party to show it to be invalid. Heaton v. City of Charlotte,277 N.C. 506, 178 S.E.2d 352 (1971).

As we said in In re Appeal of Parker, 214 N.C. 51, 55, 197 S.E. 706, 709 (1938):

'When the most that can be said against such ordinances is that whether it was an unreasonable, arbitrary or unequal exercise of power is fairly debatable, the courts will not interfere. In such circumstances the settled rule seems to be that the court will not substitute its judgment for that of the legislative body charged with the primary duty and responsibility of determining whether its action is in the interest of the public health, safety, morals, or general welfare. (Citations omitted.)'

Defendant first contends that Section 29--11 G, under which he was convicted, is unconstitutional on its face in that it deprives him of his property without due process of law.

Substantive due process is a guaranty against arbitrary legislation, demanding that the law shall not be unreasonable, arbitrary or capricious, and that the law be substantially related to the valid object sought to be obtained. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, 108 A.L.R. 1330 (1937); Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469 (1934); Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016 (1926); Blades v. Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972); Helms v. Charlotte, 255 N.C. 647, 122 S.E.2d 817 (1961). In examining the reasonableness of an ordinance, due process dictates that the court look at the entire ordinance and not only at the provision as it applies to a particular inhabitant of the municipality. Schloss v. Jamison, Supra; City of Elizabeth City v. Aydlett, 201 N.C. 602, 161 S.E. 78 (1931). The fact that one citizen is adversely affected by a zoning ordinance does not invalidate the ordinance. Blades v. Raleigh, Supra, and cases cited therein; Bohannan v. San Diego, 30 Cal.App.3d 416, 106 Cal.Rptr. 333 (1973).

Defendant's building material salvage yard is located in a B--3 district, in which such business is prohibited. The purpose of the B--3 district is set out in Section 29--6 D. 3 a. of the ordinance as follows: 'This district seeks to provide areas for the development of the business, heavy commercial, or service establishments which locate along the major streets or highways of Winston-Salem and its surrounding area.' Section 29--11 G provides that, in the event an auto wrecking yard, building material salvage yard, general salvage yard, scrap metal processing yard or contractors' storage yard is located in an area zoned by the ordinance to prohibit such use, the user has a three-year grace period to remove the nonconforming use.

Section 29--6 contains a table of uses permitted in Winston-Salem and indicates which uses may be located in each of the thirteen zoning districts. The list of permitted uses covers eleven and one-half pages. Building material salvage yards are permitted in districts zoned as I--3.

Winston-Salem has sought, through a comprehensive ordinance, to assure that future growth is orderly and in the best interests of its citizens. To further that purpose, the ordinance establishes a three-year period during which defendant may remove his nonconforming uses. The method used to terminate nonconforming uses was a legislative decision to be reached by balancing the burden on the individual with the public good sought to be achieved. Section 29--11 G is not so arbitrary, unreasonable, or unrelated to the general welfare of the community as to be unconstitutional by its terms. To the contrary, it represents a conscious effort on the part of the legislative body of the city to regulate the use of land throughout the city and thus promote the health, safety, or general welfare of the community. Defendant's first assignment of error is overruled.

Defendant next contends that section 29--11 G is invalid on its face in that it permits a taking of private property for a public purpose without compensation contrary to the Fifth and Fourteenth Amendments of the United States Constitution.

The reasoning behind the utilization of amortization provisions to displace nonconforming uses is well stated by Professor Anderson, as follows:

'Municipalities which seek to terminate nonconforming uses through amorization proceed on the assumption that the public welfare requires that such uses cease, but that summary termination is illegal, impractical, or unfair. They find a middle ground, between immediate cessation of use and the indefinite continuance thereof, by adopting regulations which permit the nonconforming users, or some of them, to continue for a specified period, but which require them to end the prohibited...