Taylor v. City of Raleigh

• Decision Date: 01 September 1976
• Docket Number: No. 72,72
• Citation: 227 S.E.2d 576,290 N.C. 608
• Parties: James F. TAYLOR et al. v. The CITY OF RALEIGH, North Carolina, et al.
• Court: North Carolina Supreme Court

Page 576

227 S.E.2d 576

290 N.C. 608

James F. TAYLOR et al. v. The CITY OF RALEIGH, North Carolina, et al.

No. 72.

Supreme Court of North Carolina.

Sept. 1, 1976.

Barringer & Howard by Thomas L. Barringer, Raleigh, for plaintiffs-appellants.

Hatch, Little, Bunn, Jones, Few & Berry by David H. Permar, Raleigh, for defendant-appellee, W. E. Mangum.

Broxie J. Nelson, City Atty., and Clyde Holt III, Associate City Atty., Raleigh, for defendant-appellee, City of Raleigh.

SHARP, Chief Justice.

Plaintiffs are the owners of land through which the City of Raleigh proposes to construct a sewer line from its primary corporate limits to the noncontiguous 39.89-acre Mangum 'satellite' tract annexed in 1972. In this action for a declaratory judgment they seek to invalidate the ordinance annexing the property and the 1970 rezoning ordinance, which changed the property's classification from R--4 to R--6. This change authorized the construction of 'Two (2) family dwelling, multi-family dwelling, townhouses, or apartment houses, each on its own lot, fronting on a public street, provided no dwelling shall contain more than eight (8) units on any one story, except as provided in section 24--42.1 (special exceptions).' The construction of an apartment house in the area, however, is impossible unless the City of Raleigh can extend its water and sewer system to the noncontiguous annexation.

Subsequent to the adoption of the two ordinances challenged by plaintiffs the City of Raleigh brought five separate condemnation proceedings against these plaintiffs seeking easements over their properties for the proposed sewer system. The relief which plaintiffs seek in this present action is a permanent injunction enjoining the City of Raleigh from condemning any of their property for the sewer system. The five condemnation proceedings, therefore, are germane in the present action only to the extent that the City's right to condemn may depend upon the validity of the annexation and rezoning ordinances. It is to a discussion of these ordinances and plaintiffs' standing to attack them that we now turn.

Annexation Ordinance

The annexation ordinance, which became effective 26 June 1972, was enacted on 20 March 1972, under the authority conferred by Ch. 989, N.C.Sess.Laws (1967) entitled, 'AN ACT TO PROVIDE FOR VOLUNTARY ANNEXATION BY THE CITY OF RALEIGH OF AREAS, TERRITORIES OR SUBDIVISIONS NOT CONTIGUOUS TO THE MUNICIPAL BOUNDARIES OF THE CITY OF RALEIGH.' The ordinance was adopted pursuant to petition of defendant Mangum, The sole owner of the annexed 39.89 acres.

Section 5 of Chapter 989 furnishes the only means of contesting the annexation of noncontiguous property authorized by that enactment. Section 5 provides that if, before the effective date of the annexation, a petition is filed by at least ten percent of the qualified voters of the City requesting a referendum on the question of annexing the area described in the petition, an election shall be conducted in accordance with the provisions of sections 6 and 7 of the Chapter. If a majority of the votes cast at such an election shall be 'for extension,' the area shall become a noncontiguous portion of the City.

At this point we note that by Ch. 1173, N.C.Sess.Laws (1973), effective 1 July 1974 and codified as G.S. 160A--58 through G.S. 160A--58.6 (Cum.Supp., 1975), the General Assembly empowered all municipalities (except those not qualified to receive gasoline tax allocations under G.S. 136--41.2) to annex satellite areas upon the petition of all the owners in the proposed satellite annexation. G.S. 160A--58.2 provides that those entitled to be heard 'on the questions of the sufficiency of the petition and the desirability of the annexation' are 'any person residing in or owning property in the area proposed for annexation and any resident of the annexing city.' This enactment does not authorize any other persons to protest a proposed annexation of noncontiguous territory or to challenge the ordinance when it is passed.

Upon the institution of an action to challenge the validity of an annexation ordinance, one of the court's first concerns is whether the plaintiffs are authorized to maintain their action. In Gaskill v. Costlow, 270 N.C. 686, 155 S.E.2d 148 (1967), this Court recognized and applied the general rule that unless an annexation ordinance be absolutely void (E.g., on the ground of lack of legislative authority for its enactment), in the absence of specific statutory authority to do so, private individuals may not attack, collaterally or directly, the validity of proceedings extending the corporate limits of a municipality. Such an action is to be prosecuted only by the State through its proper officers. Annot., 'Capacity to Attack the Fixing or Extension of Municipal Limits or Boundary,' 13 A.L.R.2d 1279 (1950); Annot., 'Proper Remedy or Procedure for Attacking Legality of Proceedings, Annexing Territory to Municipal Corporations,' 18 A.L.R.2d 1255, 1258--59 (1951); 56 Am.Jur.2d Municipal Corporations §§ 36, 72 (1971). However, if the annexation is neither authorized by law nor made under the color of law it is void and is subject to attack by anyone having a sufficient personal interest in the litigation. Annot., 13 A.L.R.2d at 1292.

The legislature, of course, may authorize designated persons to contest the validity of annexation ordinances, but when 'the courts are vested with jurisdiction to review annexation proceedings, the scope of judicial review is limited by statute.' In re Annexation Ordinance, 284 N.C. 442, 452, 202 S.E.2d 143, 149 (1974). Our legislature has authorized judicial review with reference to the annexation of 'adjacent or contiguous' areas. G.S. 160A--38 and G.S. 160A--50 (Cum.Supp., 1975). As heretofore noted, however, neither in the local act of 1967 empowering the City of Raleigh to annex noncontiguous territory nor in the 1973 enactment which extended that right to all the State's municipalities did the legislature authorize private citizens to seek judicial review of the annexation. It is clear, therefore, that the plaintiffs in this action lack standing to contest the annexation ordinance. We also advert to the fact that plaintiffs own no property in the annexed noncontiguous area. Nor, so far as the record discloses, do they own any property within the primary corporate limits of Raleigh. Their properties and residences lie in between the two areas.

The Court of Appeals correctly held that plaintiffs have no standing to attack the annexation ordinance.

Rezoning Ordinance

At the outset of our discussion of the rezoning ordinance it is appropriate to examine the statutory authority under which Raleigh exercises the right to zone and rezone. The General Assembly has delegated to 'the legislative body' of cities and incorporated towns the power to adopt zoning regulations and from time to time, to amend or repeal such regulations. In re O'Neal, 243 N.C. 714, 92 S.E.2d 189 (1956); Marren v. Gamble, 237 N.C. 680, 75 S.E.2d 880 (1953).

When Chapter 540 of the Session Laws of 1949 (hereafter called the 1949 Raleigh Act), was enacted, the statewide enabling legislation from which municipalities derive the general power to adopt zoning regulations made no provision for zoning beyond the municipal corporate limits. Article 14, Chapter 160, §§ 172 Et seq., N.C.Gen.Stat., Volume 3 (1943); State v. Owen, 242 N.C. 525, 88 S.E.2d 832 (1955). After enactment of the 1949 Raleigh Act, the statewide legislation was amended to enable municipalities to exercise zoning powers 'not only within its corporate limits but also within the territory extending for a distance of one mile beyond such limits in all directions.' N.C.Sess.Laws, Ch. 1204, Sec. 1 (1959), now codified as N.C.G.S. § 160A--360 (1972).

The 1949 Raleigh Act authorized the governing body of the City of Raleigh to adopt zoning ordinances 'within the territory and community beyond and surrounding the corporate boundaries of the City of Raleigh, as now or hereafter fixed, for a distance of one mile of and beyond such corporate boundaries in all directions.' Plaintiffs do not challenge the authority of the City Council to adopt zoning regulations and, from time to time, to amend or repeal such regulations, with reference to such property. Nor do they assert any failure to comply with prescribed procedures for the adoption of a valid rezoning ordinance. They attack the rezoning ordinance on the ground the decision of the City Council constituted an arbitrary and discriminatory exercise of its legislative power.

In considering whether plaintiffs (1) have standing to attack the rezoning ordinance, and (2) whether their action is barred by laches, as held by the Court of Appeals, a review of the documentary evidence submitted by plaintiffs is appropriate.

The copies of the records in the five condemnation proceedings show the addresses of plaintiffs to be as follows: (1) Taylor--4217 Laurel Ridge Drive; (2) Dunn--4505 Boxwood Drive; (3) Patty--4304 Azalea Drive; (4) Whitaker--4101 Balsam Drive; (5) Davis--4212 Azalea Drive. Laurel Ridge Road, Boxwood Drive, and Balsam Drive are shown as streets on the portion of the zoning map identified as defendants' Exhibit J. No street identified as Azalea Drive is shown thereon.

According to the scale of Exhibit J, the distance from the northern boundary of the rezoned 39.89 acres to Boxwood Drive is less than the distance from said northern boundary to any of the other streets referred to above. By shortest direct line, the distance from said northern boundary to Boxwood Drive is 2800 feet; it is 2600 feet to the rear of lots on the south side of Boxwood Drive.

The affidavit of plaintiff Jasper W. Dunn III states that the house and lot at 4505 Boxwood Drive, owned by himself and his wife, 'are located approximately one-half mile from the property of W. E. Mangum.' It is unclear whether his reference is to the rezoned 39.89 acres or to the portion...