Allred v. City of Raleigh
178 S.E.2d 432
N.C.
1971
Check Treatment
BOBBITT, Chief Justice.

Plaintiffs alleged no procedural irregularity in the adoption of the Ordinance. They attack it, inter alia, on the ground it exceeds and conflicts with the authority conferred by the enabling legislation.

A duly adopted rezoning ordinance is presumed to be valid. Controversies in respect of facts pertinent to its validity present questions of fact for determination by the superior court •judge. Zopfi v. City of Wilmington, 273 N.C. 430, 438, 160 S.E. 2d 325, 333. Here, the evidence discloses no conflicts as to essential facts.

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. 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. Within the limits of the powers so delegated, the municipality exercises the police power of the State. Raleigh v. Fisher, 232 N.C. 629, 61 S.E. 2d 897.

*541 G.S. 160-172, in pertinent part, provides: “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 the use of buildings, structures and land for trade, industry, residence or other purposes.”

G.S. 160-173 provides: “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.” (Our italics.)

G.S. 160-174 provides: “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 encouraging the most appropriate use of land throughout such municipality.” (Our italics.)

G.S. 160-175, in pertinent part, provides: “The legislative body of such municipality shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established and enforced, and from time to time amended, supplemented or changed.”

G.S. 160-176, in pertinent part, provides: “Such regulations, restrictions and boundaries may from time to time be amended, supplemented, changed, modified or repealed.”

*542 G.S. 160-22 and G.S. 160-177 provide for the appointment of a planning board (commission). This board (commission) has no legislative, judicial or quasi-judicial power. Its recommendations do not restrict or otherwise affect the legislative power of the “legislative body,” i.e., the city council. In re Markham, supra at 571, 131 S.E. 2d at 334.

G.S. 160-178 authorizes the appointment of a board of adjustment whose powers include the following: “Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of such ordinance, the board of adjustment shall have the power, in passing upon appeals, to vary or modify any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures or the use of land, so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.” Decisions relating to hardship variances by a board of adjustment are not germane to the question before us. Here, we are concerned with rezoning, not with variances within a particular zone.

The provisions of the charter of the City of Raleigh which confer authority in respect of zoning and which provide, inter alia, for a City Planning Commission are in accord with the provisions of the cited General Statutes.

The cited General Statutes and the charter of the City of Raleigh confer upon the City Council of Raleigh legislative power to enact a comprehensive zoning ordinance. The validity of comprehensive zoning ordinances has been recognized by the Supreme Court of the United States and by this Court. Euclid v. Amber Realty Company, 272 U.S. 365, 71 L. Ed. 303, 47 S.Ct. 114, 54 A.L.R. 1016 (1926); In re Appeal of Parker, 214 N.C. 51, 55, 197 S.E. 706, 709; In re O’Neal, 243 N.C. 714, 719, 92 S.E. 2d 189, 192, and cases cited.

Section 1 of Chapter 24 of the Raleigh Code, a comprehensive zoning ordinance, provides: “It is deemed necessary in order to preserve and promote the health, comfort, convenience, good order, better government, safety and morals, and in order to promote the systematic future development of the city, the economic and industrial prosperity, prevent or relieve congestion, either of population or traffic, control the fire hazard, preserve the natural and historic features of the city and beautify the same, to divide the city into districts or zones and to make regu *543 lations therefor in accordance with a comprehensive plan for the use and development of all parts of the city, designed to insure a fair and adequate division of light and air among buildings, protect the residence districts, conserve property values, facilitate adequate provisions of water, sewerage, schools, parks, and other public requirements, and to encourage the most appropriate use of land throughout the city.”

For the purposes set forth in Section 1, Section 4 divides the city into thirteen classes of districts or zones, inclusive of five residential districts or zones designated R-4, R-6, R-10, R-20 and R-30.

In R-4, the permitted structures for residential use are restricted to “single-family dwelling unit(s)” with this exception: “Townhouse developments and unit-ownership developments,” as defined elsewhere in the Ordinance, are permitted “when approved as planned unit developments of fifty (50) acres or more under Chapter 20 of this Code.”

In R-6, the permitted uses include all uses permitted in R-4. Additional permitted uses in R-6 include “(t)wo (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 (1) story”; “(g)roup housing developments and apartment projects which comply with section 24-42”; and “(h)ospital, sanitarium, rest home, home for the aged provided that such use shall exclude the insane, feebleminded, or chronic alcoholic.”

In R-10, the permitted uses include all uses permitted in R-6. Additional uses (subject to specified restrictions) permitted in R-10 include “(a) customary home occupation incidental to the occupancy of the home as a dwelling, carried on by a resident in his own home”; a “ (r) ooming house, boarding house or tourist home”; and “ (c)lub for civic purposes operated by a civic organization, including offices for local, state and regional officials.”

In R-20, the permitted uses include all uses permitted in R-10 and in addition thereto a “(s)ocial fraternity, sorority.”

In R-30, the permitted uses are the same as those permitted in R-20. These permitted uses, with the addition of “(s)ocial fraternity, sorority,” are the same as the uses1 permitted in R-10. *544 Hence, with the indicated exception, R-10 is the least restricted of the residential zones.

We refrain from attempting an all-inclusive definition of a “comprehensive” zoning ordinance. Suffice to say, the Raleigh Zoning Ordinance complies with two of the essentials of a comprehensive zoning ordinance, viz.: (1) It applies to all territory subject to the zoning jurisdiction of the City Council, including the area beyond and surrounding the corporate limits of the city for a distance of one mile in all directions; and (2), with reference to property within a particular district or zone, e.g., R-10, all uses permissible in R-10 are available as of right to the owner. “(W)hen the classification has been made, all the areas in each class must be subject to the same restrictions. G.S. 160-173.” Walker v. Elkin, 254 N.C. 85, 88, 118 S.E. 2d 1, 3.

The record discloses no evidence or contention before the City Council or before the court that the 9.26-acre tract was unsuitable for development for the uses permissible in R-4. In Walker v. Elkin, supra at 88, 118 S.E. 2d at 4, there was a finding, amply supported by competent evidence, that the 3.56-acre tract there involved was not suitable for residential development. In Zopfi v. City of Wilmington, supra at 437, 160 S.E. 2d at 332, the evidence amply supported the conclusion that the rezoned property was not best suited for the construction of single family residences. Here, the minutes disclose affirmatively that the City Council based its decision to change the zoning of the 9.26-acre tract from R-4 to R-10 on other grounds.

As recently as August 21, 1967, the City Council, as recommended by the Planning Commission, had denied the corporate defendant’s application that the zoning of the 9.26-acre tract be changed from R-4 to R-10. Notwithstanding, on March 3, 1969, the City Council, rejecting the recommendation of the Planning Commission, adopted the Ordinance.

Consideration of the minutes of the Planning. Commission and of the City Council show beyond doubt that the City Council did not determine that the 9.26-acre tract and the existing circumstances justified the rezoning of the 9.26-acre tract so as to permit all uses permissible in an R-10 district. On the contrary, it appears clearly that the ground on which the City Council based its action was its approval of the specific plans of the applicant to construct on the 9.26-acre tract “luxury apart *545 ments ... in twin high-rise towers.” We assume the City Council was fully justified in accepting the assurances of the appplicant that the 9.26-acre tract would be developed in accordance with the particular and impressive plans submitted to the Planning Commission and to the City Council. However, “(i)n enacting a zoning ordinance, a municipality is engaged in legislating and not in contracting.” Marren v. Gamble, supra at 684, 75 S.E. 2d at 883, and cases cited; McKinney v. High Point, 239 N.C. 232, 237, 79 S.E. 2d 730, 734; Zopfi v. City of Wilmington, supra at 434, 160 S.E. 2d at 330-331. Without suggesting that the particular applicant would not keep faith with the City Council, if the zoning is changed from E-4 to E-10 the owner of the 9.26-acre tract will be legally entitled to make any use thereof permissible in an E-10 zone.

Unquestionably, Ealeigh’s “legislative body,” namely, its City Council, has authority to rezone property when reasonably necessary to do so in the interests of the public health, the public safety, the public morals or the public welfare. Ordinarily, the only limitation upon this legislative authority is that it may not be exercised arbitrarily or capriciously. Walker v. Elkin, supra at 89, 118 S.E. 2d at 4. However, notwithstanding the motivation of the members of the City Council may be laudable, any action of the City Council that disregards the fundamental concepts of zoning as set forth in the enabling legislation may be arbitrary and capricious.

In our view, and we so hold, the zoning of the property may be changed from E-4 to E-10 only if and when its1 location and the surrounding circumstances are such that the property should be made available for all uses permitted in an E-10 district. Eezoning on consideration of assurances that a particular tract or parcel .'will be developed in accordance with restricted approved plans is not a permissible ground for placing the property in a zone where restrictions of the nature prescribed are not otherwise required or contemplated. Eezoning must be effected by the exercise of legislative power rather than by special arrangements with the owner of a particular tract or parcel of land.

In Oury v. Greany, - E.I. -, 267 A. 2d 700 (1970), a similar factual situation was considered. The Town Council of North Kingstown, Ehode Island, acting upon an application that the zoning of a 7.32-acre tract be changed from residential *546 to business “D” adopted a resolution which provided: “ . . . It Was1 Voted that the change of zone on the petition of Timothy J. Greany ... be granted. Further Voted that the property be re-zoned to the present zoning if this specified car sales building is not built.” In affirming a superior court judgment, which granted injunctive relief on the ground the purported rezoning was invalid, the Supreme Court of Rhode Island said: “No extended argument is required to demonstrate that the rezoning of residential property to a business use on the condition that the land rezoned shall be devoted exclusively to the business use for which application to rezone was made, or otherwise remain residential, constitutes zoning without regard to the public health, safety and welfare, concern for which is basic to that comprehensiveness contemplated in the enabling act.”

The findings of fact on which the superior court judge based his judgment, except (1) and (2), are quoted in the opinion of the Court of Appeals. (1) and (2) relate to jurisdiction and to the location of the 9.26-acre tract, respectively. Evidential facts included in these findings are incomplete in the respects indicated in our statement of facts.

Upon the evidence before him, the superior court judge reached the conclusion that the Ordinance “bears a reasonable and substantial relation to the public safety, health, morals, comfort and general welfare and makes adequate provision for transportation without undue concentration of population.” Presumably, the court was of opinion that the evidence was sufficient to justify a finding that the 9.26-acre tract should be rezoned so as to make it available for all uses permissible in an R-10 zone. As to this, we express no opinion. However, no legislative power vests in the court. Legislative power vests in the City Council. If the City Council should determine upon further consideration that the circumstances justify a rezoning of the 9.26-acre tract or similarly situated property so as to make these properties available for use for all purposes permitted in an R-10 zone, different questions will be presented.

For the reasons indicated, we hold the Ordinance invalid and unenforceable.

Accordingly, the decision of the Court of Appeals is reversed, and the cause is remanded to the Court of Appeals with direction that it enter an order vacating the judgment of the *547 superior court and directing that the superior court enter judgment declaring the Ordinance invalid and unenforceable.

Reversed and remanded.