The principal constitutional question presented is whether the denial of petitioners’ application for the special use permit constituted an unlawful exercise of legislative power by the Board of Adjustment in violation of Article II, Section 1, of the Constitution of North Carolina.
G.S. 160-172 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 use of buildings, structures and land for trade, industry, residence or other purposes. Such regulations may provide that a board of adjustment may determine and vary their application in harmony with their general purpose and intent and in accordance with general or specific rules therein contained. Such regulations may also provide that the board of adjustment or the local legislative body may issue special use permits or conditional use permits in the classes of cases or situations and in accordance with the principles, conditions, safeguards, and procedures specified therein, and may impose reasonable and appropriate conditions and safeguards upon such permits.” (Our italics.)
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.”
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 overcrocwding 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 relates to the method of procedure by 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,” by “(t)he legislative body of such municipality.”
G.S. 160-178 authorizes the “legislative body” to provide for the appointment and compensation of “a board of adjustment” and prescribes the procedures and functions of such board.
Here, the Board of Alderman, Winston-Salem’s “legislative body,” determined that the construction of a mobile home park is
a conditional ‘permissible me
of land in a B-3 zone. In addition, it prescribed with particularity the conditions prerequisite to the issuance of a special or conditional use permit for the construction of a mobile home park. The nature of the prescribed requirements is indicated by the following brief excerpt,
viz.:
“The zoning lot
In accordance with the authority conferred by the italicized portion of G.S. 160-172, the Ordinance provides for the issuance by the Board of Adjustment of a special or conditional use permit for the construction of a mobile home park on land located in a B-3 zone upon the applicant’s compliance with prescribed requirements.
Section 29-19.A.2.c. (1), entitled “Special Use Permits,” is quoted in full in the opinion of the Court of Appeals. The decisions of the Superior Court and of the Court of Appeals are based on these provisions thereof: “In- acting upon an application for a special use permit, the Board of Adjustment shall consider, and base its decision upon, the information submitted, the findings of the City-County Planning Board, the purpose and intent of this ordinance, and the public interest. No provision of this ordinance shall be interpreted as conferring upon the Board of Adjustment the authority to approve an application for a special use permit for any use except as authorized in Section 29-7.F and 29-ll.B. In approving an application for the issuance of a special use permit, the Board of Adjustment may impose additional reasonable and appropriate conditions and safeguards to protect the public health, safety, morals, and general welfare, the value of neighboring properties, and the health and safety of neighboring residents.” (Our italics.)
The Board of Adjustment did not attempt to “impose additional reasonable and appropriate conditions and safeguards” but unconditionally denied petitioners’ application for a special or conditional use permit.
The application for the special or conditional use permit here involved was filed subsequent to our decision in
Jackson v. Board of Adjustment,
In the light of Jackson, the Superior Court and the Court of Appeals treated as invalid the portion of Section 29-19.A.2.c. (1) which purported to authorize the Board of Adjustment to base its decision upon what it considered favorable or adverse to “the public interest.” They base decision on the portion of this section of the Ordinance' which purports to authorize the Board of Adjustment to deny an application for a special or conditional use permit if the Board of Adjustment finds that the special or conditional use for which the application is made is contrary to the “purpose and intent” of the Ordinance.
Section 29-2 of the Ordinance, quoted in the opinion of the Court of Appeals and referred to therein as the “purpose
As stated by Justice Lake in Jackson: “Under those statutes, (G.S. 160-172
et seq.),
this Court has held that the legislative body of the municipal corporation may not delegate to the municipal board of adjustment the power to zone; that is, the power originally vested in the General Assembly to legislate with reference to the use which may be made of land and the structures which may be erected or located thereon.
In re O’Neal,
As stated by Justice Sharp in
In re Application of Ellis,
This case does not involve the function and authority of a board of adjustment in respect of alleged hardship situations relating to property within a particular zone. Under the circum stances of the present case, denial of petitioners’ application would constitute an unlawful rezoning of petitioners’ property by the Board of Adjustment.
Respondents’ motion to dismiss petitioners’ appeal for alleged failure to comply with Rule 3 (b) of the Supplemental Rules of the Supreme Court (
The record discloses the additional matters set forth below.
After the Board of Adjustment denied their petition, petitioners applied for and obtained a writ of
certiorari.
On October 28,1969, in compliance with the writ, respondents filed the documents and transcript of evidence involved in the proceedings before the Board of Adjustment and also filed a “Response to Petition for Certiorari.” On January 14, 1970, prior to the hearing before Judge Exum, respondents filed a “Motion to Dismiss” in which they asserted that petitioners’ application had been rendered moot by an “ordinance passed by the Board of Aldermen on November 3, 1969, rezoning a portion of their property from B-3 and R-6 to R-4, which category does not allow special use permits for the construction of a mobile home park.” Attached to this motion is a copy of what purports
The record contains no stipulation, finding or evidence with reference to the adoption by the Board of Aldermen of an ordinance containing the provisions set out in the exhibit attached to respondents’ “Motion to Dismiss.” Nor does the record contain a stipulation, finding or evidence as to what portion, if any, of the 14.5-acre site is included in the tracts described in the exhibit.
The recitals in Judge Exum’s judgment include the following: “(T)his cause also being heard upon respondents’ motion to dismiss on the ground that the questions raised by petitioners in this action have been rendered moot by the subsequent ordinance passed by the Board of Aldermen on November 3, 1969, rezoning the property in question from B-3 to R-4, which category does not allow special use permits for the construction of a mobile home park.” The first numbered (adjudicatory) paragraph of the judgment is as follows: “1. Respondents’ motion to dismiss is denied, to which ruling the respondents', in open Court, excepted.”
The opinion of the Court of Appeals contains the following : “Like the superior court, we have not considered or passed upon respondents’ contention that the questions raised by petitioners have been rendered moot by an ordinance enacted by the Winston-Salem Governing Board on 3 November 1969 rezoning the property in question from B-3 and R-6 to R-4. Proper procedures are available to the parties to determine the effect of that ordinance should they desire a determination.”
Judge Exum decided in favor of respondents without regard to the effect, if any, of an ordinance changing the zone of all or a part of the 14.5-acre site from R-3 to R-4. Apparently, for this reason, facts with reference to the adoption of a rezoning ordinance such as that referred to in respondents’ “Motion to Dismiss” were not developed. Nothing in the record affords a basis for our consideration of the legal significance, if any, of such a rezoning ordinance.
We conclude that the denial by the Board of Adjustment of petitioners’ application was unlawful and in violation of petitioners’ constitutional rights; that the decisions of the Superior Court and of the Court of Appeals, which affirmed the action of the Board of Adjustment, are erroneous; and that the significance, if any, of a rezoning ordinance, if any, enacted subsequent to the denial by the Board of Adjustment of petitioners’ application, is for further consideration in the Superior Court.
Accordingly, the judgment of the Court of Appeals is reversed. The cause is remanded to the Court of Appeals for the entry of its judgment remanding the case to the Superior Court for the entry of judgment not inconsistent with the law as stated in this opinion. Upon further consideration in the Superior Court, all parties should be afforded an opportunity to develop all pertinent facts with reference to the adoption of the alleged rezoning ordinance of November 3, 1969, and its effect, if any, upon petitioners’ asserted right to construct a mobile home park on the 14.5-acre site. Unless precluded by such rezoning ordinance, petitioners are entitled to have issued the special permit for which they have applied.
Reversed and remanded.