Redevelopment Commission of the City of Greenville v. Unco, Inc. , 23 N.C. App. 574 ( 1974 )

209 S.E.2d 841 (1974) 23 N.C. App. 574

REDEVELOPMENT COMMISSION OF the CITY OF GREENVILLE, Petitioner,
v.
UNCO, INCORPORATED et al., Respondents.

No. 733SC794.

Court of Appeals of North Carolina.

November 20, 1974.

Harrell & Mattox by Fred T. Mattox, Greenville, for petitioner-appellee.

Sam B. Underwood, Jr., Greenville, for respondent-appellant Unco, Inc.

Everett & Cheatham by C. W. Everett, Jr., Greenville, for respondents-appellants, Sam B. Underwood, Jr. and wife.

PARKER, Judge.

At the outset we note that the Urban Redevelopment Law, which formerly appeared as Subchapter VII of Chapter 160 of the General Statutes, was transferred by Sec. 75 of Chap. 426, of the 1973 Session Laws effective 10 May 1973 to G.S. Chap. 160A and now appears therein as a new Article 22, and is renumbered G.S. § 160A-500 to § 160A-527. In order to conform with the citations in the judgment appealed from and the briefs, statutory references in this opinion will be made to the old section numbers.

Appellants first contend that because three of the six structures and more than one-half of the land area in Parcel 13 were already in public ownership, there was no statutory authority under the Urban Redevelopment Law for the present proceeding. However, G.S. § 160-465, the section of the Urban Redevelopment Law which deals specifically with eminent domain proceedings, contains the following:

"If any of the real property in the redevelopment area which is to be acquired has, prior to such acquisition, been devoted to another public use, it may, nevertheless, be acquired by condemnation; provided, that no real property belonging to any municipality or county or to the State may be acquired without its consent."

In view of this express statutory recognition that publicly owned property may be acquired by condemnation in furtherance of an urban renewal project when the owning public body gives its consent, appellants' first contention is overruled.

Appellants next contend that the trial court erred in finding as a fact that the Redevelopment Commission and the City Council of the City of Greenville did not act arbitrarily or capriciously in adopting and approving the plan of redevelopment or the amendment to include Parcel 13. In support of this contention, appellants have assembled in their brief from the mass of testimony and exhibits included in this case's voluminous record the evidence relating to a series of discussions and transactions between 1962 and 1971 among various Redevelopment Commission, County, City, and Federal representatives which appellants argue demonstrates that Parcel 13 was incorporated into the redevelopment project without due consideration of the valid objectives of urban renewal. In answer to this contention, we first touch upon three statutory and factual aspects of this case.

First, we note that the Redevelopment Commission had express statutory power "[t]o cooperate with any government or municipality . . .," G.S. § 160-462(2), and "[t]o act as agent of the State or federal government or any of its instrumentalities or agencies for the public purposes set out in this Article." G.S. § 160-462(3). Furthermore, G.S. § 160-464(e)(3) expressly provides:

"In carrying out a redevelopment project, the commission may:

* * * * * *

"(3) With or without consideration and at private sale convey to the municipality, county or other appropriate public body such real property as, in accordance with the redevelopment plan, is to be used for parks, schools, public buildings, facilities or other public purposes."

Second, the record amply indicates that the elaborate procedure detailed by G.S. § 160-463 whereby an urban redevelopment plan is formulated, reviewed, and approved, was carefully adhered to in this case both when the Redevelopment Plan here involved was originally approved and when it was modified as authorized by G.S. § 160-463(k).

Third, there was sufficient evidence in the record to sustain the trial court's essential findings of fact which support its conclusion that on 28 December 1966 Parcel 13 was "a blighted area within the meaning of G.S. 160-454, et seq." Although there was evidence that the Unco property was in good condition and the court did not find otherwise, ever since the amendment effected by Sec. 2 of Chap. 502 of the 1957 Session Laws, a property which is itself in good condition may still be subject to the power of eminent domain for urban renewal purposes if it is within an area in which the planning commission determines that "at least two thirds of the number of buildings within the area" are of the character described in the statute defining a "blighted area." As pointed out in Annot., 44 A.L.R.2d 1414 at p. 1439, quoted in Redevelopment Comm. v. Grimes, 277 N.C. 634, 640-641, 178 S.E.2d 345, 349 (1971):

"It has been repeatedly held or stated that the fact that some of the lands in an area to be redeveloped under redevelopment laws are vacant lands or contain structures in themselves inoffensive or innocuous does not invalidate the taking of the property, or invalidate the statute so permitting, according to the form of the contention in the particular case, usually on the ground that the action was justified as a necessary concomitant of area, as compared to structure-by-structure, rehabilitation."

Viewing the record in the present case against the foregoing statutory framework, we find no error in the trial court's finding that the Redevelopment Commission and the City Council did not act arbitrarily or capriciously in this case. Respondents' contention that the City, the Redevelopment Commission, and Pitt County somehow wrongfully cooperated to use the processes of urban renewal to accomplish a result primarily of benefit to the County and which it could not have otherwise achieved, is simply beside the point, where the applicable statutes not only authorize but direct such cooperation and where, as here, the record discloses that the stated purposes of urban renewal were at the same time being also accomplished.

Respondents' next contention, that the trial court erred in denying their motion for involuntary dismissal made under Rule 41(b) at the close of petitioner's evidence, is not properly before us for review. After their motion was denied, respondents, as they had a right to do, elected to introduce evidence. By so doing, they waived the right to have reviewed on appeal the question whether their motion made at the close of petitioner's evidence was erroneously denied. 5 Moore's Federal Practice, § 41.13 [1], p. 1149. "The significance of this is that on appeal from a final judgment the court will look to all of the evidence and not merely that put in as part of the plaintiff's case." Wright and Miller, Federal Practice and Procedure, § 2371, p. 221. See Helms v. Rea, 282 N.C. 610, 194 S.E.2d 1 (1973).

Appellants' next contention is that "[t]he trial court erred in the exclusion and admission of certain evidence during the course of the trial." This is based on assignments of error III and IV, which are as follows:

"III. The actions of the Court, as set out in EXCEPTIONS 9 (R p 150), 9a (R p ___), 10 (R p 161-2), and 11 (R p 170) in allowing certain testimony and excluding other testimony.

"IV. The actions of the Court, as set out in EXCEPTIONS 11a (R p 205), 12 (R p 211), 13 (R p 212) and 14 (R p 213), in excluding certain testimony of H. R. Gray, County Manager of Pitt County (and County Auditor of Pitt County during some of the dates in question)."

Neither of these assignments show specifically what question is intended to be presented for consideration by this Court without the necessity of going beyond the assignment of error itself. Therefore, these assignments of error do not conform to the requirements of the Rules of Practice of this Court or of our Supreme Court. In re Will of Adams, 268 N.C. 565, 151 S.E.2d 59 (1966); Lancaster v. Smith, 13 N.C.App. 129, 185 S.E.2d 319 (1971). Accordingly, assignments of error III and IV are ineffectual to bring up for appellant review any of the trial court's rulings admitting or excluding evidence.

We have carefully reviewed appellants' remaining contentions, that the trial court erred in its findings of fact and in failing to grant respondents' motion for dismissal and for judgment in their favor made at the close of all of the evidence, and find them without merit. There was evidence to support the trial court's crucial findings of fact and these in turn support the conclusions of law and the judgment rendered. In this connection we call attention to the following language, relative to the limited role of judicial review in cases such as this, from the Annotation in 44 A.L.R.2d 1414, which was quoted with approval in the opinion in Redevelopment Comm. v. Grimes, supra at 640 of 277 N.C., at 348 of 178 S.E.2d:

"In determining whether a particular area may legally be selected for redevelopment, either under the terms of the statute, or in terms of the requirement that the particular project serve a `public use,' the role of judicial review is severally limited by the rule that the finding of the redevelopment authority, or similar administrative agency, that a particular area is `blighted,' that redevelopment serves a `public use,' or the like, is not generally reviewable, unless fraudulent or capricious, or, in some instances, unless the evidence against the finding is overwhelming."

As above noted, the trial court expressly found that the Redevelopment Commission and the City Council of the City of Greenville did not act arbitrarily or capriciously in this case, and the record supports that finding.

The judgment appealed from is

Affirmed.

BRITT and BALEY, JJ., concur.