Campbell v. First Baptist Church of Durham , 19 N.C. App. 343 ( 1973 )

BROCK, Chief Judge.

G.S. 160-464(e) (4) provides:

“After a public hearing advertised in accordance with the provisions of G.S. 160-463 (e), and subject to the approval of the governing body of the municipality, convey to a nonprofit association or corporation organized and operated exclusively for educational, scientific, literary, cultural, charitable or religious purposes, no part of the net earnings of which inure to the benefit of any private shareholder or individual, such real property as, in accordance with the redevelopment plan, is to be used for the purposes of such associations or corporations. Such conveyance shall be for such consideration as may be agreed upon by the commission and the association or corporation, which shall not be. less than the fair value of the property agreed upon by a committee of three professional real estate appraisers currently practicing in the State, which committee shall be appointed by the commission. All conveyances made under the authority of this subsection shall contain restrictive covenants limiting the use of property so conveyed to the purposes for which the conveyance is made.”

According to plaintiff’s evidence at the hearing before Judge Hall on plaintiff’s motion for a preliminary injunction the defendant Redevelopment Commission did not (1) advertise for a public hearing upon the proposal to exchange property with the defendant Baptist Church, and did not (2) appoint á commission of three real estate appraisers to agree upon the fair value of the property to be exchanged. It appears that compliance with the terms of the statute by the Redevelopment Commission is necessary before it can legally make an exchange as described by plaintiff’s evidence. Therefore, if the Redevelopment Commission makes such an exchange without effectively complying with the statute, its acts outside of its authority. It appears, therefore, that plaintiff’s evidence makes a prima facie showing of a right to the relief requested in his first alleged cause of action.

According to plaintiff’s evidence at the hearing before Judge Hall on plaintiff’s motion for a preliminary injunction the value of the property to be exchanged was set by defendants Redevelopment Commission and City of Durham at $15,614.00, but that the fair value thereof is $105,000.00. Also, that the defendant Baptist Church has and will continue to change the topography of the property if not restrained. According to said evidence the defendant City of Durham will use for street purposes the twelve foot strip of property received from the defendant Baptist Church in the exchange, if not restrained. It appears, therefore, that plaintiff has made a prima facie showing that the status quo should be maintained to protect plaintiff’s rights until the controversy can be determined on its merits.

In our opinion the preliminary injunction should have been issued enjoining defendant Baptist Church from exercising any right or privilege of ownership or occupancy of the premises known as 506 Cleveland Street, bounded by Cleveland, Elliott and Roxboro Streets in the city of Durham, which premises is described, in a purported conveyance from the Redevelopment Commission of the City of Durham on 19 January 1973, to the defendant Baptist Church in accordance with an exchange agreement. This injunction should extend to enjoin said defendant from the destruction and removal of trees and shrubbery, the clearing and leveling of the land, or the construction of improvements thereon.

Also, in our opinion the preliminary injunction should have been issued enjoining the defendant City of Durham and the defendant Redevelopment Commission from exercising any right or privilege of ownership or occupancy in that strip of land, twelve feet in width, along Roxboro Street which was described in a purported conveyance from the defendant Baptist Church to the defendant Redevelopment Commission on 19 January 1973 in accordance with an exchange agreement. This injunction should extend to enjoining said defendants from destruction of existing improvements on the land, the clearing and leveling of the land and the .construction, of streets or other improvements thereon.

The order appealed from insofar as it denied plaintiff’s motion for a preliminary injunction, is reversed and this cause is remanded to the Superior Court in Durham County for entry of a preliminary injunction in accordance with this opinion.

Reversed and remanded.

Judges Vaughn and Baley concur.