Wenco Management Co. v. Town of Carrboro , 53 N.C. App. 480 ( 1981 )

WHICHARD, Judge.

I. The B-4 District Amendment

G.S. 160A-381 and G.S. 160A-382 authorize towns to divide their territorial jurisdictions into districts and to regulate land uses therein to promote the health, safety, morals, or general welfare of the community. G.S. 160A-385 authorizes towns to amend ordinances adopted pursuant to this authority. Towns exercising this authority are, however, subject to constitutional limitations against “arbitrary and unduly discriminatory interference with the rights of property owners.” Zopfi v. City of Wilmington, 273 N.C. 430, 434, 160 S.E. 2d 325, 330 (1968). The ordinances enacted must rationally relate to the valid police power objective of promoting the health, safety, morals, or general welfare of the public. Id. at 433, 160 S.E. 2d at 330. “Neither the legislature by statute nor a municipal corporation by ordinance or resolution nor an administrative board exercising delegated police powers may arbitrarily or capriciously restrict an owner’s right to use his property for a lawful purpose.” In re Application of Ellis, 277 N.C. 419, 424, 178 S.E. 2d 77, 80 (1970).

The B-4 amendment purported to create a new business classification which would accommodate the “widest variety of commercial uses” including “many . . . deemed inappropriate” for the existing business districts. The amendment as enacted, however, listed only one use, restaurants with drive-in service, for the new district. The amendment removed only restaurants with drive-in service from the list of conditional uses in districts B-l, -2, and -3, leaving both restaurants without drive-in service and non-restaurant drive-in businesses as permitted uses in those districts. Further, when it enacted the amendment, defendant did not designate any area within its territorial jurisdiction as a B-4 district, thereby effectively precluding construction of restaurants with drive-in service in the entire town. Finally, the chronology of events preceding passage of the amendment indicates that defendant amended its ordinances in direct response to plaintiffs’ proposed construction of a restaurant with drive-in service after plaintiffs had obtained a valid conditional use permit.

The record fails to demonstrate any rational relation of the amendment to a legitimate police power objective. The fact that the amendment constituted part of a comprehensive zoning ordinance under consideration by the town aldermen does not supply the necessary rational relation. The amendment as enacted arbitrarily singles out and renders impermissible that use proposed by plaintiffs, and it thus contravenes established constitutional limitations on exercise of police powers. Refining Co. v. Board of Aldermen, 284 N.C. 458, 202 S.E. 2d 129 (1974); In re Application of Ellis, 277 N.C. 419, 178 S.E. 2d 77 (1970).

The trial court’s findings of fact, supported by evidence in the record, sustain its conclusion that the B-4 district amendment was unlawful as an arbitrary and unduly discriminatory interference with plaintiffs’ property rights which lacked any rational relation to valid police power objectives. The judgment in this respect is therefore affirmed.

II. The Left Turn Ordinance

G.S. 160A-300 authorizes towns to adopt ordinances regulating vehicular traffic upon the public streets. Such ordinances are presumed to be valid and the courts will not declare them invalid unless clearly shown to be so. Cab. Co. v. Shaw, 232 N.C. 138, 59 S.E. 2d 573 (1950); State v. Smedberg, 31 N.C. App. 585, 229 S.E. 2d 841 (1976), disc. rev. denied, 291 N.C. 715, 232 S.E. 2d 207 (1977).

Evidence in the record indicates that the intersection which was the subject of this ordinance “is one of the busier if not the busiest traffic intersection within the Town of Carrboro.” There is also evidence indicating that defendant’s governing body had expressed “concern about traffic congestion at this particular intersection before the Wendy’s application was made.” This evidence was sufficient to sustain the trial court’s finding that the “turns prohibited . . . would potentially constitute a traffic hazard and potentially result in substantial traffic congestion in the affected area.” The finding supports the conclusion that the ordinance rationally relates to the safety and general welfare of the citizens of Carrboro and thus constitutes a valid exercise of defendant’s police powers. The portion of the judgment upholding this ordinance is thus affirmed.

Affirmed.

Chief Judge MORRIS and Judge WEBB concur.