Blades v. City of Raleigh , 280 N.C. 531 ( 1972 )

187 S.E.2d 35 (1972) 280 N.C. 531

Robert C. BLADES et al., Plaintiffs,
v.
The CITY OF RALEIGH, North Carolina, et al., Defendants.

No. 71.

Supreme Court of North Carolina.

March 15, 1972.

John V. Hunter, III, Raleigh, for plaintiffs.

Broxie J. Nelson, Raleigh, and Fred P. Baggett, Associate City Atty., for City of Raleigh.

Bailey, Dixon, Wooten & McDonald by Wright T. Dixon, Jr., and John N. Fountain, Raleigh, for Williams Realty and Building Company.

LAKE, Justice.

A suit to determine the validity of a city zoning ordinance is a proper case for a declaratory judgment. G.S. § 1-254; Woodard v. Carteret County, 270 N.C. 55, 153 S.E.2d 809. The plaintiffs, owners of property in the adjoining area affected by the ordinance, are parties in interest entitled to maintain the action. Jackson v. Board of Adjustment, 275 N.C. 155, 166 S.E.2d 78; Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325. The propriety of a summary judgment in such action is governed by the same rules applicable to other actions. G.S. § 1A-1, Rules 56(a) and (b), and 57.

A summary judgment may be entered, when otherwise proper, upon the motion of either the plaintiff, Rule 56(a), or the defendant, Rule 56(b), in an action for a declaratory judgment. When appropriate, summary judgment may be rendered against the party moving for such judgment. Rule 56(c). Summary judgment may be entered, upon such motion, when there is no genuine issue as to any material fact and either party is entitled to a judgment as a matter of law. Rule 56(c). Upon the making of a motion for summary judgment, it is incumbent upon the adverse party resisting such procedure to set forth specific facts showing that there is a genuine issue for trial. Rule 56(e). Here, the defendant Williams moved for summary judgment and neither the plaintiffs nor the city made such showing of the existence of a genuine issue of fact for trial. The record discloses none. In Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823, we said:

"The purpose of summary judgment can be summarized as being a device to bring litigation to an early decision on the merits without the delay and expense of a trial where it can be readily demonstrated that no material facts are in issue. Two types of cases are involved: (a) Those where a claim or defense is utterly baseless in fact, and (b) those where only a question of law on the indisputable facts is in controversy and it can be appropriately decided without full exposure of trial. * * * [U]nder Rule 56 the court may receive and consider various kinds of evidence. * * * Evidence which may be considered under Rule 56 includes admissions in the pleadings, depositions on file, answers to Rule 33 interrogatories, admissions on file whether obtained under Rule 36 or in any other way, affidavits, and any other material which would be admissible in evidence or of which judicial notice may properly be taken. * * * Oral testimony may also be received by reason of Rule 43(e)."

Here, there is no substantial controversy as to the facts disclosed by the evidence. The controversy is as to the legal significance of those facts. Such controversy as there may be in respect of the facts presents questions of fact for determination by the court. See: Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432; Zopfi v. City of Wilmington, supra; Armstrong v. McInnis, 264 N.C. 616, 142 S.E.2d 670.

The present is, therefore, a proper case for summary judgment determining the validity of Ordinance (1970) 28-ZC-91 of the City of Raleigh. We hold that the ordinance is invalid for the reasons hereinafter set forth and remand this proceeding to the Superior Court of Wake County for the entry of a summary judgment so declaring.

The record supports the conclusion of the superior court that the city has a comprehensive plan for zoning. See, Allred v. City of Raleigh, supra. G.S. § 160-174 provides that municipal zoning regulations "shall be made in accordance with a comprehensive plan * * * and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the municipality." This statute, obviously, does not contemplate that the zoning pattern must be, or should be, designed to permit each individual tract of land to be devoted to its own most profitable use, irrespective of the surrounding area.

The whole concept of zoning implies a restriction upon the owner's right to use a specific tract for a use profitable to him but detrimental to the value of other properties in the area, thus promoting the most appropriate use of land throughout the municipality, considered as a whole. The police power, upon which zoning ordinances must rest, permits such restriction upon the right of the owner of a specific tract, when the legislative body has reasonable basis to believe that it will promote the general welfare by conserving the values of other properties and encouraging the most appropriate use thereof. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303; Schloss v. Jamison, 262 N.C. 108, 136 S.E.2d 691; Helms v. City of Charlotte, 255 N.C. 647, 122 S.E.2d 817; In Re Appeal of Parker, 214 N.C. 51, 197 S.E. 706, app. dis., 303 U.S. 568, 59 S. Ct. 150, 83 L. Ed. 358; State v. Roberson, 198 N.C. 70, 150 S.E. 674.

As the Supreme Court of the United States, speaking through Mr. Justice Sutherland, said in Village of Euclid v. Ambler Realty Co., supra:

"With particular reference to apartment houses, it is pointed out that the development of detached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that in such sections very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district. * * * Under these circumstances, apartment houses, which in a different environment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances."

Quite clearly, the city may, from time to time, amend its zoning ordinance so as to transfer an area from one use district into another, the enactment of a zoning ordinance not being a contract by the city with property owners to maintain the zoning pattern thereby established. Zopfi v. City of Wilmington, supra; Walker v. Elkin, 254 N.C. 85, 118 S.E.2d 1; Marren v. Gamble, 237 N.C. 680, 75 S.E.2d 880. G.S. § 160-176 specifically authorizes amendments changing the boundaries of zoning districts.

G.S. § 160-175 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 * * * from time to time amended, supplemented or changed." By resolution of the City Council, the City of Raleigh has provided:

"That the following procedure be followed with reference to filing rezoning applications and in holding zoning hearings:

* * * * * *

"9. The Council will not rely upon specific use or plan proposals in its determinations, except in case of a requirement by the Council for special exceptions, such as shopping center plan approval. The arguments must be based on the need to change the zoning map in accordance with the comprehensive plan or to amend the plan for the benefit of the neighborhood or city, because of changed conditions."

The application for the rezoning in the present case set forth these alleged changes in conditions since the adoption of the original ordinance placing this area in the R-4 district: "(1) Traffic conditions along Lassiter Mill Road; (2) commercial zoning of abutting property; and (3) need for some 20 ultra luxurious town houses in Raleigh." The record discloses no other claim of change in condition in the area.

The increase in volume of traffic along Lassiter Mill Road is obviously due largely to the extensive residential construction throughout this area following the adoption of the original zoning ordinance. Thus, this is a change contemplated by the Council when the area was originally placed in the R-4 district. There is nothing in the record to suggest that the increased flow of traffic along Lassiter Mill Road affects the Williams property in a manner, or to a degree, differing from all other properties, north and south of the Williams land, which remain zoned and used for single family residence use.

The record shows there has been no rezoning of abutting properties from R-4 uses to commercial uses since the enactment of the original ordinance. On the contrary, such change as has occurred in the use of abutting properties strengthens the position of the plaintiffs. The old mill, which was the reason for zoning its site as industrial property, has been burned and has not been in operation for a number of years. Nothing in the record indicates that it will ever be rebuilt or replaced by another industrial operation. The property occupied by the Lassiter Lumber Company and antique shop is zoned R-4 and this operation is carried on solely as a nonconforming use in existence when the original ordinance was adopted. Furthermore, these are, quite obviously, relatively insignificant and exceptional variations from the single family residence use which prevails otherwise throughout the entire large area surrounding the Williams property on all sides.

If the need for additional luxurious town houses in Raleigh be a change in conditions since the adoption of the original ordinance in 1958, nothing in the record shows a need for such land use in this particular area. Thus, this case is distinguishable from situations in which the growing up of a residential area makes desirable the development therein of neighborhood grocery stores or service businesses. See, Higbee v. Chicago, B. & Q. Railroad Co., 235 Wis. 91, 292 N.W. 320, 128 A.L.R. 734.

The record falls far short of indicating that the Williams property, itself, cannot be used, practicably, for single family residence purposes. The statement of the president of Williams to the Council that this five acres is not suitable for "the type of housing residence that we have been building in these two subdivisions we mentioned before," (emphasis added) is not basis for a finding that this particular property is not usable for single family residence purposes. On the contrary, as late as 1969, the Planning Commission recommended to the City Council that the old mill site, itself, be rezoned to R-4. Williams does not contend that its property is not suitable for residence purposes. It proposes to build residences thereon. The controversy relates to the type of building wherein people are to reside. It is not suggested that the proposed change from single family residences to R-6 uses will promote the development of, or appropriate use of, any property other than the five acres in question, or that the devotion of this tract to R-6 uses is made necessary by the growth in the population of this area resulting from the construction of single family residences therein.

Zopfi v. City of Wilmington, supra, is readily distinguishable from the present case. There, the property to be rezoned lay in or near the apex of a triangle lying between two heavily traveled highways. The major portion of the property, closest to the apex of the triangle, was rezoned to commercial use and the remainder to apartment house use. Under the circumstances, there disclosed by the record, it was not unreasonable for the City Council of Wilmington to conclude that the property was not suitable for single family residences.

A zoning ordinance, or amendment, which singles out and reclassifies a relatively small tract owned by a single person and surrounded by a much larger area uniformly zoned, so as to impose upon the small tract greater restrictions than those imposed upon the larger area, or so as to relieve the small tract from restrictions to which the rest of the area is subjected, is called "spot zoning." It is beyond the authority of the municipality, in the absence of a clear showing of a reasonable basis for such distinction. Zopfi v. City of Wilmington, supra; Wakefield v. Kraft, 202 Md. 136, 96 A.2d 27, 29; Page v. City of Portland, 178 Or. 632, 165 P.2d 280; Marshall v. Salt Lake City, 105 Utah 111, 141 P.2d 704, 149 A.L.R. 282; Rowland v. Racine, 223 Wis. 488, 271 N.W. 36; 58 AM JUR, Zoning, § 39; 101 C.J.S. Zoning, § 91; Yokley, Zoning Law and Practice, 3d Ed., § 8-3; Annotation, 37 A.L.R. 2d 1143. The record discloses no reasonable basis for granting to Williams a freedom from restrictions imposed upon the owners of other properties in the surrounding area. The contention that the Williams property is an island, since it is bounded by Lassiter Mill Road, the Old Lassiter Mill Road, the Lassiter properties to the south and the proposed extension of Marlowe Road to the north, is untenable. It is no more of an island than is any other city block in the area.

Furthermore, the ordinance in question runs afoul of the rule stated in Allred v. City of Raleigh, supra, where, speaking through Chief Justice Bobbitt, we said:

"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 apartments * * * in twin high-rise towers.' * * *

"In our view, and we so hold, the zoning of the property may be changed from R-4 to R-10 only if and when its location and the surrounding circumstances are such that the property should be made available for all uses permitted in an R-10 district. Rezoning 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. Rezoning 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."

Here, as in the Allred case, supra, there is nothing whatever in the record to indicate that the City Council, by adopting the ordinance in question, contemplated the opening of this five acre tract to the construction thereon, if desired by the owner, of a hospital, a sanitarium or a rest home. On the contrary, it is quite apparent that the amending ordinance was adopted solely because the applicant convinced the Council that it would use the property for the construction of town houses as specifically described. Nevertheless; the adoption of the ordinance, if it be valid, would permit use of this property for any other purpose permitted in an R-6 district.

The ordinance was adopted by a procedure specifically forbidden by the Council's own resolution, which it adopted in 1967, pursuant to the requirements of G.S. § 160-175. The mere recitals in the preamble of the ordinance that the City Council considered certain specified things are not conclusive so as to preclude the court from examining the record and making its own determination thereon in the light of the evidence concerning the proceedings before the Council. Furthermore, the recitals may well relate, in this instance, to two other tracts, in other parts of the city, rezoned by the same ordinance. The court may not substitute its judgment for that of the legislative body concerning the wisdom of imposing restrictions upon the use of properties within that body's legislative jurisdiction. Schloss v. Jamison, supra; In Re Markham, 259 N.C. 566, 131 S.E.2d 329; In Re Appeal of Parker, supra. The court may, however, inquire into procedures followed by the board at the hearing before it and determine whether the ordinance was adopted in violation of required procedures, or is arbitrary and without reasonable basis in view of the established circumstances. Allred v. City of Raleigh, supra.

Both because the ordinance in question constitutes unlawful "spot zoning" and unlawful "contract zoning," it is in excess of the authority of the City Council and invalid.

The judgment of the Superior Court of Wake County is, therefore, reversed and the matter is remanded to that court for the entry by it of a judgment declaring Ordinance (1970) 28-ZC-91 invalid insofar as it rezones the five acres of the Williams property from the R-4 classification to the R-6 classification.

Reversed and remanded.