Board of Adjustment v. Town of Swansboro

432 S.E.2d 310, 334 N.C. 421, 1993 N.C. LEXIS 338
CourtSupreme Court of North Carolina
DecidedJuly 30, 1993
DocketNo. 16A93
StatusPublished
Cited by27 cases

This text of 432 S.E.2d 310 (Board of Adjustment v. Town of Swansboro) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of Adjustment v. Town of Swansboro, 432 S.E.2d 310, 334 N.C. 421, 1993 N.C. LEXIS 338 (N.C. 1993).

Opinion

MEYER, Justice.

The issue that we must resolve in this case is whether the power of a town’s board of commissioners to organize city government pursuant to N.C.G.S. § 160A-146 includes the power to abolish a board of adjustment, appointed and created pursuant to N.C.G.S. § 160A-388, and to thereafter create a new board of adjustment and make appointments thereto. We conclude that the Court of Appeals was correct in affirming the trial court’s granting of defendants’ motion for summary judgment and hold that a town Board of Commissioners has such authority.

[423]*423The facts pertinent to this appeal are as follows. On 20 September 1985, the Board of Commissioners of the Town of Swansboro, North Carolina, enacted Section 9-2-16 of its Code of Ordinances, which provided, among other things, that:

The Swansboro Board of Commissioners shall provide for the appointment of the Board of Adjustment consisting of five (5) members who must be bonafide [sic] residents of The Town of Swansboro and two (2) members who reside outside The Town of Swansboro and are bonafide [sic] residents of the area of zoning jurisdiction as stated in Sec. 9-2-4 herein. Insofar as possible, members shall be appointed from different areas within the zoning jurisdiction. Initial appointments shall be for staggered terms with subsequent appointments being for three (3) years.

On 8 June 1989, plaintiffs Ian Smith and Mary Ellen Yanich were appointed to the Swansboro Board of Adjustment for three-year terms. On 9 November 1989, plaintiff Leland Ziegler was appointed to the Board of Adjustment for a three-year term.

On 14 December 1989, at a meeting of the Board of Commissioners, defendant Mayor William E. Russell presented a proposed change to Section 9-2-16 regarding the appointments and terms of the members of the Board of Adjustment. On 27 December 1989 and again on 3 January 1990, the Board of Commissioners published the following notice in a local newspaper:

PUBLIC HEARING NOTICE
The Board of Commissioners of the Town of Swansboro will hold a public hearing on Thursday[,] January 11, 1990 at 6:30 p.m. to give parties of interest an opportunity to be heard on the proposed ordinance amendment regarding length of appointment terms, etc. for the Board of Adjustment.
Town Administrator

At the public hearing, the Board of Commissioners voted to readvertise notice of-the public hearing in order to. inform the public that one of the purposes of the proposed amendment was to abolish the Board of Adjustment. On 17 January and again on 24 January 1990, the Board of Commissioners published the following notice:

[424]*424PUBLIC HEARING TOWN OF SWANSBORO
The Board of Commissioners of the Town of Swansboro will hold a public hearing on Thursday, January 25, 1990 at 7:00 p.m. to give parties of interest an opportunity to be heard on the changes to the Town of Swansboro Zoning Ordinance, in respect to abolishing the Board of Adjustment. A copy of the proposed change is on file with the Town Clerk’s Office. Additional amendments may be presented and changes made prior to adoption.
Town Administrator

At the 25 January 1990 public hearing, the Board of Commissioners adopted an amendment to Section 9-2-16,- which provides as follows:

Section 1
Section 9-2-16(a) of the Zoning Ordinance of the Town of Swansboro is hereby repealed and the Board of Adjustment established therein is abolished.
Section 2
Section 9-2-16(a) of the Zoning Ordinance of the Town of Swansboro is hereby adopted to read as follows:
Sec. 9-2-16 The Board of Adjustment.
(a) The Swansboro Board of Commissioners shall provide for the appointment of the Board of Adjustment consisting of five (5) members and two (2) alternate members who must be bonafide [sic] residents of the Town of Swansboro and two (2) members and one (1) alternate member who reside outside the Town of Swansboro and are bonafide [sic] residents of the area of the zoning jurisdiction as stated in Sec. 9-2-4 herein. Insofar as possible, members shall be appointed from different areas within the zoning jurisdiction. Members of the Town governing body, Mayor and Commissioners, are not eligible to serve on the Board of Adjustment while serving on the governing body or for a period of one (1) year after service on the governing body is terminated. All appointments to the Board of Adjustment shall be for three (3) years. However, [425]*425to allow for staggered terms, three (3) initial appointments of in-town members will be for periods of two (2) years. All other appointments will be for three (3) year terms. Previous Board of Adjustment members who are eligible under the criteria established by this section may be considered for appointment to the Board of Adjustment. An appointee to the Board of Adjustment may serve no more than two (2) consecutive terms, provided however, that if an appointee has served more than half of any term, the appointee shall be considered to have served the full three (3) year term on the Board of Adjustment.

At the 8 February 1990 regular meeting of the Board of Commissioners, appointments were made to the new Board of Adjustment. None of the members of the old Board were appointed. Plaintiffs Yanich and Ziegler, as former members of the City Council, were ineligible for appointment to the new Board pursuant to the changes effected by the amendment to Section 9-2-16. On 21 March and 28 March 1990, the Board of Commissioners readvertised notice of public hearing and held a public hearing on 3 April 1990 to once again consider the proposed amendment to Section 9-2-16. Following the hearing, the Board of Commissioners adopted Section 9-2-16 in the same form as that adopted at the 25 January 1990 public hearing, the amendment to become effective after 16 April 1990.

On 26 April 1990, the trial court denied plaintiffs’ motion for a preliminary injunction. On 20 August 1990, plaintiffs filed a motion for summary judgment. On 30 August 1990, defendants filed a motion for summary judgment. On 1 May 1991, the trial court granted defendants’ motion for summary judgment. Following an appeal by plaintiffs, the Court of Appeals affirmed the trial court’s granting of defendants’ motion for summary judgment, with one judge dissenting. Bd. of Adjmt. of the Town of Swansboro v. Town of Swansboro, 108 N.C. App. 198, 423 S.E.2d 498 (1992).

Plaintiffs contend that defendants shortened the three-year terms of Smith, Yanich, and Ziegler and therefore violated N.C.G.S. § 160A-388(a). Plaintiffs argue that N.C.G.S. § 160A-388(a) mandates that all Board of Adjustment members serve for three years. We disagree.

N.C.G.S. § 160A-388(a) provides in pertinent part:

[426]*426The city council may provide for the appointment and compensation of a board of adjustment consisting of five or more members, each to be appointed for three years.

N.C.G.S. § 160A-388(a) (Supp. 1992). Subsection (a) expressly provides that “the city council may

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Bluebook (online)
432 S.E.2d 310, 334 N.C. 421, 1993 N.C. LEXIS 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-adjustment-v-town-of-swansboro-nc-1993.