In re the Appeal of Parker

214 N.C. 51

• Court: Supreme Court of North Carolina
• Decided: June 22, 1938
• Status: Published

Opinions

BabNhill, J.

The petitioner’s exception No. 2 is directed to the alleged error of the court in finding that Harry Sabel, one of the protestants, acquired title to the property abutting thereon and occupied by the petitioner subsequent to the passage of the ordinances hereinbefore referred to and before the erection of the wall hereinbefore described and that various other property owners in the immediate vicinity purchased said properties both prior and subsequent to the passage of said ordinances. This finding of fact is immaterial and has no substantial bearing upon the merits of this controversy. Exception thereto is not of sufficient merit to warrant a disturbance of the judgment below.

Petitioner’s third exception is to the signing of the judgment set out in the record. The facts found by the court below are fully sufficient to sustain the judgment. The judgment was in accordance with the facts found, to which no exception was entered, and must be sustained, unless there is merit in the petitioner’s only other exception.

This brings us to petitioner’s exception No. 1, which is the meat of the controversy and presents the contention upon which the petitioner must and does rely. This exception is to the refusal of the court below to make the following finding, to wit: “To the extent that the zoning ordinance of the city of Greensboro prohibits the construction of the petitioner’s wall, it bears no substantial relation to the public health, safety, morals, or general welfare. To such extent the ordinance is an arbitrary and unreasonable restriction upon the petitioner’s property rights, deprives the petitioner of his property without compensation and without due process of law, and is in violation of the fundamental law of North Carolina and section 1 of the 14th Amendment to the Constitution of the United States.”

It appears from tbis exception that the petitioner does not challenge the constitutionality of the zoning ordinances of the city of Greensboro as a whole. The validity of comprehensive zoning ordinances has been recognized by the Supreme Court of the United States and held not violative of the provisions of the Federal Constitution. Euclid v. Ambler Realty Co., 272 U. S., 365, 71 L. Ed., 303, 54 A. L, E., 1016; Nectow v. Cambridge, 277 U. S., 183, 72 L. Ed., 842; Zahn v. Board of Public Works, 274 U. S., 325, 71 L. Ed., 1074.

Zoning ordinances adopted under authority of our statute, C. S., 2776 (r), have been recognized and enforced by this Court. Harden v. Raleigh, 192 N. C., 395; Little v. Raleigh, 195 N. C., 793; Elizabeth City v. Aydlett, 201 N. C., 602; In re Broughton Estate, 210 N. C., 62.

The courts will not invalidate zoning ordinances duly adopted by a municipality unless it clearly appears that in the adoption of such ordinances the action of the city officials “has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense.” Euclid v. Ambler Realty Co., supra; Nectow v. Cambridge, supra.

When the most that can be said against such ordinances is that whether it was an unreasonable, arbitrary or unequal exercise of power is fairly debatable, the courts will not interfere. In such circumstances the settled rule seems to be that the court will not substitute its judgment for that of the legislative body charged with the primary duty and responsibility of determining whether its action is in the interest of the public health, safety, morals, or general welfare. Euclid v. Ambler Realty Co., supra; Radice v. New York, 264 U. S., 292, 68 L. Ed., 690; Hadacheck v. Sebastian, 239 U. S., 394, 60 L. Ed., 348, Ann. Cas. 1917-B, 927; Thos. Cusack Co. v. Chicago, 242 U. S., 526, 61 L. Ed., 472, L. E. A. 1918-A, 136, Ann. Cas. 1917-C, 594; Rast v. Van Deman and L. Co., 240 U. S., 342, 60 L. Ed., 679, L. R. A. 1917-A, 421, Ann. Cas. 1917-B, 455; Price v. Illinois, 238 U. S., 446, 59 L. Ed., 1400; Zahn v. Board of Public Works, supra. Harden v. Raleigh, supra, in which the Court quotes with approval from Rosenthal v. Goldsboro, 149 N. C., 128, as follows: “It may now be considered as established with us that our courts will always be most reluctant to interfere with these municipal governments in the exercise of discretionary powers conferred upon them for the public weal and will never do so unless their action should be so clearly unreasonable as to amount to an oppressive and a manifest abuse of their discretion. This position is, we think, supported by the better reason and is in accord with the decided weight of authority.” Parks v. Commissioners, 186 N. C., 490; Lee v. Waynesville, 184 N. C., 568; S. v. Vanhook, 182 N. C., 831; Dula v. School Trustees, 177 N. C., 426; Rollins v. Winston-Salem, 176 N. C., 411.

It is declared in the ordinances that the provisions thereof constitute the minimum requirements for the promotion of public health, safety and general welfare of the city. This is presumed to be correct and the burden rested upon the petitioner to show that the pertinent part of the ordinance in fact bears no substantial relation to the public health, safety, morals or general welfare. In declining to make the finding requested by the petitioner and in sustaining the validity of the ordinance the court below, by inference at least, found that the petitioner had failed to carry the burden.

The petitioner complains that the ordinance is an arbitrary and unreasonable restriction upon the petitioner’s property rights. That he, due to the particular circumstances of his ease, may suffer hardship and inconvenience by an enforcement of the ordinance is not sufficient ground for invalidating it. State v. Christopher, 317 Mo., 1179. The fact that the ordinance is harsh and seriously depreciates the value of complainant’s property is not enough to establish its invalidity. American Woods Products Co. v. Minneapolis, 21 F (2nd), 440; Hadacheck v. Sebastian, supra. There is no serious difference of opinion in respect of the validity of laws and regulations fixing the heights of buildings within reasonable limits, the character of materials and methods of construction, and the adjoining area which must be left open in order to minimize the danger of fire or collapse, the evils of overcrowding and the like, and excluding from residential sections offensive trades, industries and structures likely to create nuisances. Euclid v. Ambler Realty Co., supra. When such restrictions* are made it may develop that not only offensive or dangerous industries or structures will be excluded, but those which are neither offensive nor dangerous will share the same fate. But this is no more than happens in respect to practice-forbidding laws, which the courts have upheld, although drawn in general terms so as to include individual cases that may turn out to be innocuous in themselves. Hebe Co. v. Shaw, 248 U. S., 297, 63 L. Ed., 255; Pierce Oil Co. v. Hope, 248 U. S., 498, 63 L. Ed., 381; Euclid v. Ambler Realty Co., supra.

The inclusion of a reasonable margin to insure effective enforcement will not put upon a law otherwise valid the stamp of invalidity. Such laws may also find their justification in the fact that in some fields the bad fades into the good by such insensible degrees that the two are not capable of being readily distinguished and separated in terms of legislation. In the light of these considerations, we are not prepared to say that the end in view was not sufficient to justify the general rule of the ordinance, although some structures of an innocent character might fall within the prescribed class. It cannot be said that the ordinance in this respect “passes the bounds of reason and assumes the character of a merely arbitrary fiat.” Purety Extract & Tonic Co. v. Lynch, 226 U. S., 192, 57 L. Ed., 184.

Each person bolds bis property with, tbe right to use tbe same in sucb manner as will not interfere with tbe rights of others, or tbe public interest or requirement. It is held in subordination to tbe rights of society. He may not do with it as be pleases any more than be may act in accordance with bis personal desires. Tbe interests of society justify restraints upon individual conduct and also upon tbe use to which tbe property may be devoted. Tbe provisions of tbe Constitution are not intended to so protect tbe individual in tbe use of bis property as to enable him to use it to tbe detriment of tbe public. When tbe uses to which tbe individual puts bis property conflict with tbe interest of society tbe right of tbe individual is subordinated to tbe general welfare and incidental damage to tbe property resulting from governmental activities or laws passed in tbe promotion of tbe public welfare is not considered a taking of tbe property for which compensation must be made.

Tbe present motorized age has created much more rapid and congested traffic on tbe public streets of cities, greatly increasing tbe hazard of traffic for pedestrians and tbe users of vehicles alike. This in turn demands and requires legislation much more restrictive of individual rights than has heretofore been known to tbe law. Tbe safety of tbe public now requires open and unobstructed street crossings and intersections. Large and congested urban areas increase fire hazards, requiring regulations which would be oppressive in rural sections or small villages; and while esthetic considerations are by no means controlling, it is not inappropriate to give some weight to them in determining tbe reasonableness of tbe law under consideration.

A consideration of tbe evidence in this ease, and particularly of tbe photographs offered in evidence, makes it appear that tbe users of auto1 mobiles entering tbe street from tbe alley at tbe rear of tbe petitioner’s property would cross tbe sidewalk of Mayflower Drive from behind a solid wall more than fifteen feet high. It cannot be said that this would not increase tbe hazard to pedestrians on Mayflower Drive, as well as to vehicular travel on tbe street. To some extent, at least, tbe wall, being more than 16 feet high at tbe point nearest Southern College Park Drive, obstructs tbe view of those who approach tbe Southern College Park Drive intersection. Tbe wall encloses tbe rear portion of petitioner’s bouse and is high enough to conceal tbe larger portion of tbe rear end of tbe bouse. It is reasonable to assume that in case of fire this wall would materially hamper tbe fire department in extinguishing tbe fire on tbe petitioner’s property or on adjoining property, and in tbe prevention of a spread of sucb fire. Certainly we cannot say as a matter of law that these considerations are not sufficient to support tbe wisdom of tbe legislation and tbe validity of tbe ordinance.

Upon tbe record here we find no warrant for saying tbat tbe ordinance is unconstitutional as applied to tbe facts in tbe present case, or tbat it “passes tbe bounds of reason and assumes tbe character of a merely arbitrary fiat,” having no substantial relation to tbe public safety and public welfare of tbe community.

It appears from tbe record in this cause tbat a considerable portion of tbe wall built by tbe petitioner is in fact a retaining wall. As tbe ordinance expressly excepts any necessary retaining wall so much of tbe wall as extends from tbe street line to tbe natural level of petitioner’s lot is not prohibited. In tbe interpretation and enforcement of tbe judgment below it should be understood tbat tbe same relates only to tbat portion of tbe wall which is above tbe natural level of petitioner’s lot. Tbe petitioner has tbe right to remove so much of tbe wall as now constructed as will bring it within tbe terms of tbe ordinance, and as thus reduced in height, maintain tbe same, if be is so advised.

Affirmed.

Stacy, C. J., and WiNboeNe, J., dissent.