Town of Mount Olive v. Price

Court of Appeals of North Carolina

Town of Mount Olive v. Price

201 S.E.2d 362, 20 N.C. App. 302, 1973 N.C. App. LEXIS 1546

CourtCourt of Appeals of North Carolina

DecidedDecember 27, 1973

Docket738SC652

StatusPublished

Cited by8 cases

This text of 201 S.E.2d 362 (Town of Mount Olive v. Price) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Town of Mount Olive v. Price, 201 S.E.2d 362, 20 N.C. App. 302, 1973 N.C. App. LEXIS 1546 (N.C. Ct. App. 1973).

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Opinion

*306 CAMPBELL, Judge.

The defendant has appealed on the grounds that there was no evidence to support the finding by the trial court on 29 January 1973 and 7 May 1973 that the defendant was in violation of a zoning ordinance. The gist of his argument is that there was no violation of the ordinance because there was no valid zoning ordinance at the time in question. However, a zoning ordinance is presumed to be valid and the burden is on the party alleging invalidity to prove that the ordinance is unreasonable and arbitrary. Orange County v. Heath, 278 N.C. 688, 180 S.E. 2d 810 (1971); Gastonia v. Parrish, 271 N.C. 527, 157 S.E. 2d 154 (1967). The evidence before Judge Martin when he entered the order of 29 January 1973 and when he entered the judgment of 7 May 1973, other than the testimony of Mrs. Price, which does not invalidate the ordinance, is not in the record. When the evidence is not in the record it is presumed that the court’s findings are supported by competent evidence, and the same are conclusive on this appeal. Cobb v. Cobb, 10 N.C. App. 739, 179 S.E. 2d 870 (1971); In Re Sale of Land of Warrick, 1 N.C. App. 387, 161 S.E. 2d 630 (1968). Mrs. Price testified that she went to the Wayne County Courthouse but could find no record of any mobile home ordinance for the Town of Mount Olive in the Office of the Register of Deeds. Defendant asserts that G.S. 160A-364 is controlling. This statute states that no city ordinance shall become effective until recorded in the Office of the Register of Deeds of each county in which any property directly affected thereby is located. However, the ordinance in question was adopted June 7, 1971. G.S. 160A-364 did not go into effect until December 31, 1971. G.S. 160A-2, Effect Upon Prior Law reads:

“The enactment of this chapter shall not require the re-adoption of any city ordinance enacted pursuant to laws that were in effect before January 1, 1972, and are restated or revised herein.”

Affirmed.

Chief Judge Brock and Judge Britt concur.

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*306 CAMPBELL, Judge.

The defendant has appealed on the grounds that there was no evidence to support the finding by the trial court on 29 January 1973 and 7 May 1973 that the defendant was in violation of a zoning ordinance. The gist of his argument is that there was no violation of the ordinance because there was no valid zoning ordinance at the time in question. However, a zoning ordinance is presumed to be valid and the burden is on the party alleging invalidity to prove that the ordinance is unreasonable and arbitrary. Orange County v. Heath, 278 N.C. 688, 180 S.E. 2d 810 (1971); Gastonia v. Parrish, 271 N.C. 527, 157 S.E. 2d 154 (1967). The evidence before Judge Martin when he entered the order of 29 January 1973 and when he entered the judgment of 7 May 1973, other than the testimony of Mrs. Price, which does not invalidate the ordinance, is not in the record. When the evidence is not in the record it is presumed that the court’s findings are supported by competent evidence, and the same are conclusive on this appeal. Cobb v. Cobb, 10 N.C. App. 739, 179 S.E. 2d 870 (1971); In Re Sale of Land of Warrick, 1 N.C. App. 387, 161 S.E. 2d 630 (1968). Mrs. Price testified that she went to the Wayne County Courthouse but could find no record of any mobile home ordinance for the Town of Mount Olive in the Office of the Register of Deeds. Defendant asserts that G.S. 160A-364 is controlling. This statute states that no city ordinance shall become effective until recorded in the Office of the Register of Deeds of each county in which any property directly affected thereby is located. However, the ordinance in question was adopted June 7, 1971. G.S. 160A-364 did not go into effect until December 31, 1971. G.S. 160A-2, Effect Upon Prior Law reads:

“The enactment of this chapter shall not require the re-adoption of any city ordinance enacted pursuant to laws that were in effect before January 1, 1972, and are restated or revised herein.”

Affirmed.

Chief Judge Brock and Judge Britt concur.

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201 S.E.2d 362, 20 N.C. App. 302, 1973 N.C. App. LEXIS 1546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-mount-olive-v-price-ncctapp-1973.

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