Redevelopment Com'n of Greensboro v. Ford

HILL, Judge. The sole issue is whether the trial court erred in granting plaintiffs motion for summary judgment. Defendant submits two arguments that summary judgment was improperly granted: restrictions imposed by a subservient government agency may not be more restrictive than those enacted by the dominant governmental unit, the city council, under its zoning ordinance; and the burden placed on the land involved in this controversy does not bear a reasonable relationship to the surrounding lands in light of the characteristics of the neighborhood involved. We find that summary judgment was properly granted. Defendant concedes in his first argument that when a restriction is placed on property by a non-governmental agency, and subsequently there is a zoning change, such change will neither nullify nor supersede a valid restriction in the use of real property. See Mills v. Enterprises, Inc., 36 N.C. App. 410, 244 S.E. 2d 469, disc. rev. denied, 295 N.C. 551, 248 S.E. 2d 727 (1978). However, defendant contends such rule does not apply with two governmental units, one servient to the other, imposing restrictions in conflict with each other. G.S. 160A-512(6) and G.S. 160A-514(f) provide the Redevelopment Commission of the City of Greensboro with authority to place restrictive covenants on any property it is deeding to developers so that the property being conveyed will be subject to such restrictions “. . . as the commission may deem necessary to prevent a recurrence of blighted areas or to effectuate the purposes of this Article [Article 22, Urban Redevelopment Law].” In the case under review the restrictive covenants were adopted in the redevelopment plan prepared by the plaintiff Redevelopment Commission of Greensboro in accordance with the Urban Redevelopment Law, G.S. 160A-500 et seq. The restrictive covenant is a verbatim repetition of the language which was submitted in the redevelopment plan that was approved by the city council and which provided among other things as follows: *473 Land Use Provisions and Building Requirements In addition to the controls of the plan here set forth, the provisions of the City of Greensboro Zoning Ordinance, as amended, will control. In all cases, the more restrictive control governs. The plan and restrictive covenants further provided specifically that: Signs and billboards shall be permitted in such areas as allowed by the Zoning Ordinance of the City of Greensboro presently in effect or as hereafter amended; provided, however, that each sign or billboard shall not exceed a total area of 300 square feet in size. Under the enabling legislation for local zoning ordinances, G.S. 160A-381 et seq., specific provision is made in G.S. 160A-390 that [w]hen the provisions of any other statute or local ordinance or regulation . . . impose other higher standards than are required by the regulations made under authority of this Part [Part 3, Zoning Article 19. Planning and Regulation of Development] the provisions of that statute or local ordinances or regulation shall govern. The language heretofore set out specifically provides for the possibility that the standards imposed by the zoning ordinances may be changed and standards eased at a future date. Zoning ordinances are designed to classify all the users of land lying within the jurisdiction of the city similarly situated, and cases indicate that zoning ordinances may not speak to “spot zoning.” See Blades v. City of Raleigh, 280 N.C. 531, 549, 187 S.E. 2d 35, 45 (1972). In contrast, the restrictions imposed under the deed in this controversy are concerned with carrying out a redevelopment plan in a specific area. It was not the intent of the governing body of Greensboro to amend the redevelopment law so as to compel a change in restrictive covenants in deeds executed and delivered under statutes and ordinances in force at the time of delivery of the deed by a governmental agency created by it. Therefore, defendant’s first argument presents no triable issue of fact. *474 Defendant next argues that the burden placed on the Ford tract does not bear a reasonable relationship to the surrounding land considering the character of the neighborhood involved. The area in which the property subject to this lawsuit is situated was zoned light industrial when acquired by the Fords, and it is still zoned as such. Not all the property in the neighborhood was acquired by the Redevelopment Commission at the time this property was obtained. The only change affecting the neighborhood is the increased permissible size of billboards. Hence, some of the property is subject only to the 775 foot billboard limitation, while the Ford tract is limited to the 300 foot billboard limitation. Defendant contends that because surrounding properties are not subjected to the same requirement imposed by the restrictive covenant on the Ford tract, there has been a change of circumstances which should invalidate the restrictive covenant. Although a valid restriction on the use of property is not superseded by the enactment of a zoning ordinance, such ordinance may be considered with other competent evidence in determining whether or not there has been a fundamental change in the restricted subdivision. Shuford v. Oil Co., 243 N.C. 636, 91 S.E. 2d 903 (1956); Mills v. Enterprises, Inc., supra. The less restrictive limitation imposed by the zoning ordinances applies herein to properties never acquired by the Redevelopment Commission. Indeed, the record is void of any change of circumstances relating specifically to any of the properties that are subject to the restrictive covenant in question. The trial judge therefore correctly ordered that defendants be restrained and enjoined from the placement of any signs in excess of 300 square feet upon the property . . . until November 1, 1994, the day of the termination of the restrictive covenants on such property, and . . . that the defendants, and each of them, within thirty (30) days from signing this judgment remove any signs in excess of 300 square feet presently in place on such property so as to come within compliance of this decree. . . . We conclude under the facts of this case the subsequent enactment of a less restrictive zoning ordinance by a city governing body does not invalidate a more restrictive covenant imposed by a servient governmental agency by deed given and recorded *475 prior to passage of the less restrictive zoning ordinance, nothing else appearing. The decision of the trial court in granting summary judgment in plaintiffs favor is Affirmed. Chief Judge Vaughn and Judge Phillips concur.