Marren v. Gamble

*683 EetiN, J. Tbe General Assembly has delegated to tbe legislative body of a municipality tbe power to promulgate zoning regulations “for tbe purpose of promoting bealtb, safety, morals, or tbe general welfare of tbe community.” G.S. 160-172. G.S. 160-173 is in these words: “For any or all said purposes it may divide tbe municipality into districts of sucb number, shape and area as may be deemed best suited to carry out tbe purposes of this article; and within sucb districts it may regulate and restrict tbe erection, construction, reconstruction, alteration, repair or use of buildings, structures or land. All sucb regulations shall be uniform for each class or kind of building throughout each district, but tbe regulations in one district may differ from those in other districts : Provided, however, that when at any intersection of - streets in tbe corporate limits of any city or town tbe said legislative body of the said city or town promulgates any certain regulations and/or restrictions for tbe erection, construction, reconstruction, alteration, repair or use of buildings, structures or land on two or more of said corners at said intersection, it shall be tbe duty of sucb legislative body upon written application from tbe owner of tbe other corners of said intersection to redistrict, restrict and regulate tbe remaining said corners of said intersecting streets in tbe same manner as is prescribed for tbe erection, construction, reconstruction, alteration, repair or use of buildings, structure or land of tbe other said corners for a distance not to exceed one hundred and fifty feet from tbe property line of said intersecting additional corner.” Tbe Charlotte City Council did not gang aglee in taking tbe position that under tbe proviso of G.S. 160-173, C. E. Gamble and Martha Brite Gamble possessed tbe legal right to require tbe rezoning of their corner from residential to business use because the other three corners of tbe intersection bad already been zoned for business use by tbe general zoning ordinance. This being so, tbe plaintiffs have no legal ground for complaint unless tbe statutory proviso offends tbe organic law. Tbe plaintiffs assert initially that tbe proviso of G.S. 160-173 delegates tbe power to legislate to a private person in violation of Section 1 of Article II of tbe Constitution of North Carolina. They offer these arguments to sustain this position: Tbe power to zone or rezone is legislative. Tbe statutory proviso compels tbe legislative body of tbe municipality to rezone tbe corner of an intersection at tbe demand of its owner whenever tbe conditions enumerated in tbe proviso exist. Hence, tbe proviso, in reality, delegates tbe legislative power to rezone tbe corner to its owner rather than tbe legislative body of tbe municipality. These arguments lack substance. When it delegates zoning power to a municipality, tbe General Assembly may prescribe the conditions under which tbe power is to be exercised. Holcombe v. City of Lake Charles, *684 175 La. 803, 144 So. 502; Leahy v. Inspector of Buildings, 308 Mass. 128, 31 N.E. 2d 436; 62 C.J.S., Municipal Corporations, section 226 (2). In tbe final analysis, the proviso of G.S. 160-173 does this, and nothing more. When its phraseology is reduced to simple terms, it merely declares that whenever the legislative body of a municipality zones two or more corners at an intersection of streets in the corporate limits of the municipality in a certain way, “it shall be the duty of such legislative body upon written application from the owner of the other corners” of the intersection to rezone such other corners in the same manner. It does not undertake to authorize or permit the owner of the other corners to exercise any legislative power. To be sure, the proviso of G.S. 160-173 confers upon the owner of the other corners a legal right to require the legislative body of the municipality to rezone his corners in the manner set forth whenever the conditions specified in the proviso exist. But this legal right is created by the General Assembly itself to enforce its own notion as to how corners at street intersections should be zoned. In enacting a zoning ordinance, a municipality is engaged in legislating and not in contracting. Raleigh v. Fisher, 232 N.C. 629, 61 S.E. 2d 897; Kinney v. Sutton, 230 N.C. 404, 53 S.E. 2d 306; Clifton Hills Realty Co. v. City of Cincinnati, 60 Ohio App. 443, 21 N.E. 2d 993. As a consequence, a zoning ordinance fixing the boundaries of zones does not result in a contract between the municipality and property owners precluding the municipality from afterwards changing the boundaries if it deems a change to be desirable. Hollearn v. Silverman, 338 Pa. 346, 12 A. 2d 292. Moreover, a zoning ordinance does not vest in a property owner the right that the restrictions imposed by it upon his property or the property of others shall remain unaltered. Nusbaum v. City of Norfolk, 151 Va. 801, 145 S.E. 257; Eggebeen v. Sonnenburg, 239 Wis. 213, 1 N.W. 2d 84, 138 A.L.R. 495. For these reasons, zoning regulations may be amended or changed when such action is authorized by the enabling statute and does not contravene constitutional limitations on the zoning-power. The plaintiffs concede that the proviso of G.S. 160-173 is sufficient in phraseology to authorize the amendment to the zoning regulations applicable to the corner owned by C. F. Gamble and Martha Brite Gamble. They insist, however, that the proviso is void even if it does not involve an unconstitutional delegation of legislative power to private persons. They contend that it impinges on the law of the land clause of Section 17 of Article I of the North Carolina Constitution, and the due process of law clause of the Fourteenth Amendment to the United States Constitution in two particulars. The first is that it bears no substantial relation to the health, safety, morals, or general welfare of the community, and the second is that it denies to owners of adjacent or nearby property any *685 real opportunity to be beard on tbe question as to wbetber or not tbe other corners at tbe intersection ought to be rezoned in tbe same manner as tbe two or more corners are zoned. Much of tbe perplexity arising on tbis aspect of tbe case vanishes when tbe statutory proviso is viewed in proper perspective. Tbe proviso is not restricted in its operation to a single street intersection in a single city. It applies with impartiality to all tbe street intersections in all tbe municipalities enacting zoning ordinances under i tbe zoning power delegated to them by tbe statutes embodied in Article 14 of Chapter 160 of tbe General Statutes. When proper regard is bad to this circumstance, it becomes obvious that tbe proviso is well designed to promote tbe public welfare. Tbe proviso is based on tbe sound concept that ordinarily all tbe property cornering on a given street intersection is subject to peculiar conditions of a kindred nature. It is calculated to prevent discrimination and promote uniformity in zoning property having substantially tbe same character. It has, moreover, a strong tendency to permit every owner of land cornering on a street intersection to put bis land to tbe use to which it is best adapted. Tbe complaint discloses inferentially that before it passed tbe amendment to tbe general zoning ordinance, tbe Charlotte City Council gave tbe plaintiffs and other interested citizens a public bearing after notice on tbe only question committed to its determination by tbe proviso of G.S. 160-173, that is to say, wbetber or not two or more corners'at tbe intersection of tbe Plaza and East 35th Street were zoned in the same manner. In so doing, tbe Charlotte City Council met statutory requirements respecting an adequate notice and a public bearing. G.S. 160-175. Tbe plaintiffs assert, however, that these statutory requirements do not satisfy tbe demands of tbe law of tbe land clause of tbe State Constitution and tbe due process.of law clause of tbe Fourteenth Amendment to tbe Federal Constitution. They argue that these clauses invalidate tbe proviso of G.S. 160-173 because it denies to owners of adjacent or nearby property any real opportunity to be beard on the question wbetber or not tbe other corners at an intersection ought to be rezoned in tbe same manner as the two or more corners are zoned. An analysis of tbis argument reveals its paradoxical character. When it is reduced to ultimate terms, tbe argument comes to tbis: Whenever tbe General Assembly delegates zoning power to a municipality and commands tbe municipality to zone corner lots in a certain way at all street intersections where specified conditions exist, tbe General Assembly must permit tbe municipality to pass judgment on tbe wisdom of tbe command in relation to each included intersection, and to disobey tbe command in respect to any included intersection in case it concludes obedience to the command at such intersection would be foolish; otherwise, tbe General *686 Assembly violates the law of the land clause of the State Constitution and the due process of law clause of the Fourteenth Amendment to the Federal Constitution. This argument is insupportable. The constitutional provisions invoked by the plaintiffs do not subordinate the State to the agency of its own creation, and compel the State to permit its creature to disobey its laws simply because its creature deems its laws to be wanting in wisdom. All of the original zoning power of the State reposes in the General Assembly. Leahy v. Inspector of Buildings, supra; Bradley v. Zoning Adjustment Board of Boston, 255 Man. 160, 150 N.E. 893. Since the proviso of G.S. 160-173 has a reasonable tendency to promote the public good, it represents a valid exercise of this power, and is entitled to implicit obedience. The amendment to the general zoning ordinance does not deprive the plaintiffs of any of their legal rights. The resultant diminution in the value of their property is a misfortune which they must suffer as members of organized society. The judgment sustaining the demurrer is Affirmed.