Michael v. Guilford County ( 1967 )

153 S.E.2d 106 (1967) 269 N.C. 515

William T. MICHAEL
v.
GUILFORD COUNTY, Curtis R. Kennedy and Lindsay W. Cox.

No. 690. (formerly No. 698)

Supreme Court of North Carolina.

March 1, 1967.

Jack W. Floyd, Greensboro, for plaintiff appellant.

Ralph A. Walker, Greensboro, for defendant appellee.

BOBBITT, Justice.

According to plaintiff's allegations: The zoning regulations of which he complains were adopted by the Board of Commissioners of Guilford County in 1964. Runway No. 5-23, for many years, has been maintained by the Greensboro-High Point Airport Authority to accommodate aircraft during takeoff and landing. Plaintiff's property is located approximately 7,000 feet from the northern end of said runway. Prior to 1965, aircraft passing directly over plaintiff's property did not unreasonably interfere with the use thereof. The depreciation in the value of plaintiff's property resulting from the frequency and lower altitudes of larger and noisier aircraft passing directly overhead has occurred since the adoption of said zoning regulations.

Plaintiff does not allege any facts relating to the legal status of the Greensboro-High Point Airport Authority. His brief directs our attention to Greensboro-High Point Airport Authority v. Johnson, 226 N.C. 1, 36 S.E.2d 803 (1946), in which three special acts of the General Assembly relating to the Greensboro-High Point Airport Authority, Public-Local Laws of 1941, Chapter 98, and Session Laws of 1943, Chapter 601, and Session Laws of 1945, Chapter 206, are cited and discussed. The 1941 Act creates the Greensboro-High Point Airport Authority, consisting of five members, as "a body corporate and politic," with authority to acquire property for the construction of airports and to make rules and regulations for the maintenance and operation thereof. It provides for the appointment of one member by the City Council of Greensboro; one by the City Council of High Point; and three by the Board of Commissioners of Guilford County. It confers authority "(t)o sue and be sued in the name of said Airport Authority." The 1943 Act provides, inter alia, that "(p)rivate property needed by said airport authority for any airport, landing field or facilities of same may be acquired by gift or devise, or may be acquired by private purchase or by the exercise of the power of eminent domain * *" In Greensboro-High Point Airport Authority v. Johnson, supra, it was held the 1945 Act "gives complete and express recognition of the plaintiff Authority as the agency of Greensboro and High Point, as well as of Guilford County; and the authority is given each municipality to deal with it, and upon a plebiscite to lend credit and to issue bonds and raise money for its support." According to these statutes, said Airport Authority is a separate and distinct corporate entity, with power to sue and be sued in its corporate name and to acquire property in its corporate name by the exercise of the right of eminent domain.

Whether plaintiff can maintain an inverse condemnation action against said Airport Authority for compensation on account of its appropriation of a flight easement over all or a portion of plaintiff's property is not presented. In this connection, see Charlotte v. Spratt, 263 N.C. 656, 140 S.E.2d 341. The present action is to enjoin enforcement of particular provisions of a zoning ordinance with reference to plaintiff's property.

The complaint refers to the "Guilford County Zoning Ordinance" and to certain zoning regulations affecting plaintiff's property. Neither the ordinance in its entirety nor any specific portion thereof is set forth in the complaint or attached thereto as an exhibit.

Since the complaint contains no reference to a special enabling act relating to Guilford County, we must assume the zoning ordinance was adopted pursuant to the statutory authority conferred by G.S. Chapter 153, Article 20B, § 153-266.10 et seq. G.S. § 153-266.10 empowers the board of commissioners of any county to regulate and restrict, inter alia, "(t)he location and use of buildings, structures, and land for trade, industry, residence or other purposes, except farming." It provides further: "No such regulations shall affect bona fide farms, but any use of such property for nonfarm purposes shall be subject to such regulations. Such regulations may provide that a board of adjustment may determine and vary their application in harmony with their general purpose and intent and in accordance with general or specific rules therein contained." G.S. § 153-266.17 requires the appointment of a board of adjustment and contains the following provisions, inter alia, relating thereto. "Such board of adjustment shall hear and decide appeals from and review any order, requirement, decision, or determination made by an administrative official charged with the enforcement of any ordinance adopted pursuant to this article." Again: "The zoning ordinance may provide that the board of adjustment may permit special exceptions to the zoning regulations in the classes of cases or situations and in accordance with the principles, conditions, safeguards, and procedures specified in the ordinance. The ordinance may also authorize the board to interpret the zoning maps and pass upon disputed questions of lot lines or district boundary lines and similar questions as they arise in the administration of the ordinance. The board shall hear and decide all such matters referred to it or upon which it is required to pass under any such ordinance." Again: "Every decision of such board shall be subject to review by the superior court by proceedings in the nature of certiorari."

To what extent, if any, the zoning ordinance purports to define the status, function and powers of an "Inspections Director" or of a "Planning Director" is not disclosed. The function of a "Planning Board" is to make recommendations to the Board of County Commissioners. G.S. § 153-266.15. Obviously, an "Inspections Director" is an administrative officer from whose decision plaintiff was authorized by G.S. § 153-266.17 to appeal to the board of adjustment. Plaintiff does not allege he has in any manner applied to the board of adjustment for relief.

Plaintiff does not attack the validity of the zoning ordinance. See State v. Owen, 242 N.C. 525, 88 S.E.2d 832. Nor does he assert any particular provision thereof is unconstitutional or otherwise void. See Clinard v. City of Winston-Salem, 217 N.C. 119, 6 S.E.2d 867, 126 A.L.R. 634; Schloss v. Jamison, 258 N.C. 271, 128 S.E. 2d 590, Id., 262 N.C. 108, 136 S.E.2d 691. He alleges a portion of his property is now zoned for residential use and the remainder for agricultural use, and that it is impracticable under the circumstances to use his property for these purposes. Too, he alleges the cinder block building, which is partly in a residential zone and partly in an agricultural zone, is not suitable for either permitted use.

"The mere fact that a zoning ordinance seriously depreciates the value of complainant's property is not enough, standing alone, to establish its invalidity." Helms v. City of Charlotte, 255 N.C. 647, 651, 122 S.E.2d 817, 820; Durham County v. Addison, 262 N.C. 280, 136 S.E.2d 600. Also, see In re Appeal of Parker, 214 N.C. 51, 197 S.E. 706.

The only alleged material change in plaintiff's property since the challenged zoning regulations were adopted is that larger and noisier aircraft fly over his property with greater frequency and at lower altitudes. Plaintiff alleges in substance that "surrounding real estate in general" is similarly affected. The complaint contains no other allegation as to changes in the character of the neighborhood or area in which plaintiff's property is located. (We assume, for present purposes, that such flights are lawful; otherwise, there would be a cause of action against the offending parties.) The crucial question is whether the special conditions created by such flights entitle plaintiff to relief from enforcement of all or any of the attacked zoning regulations with reference to all or any part of his property.

The cited statutory provisions confer authority on the board of adjustment. As indicated, the complaint does not allege the provisions of the zoning ordinance. Hence, we do not know what additional powers and procedures, if any, relating to proceedings before the board of adjustment, are set forth in the zoning ordinance. See Austin v. Brunnemer, 266 N.C. 697, 147 S.E.2d 182, where an ordinance adopted by the Board of Commissioners of Gaston County pursuant to the authority conferred by G.S. § 153-266.10 et seq., was considered.

We are of the opinion, and so decide, that, upon the facts alleged, plaintiff may not institute and maintain an action in the superior court to enjoin Guilford County from enforcement of zoning regulations on the ground that, as applied to plaintiff's property, they are unreasonable and arbitrary. Our statutes provide an adequate remedy, namely, by a proceeding before the board of adjustment, either on appeal from an adverse administrative decision or on original petition for relief on account of special adverse conditions. Upon the hearing before the board of adjustment, the facts in connection with plaintiff's property, the character of the neighborhood, the effect of the increased use of the air space over plaintiff's property upon the present permissible uses thereof, etc., can be determined. Thereafter, the decision will be "subject to review by the superior court by proceedings in the nature of certiorari." G.S. § 153-266.17. The indicated procedure was followed in Austin v. Brunnemer, supra. See also Durham County v. Addison, supra, and decisions cited therein. This procedure has been followed in similar circumstances under zoning ordinances adopted by municipalities, pursuant to authority conferred by general statute, G.S. Chapter 160, Article 14, § 160-172 et seq., or pursuant to special act, or both. Craver v. Zoning Board of Adjustment, 267 N.C. 40, 147 S.E.2d 599; Chambers v. Zoning Board of Adjustment, 250 N.C. 194, 108 S.E. 2d 211, 74 A.L.R.2d 412; In re Pine Hills Cemeteries, Inc., 219 N.C. 735, 15 S.E.2d 1.

"Generally, there is no ground for equitable relief against zoning where there has been no invasion of property rights, or where there is an adequate remedy at law, as by certiorari or mandamus, or by pursuit of a statutory remedy." McQuillin Mun. Corp. (3rd Ed.), Vol. 8A, § 25.290, p. 328.

We are advertent to the fact that in Helms v. Charlotte, supra, on which plaintiff relies, similar relief was sought by action in the superior court. Suffice to say, the defendant, answering the complaint, raised no question as to procedure and the procedural question now determined was not referred to in the Court's opinion.

On this appeal, decision is based solely on the ground the complaint does not allege facts sufficient to show the procedure prescribed by statute does not constitute an adequate remedy at law.

For the reasons stated, the order sustaining defendants' demurrer is affirmed.

Affirmed.