Messer v. Town of Chapel Hill , 59 N.C. App. 692 ( 1982 )

297 S.E.2d 632 (1982)

Roger D. MESSER
v.
The TOWN OF CHAPEL HILL, North Carolina, a Municipal Corporation; Joseph L. Nassif, Mayor of the Town of Chapel Hill; the Council of the Town of Chapel Hill and Its Members; Marilyn Boulton, Jonathan Howes, Beverly Kawalec, R.D. Smith, Bill Thorpe, Joseph Straley, Joseph A. Herzenberg and James C. Wallace.

No. 8215SC103.

Court of Appeals of North Carolina.

December 7, 1982.

Lyman & Ash by Cletus P. Lyman, Philadelphia, Pa., and Moses & Murphy by Donald L. Murphy, Greensboro, for plaintiff-appellant.

Haywood, Denny & Miller by Michael W. Patrick, Chapel Hill, for defendants-appellees.

ARNOLD, Judge.

Plaintiff first argues that the choice of a site for a recreational area by the defendant that he did not agree with is equivalent to a taking of private property for a public purpose without just compensation in violation of the United States and North Carolina Constitutions. We disagree with this contention because the statute and the city ordinance under which the actions in this case were taken are valid.

A municipal ordinance is presumed to be valid with the burden on an attacking party to show its invalidity. 9 Strong's N.C. Index 3d Municipal Corporations § 8 (1977). Although it is true that municipal ordinances which restrict the rights of private property owners will be strictly construed, Heaton v. City of Charlotte, 277 N.C. 506, 178 S.E.2d 352 (1971) (construing a zoning ordinance), we find that defendant's actions were within the grant of authority of the Chapel Hill ordinance. Our holding accords with the majority of jurisdictions that have been faced with this question when interpreting similar statutes. See Annot., 43 A.L.R.3d 863 (1972). We also find that defendant's ordinance was within a specific grant of authority by the General Assembly, as it must be to be upheld. Upchurch v. Funeral Home, 263 N.C. 560, 140 S.E.2d 17 (1965).

Plaintiff argues that the language in both the ordinance and the statute that the recreation area will serve "residents of the immediate neighborhood within the subdivision" means that this area can only be used by those residents. We do not believe this was the intent of the General Assembly.

Instead, a more reasonable interpretation is that these areas were meant primarily to serve residents of the immediate neighborhood. Use of defendant's proposed location would meet such a test since the residents of Laurel Hill IV would be the primary users of the park and thus would be served by it.

A careful reading of the statute also reveals that these recreational areas can be used by the public, in addition to the subdivision residents. G.S. 160A-372 allows city ordinances to provide for the "dedication or reservation of recreation areas...." (Emphasis added). This disjunctive phrase is important because dedication of private property contemplates public use. Spooner's Creek Land Co. v. Styron, 7 N.C.App. 25, 171 S.E.2d 215 (1969).

With the increased population that will follow development of the subdivision comes a need for recreational space. As the court in Aunt Hack Ridge Estates, Inc. v. Planning Comm'n, 160 Conn. 109, 119, 273 A.2d 880, 885 (1970), stated, "the need for open space for ... people becomes a public one."

Other jurisdictions have upheld ordinances and statutes like the one in this case on the ground that a subdivision creates a need for a recreation area, and a municipality can act to fill that need. See Patenaude v. Town of Meredith, 118 N.H. 616, 392 A.2d 582 (1978); Krughoff v. City of Naperville, 68 Ill.2d 352, 12 Ill.Dec. 185, 369 N.E.2d 892 (1977). We note that the statute and ordinance before us did not set an arbitrary percentage of the subdivision to be used for recreational purposes that other cases have struck down. See, e.g., Admiral Development Corp. v. City of Maitland, 267 So.2d 860 (Fla.Dist.Ct.App.1972); Ansuini, Inc. v. City of Cranston, 107 R.I. 63, 264 A.2d 910 (1970).

We do not believe that defendant's action amounts to eminent domain. That term is defined as "the power of the sovereign or some agency authorized by it to take private property for public use." Va. Elec. & Power Co. v. King, 259 N.C. 219, 220, 130 S.E.2d 318, 320 (1963). Merely changing the location of a recreation area as a condition of approval of a subdivision plan does not amount to a taking so as to require compensation. This is especially true given the fact that approval by defendant of plaintiff's plan was a privilege and not a right.

In summary, we hold that defendant's selection of a location for a recreation area as a condition of approving plaintiff's subdivision plan was a valid exercise of its police power under G.S. 160A-372.

Affirmed.

HILL and JOHNSON, JJ., concur.