Decker v. Coleman , 6 N.C. App. 102 ( 1969 )

169 S.E.2d 487 (1969) 6 N.C. App. 102

Charles F. DECKER et al.
v.
Richard L. COLEMAN and wife, Betty B. Coleman.

No. 6928SC39.

Court of Appeals of North Carolina.

September 17, 1969.

No counsel for plaintiff appellees.

Bennett, Kelly & Long, by George Ward Hendon, Asheville, for defendant appellants.

PARKER, Judge.

The order appealed from adversely affects a substantial right of the appellants and the appeal is, therefore, not premature. G.S. § 1-277; Board of Provincial Elders v. Jones, 273 N.C. 174, 159 S.E.2d 545; Cablevision v. Winston-Salem, 3 N.C.App. 252, 164 S.E.2d 737.

Appellants' first contention is that the trial court erred in its interpretation of the proviso in City Ordinance No. 525; that the language therein that the defendants "be required to maintain inviolate a 50-foot buffer zone," should not be interpreted, as was done by the trial court, so as to prohibit defendants from "engaging in any activities in the cutting of timber, making of excavations, or in any manner altering or changing the 50-foot inviolate buffer." With reference to zoning, however, "the law is disposed to interpret language in the light of surrounding circumstances and to give to words their ordinary meaning and significance." Penny v. Durham, 249 N.C. 596, 107 S.E.2d 72. The word "inviolate" is defined in Webster's Third New International Dictionary (1966) as "free from change or blemish, pure, unbroken, free from assault or trespass, untouched, intact." The word has also been defined as meaning "unbroken, unhurt, uninjured, unpolluted." 48 C.J.S. p. 762. Therefore, we think that the trial court did give to the word its ordinary meaning when it interpreted the ordinance by restraining defendants from "engaging in any activities in the cutting of timber, making of excavations, or in any manner altering or changing" the 50-foot buffer zone. The question arises whether, so interpreted, the proviso in the ordinance is valid.

The power to zone is the power of the State and rests initially in the General Assembly. Schloss v. Jamison, 262 N.C. 108, 136 S.E.2d 691. "A municipal corporation has no inherent power to zone its territory and restrict to specified purposes the use of private property in each such zone. Such power has, however, been delegated to the cities and incorporated towns of this State by the General Assembly. G.S. § 160-172, et seq." Zopfi v. City of Wilmington, 273 N.C. 430, 434, 160 S.E.2d 325, 330. Exercise by a city of this delegated power is subject both to limitations imposed by the Constitution upon the legislative power of the State itself, forbidding arbitrary and unduly discriminatory interference with the rights of property owners, and is also subject to the limitations in the statutes by which the power was delegated. Zopfi v. City of Wilmington, supra; Schloss v. Jamison, supra; Marren v. Gamble, 237 N.C. 680, 75 S.E.2d 880.

In the present case appellants contend that the proviso to the Asheville City Ordinance No. 525, as the language of that proviso has been interpreted and applied by the trial court's order, imposes unconstitutional limitations upon the use of their property. We do not, however, find it necessary to decide the constitutional question sought to be raised. In our view the proviso to the ordinance is clearly invalid as contravening the provisions of the enabling statutes which are the sole source from which the city derives its delegated power to zone.

G.S. § 160-172 in pertinent part provides:

"For the purpose of promoting health, safety, morals or the general welfare of the community, the legislative body of cities and incorporated towns is hereby empowered to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes."

G.S. § 160-173 in pertinent part provides:

"For any or all said purposes it may divide the municipality into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this article; and within such districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of building throughout each district, but the regulations in one district may differ from those in other districts."

Our Supreme Court has construed G.S. § 160-173 to impose the following limitation on a city's power to zone:

"When a city adopts a zoning ordinance, restrictions on use must be uniform in all areas in a defined class or district. Different areas in a municipality may be put in the same class. The law does not require all areas of a defined class to be contiguous, but when the classification has been made, all areas in each class must be subject to the same restrictions." Walker v. Elkin, 254 N.C. 85, 87, 118 S.E.2d 1, 3.

In the present case defendants' property has been classified under the Asheville Zoning Ordinance as "Roadside Business Area." As such, it is subject to all of the same restrictions imposed on other properties given this same classification throughout the City. The proviso to Ordinance 525, however, purports to impose an additional restriction, applicable only to defendants' property and not imposed on land zoned "Roadside Business Area" as it lies adjacent to a residential area in any other location in the City. In fact on no other property within the City does the Asheville Zoning Ordinance place similar restrictions on the use of property. Section 7A of the Ordinance, which creates a zoning classification for a "Restricted Business District," does provide in Subsection E, under the heading "Buffering," for a greenbelt planting strip not less than 15 feet wide along the side and rear lot lines abutting or lying across the street from property zoned for residential use. However, the 15-foot buffer strip provided for by this subsection is far different from the 50-foot buffer zone which the proviso to Ordinance 525 creates on defendants' property and requires them to maintain "inviolate." Subsection E of Section 7A of the City Zoning Ordinance not only permits clearing and planting of the 15-foot greenbelt planting strip described therein, but even contemplates that this be done by providing in considerable detail for the type, number, and spacing of trees and shrubs to be planted thereon. It is certainly not to be maintained inviolate; it is less than one-third the width of the buffer zone created by the proviso to Ordinance 525; and in any event it applies only to property zoned as "Restricted Business District," not to property zoned, as was the defendants' property, as "Roadside Business Area." In addition, it should be noted that the proviso to Ordinance 525 purports to place a restriction only upon "the developers and owners of the property involved, including that property heretofore zoned Roadside Business Area belonging to the same developers and/or owners." (Emphasis added.) Thus, by its express terms, the proviso is made to apply only to property owned by the defendants in this action, and not to property owned by any other persons anywhere else in the City of Asheville.

Since the proviso to Ordinance 525 exceeded statutory limitations imposed by the General Assembly when it enacted the statutes delegating to cities power to enact zoning ordinances, the proviso is void. However, this holding does not affect the validity of the remaining portions of Ordinance 525, the City Council having expressly declared in Section 3 its intention that if any portion of the Ordinance is for any reason held to be invalid, such decision should not affect the validity of the remaining portions of the Ordinance. "It is well settled that if valid provisions of a statute, or ordinance, are separable from invalid provisions therein, so that if the invalid provisions be stricken the remainder can stand alone, the valid portions will be given full effect if that was the legislative intent." Jackson v. Guilford County Board of Adjustment, 275 N.C. 155, 168, 166 S.E.2d 78, 87. Here, the Asheville City Council has expressly declared such an intent.

The restraining order issued in this case, which was continued in effect pendente lite, also restrained defendants "from making any excavations upon the property of the defendants adjacent to said 50-foot buffer without first obtaining an excavation permit as required by Ordinance #427 of the City of Asheville as amended by Ordinance #435 of the City of Asheville. * * *" In the order continuing the restraining order in effect pendente lite, the court found as a fact that the defendants were "engaged in the excavation of land adjacent to the 50-foot buffer zone and this excavation is being carried on without the issuance of a permit for this operation as required by Ordinance No. 427 as amended by Ordinance No. 435." We have carefully examined the record and find no evidence whatsoever to support this finding of fact. The plaintiffs' complaint, even considered as an affidavit, merely alleged that the plaintiffs were "informed and believed" that the defendants were engaged in the excavation of their land in violation of the ordinances referred to. The plaintiffs offered no evidence to support the finding that defendants were actually engaged in such excavations, and the male defendant testified at the hearing that he had done no excavations on his property, including the 50-foot buffer zone. Ordinance No. 427 as amended by Ordinance No. 435 provides that no excavation or filling operation may be started within the City until an appropriate permit is issued. Since there was neither proper allegation nor any proof that defendants were engaged in violating those ordinances, the order continuing the restraining order in effect restraining violation of those ordinances was error.

Defendants were further restrained from "commencing any construction of a Group Development upon the real property of the defendants adjacent to said 50-foot buffer without first complying with the requirements of Section 9C of Ordinance #322 of the City of Asheville dealing with Group Developments. * * *" Plaintiffs in their complaint alleged that they were informed and believed "that the defendants are preparing to commence construction of buildings in a Group Development" upon their lands and "that the plaintiffs are apprehensive less the defendants undertake said construction without complying with the requirements of Section 9C of Ordinance #322 of the City of Asheville having to do with group developments." Plaintiffs have failed to allege, and have offered no evidence to show, that the defendants have in fact violated Section 9C of Ordinance No. 322, and therefore the order restraining defendants from violation of such ordinance pendente lite was error.

For the reasons stated herein the order continuing the restraining order in effect pendente lite was error, and this cause is remanded to the Superior Court of Buncombe County for entry of an order in accordance with this opinion.

Reversed and remanded.

MALLARD, C. J., and BRITT, J., concur.