Humble Oil & Refining Co. v. Board of Aldermen , 20 N.C. App. 675 ( 1974 )

202 S.E.2d 806 (1974) 20 N.C. App. 675

HUMBLE OIL & REFINING COMPANY, Petitioner,
v.
BOARD OF ALDERMEN OF the TOWN OF CHAPEL HILL et al., Respondents.

No. 7315SC228.

Court of Appeals of North Carolina.

February 20, 1974.

Bryant, Lipton, Bryant & Battle by F. Gordon Battle, Chapel Hill, for petitioner appellant Humble Oil and Refining Company and Intervenor Flagler System, Inc.

Newsom, Graham, Strayhorn, Hedrick & Murray by K. Byron McCoy, Durham, for petitioner appellant.

Haywood, Denny & Miller by Emery B. Denny, Jr., Chapel Hill, for respondent appellee.

MORRIS, Judge.

As an optionee, petitioner has no standing to appeal from the order of the Superior Court. Appellate review of the order of a municipal board of adjustment is available only to the owner of the property affected by the ruling, and this right does not extend to a mere optionee. Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128 (1946). The holding of the Supreme Court in Refining Co. v. Board of Aldermen, N.C., 202 S.E.2d 129 (filed 25 January 1974), does not preclude the application of this rule in the case sub judice. In Refining Co., supra, the petitioner had conditionally exercised its option, thereby becoming a prospective vendee. In the case before us, there has been no such exercise.

We have, however, allowed the motion of the owner of the subject property— Flagler System, Inc.—to intervene, and we shall proceed to review the case on the merits.

This appeal presents three assignments of error for consideration. The first assignment of error is to the trial court's ruling that the action of the Chapel Hill Board of Aldermen was not arbitrary, capricious, unreasonable and unlawful. With this contention we cannot agree.

The Ordinance Providing for the Zoning of Chapel Hill and Surrounding Areas provides that an automobile service station is a permitted use in the area zoned Suburban Commercial. Ordinance, § 3. However, a special use permit is required for the construction of a drive-in business. Id. § 4-D-6. § 4-B of the Ordinance provides that an application for a special use permit shall be reviewed by the Board of Adjustmen at a public hearing. If the Board grants the permit it shall find:

"(1) That the use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved;

(2) That the use meets all required conditions and specifications;

(3) That the use will not substantially injure the value of adjoining or abutting property, or that the use is a public necessity, and

(4) That the location and character of the use if developed according to the plan as submitted and approved will be in harmony with the area in which it is to be located and in general conformity with the plan of development of Chapel Hill and its Environs."

The ordinance requires that certain conditions be met before a special use permit can be granted. Petitioner has the burden of satisfying the Board that these conditions have been met. Kenan v. Board of Adjustment, 13 N.C.App. 688, 187 S.E.2d 496 (1972); Craver v. Zoning Board of Adjustment, 267 N.C. 40, 147 S.E.2d 599 (1966).

The Board's reason for denying the permit was that "it would materially endanger the public health and safety if located where proposed and developed according to the plans as submitted." While it is true that no evidence was presented that could establish that the station would endanger public health and safety, petitioner has offered no evidence that its service station would not have such an effect. Thus, it has failed to satisfy its burden of proof, and there was no error in the Board's denial of the application.

Petitioner's second assignment of error is to the Superior Court's denial of petitioner's motion that two items be deleted from the record. The two items in question are a letter from the State Highway Commission regarding access to the ramp to U.S. 15-501 and a publication from the Mid-American Gasoline Dealers Association entitled "MAGDA's Model Zoning Recommendation." These items were obtained by the Board itself before the public hearing, but petitioner had ample opportunity to present its own evidence at the public hearing. Municipal Boards of Adjustment are not required to comply strictly with the rules of evidence. Carter v. Town of Chapel Hill, 14 N.C.App. 93, 187 S.E.2d 588 (1972). The evidence that petitioner would have excluded was relevant to the Board's inquiry, and there was no error in the Superior Court's denial of the motion to have it deleted from the record.

Petitioner's final assignment of error is to the court's finding that the applicable portions of the ordinance were not unconstitutional as applied to the facts in the case. Specifically, petitioner contends that the requirement that the Board find "(1) That the use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved is so vague that it affords no reasonable standard for judgment.

There is no doubt that the Legislature may delegate to a municipality the authority to administer a zoning ordinance. Kenan v. Board of Adjustment, supra. This delegation has withstood constitutional attack based on the consistently recognized distinction between the delegation of the power to make a law and the conferring of authority to administer a law.

"Here we pause to note the distinction generally recognized between a delegation of the power to make a law which necessarily includes a discretion as to what it shall be, and the conferring of authority or discretion as to its execution. The first may not be done, whereas the latter, if adequate guiding standards are laid down, is permissible under certain circumstances. 11 Am.Jur., Constitutional Law, Sec. 234; See also Pue v. Hood, Com'r. of Banks, 222 N.C. 310, 22 S.E.2d 896.

......

In short, while the Legislature may delegate the power to find facts or determine the existence or nonexistence of a factual situation or condition on which the operation of a law is made to depend, or another agency of the government is to come into existence, it cannot vest in a subordinate agency the power to apply or withhold the application of the law in its absolute or unguided discretion. 11 Am.Jur., Constitutional Law, Sec. 234." Coastal Highway v. Turnpike Authority, 237 N.C. 52, 60-61, 74 S.E.2d 310, 316 (1953).

In Jackson v. Board of Adjustment, 275 N.C. 155, 166 S.E.2d 78 (1969), the Supreme Court held that the Legislature may not delegate to a municipal board of adjustment the authority to issue or refuse a permit to build a structure of a specified type based on whether said structure will be conducive to or adverse to the public interest or welfare. There is, however, a basic distinction between the ordinance invalidated in Jackson v. Board of Adjustment, supra, and the ordinance before us. While the former called upon the Board of Adjustment to pass upon questions of public policy, the latter requires only that the Board determine whether the special use would endanger public health and safety.

"``[B]y the decided weight of authority, the rule is that "if the statute requires or authorizes the court or other agency to pass upon questions of public policy involved, * * * there is an attempted delegation of legislative power and the statute is invalid." 37 Am.Jur., Municipal Corporations, Sec. 8.'" Jackson v. Board of Adjustment, supra, at 165, 166 S.E.2d at 85.

The aforementioned findings required of the Board in denying or allowing an application for a special use permit are sufficient to distinguish the ordinance from the ordinance in Jackson. We hold that the Board of Adjustment has not been empowered to rule upon matters of public policy, and that the Board is given sufficient guiding standards. Therefore, the ordinance is not unconstitutional.

No error.

BRITT and VAUGHN, JJ., concur.