Taylor v. Bowen

158 S.E.2d 837 (1968) 272 N.C. 726

John Robert TAYLOR and wife, Julia E. Taylor
v.
H. F. BOWEN, Building Inspector for the City of Fayetteville, Monroe E. Evans, Mayor of the City of Fayetteville, Charles Holt, Harry Shaw, Johnny Joyce and Gene Plummer, Councilmen of the City of Fayetteville, and the City of Fayetteville, a municipal corporation.

No. 683.

Supreme Court of North Carolina.

February 2, 1968.

Williford, Person & Canady, by N. H. Person, Fayetteville, for plaintiff appellants.

Harry B. Stein, Fayetteville, for defendant appellees.

HIGGINS, Justice.

The question of law presented by this appeal is simple. Did the Community College Planning Board and the Cumberland County Board of Commissioners lose zoning jurisdiction and did the City of Fayetteville acquire that jurisdiction when the area became a part of the city by annexation? The general rule is stated by Barnhill, J. (later C. J.) in Parsons v. Wright, 223 N.C. 520, 27 S.E.2d 534: "When a municipal corporation is established it takes control of the territory and affairs over which it is given authority to the exclusion of other governmental agencies." See also Schloss v. Jamison, 262 N.C. 108, 136 S.E.2d 691.

"In enacting and enforcing zoning regulations, a municipality acts as a governmental agency and exercises the police power of the State. Kinney v. Sutton, 230 N.C. 404, 53 S.E.2d 306; [City of] Elizabeth City v. Aydlett, 201 N.C. 602, 161 S.E. 78 * * *. In the very nature of things, the police power of the State can not be bartered away by contract, or lost by any other mode." City of Raleigh v. Fisher, 232 N.C. 629, 61 S.E.2d 897; G.S. §§ 160-172-160-181.2, inclusive.

Cities and towns have statutory authority to extend their boundaries to include adjacent areas. "* * * (T)he territory and its citizens and property shall be subject to all debts, laws, ordinances and regulations in force in said city or town and shall be entitled to the same privileges and benefits as other parts of said city or town. * * *" G.S. § 160-445; Duke Power Co. v. Blue Ridge Electric Membership Corp., 253 N.C. 596, 117 S.E.2d 812.

The prior zoning of the plaintiffs' property by the Cumberland County Board of Commissioners and its College Community Planning Board did not carry over and bind the zoning authorities of Fayetteville after the annexation. "Where the land was previously zoned as a part of the municipality * * * in which it lay, the prior zoning becomes ineffective immediately upon such incorporation or annexation since it is a well recognized rule that two municipal corporations do not have coextensive powers of government over the same area and that municipal power may only be exercised within the limits of the municipality." 1 Rathkoph, The Law of Zoning and Planning, 3d Ed., Chapt. 25, § 3; Beshore v. Town of Bel Air, 237 Md. 398, 206 A.2d 678; Schneider v. Lazarov, 216 Tenn. 1, 390 S.W.2d 197; City of Highland Park v. Calder, 269 Ill.App. 255.

The amendment to G.S. § 160-176 passed 1965 providing a 60 days' transition period between annexation and the effective date of the city zoning ordinances has no application to this proceeding. Neither is it necessary for us to pass on the constitutionality of Chapter 1455, Session Laws of 1957, although discussed in both briefs. The zoning power of the County Board of Commissioners over the land annexed by the city did not survive the annexation. The order of Judge Nimocks denying mandamus is

Affirmed.