State v. Jones

281 S.E.2d 91 (1981)

STATE of North Carolina
v.
Mack H. JONES.

No. 8028SC1190.

Court of Appeals of North Carolina.

August 18, 1981.

County Atty. Floyd D. Brock and Asst. County Atty., Stanford K. Clontz, Asheville, for Buncombe County.

Penland & Barden by Stephen L. Barden, III and Talmadge Penland, Asheville, for defendant-appellee.

WEBB, Judge.

The appellee contends the superior court must be affirmed for two reasons. He argues first that the ordinance is unconstitutionally vague and second, that the ordinance violates his substantive due process rights by attempting to regulate for aesthetic values only.

We consider first the question of vagueness. An ordinance "which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process." State v. Vestal, 281 N.C. 517, 521, 189 S.E.2d 152, 155 (1972). The defendant contends that the requirement that junkyards or automobile graveyards be surrounded by an opaque fence or by a wire fence and vegetation which will reach a height of six feet at maturity and shall be planted so that a continuous unbroken hedge will exist, requires the owner to guess at the type of tree to plant and the manner of planting. We believe men of common intelligence would know the type of hedge that is required by this ordinance. He also contends the requirement that the owner must utilize "good husbandry techniques with respect to said vegetation, including but not limited to, proper pruning, proper fertilizer and proper mulching" sets a standard which would be difficult for an expert husbandryman to interpret. We believe a man of common intelligence would understand that he would be required to tend to the hedge in such a manner that it would grow to the required height and thickness in the normal growing period for the type of plants used.

The defendant also contends there is a problem of definition in that the ordinance does not apply to garages and repair shops which have the primary purpose of repair and receive 50 percent of their gross income from repair. We believe again that a man of common intelligence would not have to guess at the meaning of this exemption.

The defendant next says that the requirement that the junkyard not be within 100 yards of the center line of a public road is unconstitutionally vague. We point out the ordinance in the case sub judice does not suffer from the deficiency of the ordinance in State v. Vestal, supra. In that case the Supreme Court of North Carolina held that an ordinance was unconstitutionally vague which required junkyards to be built "50 feet from the edge of any public road adjoining the yards." The Court held there was no way of determining what was intended by the term "edge of any public road." In the case sub judice we do not believe a man of common intelligence would have difficulty determining what is the center line of a public road. The defendant also contends the requirements that a junkyard or automobile graveyard not be built within one-quarter mile of any school or within a residential area are too vague to be constitutional. We believe men of common intelligence would understand that the regulated business may not be placed within a quarter mile of the edge of the school grounds. A residential area is defined as an area having "twenty-five (25) or more housing units within a geographical area comprised of a one-fourth (¼) mile wide strip contiguous and parallel to the external boundary lines of the tract of real property on which said automobile graveyard or junkyard is located." We do not believe a man of common intelligence would have difficulty understanding the meaning of this definition. We hold the ordinance is not unconstitutionally vague.

The State concedes that the subject ordinance was enacted to promote aesthetic values only. Substantive due process requires that the General Assembly or a municipality may exercise its public power only as it promotes the public health, safety, morals or general welfare. The question posed by this appeal is whether this ordinance which requires action for aesthetic purposes only promotes the public welfare to such a degree that it is within the police power of the State. In State v. Brown and State v. Narron, 250 N.C. 54, 108 S.E.2d 74 (1959), our Supreme Court held that a statute which prohibited placing "scrapped automobiles" within 150 yards of a paved highway was not within the police power of the State; the only purpose of the statute being to improve the aesthetic quality of the paved highway. In Horton v. Gulledge, 277 N.C. 353, 177 S.E.2d 885 (1970), our Supreme Court reiterated this holding by way of dictum. The Court in that case recognized that the United States Supreme Court in Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27 (1954) had held that the Fourteenth Amendment to the United States Constitution did not proscribe state action which regulated for aesthetic purposes only but said that Art. I § 19, the Law of the Land Clause in the Constitution of North Carolina, does proscribe such action by the State.

In State v. Vestal, supra, the Court noted that the State did not contend it could regulate otherwise lawful activity for aesthetic reasons only and for that reason the question was not considered. The Court did observe that there was a growing body of authority from other jurisdictions which allowed this type of regulation. In A-S-P Associates v. City of Raleigh, 298 N.C. 207, 258 S.E.2d 444 (1979) our Supreme Court held that the City of Raleigh could by zoning ordinance prohibit buildings which did not comply with the historical characteristics of a neighborhood. The Court recognized that this had the effect of allowing the City of Raleigh to regulate the appearance of buildings but held that historic preservation promoted the general welfare in several ways. The Court specifically declined to say that the promotion of aesthetic values alone came within the police power of the State. In Cumberland County v. Eastern Federal Corp., 48 N.C.App. 518, 269 S.E.2d 672 (1980) it was held that an ordinance regulating the size of highway signs could be based on aesthetic considerations. The Court was careful to limit the holding to the facts of that case and pointed out that there were other considerations upon which the ordinance could be based such as the economic effect of an unsightly sign on the adjoining property, the hazard to traffic, and the fact that the restriction on signs in that case was a part of a comprehensive zoning ordinance. We do not believe we can affirm the superior court in the case sub judice consistently with Cumberland County. We hold that Buncombe County Ordinance Number 16401, as amended, does not violate the Fourteenth Amendment to the United States Constitution or the Law of the Land Clause of the North Carolina Constitution because it regulates for aesthetic purposes only. In reaching this conclusion, we take into account that the duty on the defendant to build a fence or grow a hedge is not too burdensome as compared to the public benefit to Buncombe County in improving the appearance of the highways. If the automobile graveyard had been forbidden at this location, we might have reached a different result.

We realize that our opinion in the case sub judice is inconsistent with State v. Brown, supra. We believe the trend in the cases decided by our Supreme Court is such that Brown no longer governs.

Reversed and remanded.

HEDRICK and ARNOLD, JJ., concur.