Town of Swansboro v. Odum

WELLS, Judge.

We note at the outset that plaintiffs first argument is directed in its entirety to matters that were not properly preserved and brought forward under N.C. R. App. P., Rule 10(a). Therefore, we do not consider it. We further note that plaintiff failed to discuss its fifth assignment of error in the brief. We thus deem it abandoned. N.C. R. App. P., Rule 28(a). Plaintiff consolidates its remaining assignments of error into a single argument challenging the court’s determination that the zoning ordinance in issue was void in that plaintiff failed to comply with statutory requirements.

A city has no power to zone except as conferred by statute. Heaton v. City of Charlotte, 277 N.C. 506, 178 S.E.2d 352 (1971). N.C. Gen. Stat. § 160A-360(a) (1987) permits a city to exercise zoning jurisdiction “within a defined area extending not more than one mile beyond its limits.” (Emphasis added.) Before exercising such jurisdiction, however, the City must hold a public hearing, notice of which must be published in a newspaper of general circulation “once a week for two successive calendar weeks[.]” N.C. Gen. Stat. § 160A-364. (Emphasis added.) Such notice “must fairly and sufficiently apprise those whose rights may be affected of the nature and character of the action proposed.” Sellers v. City of Asheville, 33 N.C. App. 544, 236 S.E.2d 283 (1977). Moreover, a detailed delineation of the boundaries specified in an ordinance adopted under the statute, set forth in the form of a map, written description, or combination thereof, “shall be recorded in the office of the register of deeds of each county in which any portion of the [affected] area lies.” N.C. Gen. Stat. § 160A-360(b).

Plaintiff did not satisfy these requirements. Its notice of the 27 January 1983 public hearing failed to apprise defendants — or any other property owners within the affected area — of the nature and character of the proposed actions, failed to describe in any way the area in question, and failed to comport with the clear requirements of G.S. § 160A-364 in that it was not published in two successive calendar weeks. Furthermore, plaintiff’s ordinance was adopted in a proceeding held over eight months subsequent to its initial hearing, and without either further public hearing or notice. Finally, plaintiff never recorded a boundary description as required by G.S. § 160A-360(b). We thus conclude that the court below correctly ruled plaintiff’s ordinance void and ineffective as against defendants. The judgment is therefore

Affirmed.

Judges Phillips and Parker concur.