{ "id": 8550851, "name": "RAY SELLERS v. THE CITY OF ASHEVILLE", "name_abbreviation": "Sellers v. City of Asheville", "decision_date": "1977-07-06", "docket_number": "No. 7728SC257", "first_page": "544", "last_page": "551", "citations": [ { "type": "official", "cite": "33 N.C. App. 544" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "190 S.E. 2d 175", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576416 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0715-01" ] }, { "cite": "178 S.E. 2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "356" } ], "opinion_index": 0 }, { "cite": "277 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566665 ], "year": 1971, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0506-01" ] } ], "analysis": { "cardinality": 554, "char_count": 14505, "ocr_confidence": 0.669, "pagerank": { "raw": 4.285054420482907e-07, "percentile": 0.9161877777430267 }, "sha256": "1af7781f7b79b024ea4c6e272e1592d1179fd6a68014869903284839f185d5ec", "simhash": "1:a1b161251567b430", "word_count": 2378 }, "last_updated": "2023-07-14T18:09:28.190456+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Britt and Clark concur." ], "parties": [ "RAY SELLERS v. THE CITY OF ASHEVILLE" ], "opinions": [ { "text": "PARKER, Judge.\nA city has power to zone only as delegated to it by enabling statutes, and \u201ca zoning ordinance or an amendment thereto which is not adopted in accordance with the enabling statutes is invalid and ineffective.\u201d Heaton v. City of Charlotte, 277 N.C. 506, 513, 178 S.E. 2d 352, 356 (1971); accord, Keiger v. Board of Adjustment, 281 N.C. 715, 190 S.E. 2d 175 (1972). We agree with the trial court\u2019s ruling that defendant City in this case failed to comply with applicable enabling statutes insofar as it attempted to extend its zoning ordinance to property outside of its corporate limits. Accordingly, we affirm.\nThe North Carolina enabling statutes granting cities power to zone are now contained in Chapter 160A, Article 19, of the General Statutes. Pertinent to this appeal are the following:\n\u201cG.S. 160A-360. Territorial jurisdiction.\u2014 (a) All of the powers granted by this Article may be exercised by any city within its corporate limits. In addition, any city may exercise these powers within a defined area extending not more than one mile beyond its limits. . . . (Emphasis added.)\n(b) Any council wishing to exercise extraterritorial jurisdiction under this Article shall adopt, and may amend from time to time, an ordinance specifying the areas to be included based upon existing or projected urban development and areas of critical concern to the city, as evidenced by officially adopted plans for its development. Boundaries shall be defined, to the extent feasible, in terms of geographical features identifiable on the ground. . . . The boundaries specified in the ordinance shall at all times be drawn on a map, set forth in a written description, or shown by a combination of these techniques. . . . (Emphasis added.)\n* .\u25a0\u00a1c\nG.S. 160A-364. Procedure for adopting or amending ordinances under Article. \u2014 Before adopting or amending any ordinance authorized by this Article, the city council shall hold a public hearing on it. A notice of the public hearing shall be given once a week for two successive calendar weeks in a newspaper having general circulation in the area. The notice shall be published the first time not less than 15 days nor more than 25 days before the date fixed for the hearing.\u201d\nIn attempting to make its zoning ordinance applicable to property outside its city limits, defendant City in this case failed to comply with the foregoing statutes in two respects: first, it failed to give notice of a public hearing, as required by G.S. 160A-364, adequate to alert owners of property outside the city that their rights might be affected; and, second, it failed to define the boundaries of the extraterritorial area affected in the manner required by G.S. 160A-360.\nOf the three notices which were published, the third and final one was published only once, and that on the day immediately prior to the date on which the public hearing was to be held. G.S. 160A-364 requires that the notice be published once a week for two successive weeks, the first publication to be not less than 15 nor more than 25 days before the date fixed for the hearing. None of the notices informed the public that the City intended, for the first time in its history, to make its zoning ordinance applicable to property outside its city limits. The mere reference in the first and second notices to G.S. 160A-364 would certainly not do so, for that statute would be equally applicable if the contemplated amendments to the ordinance affected only property within the city. By reading the notice, even the most diligent owner of property outside the city would have no reasonable cause to suspect that his property might be affected by the City\u2019s contemplated amendment to its ordinance. To be adequate, the notice of public hearing required by G.S. 160A-364 must fairly and sufficiently apprise those whose rights may be affected of the nature and character of the action proposed. The notices which defendant City published in the present case failed to do this insofar as owners of property outside its limits were concerned.\nIn exercising the power delegated to a city by G.S. 160A-360(a) to zone property \u201cwithin a defined area extending not more than one mile beyond its limits,\u201d the city council is required by G.S. 160A-360(b) to adopt an ordinance \u201cspecifying the areas to be included,\u201d based on certain criteria, and in doing so the boundaries of such areas must \u201cbe defined, to the extent feasible, in terms of geographical features identifiable on the ground.\u201d Further, the statute requires that such boundaries \u201cshall at all times be drawn on a map, set forth in a written description, or shown by a combination of these techniques.\u201d In adopting the ordinance involved in the present case, the city council of defendant City failed to comply with these statutory requirements.\nThe only \u201cwritten description\u201d of the \u201cdefined area\u201d over which defendant City attempted to exercise its extraterritorial zoning authority is the description contained in Section 30-1-3 of the ordinance. This merely refers to \u201cthe territory beyond the corporate limits for a distance of one mile in all directions.\u201d The \u201cZoning Map of the City of Asheville,\u201d which was made a part of the ordinance and a copy of which was filed with the record on this appeal, shows the \u201cmile boundary\u201d drawn in sweeping curves, except where the city bordered upon adjacent municipalities. Both the general description in Section 30-1-3 of the ordinance and the sweeping \u201cmile boundary\u201d line on the map fail to comply with the mandate of the statute that \u201c [b] oundaries shall be defined, to the extent feasible, in terms of geographical features identifiable on the ground.\u201d (Emphasis added.) The obvious purpose of this statutory mandate is that boundaries be defined, to the extent feasible, so that owners of property outside the city can easily and accurately ascertain whether their property is within the area over which the city exercises its extraterritorial zoning authority. The ordinance and map here in question do not make that possible, at least as to the owner of property near the one mile limit. It is not a sufficient answer that, from an engineering point of view, it would be possible for a competent surveyor to measure on the ground a distance of exactly one mile beyond the city limits and thereby ascertain with certainty whether a particular lot is, or is not, within the area over which the City exercises its extraterritorial zoning authority. It was precisely to avoid the necessity of such a costly remedy that the statute requires that the boundaries be defined, to the extent feasible, in terms of geographical features identifiable on the ground. We agree with the trial court\u2019s conclusion that the boundaries of the extraterritorial zone in this case \u201cfailed to me\u00e9t the required definitiveness\u201d mandated by the statute.\nPlaintiff has attempted by \u201cCross Assignments of Error\u201d to question the trial court\u2019s action in limiting the injunction to plaintiff\u2019s property rather than making it applicable to the properties of all other affected citizens. This question is not properly before us. Quite apart from any question as to plaintiff\u2019s standing to represent the interests of persons who are not parties to this litigation, plaintiff did not appeal from the judgment entered. Rule 10(d) of the Rules of Appellate Procedure does permit an appellee to \u201ccross-assign as error any action or omission of the trial court to which an exception was duly taken or as to which an exception was deemed by rule or law to have been taken, and which deprived the appellee of an alternative basis in law for supporting the judgment, order, or other determination from which appeal has been taken.\u201d (Emphasis added.) The action of the trial court in limiting the injunction to plaintiff\u2019s property did not deprive plaintiff of \u201can alternative basis in law for supporting the judgment,\u201d and Rule 10(d) is not applicable in this case.\nThe judgment appealed from is\nAffirmed.\nJudges Britt and Clark concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Bennett, Kelly & Cagle, P.A., by Robert F. Orr for plaintiff appellee.", "Patla, Stram, Robinson & Moore, P.A., by Victor W. Buchanan for defendant appellant." ], "corrections": "", "head_matter": "RAY SELLERS v. THE CITY OF ASHEVILLE\nNo. 7728SC257\n(Filed 6 July 1977)\n1. Municipal Corporations \u00a7 30 \u2014 extraterritorial zoning ordinance \u2014 failure to comply with enabling statutes\nIn attempting to make its zoning ordinance applicable to property outside its city limits, defendant failed to comply with applicable enabling statutes in two respects: (1) it failed to give notice of a public hearing, as required by G.S. 160A-364, adequate to alert owners of property outside the city that their rights might be affected; and (2) it failed to define the boundaries of the extraterritorial area affected in the definitive manner required by G.S. 160A-360.\n2. Appeal and Error \u00a7 7\u2014 no appeal by plaintiff \u2014 no right to raise questions on appeal\nIn an action by plaintiff to enjoin enforcement of defendant\u2019s zoning ordinance outside the city limits, plaintiff could not question on appeal the trial court\u2019s action in limiting the injunction to plaintiff\u2019s property rather than making it applicable to the properties of all other affected citizens, since plaintiff did not have standing to represent the interests of persons who. were not parties to the litigation, and plaintiff did not appeal from the judgment entered.\nAppeal by defendant from Martin (Harry), Judge. Judgment entered 20 December 1976 in Superior Court, Buncombe County. Heard in the Court of Appeals 9 June 1977.\nPlaintiff, the owner of a tract of land outside the city limits, brought this action against the City of Asheville seeking a judgment declaring certain sections of the Asheville City Zoning Ordinance invalid and enjoining enforcement of the ordinance outside the city limits. The case was heard on plaintiff\u2019s motion for summary judgment. The material facts, as to which there is no genuine issue, are as follows:\nSince 1948 the City of Asheville has had a zoning Ordinance, being its Ordinance 322, applicable to property within its city limits. Prior to 20 February 1975 the City had never exercised zoning authority over property located outside its city limits. On that date the City Council adopted Ordinance No. 322, as amended, Section 30-1-3 of which contains the following:\n\u201cThe provisions of this Ordinance shall apply within the corporate limits of the City of Asheville, North Carolina and within the territory beyond the corporate limits for a distance of one mile in all directions in accordance with the authority granted to the City of Asheville in Article 19, Chapter 160A-360, as amended, of the General Statutes of North Carolina.\u201d\nThis Ordinance incorporated and made a part thereof a \u201cZoning Map of the City of Asheville,\u201d and the Ordinance and Map were properly recorded in the Office of the Register of Deeds of Buncombe County, N. C.\nBefore adopting the amended Ordinance, the Asheville City Council held a series of public hearings, the first of which was held on 19 September 1974. On 3 and 10 September 1974 the following notice was published in the Asheville Times:\n\u201cNotice to Public\nNotice is hereby given according to law to all parties in interest and citizens: That according to the procedures and requirements contained in G.S. 160A-364 a public hearing will be held on the 19th day of September, 1974, at 3:00 o\u2019clock p.m. in the City Council Chambers, Asheville, North Carolina, concerning the adoption of an ordinance amending and revising Ordinance No. 322, as amended, the Zoning Ordinance of the City of Asheville at which time and place the City Council will place on its first reading said proposed ordinanced (sic) after said public hearing.\nThis 3rd day of September, 1974.\nWilliam F. Wolcott, Jr.\nCity Clerk\u201d\nA second notice was published in The Asheville Times on 23 and 30 December 1974 that \u201caccording to the procedures and requirements contained in G.S. 160A-364 the continued public hearing will be concluded\u201d on 9 January 1974 (sic) \u201cconcerning the adoption of an ordinance amending and revising Ordinance No. 322, as amended, the Zoning Ordinance of the City of Asheville. ...\u201d A third notice was published in The Ashe-ville Times on 15 January 1975 that \u201c[t]he continued public hearing will be concluded\u201d on 16 January 1975 \u201cconcerning the adoption of an ordinance amending and revising Ordinance No. 322, as amended, the Zoning Ordinance of the City of Asheville at which time and place the City Council will place on its first reading said proposed ordinance after concluding said public hearing.\u201d The amended Ordinance No. 322, containing Section 30-1-3 making its provision applicable within the corporate limits \u201cand within the territory beyond the corporate limits for a distance of one mile in all directions,\u201d was adopted at a meeting of the Asheville City Council held on 20 February 1975.\nPlaintiff, the owner of a lot outside but within one mile of the city limits, placed a mobile home on his lot. He desires that this be used as a residence. Such a use is prohibited by the Asheville City Zoning Ordinance.\nIn moving for summary judgment, plaintiff contended that the ordinance was invalid insofar as it attempts to exercise extraterritorial zoning authority because the notices given by the City prior to adopting the ordinance failed to comply with constitutional and statutory requirements and because the ordinance itself failed to comply with such requirements as to defining boundaries in terms of geographical features identifiable on the ground. The court granted the motion and entered judgment, finding no genuine issue as to any material fact, and ruling that plaintiff was entitled to judgment as a matter of law for the reasons:\n\u201c1. That the Respondent City of Asheville failed to adequately provide notice of the public hearings conducted for the purpose of considering the proposed extensions of the zoning authority of the City of Asheville to properties located outside of the Corporate Limits of the City of Ashe-ville, North Carolina.\n2. That the boundaries for the extraterritorial zone, failed to meet the required definitiveness as required by NCGS 160A-360, as amended.\u201d\nThe court adjudged the ordinance invalid \u201cto the extent that it extends the zoning authority for the City of Asheville to the property\u201d of the plaintiff, and enjoined the City from enforcing the ordinance as it applies to plaintiff\u2019s property. From this judgment, the defendant City appealed.\nBennett, Kelly & Cagle, P.A., by Robert F. Orr for plaintiff appellee.\nPatla, Stram, Robinson & Moore, P.A., by Victor W. Buchanan for defendant appellant." }, "file_name": "0544-01", "first_page_order": 572, "last_page_order": 579 }