{
  "id": 8525283,
  "name": "LILLIE C. CLARK v. CITY OF CHARLOTTE, a Municipal Corporation, DAVID BERRYHILL, CHARLIE DANNELLY, HARVEY GANTT, LAURA FRECH, RON LEEPER, RALPH McMILLAN, PAMELA PATTERSON, EDWIN PEACOCK, JR., GEORGE SELDEN, JR., HERBERT SPAUGH, JR., MINETTE TROSCH, and ROBERT YOUNG",
  "name_abbreviation": "Clark v. City of Charlotte",
  "decision_date": "1984-02-07",
  "docket_number": "No. 8226SC1349",
  "first_page": "437",
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    "judges": [
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    "parties": [
      "LILLIE C. CLARK v. CITY OF CHARLOTTE, a Municipal Corporation, DAVID BERRYHILL, CHARLIE DANNELLY, HARVEY GANTT, LAURA FRECH, RON LEEPER, RALPH McMILLAN, PAMELA PATTERSON, EDWIN PEACOCK, JR., GEORGE SELDEN, JR., HERBERT SPAUGH, JR., MINETTE TROSCH, and ROBERT YOUNG"
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      {
        "text": "BECTON, Judge.\nHH\nWe are asked to decide whether the trial court erred in affirming the Charlotte-Mecklenburg Planning Commission\u2019s interpretation of the procedural provisions of the Charlotte Zoning Ordinance, to prohibit a landowner from filing a second petition to amend the zoning classification within two years from a denial of the first petition. We affirm.\nII\nOn 25 January 1982, plaintiff, Lillie C. Clark, owner of a 2.38 acre tract zoned R-9MF (multi-family residential district) first filed a petition with the Commission to lower the zoning classification to B-D(CD) (distributive-warehouse). Clark, at the time, intended to build a mini-warehouse. After the public hearing on the petition on 15 March 1982, but before the City Council finally denied the petition on 19 April 1982, Clark\u2019s real estate agent, Cecil King, began negotiations to sell the land for use as a family steakhouse. King met with a Commission member to discuss submitting a second petition for the now needed B-l(CD) (business) zoning classification, a higher classification than in the original petition. The Commission member informed King that the procedural provisions of the zoning ordinance barred the Commission from accepting a second petition for the same or higher classification within two years from the first denial absent a showing of substantial changes in conditions or circumstances. On 24 May 1982, Clark requested permission from the City Council to file a second petition without a showing of substantial changes in conditions or circumstances. When the City Council failed to respond, Clark brought this declaratory judgment action seeking a mandatory injunction.\nFrom the trial court\u2019s decision in favor of the City, Clark appeals.\nS3 1 \u2014 4\nThe Commission complied with the procedural provisions of the Charlotte Zoning Ordinance in refusing to consider Clark\u2019s second petition. The following provisions of the Charlotte Zoning Ordinance govern the Commission\u2019s actions in the present case:\n(a) The city council may from time to time, on its own motion or on petition, after public notice and hearing as provided by law, amend, supplement or change, modify or repeal the boundaries or regulations herein or subsequently established. The city council may change the existing zoning classification of the area covered by the petition, or any part or parts thereof, to the classification requested or to a higher classification or classifications without the necessity of withdrawal or modification of the petition; provided, however, notices of hearings on such amendments shall inform the public that such action may be taken.\n(b) A petitioner may amend or withdraw his petition only with the approval of the city council. Requests for permission to amend or withdraw petitions for rezoning must be filed with the city council prior to the date established for the public hearing.\n(d) A petition for an amendment that has been denied shall not be again instituted earlier than two (2) years from the date of denial, unless the city council, after considering the advice of the planning commission, shall find that there have been substantial changes in conditions or circumstances bearing on the application.\nCharlotte, N.C., Code \u00a7 23-96 (1977) (emphasis added).\nGenerally, municipal ordinances and statutes enacted by the legislature are to be construed according to the same rules. MacPherson v. City of Asheville, 283 N.C. 299, 196 S.E. 2d 200 (1973). \u201cThe basic rule is to ascertain and effectuate the intention of the municipal legislative body. [Citations omitted.] We must therefore consider this section of the ordinance as a whole, [citations omitted]; and the provisions in pari materia must be construed together.\u201d George v. Town of Edenton, 294 N.C. 679, 684, 242 S.E. 2d 877, 880 (1978).\nConstruing the above provisions, we hold that a landowner is barred from petitioning the Charlotte City Council a second time for the same or higher zoning classification within two years from the first denial absent a showing of substantial changes in conditions or circumstances.\nSection 23-96 grants the City Council broad powers to respond to Charlotte\u2019s changing needs precipitated by its growth and development. See generally 8 E. McQuillin, The Law of Municipal Corporations \u00a7 25.73, at 207-08 (3d ed. 1983). Pursuant to section 23-96(a), the City Council has the authority to amend a zoning classification on its own motion or on petition. If on petition, the council has the discretion to amend the zoning classification to one higher than one requested in the petition without withdrawing or modifying the petition. On petition the Council has no discretion to amend to a lower classification than requested.\nSection 23-96(d), the waiting period provision, must be read in light of section 23-96(a). George. Therefore, denial of a petition reflects the City Council\u2019s consideration of the particular zoning classification requested and all higher classifications. Implicit within a denial is the City Council\u2019s decision that the property\u2019s present classification represents its highest proper use at this time. See Tyrie v. Baltimore County, 215 Md. 135, 137 A. 2d 156 (1957). The waiting period provision permits the City to grow and develop before the City Council reconsiders the classification. Moreover, the waiting period seems to be designed to protect the residents of the area from \u201cthe burden of having to protest and defend against a series of repetitious applications.\u201d George, 294 N.C. at 686, 242 S.E. 2d at 882 (quoting Stephens v. Montgomery County Council, 248 Md. 256, 258, 235 A. 2d 701, 702 (1967)). Our construction of sections 23-96(a) and (d) supports these dual purposes. In light of the intention of the Charlotte City Council, we conclude that the Commission properly interpreted the procedural provisions of the Charlotte Zoning Ordinance.\nThe trial court\u2019s decision is\nAffirmed.\nJudges Hedrick and Whichard concur.",
        "type": "majority",
        "author": "BECTON, Judge."
      }
    ],
    "attorneys": [
      "Newitt, Bruny & Koch, by John G. Newitt, Jr., for plaintiff appellant.",
      "Assistant City Attorney David M. Smith, for defendant ap-pellees."
    ],
    "corrections": "",
    "head_matter": "LILLIE C. CLARK v. CITY OF CHARLOTTE, a Municipal Corporation, DAVID BERRYHILL, CHARLIE DANNELLY, HARVEY GANTT, LAURA FRECH, RON LEEPER, RALPH McMILLAN, PAMELA PATTERSON, EDWIN PEACOCK, JR., GEORGE SELDEN, JR., HERBERT SPAUGH, JR., MINETTE TROSCH, and ROBERT YOUNG\nNo. 8226SC1349\n(Filed 7 February 1984)\nMunicipal Corporations \u00a7 30.20\u2014 prohibition of second petition within certain time\nUnder the Charlotte Zoning Ordinance, a landowner is barred from petitioning the Charlotte City Council a second time for the same or a higher zoning classification within two years from the first denial absent a showing of substantial changes in conditions or circumstances.\nAppeal by plaintiff from Snepp, Judge. Judgment entered 28 September 1982 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 17 November 1983.\nNewitt, Bruny & Koch, by John G. Newitt, Jr., for plaintiff appellant.\nAssistant City Attorney David M. Smith, for defendant ap-pellees."
  },
  "file_name": "0437-01",
  "first_page_order": 469,
  "last_page_order": 472
}