{
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  "name": "CITY OF WINSTON-SALEM v. DONALD R. ROBERTSON and wife, ALICE F. ROBERTSON",
  "name_abbreviation": "City of Winston-Salem v. Robertson",
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    "judges": [
      "Judges Phillips and Martin concur."
    ],
    "parties": [
      "CITY OF WINSTON-SALEM v. DONALD R. ROBERTSON and wife, ALICE F. ROBERTSON"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nPlaintiff-City contends the court erred in failing to find that closing one of defendants\u2019 two driveways on Ogburn Avenue represents a legitimate exercise of plaintiff-City\u2019s police power which does not require compensation. Defendants concede that ordinarily such action by the City \u201cin eliminating one of the two ingress and egress ways from [Ogburn Avenue] would be a legitimate use of the City\u2019s police power.\u201d However, citing Petroleum Marketers v. Highway Commission, 269 N.C. 411, 152 S.E. 2d 508 (1967), defendants contend, in essence, that the court did not err in finding a taking because plaintiff-City\u2019s approval for these driveway locations in 1969 constituted a binding agreement between the parties fixing access to Ogburn Avenue at those points.\nWe hold that the question is controlled by Haymore v. Highway Comm., 14 N.C. App. 691, 189 S.E. 2d 611, cert. denied, 281 N.C. 757, 191 S.E. 2d 855 (1972). In Haymore this Court held that the granting of a driveway permit by the State Highway Commission did not vest an irrevocable property right in plaintiff-landowners which could not thereafter be taken without compensation. 14 N.C. App. at 695-96, 189 S.E. 2d at 614-15. The Court reasoned:\nIt is true that compensation must be paid where under a right-of-way agreement the owner retains the right of access at a particular point and is subsequently refused access at that point. Petroleum Marketers v. Highway Commission, 269 N.C. 411, 152 S.E. 2d 508; Kirkman v. Highway Commission, 257 N.C. 428, 126 S.E. 2d 107; Williams v. Highway Commission, 252 N.C. 722, 114 S.E. 2d 782; Realty Co. v. Highway Comm., 1 N.C. App. 82, 160 S.E. 2d 83. In such instances, the right of continuing access at a particular point is a property right acknowledged by the State as a part of the consideration for the right-of-way agreement. The granting of an application for a driveway permit is not a contract. It is a regulatory action taken by the State for safety purposes and cannot be compared with a right-of-way agreement in which the property owner reserves access at a particular point.\nId. at 696, 189 S.E. 2d at 615. The Court also stated:\n[T]he Commission requires driveway permits for the purpose of assuring that a proposed driveway will be constructed in a safe manner and so as not to endanger travel upon the highway. This is an exercise of the general police power, and the granting of the permit does not vest an irrevocable property right in the property owner.\nId. at 695, 189 S.E. 2d at 614-15.\nFollowing Haymore, we hold that plaintiff-City\u2019s mere approval of defendants\u2019 Ogburn Avenue driveway location in 1969 was not an \u201cagreement\u201d between the parties but \u201ca regulatory action taken by [plaintiff-City] for safety purposes [which] cannot be compared with a right-of-way agreement in which the property owner reserves access at a particular point.\u201d Id. The trial court thus erred in finding a taking which required compensation by plaintiff-City. Accordingly, the order is reversed, and the cause is remanded for entry of an order in favor of plaintiff-City.\nReversed and remanded.\nJudges Phillips and Martin concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Womble Carlyle Sandridge & Rice, by Roddey M. Lig\u00f3n, Jr., and Gusti W. Frankel, for plaintiff appellant.",
      "Allman, Spry, Humphreys and Armentrout, by C. Edwin All-man and James W. Armentrout, for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "CITY OF WINSTON-SALEM v. DONALD R. ROBERTSON and wife, ALICE F. ROBERTSON\nNo. 8621SC169\n(Filed 1 July 1986)\nMunicipal Corporations \u00a7 33.4\u2014 closing of driveway by city \u2014 no taking requiring compensation\nPlaintiffs mere approval of defendants\u2019 driveway location in 1969 was not an agreement between the parties but a regulatory action taken by plaintiff for safety purposes which could not be compared with a right-of-way agreement in which the property owner reserved access at a particular point; thus, the trial court erred in finding that plaintiffs closing of defendants\u2019 driveway amounted to a taking which required compensation by plaintiff.\nAppeal by plaintiff from Wood, Judge. Order entered 18 November 1985 in Superior Court, FORSYTH County. Heard in the Court of Appeals 11 June 1986.\nIn 1969 defendants purchased a lot on the corner of Akron Drive and Ogburn Avenue in the City of Winston-Salem and constructed thereon a convenience store with gasoline pumps. Prior to constructing the store, defendant-husband presented a map of the proposed improvements to an official from the City of Winston-Salem, Department of Public Works, Streets Division. Defendant-husband sought plaintiff-City\u2019s approval of driveway locations on the lot. Plaintiff-City approved the map which provided for four driveways from city streets to defendants\u2019 property, one driveway each on Mentor Street and Akron Drive, and two driveways on Ogburn Avenue.\nOn 17 January 1984 plaintiff-City brought this condemnation action against defendants to acquire a permanent right-of-way and a construction easement for widening Akron Drive and improving the Akron Drive/Ogburn Avenue intersection. A hearing was held on 1 July 1985 to determine whether plaintiff-City\u2019s plan to close one of the two entrances to defendants\u2019 property on Ogburn Avenue pursuant to the modification and improvement of the Akron Drive/Ogburn Avenue intersection was a taking which required compensation or a legitimate exercise of plaintiff-City\u2019s police power which did not require compensation. The court concluded that there was a taking and ordered plaintiff-City to pay defendants just compensation for the closing of the driveway. From the order entered, plaintiff-City appeals.\nWomble Carlyle Sandridge & Rice, by Roddey M. Lig\u00f3n, Jr., and Gusti W. Frankel, for plaintiff appellant.\nAllman, Spry, Humphreys and Armentrout, by C. Edwin All-man and James W. Armentrout, for defendant appellees."
  },
  "file_name": "0673-01",
  "first_page_order": 697,
  "last_page_order": 699
}