No. 7215SC272.

187 S.E.2d 496 (1972)

13 N.C. App. 688

Frank H. KENAN, Petitioner, v. BOARD OF ADJUSTMENT OF the TOWN OF CHAPEL HILL et al., Respondents.

Court of Appeals of North Carolina.

Certiorari Denied May 24, 1972.

Attorney(s) appearing for the Case

Manning, Allen & Hudson by James Allen, Jr., Chapel Hill, for petitioner appellants.

Haywood, Denny & Miller by Emery B. Denny, Jr., Chapel Hill, for respondent appellees.

Certiorari Denied by Supreme Court May 24, 1972.


Petitioner contends that under the ordinance, Sections 4-B-1(a) (1), (3) and (4), the Board of Adjustment is given the authority to grant or withhold special use permits in its discretion without proper standards. Petitioner argues that this is a delegation of the legislative power to an administrative body and is therefore unconstitutional under Article II, Section 1 and Article I, Section 19 of the North Carolina Constitution.

The authority of the Chapel Hill Board of Aldermen to enact a zoning ordinance and establish a Board of Adjustment was, at the time of this action, conferred by G.S. § 160-172 which states in part that:

". . . Such [zoning] regulations may provide that a board of adjustment may determine and vary their application in harmony with their general purpose and intent and in accordance with general or specific rules therein contained."

G.S. § 160-178 in effect at the time of this action, provided further that:

". . . It [Board of Adjustment] shall also hear and decide all matters referred to it or upon which it is required to pass under any such ordinance. . . ."

Petitioner contends that the Chapel Hill ordinance enacted pursuant to these statutes does not include sufficient standards to guide the Board of Adjustment and therefore the Board of Adjustment has, in effect the power to legislate by deciding in its own discretion who shall and who shall not be issued special use permits.

The Chapel Hill ordinance requires that special use permits be issued before certain activities can be conducted. Among the activities covered is the operation of a drive-in business, specifically including automobile service stations. Ordinance, Section 4-D-6.

In Jackson v. Board of Adjustment, 275 N.C. 155, 166 S.E.2d 78 (1969), the North Carolina Supreme Court discussed extensively the problem of delegation of authority to administrative boards. In Jackson, Justice Lake quoted with approval the following from Carolina-Virginia Coastal Highway v. Turnpike Authority, 237 N.C. 52, 74 S.E.2d 310 (1953):

"`Here we pause to note the distinction generally recognized between a delegation of the power to make a law, which necessarily includes a discretion as to what it shall be, and the conferring of authority or discretion as to its execution. The first may not be done, whereas the latter, if adequate guiding standards are laid down, is permissible under certain circumstances. * * * * * * "`In short, while the Legislature may delegate the power to find facts or determine the existence or non-existence of a factual situation or condition on which the operation of a law is made to depend, or another agency of the government is to come into existence, it cannot vest in a subordinate agency the power to apply or withold the application of the law in its absolute or unguided discretion. 11 Am.Jur., Constitutional Law, Sec. 234. * * *'"

In Jackson the Court struck down a requirement that the Board of Adjustment find that the requested use did not "adversely affect the public interest." The determination of what is in the public interest was held to be beyond the authority of the Board. The court did, however, uphold a provision of the ordinance requiring a permit to be granted "`in accordance with the principles, conditions, safeguards and procedures specified in this ordinance,'" or to be denied "`when not in harmony with the purpose and intent of this ordinance.'"

The Chapel Hill ordinance requires a permit to be issued only when the Board of Adjustment makes an affirmative finding as follows:

"(1) that the use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved, (2) that the use meets all required conditions and specifications, (3) that the use will not substantially injure the value of adjoining or abutting property, or that the use is a public necessity, and (4) that the locations and character of the use, if developed according to the plan submitted and approved, will be in harmony with the area in which it is to be located and in general conformity with the plan of development of Chapel Hill and its environs." Ordinance, Section 4-B-1(a).

In Jackson the Court stated the rule that:

"When a statute, or ordinance, provides that a type of structure may not be erected in a specified area, except that such structure may be erected therein when certain conditions exist, one has a right, under the statute or ordinance, to erect such structure upon a showing that the specified conditions do exist. The legislative body may confer upon an administrative officer, or board, the authority to determine whether the specified conditions do, in fact, exist and may require a permit from such officer, or board, to be issued when he or it so determines, as a further condition precedent to the right to erect such structure in such area. . . ."

The Chapel Hill ordinance does not allow the Board of Adjustment unbridled discretion. It has only the authority to determine whether the specified conditions have been met. This is within the proper authority of the Board under the rules set forth above.

One applying for a special use permit has merely to show that the use meets the conditions specified in the ordinance and a special use permit will be issued. The authority of the Board of Adjustment to determine whether the conditions specified in ordinance have been met is well within the rules set forth in Jackson v. Board of Adjustment, supra. We find the ordinance to be valid at the time this action was instituted.

The petitioner's next contention is that the decision of the Board of Adjustment was not supported by competent, material and substantial evidence.

The findings of the Board, where unfavorable to petitioner, were that sufficient evidence had not been presented to allow the Board to determine if the conditions set out in the ordinance had been met.

The ordinance requires that certain conditions be met before a special use permit can be granted. The petitioner has the burden of satisfying the Board that it meets these conditions. Craver v. Zoning Board of Adjustment, 267 N.C. 40, 147 S.E.2d 599 (1966). The Board in this case has not found as a fact that petitioner fails to meet the conditions set forth in the ordinance. It has merely found that petitioner has failed to produce sufficient evidence for the Board to make the required findings. There are no presumptions in favor of the petitioner and the petitioner merely failed in proof.

Petitioner had the burden of introducing evidence that the conditions required by the ordinance had been met. He failed to introduce such evidence. We find no merit in petitioner's argument.


BRITT and GRAHAM, JJ., concur.


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