Clinton v. Oil Co.

22 Citing cases

  1. MacRae v. Fayetteville

    150 S.E. 810 (N.C. 1929)   Cited 16 times

    Building a filling station on plaintiff's lot would be within 250 feet of a dwelling or residence. Automobiles are here to stay, and are now generally used for business and pleasure, and it is necessary for the convenience of the public that filling stations and garages be established and even in residential sections of cities and towns they are held not to be nuisances per se. Hanes v. Carolina Cadillac Co., 176 N.C. p. 351; Bizzell v. Goldsboro, 192 N.C. 348; Clinton v. Oil Co., 193 N.C. 432. In every civilized country it is well-settled, with rare exceptions, that private property cannot be taken for private purposes and private property can only be taken for public purposes upon the payment of just compensation.

  2. Standard Oil Co. v. City of Charlottesville

    42 F.2d 88 (4th Cir. 1930)   Cited 15 times

    A classification manifestly has no such reasonable relation where it forbids one person to carry on a business on the ground that it is dangerous to the community, and allows another person similarly situated to carry on the same business simply because he happens to be engaged in it at the time of the passage of the ordinance. Schappi Bus Line v. City of Hammond (C.C.A. 7th) 11 F.2d 940; Town of Clinton v. Standard Oil Co., 193 N.C. 432, 137 S.E. 183, 55 A.L.R. 252; Crowley v. West, 52 La. Ann. 527, 27 So. 53, 47 L.R.A. 652, 78 Am. St. Rep. 355; Tugman v. City of Chicago, 78 Ill. 405; In re Bohen, 115 Cal. 372, 47 P. 55, 36 L.R.A. 618; Ex parte Dondero, 19 Cal.App. 66, 124 P. 884; Hudson v. Thorne, 7 Paige (N.Y.) 261. An ordinance providing that it should be unlawful to store gasoline or kerosene in wooden buildings in a city, but exempting from the terms of the ordinance wooden buildings in which they were stored at the time of the passage of the ordinance, would be absurdly discriminatory, but no more so, we think, than the ordinance in question, when it is remembered that the only power to pass it is a charter provision which, for the safety of the public, authorizes that the sale of gasoline be regulated. So far as the public safety is concerned, it can make no possible difference that the business was being carried on at the time of the passage of the ordinance. The line of cases exempting existing businesses from the terms of zoning ordi

  3. Maines v. City of Greensboro

    300 N.C. 126 (N.C. 1980)   Cited 28 times
    Noting that "[a]t the threshold of any procedural due process claim is the question of whether the complainant has a liberty or property interest, determinable with reference to state law, that is protectible under the due process guaranty"

    Turning now to the merits of plaintiff's constitutional challenges, we recognize the validity of the general rule that an ordinance on its face must be fair and impartial and must not permit unwarranted discrimination. Clinton v. Standard Oil Co., 193 N.C. 432, 137 S.E. 183 (1927); 5 E. McQuillin Municipal Corporations 18.09 (3d Ed. 1969). Furthermore, it is well settled that an ordinance which vests unlimited or unregulated discretion in a municipal officer is void. Bizzell v. Board of Aldermen, 192 N.C. 348, 135 S.E. 50 (1926). Plaintiff alleges that Section 4 of the challenged portion violates the general rule by vesting unlimited discretion in the City Manager to enforce the ordinance.

  4. Skaggs-Albertson's v. ABC Liquors, Inc.

    363 So. 2d 1082 (Fla. 1978)   Cited 35 times
    Stating that the “special damage” rule still has vitality in actions seeking to enforce a valid zoning ordinance, albeit with a more liberal application

    332 So.2d at 116. In announcing the principle that the prevention of competition is not a proper element of zoning, the Michels court echoed a rule recognized by a number of authorities in other jurisdictions. Mott's Realty Corp. v. Town Plan Zoning Commission of Windsor, 152 Conn. 535, 209 A.2d 179 (1965); Farr v. Zoning Board of Appeals, 139 Conn. 577, 95 A.2d 792 (1953); Benson v. Zoning Board of Appeals, 129 Conn. 280, 284, 27 A.2d 389, 391 (1942); 179 Duncan Ave. Corp. v. Board of Adjustment of Jersey City, 122 N.J.L. 292, 293, 5 A.2d 68 (1939); Lehrer v. Board of Adjustment of City of Newark, 137 N.J.L. 100, 58 A.2d 265 (1948); Town of Clinton v. Standard Oil Co., 193 N.C. 432, 137 S.E. 183 (1927); Board of County Supervisors of Fairfax County v. Davis, 200 Va. 316, 106 S.E.2d 152 (1958); Circle Lounge Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 86 N.E.2d 920 (1949); Metzenbaum Zoning (2d Ed.), Ch. X-m-(10). In the instant case, the District Court of Appeal, Fourth District, appeared to deviate from this principle when it explained:

  5. In re Application of Ellis

    277 N.C. 419 (N.C. 1970)   Cited 32 times
    Holding that where applicant had satisfied all ordinance requirements, commissioners could not deny permit simply in their discretion

    Id. at 612, 14 S.E. at 388. Accord, Bizzell v. Goldsboro, 192 N.C. 348, 135 S.E. 50; Clinton v. Oil Co., 193 N.C. 432, 137 S.E. 183. [4-6] A special exception within the meaning of a zoning ordinance is one which is expressly permitted in a given zone upon proof that certain facts and conditions detailed in the ordinance exist.

  6. City of Raleigh v. R. R. Co.

    275 N.C. 454 (N.C. 1969)   Cited 21 times
    In City of Raleigh v. R. R. Co., 275 N.C. 454, 464, 168 S.E.2d 389, 396 (1969), our Supreme Court held that construction of a proposed but not yet enacted ordinance presents no justiciable controversy under the Declaratory Judgment Act.

    The Court in so deciding said: (T)he police power is subject to all the constitutional limitations which protect basic property rights, and therefore must be exercised at all times in subordination to Federal and State constitutional limitations and guarantees. Clinard v. Winston-Salem, 217 N.C. 119, 6 S.E.2d 867; Brewer v. Valk, supra ( 204 N.C. 186); Clinton v. Oil Co., 193 N.C. 432, 137 S.E. 183; S. v. Whitlock, 149 N.C. 542, 63 S.E. 123; S. v. Williams, 146 N.C. 618, 61 S.E. 61. . . .

  7. Cheek v. City of Charlotte

    273 N.C. 293 (N.C. 1968)   Cited 38 times
    In Cheek v. City of Charlotte, 273 N.C. 293, 160 S.E.2d 18 (1968), a Charlotte massage ordinance excluded from its scope massages performed at YMCA's, YWCA's, and licensed barber and beauty shops while taking aim at massages performed in commercial parlors.

    16A C.J.S. Constitutional Law 496 (1956). (Emphasis added); Clinton v. Oil Co., 193 N.C. 432, 137 S.E. 183; State v. Glidden Co., 228 N.C. 664, 46 S.E.2d 860. Inequalities and classifications, however, do not, per se, render a legislative enactment unconstitutional. Ramsey v. Veterans Commission, 261 N.C. 645, 135 S.E.2d 659; State v. Trantham, 230 N.C. 641, 55 S.E.2d 198; 2 Strong, N.C. Index 2d, Constitutional Law 20 (1967).

  8. Kreatchman v. Ramsburg

    224 Md. 209 (Md. 1961)   Cited 36 times
    Dismissing an appeal by a taxpayer who had been permitted by the circuit court to intervene as a party in a zoning case but did not have a sufficient interest in the subject matter of the appeal to have standing

    Competition was certainly not an actual issue in the Loughborough case, and the decision did not turn on it. The passage quoted, however, hints at the rule recognized by a number of authorities in other jurisdictions that the prevention of competition is not a proper element of zoning. Farr v. Zoning Board of Appeals, 139 Conn. 577, 95 A.2d 792; Benson v. Zoning Board of Appeals, 129 Conn. 280, 284, 27 A.2d 389, 391; 179 Duncan Ave. Corp. v. Board of Adjustment of Jersey City, 122 N.J.L. 292, 293, 5 A.2d 68; Lehrer v. Board of Adjustment of City of Newark, 137 N.J.L. 100, 58 A.2d 265; Town of Clinton v. Standard Oil Co., 193 N.C. 432, 137 S.E. 183; Board of County Supervisors of Fairfax County v. Davis, 200 Va. 316, 106 S.E.2d 152; Circle Lounge Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 86 N.E.2d 920; Metzenbaum, Zoning (2d Ed.), Ch. X-m-(10). In appeals from zoning boards, a competitor is usually not regarded as an "aggrieved party."

  9. Winston-Salem v. R. R

    248 N.C. 637 (N.C. 1958)   Cited 19 times
    In Winston-Salem v. R. R., 248 N.C. 637, 105 S.E.2d 37, City relied upon the quoted portions of Section 54 of City's Charter as authority for the ordinance then under consideration.

    1. That the police power is subject to all the constitutional limitations which protect basic property rights, and therefore must be exercised at all times in subordination to Federal and State constitutional limitations and guarantees. Clinard v. Winston-Salem, 217 N.C. 119, 6 S.E.2d 867; Brewer v. Valk, supra ( 204 N.C. 186); Clinton v. Oil Co., 193 N.C. 432, 137 S.E. 183; S. v. Whitlock, 149 N.C. 542, 63 S.E. 123; S. v. Williams, 146 N.C. 618, 61 S.E. 61. 2.

  10. Consumers Gas. Sta. v. City of Pulaski

    200 Tenn. 480 (Tenn. 1956)   Cited 5 times   5 Legal Analyses

    So far as the public safety is concerned, it can make no possible difference that the business was being carried on at the time of the passage of the ordinance. Standard Oil Co. of N.J. v. City of Charlottesville, 4 Cir., 42 F.2d 88; Boothby v. City of Westbrook, 138 Me. 117, 23 A.2d 316; Town of Clinton v. Standard Oil Co., 193 N.C. 432, 137 S.E. 183, 55 A.L.R. 252. An ordinance which forbids a person from operating a filling station on his property, while allowing the owner of other similar property to use it for that purpose because the other's property was so used when the ordinance became effective, is unconstitutional in that it unquestionably denies the equal protection of the laws to the person forbidden to use his property for a filling station.