NORTH CAROLINA COURT OF APPEALS
1 October 2002
HUNTINGTON PROPERTIES, LLC, a Michigan Limited Liability
Corporation, and CAROLINA VILLAGE, LLC, a Michigan Limited
CURRITUCK COUNTY, ELDON L. MILLER, JR., S. PAUL O’NEAL, ERNIE
BOWDEN, GENE A. GREGORY and J. OWEN ETHERIDGE, in their official
Appeal by plaintiffs from order entered 15 March 2001 by Judge
William C. Griffin, Jr., in Currituck County Superior Court. Heard
in the Court of Appeals 24 April 2002.
Smith Helms Mulliss & Moore, L.L.P., by Thomas E. Terrell,
Jr., and Neale T. Johnson, for plaintiff appellants.
Poyner & Spruill, by Robin L. Tatum and Kacey C. Sewell, for
This case arises from a declaratory judgment action, the
pertinent facts of which are as follows:
In July 1995, Dutch Key
Corporation (Dutch Key) purchased Orchard Park, a 90-acre mobile
home park in Currituck County, North Carolina.
Orchard Park was
constructed in 1972 and was approved to accommodate 440 mobile
homes on the land, including pads, sewer, water, and electrical
At the time Orchard Park opened, it was a permitted
use under Currituck County (County) zoning.
After Orchard Park
opened, but prior to its purchase by plaintiffs, the County adopted
the Uniform Development Ordinance (UDO); Article 15 of the UDO
-2governed “nonconforming situations.”
In 1992, the County amended
the UDO to prohibit mobile home parks altogether, except as lawful
nonconforming uses, which Orchard Park was.
Orchard Park retained
its status as a legal nonconforming use under UDO §§ 1501(1)(g) and
As a result of the County’s amendments to the UDO, Orchard
Park has operated as a nonconforming use since at least November
Orchard Park operated near capacity in the 1970s and 1980s.
During that time, Orchard Park’s owners provided sewer services to
its residents using a private wastewater treatment system.
system was approved by the State of North Carolina; when such
approvals were later assigned to the Division of Environmental
Management (DEM), DEM also approved the system.
During the 1980s,
environmental regulations concerning private wastewater treatment
systems became more demanding.
By 1987, Orchard Park’s wastewater
residents, due to a 29,000 gallon daily limit on the amount of
treated water that could be sprayed onto the system’s spray fields.
The 1992 UDO restricted owners from enlarging or increasing
structures on open land if such activity resulted in
an increase in the total amount of space
devoted to a nonconforming use; or
greater nonconformity with respect to
dimensional restrictions such as setback
-3UDO § 1504(1).
UDO § 1504(4) stated that
[t]he volume, intensity, or frequency of use
of property where a nonconforming situation
exists may be increased and the equipment or
nonconforming situation exists may be changed
if these or similar changes amount only to
changes in the degree of activity rather than
changes in kind and no violation of other
paragraphs of this section occur.
structures was permissible to refurbish or replace what previously
existed so long as Article 15 of the UDO was not violated.
[f]or purposes of determining whether a right
to continue a nonconforming situation is lost
maintained on a lot are generally to be
considered as a whole.
For example, the
failure to rent one (1) apartment in a
nonconforming apartment building for 270 days
shall not result in a loss of the right to
rent that apartment or space thereafter so
long as the apartment building as a whole is
nonconforming use is maintained in conjunction
with a conforming use, discontinuance of a
nonconforming use for the required period
shall terminate the right to maintain it
UDO § 1507(3).
In December 1995, Dutch Key hired an engineer to design,
upgrade, and apply for permits for a wastewater treatment system
that would comply with DEM regulations to serve all 440 rental
spaces at Orchard Park.
When the County learned of Dutch Key’s
-4actions, its Board of Commissioners amended UDO § 1504(9) by adding
a new paragraph, which stated:
Improvements to water and sewage treatment
systems in order to accommodate more mobile
homes in a mobile home park shall be
considered an enlargement of a nonconforming
However, improvements to a water and sewage
treatment system serving a mobile home park
for the purpose of improving public health
that will not result in an increase in the
number of mobile homes within the park shall
be permitted. (Amended 8/19/96)
UDO § 1504(9) (hereinafter the Amendment).
The Amendment was
finalized on 19 October 1996.
On 17 October 1996, Dutch Key filed a complaint challenging
the validity of the Amendment and sought a judgment declaring the
Amendment void, as well as a permanent injunction to enjoin the
County from enforcing the Amendment against it. Dutch Key believed
it could continue operating Orchard Park at its original capacity
of 440 mobile homes because “the use of plaintiff’s property as a
mobile home park has not been discontinued for a consecutive period
of 270 days at any point in time since Orchard Park first opened.”
The County filed its answer on 2 August 2000.
The delay in
answering was caused by questions regarding whether Dutch Key’s
original counsel could represent it in this action.
On 29 January
2001, the parties consented to substitution of counsel.
February 2001, Dutch Key moved to substitute real parties in
interest because “[t]he affected property has been sold by
. . .
Dutch Key Corporation, and its successors in interest and current
owners are Carolina Village, L.L.C., a Michigan limited liability
-5corporation, and Huntington Properties, L.L.C., a Michigan limited
On 13 March 2001, the trial court allowed
The case was heard at the 5 March 2001 Civil Session
of Currituck County Superior Court on defendants’ N.C. Gen. Stat.
§ 1A-1, Rule 12(b)(6) (2001) motion to dismiss.
On 15 March 2001,
the trial court entered an order granting the County’s motion to
dismiss the action.
On appeal, plaintiffs argue the trial court erred in granting
the County’s motion to dismiss because (I) UDO §§ 1507(3) and
treatment system to serve existing but unoccupied spaces at Orchard
Park; (II) UDO Article 15 was improperly construed to impair
plaintiffs’ vested rights; (III) the General Assembly granted
exclusive authority to the Department of Environment and Natural
protection under the state and federal constitutions were violated.
For the reasons set forth herein, we disagree with plaintiffs’
arguments and affirm the action of the trial court.
“A motion to dismiss under N.C. Gen. Stat. § 1A-1, Rule
12(b)(6) tests the legal sufficiency of the complaint, which will
be dismissed if it is completely without merit.”
Town of Beech
Mountain v. County of Watauga, 91 N.C. App. 87, 89, 370 S.E.2d 453,
454-55 (1988), aff’d, 324 N.C. 409, 378 S.E.2d 780, cert. denied,
493 U.S. 954, 107 L. Ed. 2d 351 (1989) (citations omitted).
main inquiry is “whether, as a matter of law, the allegations of
-6the complaint, treated as true, are sufficient to state a claim
upon which relief may be granted under some legal theory[.]”
Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987).
When evaluating zoning ordinances, the following rules apply:
“It is well established that a duly adopted zoning ordinance is
presumed to be valid and the burden is on the complaining party to
show it to be invalid.”
Williams v. Town of Spencer, 129 N.C. App.
828, 830-31, 500 S.E.2d 473, 475 (1998).
This is a heavy burden.
Prohibition of the expansion of a nonconforming use is lawful
and consistent with good zoning practices. A county has legitimate
power to regulate the extent to which nonconforming uses can be
extended, expanded and enlarged.
See N.C. Gen. Stat. § 153A-340
(2001); and Williams, 129 N.C. App. 828, 500 S.E.2d 473.
Court has consistently held that nonconforming uses are common;
however, “[a]ny expansion of a nonconforming use is . . .
Pamlico Marine Co., Inc. v. N.C. Dept. of Natural
Resources, 80 N.C. App. 201, 203-04, 341 S.E.2d 108, 111 (1986).
“Zoning ordinances are construed against indefinite continuation of
a nonconforming use.
Ordinances in general are construed to give
effect to all of their parts if possible.”
Forsyth Co. v. Shelton,
74 N.C. App. 674, 676, 329 S.E.2d 730, 733, appeal dismissed, disc.
review denied, 314 N.C. 328, 333 S.E.2d 484 (1985) (citations
[n]on-conforming uses are not favored by the
law. Most zoning schemes foresee elimination
of non-conforming uses either by amortization,
or attrition or other means.
with this policy, zoning ordinances are
continuation of non-conforming uses.
CG&T Corp. v. Bd. of Adjustment of Wilmington, 105 N.C. App. 32,
39, 411 S.E.2d 655, 659-60 (1992) (quoting Appalachian Poster
Advertising Co. v. Board of Adjustment, 52 N.C. App. 266, 274, 278
S.E.2d 321, 326 (1981) (citations omitted)). With these principles
in mind, we turn to the arguments presented by the parties.
Right to Lease Existing but Unoccupied Rental Spaces
By their first assignment of error, plaintiffs contend the
trial court erred in interpreting UDO §§ 1507(3) and 1504(9) to
prevent them from upgrading their wastewater treatment system to
serve existing but unoccupied rental spaces at Orchard Park.
Plaintiffs argue the trial court’s interpretation of UDO Article 15
was erroneous as a matter of law because it failed to read and
harmonize the statute as a whole, failed to apply the directly
applicable statutory provision and applied an incorrect provision
instead, and failed to give the benefit of the doubt to plaintiffs.
We do not agree.
construed in pari materia and harmonized, if possible, to give
effect to each.”
Bd. of Adjmt. of the Town of Swansboro v. Town of
Swansboro, 334 N.C. 421, 427, 432 S.E.2d 310, 313, reh’g denied,
335 N.C. 182, 436 S.E.2d 369 (1993). “‘[T]he various provisions of
an act should be read so that all may, if possible, have their due
and conjoint effect without repugnancy or inconsistency, so as to
render the statute a consistent and harmonious whole.’”
-8Bakeries Co., 234 N.C. 440, 442, 67 S.E.2d 459, 461 (1951) (quoting
50 Am. Jur. Statutes § 363).
Portions of the same statute dealing
with the same subject matter are “‘to be considered and interpreted
as a whole, and in such case it is the accepted principle of
statutory construction that every part of the law shall be given
effect if this can be done by any fair and reasonable intendment
. . . .’”
In re Hickerson, 235 N.C. 716, 721, 71 S.E.2d 129, 132
Article 15 of the County’s UDO prevented landowners engaged in
a nonconforming use from enlarging or extending the nonconforming
use (UDO § 1504), wholly replacing the structure or facility that
constituted the nonconforming use (UDO § 1505(1)(c)), changing the
use of property to a different nonconforming use (UDO § 1506), and
restarting a nonconforming use after it has been discontinued for
maintain Article 15, § 1502 of the UDO expressly allows legal,
nonconforming uses to continue and be replenished to their original
use or occupancy:
Unless otherwise specifically provided in
these regulations and subject to the
restrictions and set forth in Article 15,
otherwise lawful on the effective date of
this Ordinance may be continued.
Nonconforming projects may be completed
only in accordance with the provisions of
To reach this result, plaintiffs argue Orchard Park should be
examined as a whole -- a mobile home park with 440 rentable spaces.
-9Furthermore, because some spaces were continuously rented, the
park’s operations never fully ceased for any period of time, much
Plaintiffs refer to UDO § 1507's apartment example to argue that
full occupancy is not the test to determine when a use has been
Lastly, plaintiffs note that when “the zoning and
subdivision regulations are in derogation of private property, such
provisions should be liberally construed in favor of the owner.”
River Birch Associates v. City of Raleigh, 326 N.C. 100, 111, 388
S.E.2d 538, 543 (1990).
Plaintiffs believe there is ambiguity in
the wording and placement of UDO § 1504(9), such that the trial
court erred in resolving the ambiguity against them.
We agree with the County that the UDO, both before and after
passage of the Amendment, prohibited expansion of plaintiffs’
As of both 1992 (when the mobile home park
became a nonconforming use) and 1995 (when Dutch Key purchased
plaintiffs could have rented the additional existing spaces (beyond
the 140 mobile homes that could be serviced under the 29,000 gallon
per day water limits) because neither Dutch Key nor plaintiffs had
a state permit to sell those additional spaces.
See UDO § 1502(1).
At the time Orchard Park became a nonconforming use, it was only
permitted to rent a total of 140 spaces -- not 440 -- because of
the water limits. Therefore, any number of spaces greater than 140
was never a part of the nonconforming situation and was incapable
of falling under UDO § 1507's provision for “Abandonment and
plaintiffs’ first assignment of error is overruled.
By their second assignment of error, plaintiffs contend the
trial court erroneously interpreted UDO Article 15 in a way that
impaired plaintiffs’ vested rights.
“The ‘vested rights’ doctrine has evolved as a constitutional
limitation on the state’s exercise of its police power to restrict
an individual’s use of private property by the enactment of zoning
ordinances.” Godfrey v. Zoning Bd. of Adjustment, 317 N.C. 51, 62,
344 S.E.2d 272, 279 (1986); Town of Hillsborough v. Smith, 276 N.C.
48, 55, 170 S.E.2d 904, 909 (1969).
“[A] determination of the
‘vested rights’ issue requires resolution of questions of fact,
including reasonableness of reliance, existence of good or bad
faith, and substantiality of expenditures.”
Godfrey, 317 N.C. at
63, 344 S.E.2d at 279.
Plaintiffs argue that, because their case was dismissed before
discovery could begin, they were unable to ascertain the nature of
the permits (site plan approval, building permits, electrical
permits, Health Department permits, and so forth) they needed to
obtain. They assert the only available method for establishing the
strength of their claim is discovery.
If the case were allowed to
proceed, plaintiffs believe the permits would show that Orchard
permitted by the County, and that they built Orchard Park in good
faith reliance on those permits.
Thus, plaintiffs maintain they
-11have a vested right to repopulate the entire mobile home park, up
to the original capacity of 440 units.
Defendants argue plaintiffs’ vested rights claim fails because
plaintiffs cannot show they had either the County’s permission or
a valid permit authorizing them to expand Orchard Park to 440 units
before the Amendment was enacted in 1996. Defendants also maintain
plaintiffs cannot prove they made substantial expenditures in
reviewing the history of this case, we agree with defendants that
plaintiffs cannot carry their burden.
Plaintiffs could have established vested rights in Orchard
Park by (1) obtaining zoning and building permits from the State
which would have allowed them the right to expand Orchard Park, or
(2) obtaining a final interpretation of the UDO from the County’s
Planning Staff stating that they were allowed to operate Orchard
Park at a capacity over 140 units.
Upon examination of the record,
however, it is clear that plaintiffs neither applied for nor
obtained state permits to operate Orchard Park at a capacity over
Consequently, plaintiffs failed to show their “obligations and/or
expenditures were made in reasonable reliance on and after the
issuance of a valid building permit, if such permit is required[.]”
Browning-Ferris Industries v. Guilford County Bd. of Adj., 126 N.C.
App. 168, 171, 484 S.E.2d 411, 414 (1997).
The record also
indicates that plaintiffs never obtained a final interpretation of
the UDO from the County’s Planning Staff.
In fact, it would have
-12been impossible for plaintiffs to have obtained permission to
expand Orchard Park because a 440-unit mobile home park was not
otherwise lawful at the time Orchard Park became nonconforming in
1992, much less when the Amendment was passed in 1996.
We also note that plaintiffs failed to follow the proper
avenue for appealing their situation.
Article 21 of Currituck
County’s UDO gives the County Planning Staff jurisdiction to make
initial interpretations of its provisions. See UDO § 1913. Appeal
is then to the Board of Adjustment and then to the superior court
under a writ of certiorari.
See UDO Article 21.
action, as plaintiffs have used here, has not been allowed to
proceed or successfully challenge a nonconforming use. See Fantasy
World, Inc. v. Greensboro Bd. of Adjustment, 128 N.C. App. 703, 496
S.E.2d 825, appeal dismissed, disc. review denied, 348 N.C. 496,
challenging nonconforming use issues).
Moreover, we agree with defendants that plaintiffs’ proposed
upgrade in Orchard Park’s wastewater treatment system was an
increase in the extent of the nonconforming use.
attempts to prevent this expansion is in harmony with the State’s
See In re O’Neal, 243 N.C. 714, 92 S.E.2d 189
(1956); In re Appeal of Hasting, 252 N.C. 327, 113 S.E.2d 433
(1960); and Kirkpatrick v. Village Council, 138 N.C. App. 79, 530
S.E.2d 338 (2000).
We believe plaintiffs’ arguments are without merit for a
-13number of other reasons.
First, plaintiffs’ brief asserts that
“[o]nly during discovery can Huntington establish the strength of
Plaintiffs evidently argue that whenever a Rule
12(b)(6) motion is pending, the case should not be dismissed so
However, fishing expeditions of this sort are not
contemplated by Rule 12(b)(6), which allows dismissals based upon
Second, plaintiffs stated that the contents of the
permits were “not known.”
It follows, then, that plaintiffs could
never have relied upon them in good faith.
Lastly, we note that
permits (such as those sought by plaintiffs) are issued by the
State and are easily obtainable public records.
We do not believe
plaintiffs could only learn of the existence and details of such
permits through legal discovery procedures.
We therefore conclude
that the trial court properly dismissed plaintiffs’ vested rights
claim, and this assignment of error is overruled.
By their third assignment of error, plaintiffs contend the
trial court erred in granting defendants’ motion to dismiss and in
ruling the General Assembly did not grant exclusive authority in
the Department of Environment and Natural Resources (DENR) to
regulate wastewater treatment systems.
Plaintiffs believe the
power to regulate wastewater treatment systems lies exclusively
with the DENR, so that the County was not within its rights by
trying to prevent plaintiffs from updating their system.
support of their contention, plaintiffs point to the detail and
-14volume of the North Carolina Administrative Code’s references on
the subject of wastewater treatment systems.
After reviewing the County’s Amendment, we believe it is most
accurately described as a zoning ordinance that clarifies what
constitutes the impermissible expansion of a nonconforming use. It
is not, as plaintiffs argue, an attempt by the County to control
wastewater treatment systems.
Our conclusion is bolstered by the
fact that the Amendment is found in the section of the UDO
detailing enlargements of nonconforming uses.
By its own terms,
the Amendment states “[i]mprovements to water and sewage treatment
systems in order to accommodate more mobile homes in a mobile home
park . . . shall not be permitted.”
See UDO § 1504(9) (emphasis
The Amendment limits improvements to wastewater treatment
systems when those improvements are designed to increase capacity
and allow the expansion of a nonconforming use.
This is explained
in the second sentence of UDO § 1504(9), which states: “However,
improvements to a water and sewage treatment system serving a
mobile home park for the purpose of improving public health that
will not result in an increase in the number of mobile homes within
the park shall be permitted.”
N.C. Gen. Stat. § 153A-4 (2001) states:
It is the policy of the General Assembly
that the counties of this State should have
adequate authority to exercise the powers,
rights, duties, functions, privileges, and
immunities conferred upon them by law.
this end, the provisions of this Chapter and
of local acts shall be broadly construed and
grants of power shall be construed to include
any powers that are reasonably expedient to
-15the exercise of that power.
Keeping in mind that counties are authorized to zone property and
to regulate and prohibit the expansion of nonconforming uses, see
N.C. Gen. Stat. § 153A-340, and Williams, 129 N.C. App. 828, 500
S.E.2d 473, we believe the County’s Amendment was (1) a proper
exercise of its powers to control land use within the territorial
jurisdiction of the County, and (2) controls within Currituck
County’s territorial jurisdiction.
We therefore perceive no discord
between state regulations regarding wastewater treatment systems
assignment of error is overruled.
In their final assignment of error, plaintiffs contend the
trial court’s dismissal of their case violated their federal and
state constitutional rights to due process and equal protection.
More specifically, plaintiffs argue that if they prevail on the
vested rights issue, they have necessarily established a violation
of their constitutional rights because “‘[a] lawfully established
Godfrey, 317 N.C. at 62, 344 S.E.2d
at 279 (quoting 4 E. Yokley, Zoning Law and Practice § 22-3 (4th
Plaintiffs also charge the County with knowledge of
Dutch Key’s (and later their) intent to restore Orchard Park to a
440-unit operational mobile home park by upgrading the wastewater
Plaintiffs believe the County’s 1996 Amendment
to the UDO was enacted simply to frustrate those plans, and for no
-16other legitimate policy reasons.
Plaintiffs contend such behavior
violated Dutch Key’s substantive and procedural due process rights
and singled Dutch Key out for unequal treatment (in turn affecting
them, as they were Dutch Keys’ successors in interest).
“Substantive due process is a guaranty against arbitrary
legislation, demanding that the law shall not be unreasonable,
arbitrary or capricious, and that the law be substantially related
to the valid object sought to be obtained.”
State v. Joyner, 286
N.C. 366, 371, 211 S.E.2d 320, 323, appeal dismissed, 422 U.S.
1002, 45 L. Ed. 2d 666 (1975).
However, “[u]nless legislation
involves a suspect classification or impinges upon fundamental
personal rights, it is presumed constitutional and need only be
rationally related to a legitimate state interest.”
Enterprises, Inc. v. Onslow County, 83 N.C. App. 345, 351, 350
S.E.2d 365, 369 (1986), aff’d, 320 N.C. 776, 360 S.E.2d 783 (1987).
If no suspect classification or fundamental personal right is
involved, the mere rationality standard applies and the law in
question will be upheld if it has “any conceivable rational basis.”
Id. Our state constitution’s standard for due process analysis has
been described as follows: “[T]he law must have a rational, real
and substantial relation to a valid governmental objective (i.e.,
the protection of the public health, morals, order, safety, or
Id. at 352, 350 S.E.2d at 369-70.
Our Courts have held that it is a legitimate interest, as a
matter of law, to legislate against the expansion or continuation
of nonconforming uses.
See Williams, 129 N.C. App. at 831, 500
-17S.E.2d at 475.
See also Grace Baptist Church v. City of Oxford,
320 N.C. 439, 358 S.E.2d 372 (1987); and Joyner, 286 N.C. 366, 211
In Joyner, the Supreme Court held that
[i]n examining the reasonableness of an
ordinance, due process dictates that the court
look at the entire ordinance and not only at
the provision as it applies to a particular
inhabitant of the municipality. The fact that
one citizen is adversely affected by a zoning
ordinance does not invalidate the ordinance.
Id. at 371, 211 S.E.2d at 323 (citations omitted).
growth of nonconforming uses “represents a conscious effort on the
part of the legislative body . . . to regulate the use of land
. . . and thus promote the health, safety, or general welfare of
Id. at 372, 211 S.E.2d at 324.
Based on the
foregoing, we believe plaintiffs have failed to demonstrate a
violation of their due process rights.
Plaintiffs have likewise failed to show their equal protection
rights were violated.
We first note that our state standard is the
same as the federal standard.
See State ex rel. Utilities Comm. v.
Carolina Utility Cust. Assn., 336 N.C. 657, 680-81, 446 S.E.2d 332,
When a governmental classification does
not burden the exercise of a fundamental right
or operate to the peculiar disadvantage of a
protesuspectnclass, th quiring tt ert othequalssification be
ction a a y is ree lower iha f
made upon a rational basis must be applied.
“rational basis” standard merely requires that the
relationship to a conceivable legitimate interest of
government. Additionally, in instances in which it is
appropriate to apply the rational basis standard, the
governmental act is entitled to a presumption of
-18White v. Pate, 308 N.C. 759, 766-67, 304 S.E.2d 199, 204 (1983)
Classifications are presumed valid; “under
the lower tier, rational basis test, the party challenging the
legislation has a tremendous burden in showing that the questioned
Companies, 98 N.C. App. 412, 420, 391 S.E.2d 503, 507-08 (1990).
Moreover, “[t]he deference afforded to the government under the
rational basis test is so deferential that even if the government’s
actual purpose in creating classifications is not rational, a court
can uphold the regulation if the court can envision some rational
basis for the classification.”
Guerra v. Scruggs, 942 F.2d 270,
279 (4th Cir. 1991) (emphasis in original).
After careful review
successfully demonstrate that the County violated their equal
Accordingly, plaintiffs’ final assignment of
error is overruled.
proceedings and the arguments presented by the parties, we conclude
the trial court properly dismissed plaintiffs’ complaint.
plaintiffs’ complaint pursuant to N.C. Gen. Stat. § 1A-1, Rule
12(b)(6) is hereby
Judges WYNN and BIGGS concur.