Currituck County v. Willey

266 S.E.2d 52 (1980)

CURRITUCK COUNTY v. George H. WILLEY and Martha J. Willey.

No. 791DC1078.

Court of Appeals of North Carolina.

May 20, 1980.

*53 White, Hall, Mullen, Brumsey & Small by William Brumsey, III, Elizabeth City, for plaintiff-appellee.

J. Kenyon Wilson Jr. and M. H. Hood Ellis, Elizabeth City, for defendants-appellants.

HILL, Judge.

The issue we must decide on appeal is whether the ordinance barring mobile homes, such as defendant's with dimensions of less than 24' X 60', must be struck down as violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution, or Article I, § 19 of the North Carolina Constitution. We find no violation.

`A municipal ordinance is presumed to be valid, and the burden is upon the complaining party to show its invalidity or inapplicability. And a municipal ordinance promulgated in the exercise of the police power will not be declared unconstitutional unless it is clearly so, and every intendment will be made to sustain it.' 5 Strong, N.C. Index 2d, Municipal Corporations, § 8, p. 626.

State v. Martin, 7 N.C.App. 18, 20, 171 S.E.2d 115 (1969). "If a statute is susceptible of two interpretations, one constitutional and the other unconstitutional, the former will be adopted." (Citation omitted.) Martin, at p. 20, 171 S.E.2d at p. 116. Defendant ". . . must carry the burden of showing that [the ordinance] does not rest upon any reasonable basis, but is essentially arbitrary;" and "[I]f any state of facts reasonably can be conceived that would sustain [the ordinance], the existence of that state of facts at the time the [ordinance] was enacted must be assumed." Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 79, 31 S. Ct. 337, 340, 55 L. Ed. 369 (1910).

We find that defendant has not met her burden. It has been held in State v. Martin, 7 N.C.App. 18, 171 S.E.2d 115 (1969), and City of Asheboro v. Auman, 26 N.C. App. 87, 214 S.E.2d 621, cert. denied 288 N.C. 239, 217 S.E.2d 663 (1975), that mobile homes can be restricted by zoning ordinances to mobile home parks. We hold that mobile homes are sufficiently different from other types of housing so that there is a rational basis for placing different requirements upon them as was done by Currituck County.

Town of Conover v. Jolly, 277 N.C. 439, 177 S.E.2d 879 (1970), relied on by the appellant, did not involve a zoning ordinance. In that case, a municipality had forbidden mobile homes within the corporate limits. Our Supreme Court held the General Assembly had not given this power to municipalities. Conover has no application to the case sub judice.

For the reasons stated above, the decision of the trial court is

Affirmed.

ROBERT M. MARTIN and WEBB, JJ., concur.