{
  "id": 11799912,
  "name": "CHARLES B. SEDMAN and wife, ELLEN S. SEDMAN, Plaintiff Appellants v. JACOB RIJDES and wife, WILHELMINA RIJDES, and MULTIFLORA GREENHOUSES, INC., Defendant Appellees",
  "name_abbreviation": "Sedman v. Rijdes",
  "decision_date": "1997-11-18",
  "docket_number": "No. COA96-1444",
  "first_page": "700",
  "last_page": "705",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name": "N.C."
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      "cite": "303 S.E.2d 236",
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      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
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      "year": 1995,
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      "cite": "N.C. Gen. Stat. \u00a7 106-550",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
      "year": 1995,
      "opinion_index": 0
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    {
      "cite": "62 N.C. App. 396",
      "category": "reporters:state",
      "reporter": "N.C. App.",
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        8522664
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  "last_updated": "2023-07-14T19:43:16.540119+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Chief Judge ARNOLD concurs.",
      "Judge WALKER concurs with separate opinion."
    ],
    "parties": [
      "CHARLES B. SEDMAN and wife, ELLEN S. SEDMAN, Plaintiff Appellants v. JACOB RIJDES and wife, WILHELMINA RIJDES, and MULTIFLORA GREENHOUSES, INC., Defendant Appellees"
    ],
    "opinions": [
      {
        "text": "McGEE, Judge.\nPlaintiffs Charles B. and Ellen S. Sedman appeal the entry of partial summary judgment on the issue of whether the activities of Multiflora Greenhouses, Inc. (Multiflora), owned and operated by Jacob and Wilhelmina Rijdes, are in violation of the Orange County Zoning Ordinance (ordinance).\nMultiflora is located on a forty-one acre tract of land that is zoned agricultural-residential and is adjacent to the Sedmans\u2019 residential property. At the summary judgment hearing, the parties presented evidence tending to show that the plants and vegetables produced by Multiflora are grown in pots filled with imported soil and housed in four greenhouses, each covering almost an acre of the Rijdes\u2019 tract. The greenhouses have concrete floors, exhaust fans and internal climate control devices to regulate the buildings\u2019 temperatures. There is a large metal building, a loading dock and a paved driveway to facilitate transportation of the flowers, vegetables and other plants. Examples of the products produced by Multiflora include marigolds, petunias, begonias, tomatoes and peppers. Some products are also sold on the premises.\nThere is a history of conflict between the Sedmans and the Rijdeses regarding the Rijdeses\u2019 use of the Multiflora tract. The Rijdeses began construction on the greenhouse in the fall of 1983. Ten months later the Sedmans filed a petition with the Orange County Board of Adjustment (Board) appealing the County\u2019s issuance of a building permit to the Rijdeses. The Board determined that Multiflora was not in violation of the ordinance. This determination was not appealed by the Sedmans. In 1988 a complaint was made to the Board which alleged that the location of a gas tank on the property of Multiflora constituted a zoning violation. In a 3 March 1988 letter to Mr. Rijdes, the Orange County Planning Department wrote that the \u201calleged zoning violation concerning the propane gas tank . . . was presented at Development Review meetings\u201d and \u201ca determination was made that Multiflora Greenhouses in its current operation qualifies as a bona fide farm use and is therefore exempt from the County\u2019s zoning regulations.\u201d In 1994 the Rijdeses purchased an 11.6 acre tract of land located adjacent to the Sedmans\u2019 property. Mr. Sedman approached Mr. Rijdes to inquire as to his plans for developing this tract. Mr. Rijdes responded that he planned to expand the greenhouse operation by building on the land.\nOn 14 November 1994, the Sedmans filed a complaint in Superior Court alleging: (1) that the use of the Multiflora tract \u201cconstitutes a nuisance, and the proposed expansion of the commercial operation ... will aggravate this nuisance,\u201d and (2) \u201c[t]he commercial enterprise now being conducted on [the Rijdeses\u2019 property] is, and the proposed expansion of this business will be, in violation\u201d of the ordinance. The Sedmans prayed for relief in the form of damages from the Rijdeses, and \u201can injunction requiring defendants to eliminate and remove from their property all structures, uses, and operations found to constitute a nuisance.\u201d The Sedmans did not seek a determination from the Orange County Board of Adjustment as to whether Multiflora\u2019s present activities were exempt from the ordinance, nor did they join the County as a party to this action.\nPrior to trial, the trial court granted partial summary judgment \u201con the issue of the alleged violation of the Orange County Zoning Ordinance\u201d in an order announced in open court on 4 June 1996. At trial, the court submitted to the jury the issue of whether Multiflora\u2019s operation constituted a private nuisance. The jury found that no private nuisance was created. Subsequently the Sedmans made a motion for a new trial which was denied 24 July 1996.\nThe Sedmans timely filed notice of appeal from: (1) the trial court\u2019s order entered in open court on 4 June 1996 granting partial summary judgment to the Rijdeses \u201con the issue of whether the Multiflora Greenhouse operation is a bona-fide farm under [N.C.G.S. \u00a7 153A-340]\u201d, (2) the judgment entered 12 June 1996 upon the jury verdict that defendants\u2019 greenhouse operation did not constitute a nuisance, and (3) the trial court\u2019s order entered 24 July 1996 denying plaintiffs\u2019 motion for a new trial under Rule 59. All of the assignments of error made by the Sedmans relate to the trial court\u2019s partial grant of summary judgment, as do all the arguments in their brief. Thus, their appeals from the judgment entered 12 June 1996 and the order entered 24 July 1996 are deemed abandoned. N.C.R. App. P. 28(a).\nWe do not address the Sedmans\u2019 argument that a violation of the ordinance would constitute a nuisance per se as it is not necessary to address this issue to dispose of this case in that we hold that the activities allegedly in violation of the ordinance are exempt from compliance with the ordinance.\nThe Sedmans first argue that the entry of partial summary judgment was improper because the trial court erred in determining that Multiflora did not violate the ordinance. We disagree. The starting point of our analysis requires the interpretation of N.C. Gen. Stat. \u00a7 153A-340 (1991) to determine whether Multiflora and its operations are subject to the Orange County Zoning Ordinance.\nIt is the stated public policy of North Carolina to promote the use and sale of agricultural products. N.C. Gen. Stat. \u00a7 106-550 (1995). In order to attain the objective of promoting \u201cthe efficient production and utilization of the products of the soil as essential to the health and welfare of our people,\u201d the General Assembly encourages the\n\u201c[djevelopment of new and improved methods of production, marketing, distribution, processing and utilization of plant . . . commodities at all stages from the original producer through to the ultimate consumer . . . methods of conservation, development, and use of land . . . guidance in the design, development, and more efficient and satisfactory use of farm buildings ... farm machinery... and... making fuller use of the natural, human and community resources in the various counties of this State to the end that the income and level of living of rural people be increased.\nN.C. Gen. Stat. \u00a7 106-583 (1995).\nTherefore, when the General Assembly granted authority to the counties to regulate and restrict the use of land by means of zoning ordinances in N.C. Gen. Stat. \u00a7 153A-340, including the power to regulate and restrict the \u201cuse of buildings, structures, and land for trade, industry, residence, or other purposes,\u201d it carved out one important exception to the counties\u2019 jurisdiction: the authority to regulate land being used for \u201c[b]ona fide farm purposes.\u201d Specifically, county zoning \u201cregulations may not affect bona fide farms, but any use of farm property for nonfarm purposes is subject to the regulations.\u201d N.C. Gen. Stat. \u00a7 153A-340. Although the statute does not define \u201cbona fide farm,\u201d it does define \u201c[b]ona fide farm purposes\u201d to \u201cinclude the production and activities relating or incidental to the production of crops, fruits, vegetables, ornamental and flowering plants, dairy, livestock, poultry, and all other forms of agricultural products having a domestic or foreign market.\u201d Id.\nIn Baucom\u2019s Nursery Co. v. Mecklenburg Co., 62 N.C. App. 396, 399, 303 S.E.2d 236, 238 (1983), our Court stated that the use of \u201cmodem and efficient equipment and methods in growing, cultivating and harvesting agricultural products\u201d by a greenhouse did not preclude the greenhouse from qualifying for the exemption from county zoning regulations under the pre-amended N.C. Gen. Stat. \u00a7 153A-340. Our Court, in Baucom\u2019s, was required to interpret a Mecklenburg County ordinance\u2019s definition of \u201cbona fide farm\u201d in that Mecklenburg County had been granted special authority, applicable only to that county, to define \u201cbona fide farm\u201d in its ordinance. See 1967 N.C. Sess. Laws ch. 611 (\u201cThe board of county commissioners, as part of any ordinance adopted pursuant to this Article, may define \u2018bona fide farm\u2019 and \u2018farm purposes\u2019 in such reasonable manner as it may deem wise\u201d). However, the state policy of encouraging the agricultural production enunciated in Baucom\u2019s is relevant to the outcome in this case which requires interpretation of the amended N.C. Gen. Stat. \u00a7 153A-340. In Baucom\u2019s, our Court held that a 19.6 acre nursery and greenhouse that produced vegetables and flowering plants was exempt from complying with a Mecklenburg County ordinance notwithstanding the fact that the plants were grown \u201cin pots on top of plastic ground cover,\u201d as it is the \u201cState\u2019s declared public policy\u201d to encourage this type of agricultural production. Id. at 401, 303 S.E.2d at 238-39. Although our Court in Baucom\u2019s was interpreting the pre-amended version of N.C. Gen. Stat. \u00a7 153A-340 and the Mecklenburg County ordinance, the differences between the two statutes and the two ordinances do not require a different outcome in this case. Rather, the amended N.C. Gen. Stat. \u00a7 153A-340 governing this case is stronger evidence of the General Assembly\u2019s intent to define \u201cbona fide farm purposes\u201d to include plant cultivation because the amended statute, unlike its predecessor, explicitly lists the \u201cproduction of . . . ornamental and flowering plants\u201d as examples of uses of land for \u201c[b]ona fide farm purposes.\u201d\nMultiflora\u2019s operations are similar to those in Baucom\u2019s, as both involve the large-scale production and sale of \u201cornamental and flowering plants.\u201d We hold that the activities in which Multiflora is engaged including the construction of a driveway, the use of the driveway by large trucks to export plants from the premises, the operation of thirty-seven fans emitting low frequency sound and the selling of plants on the premises, fall within the bona fide farm purposes exemption for the following reasons. The use of large trucks to transport farm products, and the creation of facilities such as driveways and loading docks for such trucks, are both activities so essential to large-scale agricultural production that their exclusion from the exemption would render it meaningless. Similarly, the use of fans and heating devices is \u201cincidental\u201d to the year-round raising of plants inside greenhouses. Finally, as our Court held in Baucom\u2019s, the selling of the products raised on the premises is also an exempt activity. Baucom\u2019s at 401, 303 S.E.2d at 239.\nAs the activities conducted by Multiflora are exempt from compliance with the ordinance under N.C.G.S. \u00a7 153A-340, we reject the Sedmans\u2019 third and fourth assignments of error pertaining to whether such activities comply with the ordinance. Thus the trial court\u2019s order granting partial summary judgment is affirmed.\nAffirmed.\nChief Judge ARNOLD concurs.\nJudge WALKER concurs with separate opinion.",
        "type": "majority",
        "author": "McGEE, Judge."
      },
      {
        "text": "Judge Walker\nconcurring.\nAlthough I concur, I find it important to note that plaintiffs not only contend that defendants are not engaged in a \u201cbona fide farm purpose\u201d in accordance with N.C. Gen. Stat. \u00a7 153A-340, but also that defendants\u2019 operation violates the Orange County Zoning Ordinance (\u201cordinance\u201d).\nPlaintiffs have unsuccessfully challenged defendants\u2019 operation as being in violation of the ordinance in the past, most recently in 1988. They now contend that Orange County erred in determining that defendants\u2019 operation \u201cqualifies as a bona fide farm use and is therefore exempt from the County\u2019s zoning regulations.\u201d However, since Orange County is not a party to this action, this issue is not before us.",
        "type": "concurrence",
        "author": "Judge Walker"
      }
    ],
    "attorneys": [
      "Michael B. Brough & Associates by Michael B. Brough for plaintiff appellants.",
      "Coleman, Gledhill & Hargrave, P.A. by Douglas Hargrave for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "CHARLES B. SEDMAN and wife, ELLEN S. SEDMAN, Plaintiff Appellants v. JACOB RIJDES and wife, WILHELMINA RIJDES, and MULTIFLORA GREENHOUSES, INC., Defendant Appellees\nNo. COA96-1444\n(Filed 18 November 1997)\nZoning \u00a7 1 (NCI4th)\u2014 greenhouses \u2014 exemption from zoning\u2014 bona fide farm operation\nThe trial court correctly granted partial summary judgment for defendants on the zoning issue in an action in which plaintiffs alleged that defendants\u2019 commercial use of their property to grow plants in greenhouses was a nuisance and in violation of the Orange County Zoning Ordinance. It is the stated policy of North Carolina to promote the use and sale of agricultural products and the General Assembly included an exception for bona fide farm purposes in the grant of zoning authority to counties. The production of ornamental and flowering plants was explicitly listed as an example of bon fide farm purposes in the amended N.C.G.S. \u00a7 153A-340 and, under Baucom\u2019s Nursery Co. v. Mecklenburg Co., 62 N.C. App. 396, the growing and harvesting of agricultural products by a greenhouse did not preclude qualification for the exemption. The activities here, including the construction of a driveway, the use of the driveway by large trucks, the operation of fans and heating devices, and the selling of plants on the premises, fall within the bona fide farm purposes exemption.\nJudge Walker concurring.\nAppeal by plaintiffs from order entered 4 June 1996, judgment entered 12 June 1996, and order entered 24 July 1996 by Judge F. Gordon Battle in Orange County Superior Court. Heard in the Court of Appeals 25 August 1997.\nMichael B. Brough & Associates by Michael B. Brough for plaintiff appellants.\nColeman, Gledhill & Hargrave, P.A. by Douglas Hargrave for defendant appellees."
  },
  "file_name": "0700-01",
  "first_page_order": 736,
  "last_page_order": 741
}