{ "id": 9249165, "name": "HUNTINGTON PROPERTIES, LLC, a Michigan Limited Liability Corporation, and CAROLINA VILLAGE, LLC, a Michigan Limited Liability Corporation, Plaintiffs v. CURRITUCK COUNTY, ELDON L. MILLER, JR., S. PAUL O'NEAL, ERNIE BOWDEN, GENE A. GREGORY and J. OWEN ETHERIDGE, in their official capacities, Defendants", "name_abbreviation": "Huntington Properties, LLC v. Currituck County", "decision_date": "2002-10-01", "docket_number": "No. COA01-884", "first_page": "218", "last_page": "231", "citations": [ { "type": "official", "cite": "153 N.C. App. 218" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "942 F.2d 270", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10521739 ], "year": 1991, "pin_cites": [ { "page": "279", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/f2d/942/0270-01" ] }, { "cite": "391 S.E.2d 503", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "507-08" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 412", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524895 ], "year": 1990, "pin_cites": [ { "page": "420" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0412-01" ] }, { "cite": "304 S.E.2d 199", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "204", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "308 N.C. 759", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710017 ], "year": 1983, "pin_cites": [ { "page": "766-67", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0759-01" ] }, { "cite": "446 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "346" } ], "opinion_index": 0 }, { "cite": "336 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535852 ], "year": 1994, "pin_cites": [ { "page": "680-81" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0657-01" ] }, { "cite": "358 S.E.2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727847 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0439-01" ] }, { "cite": "360 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 776", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4730236 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0776-01" ] }, { "cite": "350 S.E.2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "369" }, { "page": "369-70" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 345", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358568 ], "year": 1986, "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0345-01" ] }, { "cite": "45 L. Ed. 2d 666", "category": "reporters:federal", "reporter": "L. 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App. 703", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11656677 ], "year": 1998, "pin_cites": [ { "parenthetical": "demonstrating the proper method for challenging nonconforming use issues" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0703-01" ] }, { "cite": "484 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "414" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 168", "category": "reporters:state", "reporter": "N.C. 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Jur. Statutes \u00a7 363" } ], "opinion_index": 0 }, { "cite": "234 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622885 ], "year": 1951, "pin_cites": [ { "page": "442", "parenthetical": "quoting 50 Am. Jur. Statutes \u00a7 363" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0440-01" ] }, { "cite": "436 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "335 N.C. 182", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527438 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/335/0182-01" ] }, { "cite": "432 S.E.2d 310", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "313" } ], "opinion_index": 0 }, { "cite": "334 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531487 ], "year": 1993, "pin_cites": [ { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0421-01" ] }, { "cite": "278 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "326", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 266", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170150 ], "year": 1981, "pin_cites": [ { "page": "274", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0266-01" ] }, { "cite": "411 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "659-60", "parenthetical": "quoting Appalachian Poster Advertising Co. v. Board of Adjustment, 52 N.C. App. 266, 274, 278 S.E.2d 321, 326 (1981) (citations omitted)" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 32", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520953 ], "year": 1992, "pin_cites": [ { "page": "39", "parenthetical": "quoting Appalachian Poster Advertising Co. v. Board of Adjustment, 52 N.C. App. 266, 274, 278 S.E.2d 321, 326 (1981) (citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0032-01" ] }, { "cite": "333 S.E.2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "314 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4693135, 4690257, 4696122, 4696028, 4689853 ], "year": 1985, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0328-03", "/nc/314/0328-02", "/nc/314/0328-04", "/nc/314/0328-05", "/nc/314/0328-01" ] }, { "cite": "329 S.E.2d 730", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "733", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 674", "category": "reporters:state", "reporter": "N.C. 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Ed. 2d", "year": 1989, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "493 U.S. 954", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11429761, 11430114, 11429794, 11429668, 11429704, 11429867, 11429996, 11429900, 11429936, 11429618, 11429847, 11430074, 11429565 ], "year": 1989, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/493/0954-05", "/us/493/0954-13", "/us/493/0954-06", "/us/493/0954-03", "/us/493/0954-04", "/us/493/0954-08", "/us/493/0954-11", "/us/493/0954-09", "/us/493/0954-10", "/us/493/0954-02", "/us/493/0954-07", "/us/493/0954-12", "/us/493/0954-01" ] }, { "cite": "378 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "324 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2481809 ], "year": 1989, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0409-01" ] }, { "cite": "370 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "454-55" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 87", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524492 ], "year": 1988, "pin_cites": [ { "page": "89" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0087-01" ] } ], "analysis": { "cardinality": 1298, "char_count": 33015, "ocr_confidence": 0.761, "pagerank": { "raw": 2.82962462582926e-07, "percentile": 0.8390608873335859 }, "sha256": "da4809bb80536fd38b09b4ab20d341608f14dd68b14b5f2fe0e8e8c943fb45d7", "simhash": "1:2f29554a300fafd2", "word_count": 5251 }, "last_updated": "2023-07-14T15:17:05.865609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and BIGGS concur." ], "parties": [ "HUNTINGTON PROPERTIES, LLC, a Michigan Limited Liability Corporation, and CAROLINA VILLAGE, LLC, a Michigan Limited Liability Corporation, Plaintiffs v. CURRITUCK COUNTY, ELDON L. MILLER, JR., S. PAUL O\u2019NEAL, ERNIE BOWDEN, GENE A. GREGORY and J. OWEN ETHERIDGE, in their official capacities, Defendants" ], "opinions": [ { "text": "McCullough, judge.\nThis 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 connections. 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 governed \u201cnonconforming situations.\u201d 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 \u00a7\u00a7 1501(l)(g) and 2501. As a result of the County\u2019s amendments to the UDO, Orchard Park has operated as a nonconforming use since at least November 1992.\nOrchard Park operated near capacity in the 1970s and 1980s. During that time, Orchard Park\u2019s owners provided sewer services to its residents using a private wastewater treatment system. The 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\u2019s wastewater treatment system could only service about 140 mobile home residents, due to a 29,000 gallon daily limit on the amount of treated water that could be sprayed onto the system\u2019s spray fields.\nThe 1992 UDO restricted owners from enlarging or increasing the nonconforming use by altering structures or placing new structures on open land if such activity resulted in\n(a) an increase in the total amount of space devoted to a nonconforming use; or\n(b) greater nonconformity with respect to dimensional restrictions such as setback requirements, height limitations or density requirements or other requirements such as parking requirements.\nUDO \u00a7 1504(1). UDO \u00a7 1504(4) stated that\n[t]he volume, intensity, or frequency of use of property where a nonconforming situation exists may be increased and the equipment or processes used at a location where a 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.\nUDO \u00a7 1505(1) encouraged owners to repair and maintain structures located on property where nonconforming situations existed. \u201c[R]enovation, restoration or reconstruction\u201d of structures was permissible to refurbish or replace what previously existed so long as Article 15 of the UDO was not violated. UDO \u00a7 1505(1). Additionally,\n[f]or purposes of determining whether a right to continue a nonconforming situation is lost pursuant to this section, all of the buildings, activities, and operations 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 continuously maintained. But if a 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 thereafter.\nUDO \u00a7 1507(3).\nIn 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\u2019s actions, its Board of Commissioners amended UDO \u00a7 1504(9) by adding a new paragraph, which stated:\nImprovements 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 situation and shall not be permitted. 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)\nUDO \u00a7 1504(9) (hereinafter the Amendment). The Amendment was finalized on 19 October 1996.\nOn 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 \u201cthe use of plaintiffs 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.\u201d\nThe County filed its answer on 2 August 2000. The delay in answering was caused by questions regarding whether Dutch Key\u2019s original counsel could represent it in this action. On 29 January 2001, the parties consented to substitution of counsel. On 20 February 2001, Dutch Key moved to substitute real parties in interest because \u201c[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 corporation, and Huntington Properties, L.L.C., a Michigan limited liability corporation.\u201d On 13 March 2001, the trial court allowed the motion. The case was heard at the 5 March 2001 Civil Session of Currituck County Superior Court on defendants\u2019 N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) (2001) motion to dismiss. On 15 March 2001, the trial court entered an order granting the County\u2019s motion to dismiss the action. Plaintiffs appealed.\nOn appeal, plaintiffs argue the trial court erred in granting the County\u2019s motion to dismiss because (I) UDO \u00a7\u00a7 1507(3) and 1504(9) do not prohibit them from upgrading the wastewater treatment system to serve existing but unoccupied spaces at Orchard Park; (II) UDO Article 15 was improperly construed to impair plaintiffs\u2019 vested rights; (III) the General Assembly granted exclusive authority to the Department of Environment and Natural Resources to regulate wastewater treatment systems; and (IV) plaintiffs\u2019 constitutional rights to due process and equal protection under the state and federal constitutions were violated. For the reasons set forth herein, we disagree with plaintiffs\u2019 arguments and affirm the action of the trial court.\n\u201cA motion to dismiss under N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) tests the legal sufficiency of the complaint, which will be dismissed if it is completely without merit.\u201d Town of Beech Mountain v. County of Watauga, 91 N.C. App. 87, 89, 370 S.E.2d 453, 454-55 (1988), aff\u2019d, 324 N.C. 409, 378 S.E.2d 780, cert. denied, 493 U.S. 954, 107 L. Ed. 2d 351 (1989) (citations omitted). The main inquiry is \u201cwhether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory[.]\u201d Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987).\nWhen evaluating zoning ordinances, the following rules apply: \u201cIt 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.\u201d Williams v. Town of Spencer, 129 N.C. App. 828, 830-31, 500 S.E.2d 473, 475 (1998). This is a heavy burden. Id. 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. \u00a7 153A-340 (2001); and Williams, 129 N.C. App. 828, 500 S.E.2d 473. This Court has consistently held that nonconforming uses are common; however, \u201c[a]ny expansion of a nonconforming use is ... subject to regulation.\u201d 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). \u201cZoning 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.\u201d 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 omitted). Moreover,\n[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. In accordance with this policy, zoning ordinances are strictly construed against indefinite continuation of non-conforming uses.\nCG&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.\nRight to Lease Existing but. Unoccupied Rental Spaces\nBy their first assignment of error, plaintiffs contend the trial court erred in interpreting UDO \u00a7\u00a7 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\u2019s 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.\n\u201cStatutes dealing with the same subject matter must be construed in pari materia and harmonized, if possible, to give effect to each.\u201d Bd. of Adjmt. of the Town of Swansboro v. Town of Swansboro, 334 N.C. 421, 427, 432 S.E.2d 310, 313, reh\u2019g denied, 335 N.C. 182, 436 S.E.2d 369 (1993). \u201c \u2018[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.\u2019 \u201d Walker v. Bakeries Co., 234 N.C. 440, 442, 67 S.E.2d 459, 461 (1951) (quoting 50 Am. Jur. Statutes \u00a7 363). Portions of the same statute dealing with the same subject matter are \u201c \u2018to 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....\u2019\u201d In re Hickerson, 235 N.C. 716, 721, 71 S.E.2d 129, 132 (1952).\nArticle 15 of the County\u2019s UDO prevented landowners engaged in a nonconforming use from enlarging or extending the nonconforming use (UDO \u00a7 1504), wholly replacing the structure or facility that constituted the nonconforming use (UDO \u00a7 1505(1) (c)), changing the use of property to a different nonconforming use (UDO \u00a7 1506), and restarting a nonconforming use after it has been discontinued for 270 consecutive days (UDO \u00a7 1507). Nonetheless, plaintiffs maintain Article 15, \u00a7 1502 of the UDO expressly allows legal, nonconforming uses to continue and be replenished to their original use or occupancy:\n1. Unless otherwise specifically provided in these regulations and subject to the restrictions and set forth in Article 15, nonconforming situations that were otherwise lawful on the effective date of this Ordinance may be continued.\n2. Nonconforming projects may be completed only in accordance with the provisions of Article 15.\nTo reach this result, plaintiffs argue Orchard Park should be examined as a whole \u2014 a mobile home park with 440 rentable spaces. Furthermore, because some spaces were continuously rented, the park\u2019s operations never fully ceased for any period of time, much less the 270 consecutive days mentioned in UDO \u00a7 1507(1). Plaintiffs refer to UDO \u00a7 1507\u2019s apartment example to argue that full occupancy is not the test to determine when a use has been discontinued. Lastly, plaintiffs note that when \u201cthe zoning and subdivision regulations are in derogation of private property, such provisions should be liberally construed in favor of the owner.\u201d 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 \u00a7 1504(9), such that the trial court erred in resolving the ambiguity against them.\nWe agree with the County that the UDO, both before and after passage of the Amendment, prohibited expansion of plaintiffs\u2019 nonconforming use. As of both 1992 (when the mobile home park became a nonconforming use) and 1995 (when Dutch Key purchased Orchard Park at a foreclosure sale), neither Dutch Key nor 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 \u00a7 1502(1). At the time Orchard Park became a nonconforming use, it was only permitted to rent a total of 140 spaces\u2014not 440\u2014because 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 \u00a7 1507\u2019s provision for \u201cAbandonment and Discontinuation of Nonconforming Situations.\u201d Accordingly, plaintiffs\u2019 first assignment of error is overruled.\nVested Rights\nBy their second assignment of error, plaintiffs contend the trial court erroneously interpreted UDO Article 15 in a way that impaired plaintiffs\u2019 vested rights. We disagree.\n\u201cThe \u2018vested rights\u2019 doctrine has evolved as a constitutional limitation on the state\u2019s exercise of its police power to restrict an individual\u2019s use of private property by the enactment of zoning ordinances.\u201d 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). \u201c[A] determination of the \u2018vested rights\u2019 issue requires resolution of questions of fact, including reasonableness of reliance, existence of good or bad faith, and substantiality of expenditures.\u201d Godfrey, 317 N.C. at 63, 344 S.E.2d at 279.\nPlaintiffs 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 Park (at its full capacity of 440 spaces) was approved and permitted by the County, and that they built Orchard Park in good faith reliance on those permits. Thus, plaintiffs maintain they have a vested right to repopulate the entire mobile home park, up to the original capacity of 440 units.\nDefendants argue plaintiffs\u2019 vested rights claim fails because plaintiffs cannot show they had either the County\u2019s 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 reliance on a permit or permission from the County. After reviewing the history of this case, we agree with defendants that plaintiffs cannot carry their burden.\nPlaintiffs 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\u2019s 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 140 units at the time the Amendment was passed in 1996. Consequently, plaintiffs failed to show their \u201cobligations and/or expenditures were made in reasonable reliance on and after the issuance of a valid building permit, if such permit is requiredf.]\u201d 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\u2019s Planning Staff. In fact, it would have been 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.\nWe also note that plaintiffs failed to follow the proper avenue for appealing their situation. Article 21 of Currituck County\u2019s UDO gives the County Planning Staff jurisdiction to make initial interpretations of its provisions. See UDO \u00a7 1913. Appeal is then to the Board of Adjustment and then to the superior court under a writ of certiorari. See UDO Article 21. Direct civil 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, 510 S.E.2d 382 (1998) (demonstrating the proper method for challenging nonconforming use issues).\nMoreover, we agree with defendants that plaintiffs\u2019 proposed upgrade in Orchard Park\u2019s wastewater treatment system was an increase in the extent of the nonconforming use. Defendants\u2019 attempts to prevent this expansion is in harmony with the State\u2019s policy of construing ordinances against the expansion of a nonconforming use. See In re O\u2019Neal, 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).\nWe believe plaintiffs\u2019 arguments are without merit for a number of other reasons. First, plaintiffs\u2019 brief asserts that \u201c[o]nly during discovery can Huntington establish the strength of its claim.\u201d Plaintiffs evidently argue that whenever a Rule 12(b)(6) motion is pending, the case should not be dismissed so long as the plaintiff may gather information to support its position. However, fishing expeditions of this sort are not contemplated by Rule 12(b)(6), which allows dismissals based upon the pleadings. Second, plaintiffs stated that the contents of the permits were \u201cnot known.\u201d 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\u2019 vested rights claim, and this assignment of error is overruled.\nPreemption\nBy their third assignment of error, plaintiffs contend the trial court erred in granting defendants\u2019 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. In support of their contention, plaintiffs point to the detail and volume of the North Carolina Administrative Code\u2019s references on the subject of wastewater treatment systems.\nAfter reviewing the County\u2019s 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 \u201c[i]mprovements to water and sewage treatment systems in order to accommodate more mobile homes in a mobile home park . . . shall not be permitted.\u201d See UDO \u00a7 1504(9) (emphasis added). 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 \u00a7 1504(9), which states: \u201cHowever, 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.\u201d\nN.C. Gen. Stat. \u00a7 153A-4 (2001) states:\nIt 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. To 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 the exercise of that power.\nKeeping in mind that counties are authorized to zone property and to regulate and prohibit the expansion of nonconforming uses, see N.C. Gen. Stat. \u00a7 153A-340, and Williams, 129 N.C. App. 828, 500 S.E.2d 473, we believe the County\u2019s 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\u2019s territorial jurisdiction. We therefore perceive no discord between state regulations regarding wastewater treatment systems and the County\u2019s Amendment. Accordingly, plaintiffs\u2019 third assignment of error is overruled.\nConstitutional Considerations\nIn their final assignment of error, plaintiffs contend the trial court\u2019s 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 \u201c \u2018[a] lawfully established nonconforming use is a vested right and is entitled to constitutional protection.\u2019 \u201d Godfrey, 317 N.C. at 62, 344 S.E.2d at 279 (quoting 4 E. Yokley, Zoning Law and Practice \u00a7 22-3 (4th ed. 1979)). Plaintiffs also charge the County with knowledge of Dutch Key\u2019s (and later their) intent to restore Orchard Park to a 440-unit operational mobile home park by upgrading the waste-water treatment system. Plaintiffs believe the County\u2019s 1996 Amendment to the UDO was enacted simply to frustrate those plans, and for no other legitimate policy reasons. Plaintiffs contend such behavior violated Dutch Key\u2019s substantive and procedural due process rights and singled Dutch Key out for unequal treatment (in turn affecting them, as they were Dutch Keys\u2019 successors in interest).\n\u201cSubstantive 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.\u201d 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, \u201c[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.\u201d Treants 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 \u201cany conceivable rational basis.\u201d Id. Our state constitution\u2019s standard for due process analysis has been described as follows: \u201c[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 general welfare).\u201d Id. at 352, 350 S.E.2d at 369-70.\nOur 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 S.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 S.E.2d 320. In Joyner, the Supreme Court held that\n[ijn 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.\nId. at 371, 211 S.E.2d at 323 (citations omitted). Preventing the growth of nonconforming uses \u201crepresents 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 the community.\u201d 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.\nPlaintiffs 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, 346 (1994).\nWhen a governmental classification does not burden the exercise of a fundamental right or operate to the peculiar disadvantage of a suspect class, the lower tier of equal protection analysis requiring that the classification be made upon a rational basis must be applied. The \u201crational basis\u201d standard merely requires that the governmental classification bear some rational 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 validity.\nWhite v. Pate, 308 N.C. 759, 766-67, 304 S.E.2d 199, 204 (1983) (citations omitted). Classifications are presumed valid; \u201cunder the lower tier, rational basis test, the party challenging the legislation has a tremendous burden in showing that the questioned legislation is unconstitutional.\u201d In re Appeals of Timber Companies, 98 N.C. App. 412, 420, 391 S.E.2d 503, 507-08 (1990). Moreover, \u201c[t]he deference afforded to the government under the rational basis test is so deferential that even if the government\u2019s 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.\u201d Guerra v. Scruggs, 942 F.2d 270, 279 (4th Cir. 1991) (emphasis in original). After careful review of plaintiffs\u2019 contentions, we believe they have failed to successfully demonstrate that the County violated their equal protection rights. Accordingly, plaintiffs\u2019 final assignment of error is overruled.\nAfter thoughtful consideration of both the underlying proceedings and the arguments presented by the parties, we conclude the trial court properly dismissed plaintiffs\u2019 complaint. The trial court\u2019s order granting defendants\u2019 motion to dismiss plaintiffs\u2019 complaint pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) is hereby\nAffirmed.\nJudges WYNN and BIGGS concur.", "type": "majority", "author": "McCullough, judge." } ], "attorneys": [ "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 defendant appellees." ], "corrections": "", "head_matter": "HUNTINGTON PROPERTIES, LLC, a Michigan Limited Liability Corporation, and CAROLINA VILLAGE, LLC, a Michigan Limited Liability Corporation, Plaintiffs v. CURRITUCK COUNTY, ELDON L. MILLER, JR., S. PAUL O\u2019NEAL, ERNIE BOWDEN, GENE A. GREGORY and J. OWEN ETHERIDGE, in their official capacities, Defendants\nNo. COA01-884\n(Filed 1 October 2002)\n1. Zoning\u2014 mobile home park \u2014 prohibition on expansion of nonconforming use\nThe trial court did not err in a declaratory judgment action by granting defendant county\u2019s motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) based on its interpretation of defendant county\u2019s Uniform Development Ordinance (UDO) \u00a7\u00a7 1507(3) and 1504(9) to prevent plaintiffs from upgrading their wastewater treatment system to serve existing but unoccupied rental spaces in the pertinent mobile home park, because: (1) the UDO, both before and after its amendment, prohibited expansion of plaintiffs\u2019 nonconforming use to the additional existing spaces since there was no state permit to sell those additional spaces; and (2) at the time the mobile home park became a nonconforming use it was only permitted to rent a total of 140 spaces, and not its full capacity of 440 spaces, based on the water limits.\n2. Zoning\u2014 mobile home park \u2014 nonconforming use \u2014 vested rights doctrine\nThe trial court did not err in a declaratory judgment action by granting defendant county\u2019s motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) plaintiffs\u2019 claim regarding defendant county\u2019s authority to zone property and to regulate and prohibit the expansion of nonconforming uses based on its interpretation of defendant county\u2019s Uniform Development Ordinance (UDO) Article 15 even though plaintiffs contend it impaired plaintiffs\u2019 vested right to repopulate the entire pertinent mobile home park up to the original capacity of 440 units, because: (1) plaintiffs cannot show that they had either the county\u2019s permission or a valid permit authorizing them to expand the mobile home park to 440 units before the amendment was enacted in 1996, and plaintiffs cannot prove they made substantial expenditures in reliance on a permit or permission from the county; (2) plaintiffs never obtained a final interpretation of the UDO from the county\u2019s planning staff; (3) plaintiffs failed to follow the proper avenue for appealing their situation; (4) plaintiffs\u2019 proposed upgrade in the mobile home park\u2019s wastewater treatment system was an increase in the extent of the nonconforming use, and defendants\u2019 attempts to prevent this expansion is in harmony with the State\u2019s policy of construing ordinances against the expansion of a nonconforming use; and (5) plaintiffs could have learned of the existence and details of the permits through means other than just legal discovery procedures.\n3. Zoning\u2014 county\u2019s authority \u2014 prohibition on expansion of nonconforming use\nThe trial court did not err in a declaratory judgment action by granting defendant county\u2019s motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) plaintiffs\u2019 claim regarding defendant county\u2019s authority to zone property and to regulate and prohibit the expansion of nonconforming uses, and by ruling the General Assembly did not grant exclusive authority in the Department of Environment and Natural Resources to regulate wastewater treatment systems, because: (1) defendant county\u2019s amendment was a proper exercise of its powers to control land use within the territorial jurisdiction of the county and controls with the county\u2019s territorial jurisdiction; and (2) there was no discord between state regulations regarding wastewater treatment systems and the county\u2019s amendment.\n4. Zoning\u2014 county\u2019s authority \u2014 prohibition on expansion of nonconforming \u00fase \u2014 due process \u2014 equal protection\nThe trial court did not violate plaintiffs\u2019 federal and state constitutional rights to due process and equal protection in a declaratory judgment action by granting defendant county\u2019s motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) plaintiffs\u2019 claim regarding defendant county\u2019s authority to zone property and to regulate and prohibit the expansion of nonconforming uses, because: (1) it is a legitimate interest as a matter of law to legislate against the expansion or continuation of nonconforming uses; (2) preventing the 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 the community; and (3) plaintiffs have failed to successfully demonstrate that the county violated their equal protection rights when classifications are presumed valid under the lower tier rational basis test.\nAppeal 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.\nSmith Helms Mulliss & Moore, L.L.P., by Thomas E. Terrell, Jr., and Neale T. Johnson, for -plaintiff appellants.\nPoyner & Spruill, by Robin L. Tatum and Kacey C. Sewell, for defendant appellees." }, "file_name": "0218-01", "first_page_order": 248, "last_page_order": 261 }