{
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  "name": "FIVE C'S, INC., Plaintiff v. COUNTY OF PASQUOTANK, Defendant",
  "name_abbreviation": "Five C'S, Inc. v. County of Pasquotank",
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    "judges": [
      "Judges McGEE and JACKSON concur."
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    "parties": [
      "FIVE C\u2019S, INC., Plaintiff v. COUNTY OF PASQUOTANK, Defendant"
    ],
    "opinions": [
      {
        "text": "HUNTER, JR., Robert N., Judge.\nFive C\u2019s, Inc. (\u201cplaintiff\u2019) appeals from judgment entered, which granted the County of Pasquotank\u2019s (\u201cthe County\u201d) motion for summary judgment. We reverse.\nI. Background\nOn 17 August .1992, the County adopted an Ordinance To Provide for Allowable Manufactured/Mobile Home Units (\u201cthe Ordinance\u201d) \u201cunder the authority of Chapter 153A-121 of the General Statutes of North Carolina.\u201d The Ordinance\u2019s purpose was \u201cto regulate allowable manufactured homes or mobile homes within the jurisdiction of [the County] in order to promote the public health, safety and general welfare of the citizens of [the County].\u201d Article II of the Ordinance contained the following definitions:\n1. Mobile Home: Mobile home shall mean a transportable structure designed to be used as a year-round residential dwelling and built prior to the enactment of the National Manufactured Housing Construction and Safety Standards Act of 1974 which became effective June 15, 1976.\n2. Manufactured Home: Manufactured home shall mean a single family dwelling fabricated in an off site manufacturing facility for installing or assembling on the building site bearing a seal certifying that it was built in compliance with the National Manufactured Housing and Construction and Safety Standards Act of 1974 which became effective June 15, 1976.\nArticle III of the ordinance stated \u201c[m]anufactured homes must have an attached HUD label to be brought into [the County] for the purpose of permanent set-up.\u201d\nOn 21 May 2001, the County\u2019s Board of Commissioners considered \u201cproposed changes to the Ordinance to Limit Manufactured Homes that Are Brought into [the County] to Not More than Ten Years Old.\u201d The meeting\u2019s minutes state:\nCounty Attorney Brenda White provided her opinion regarding the proposed amendments. She explained that a county is allowed under its police power to protect the health, safety, welfare, and environment within the county. She summarized case law that placed within the authority of the governing board to regulate those things under its police power. She said the county\u2019s proposal to limit the age of mobile homes that are brought into the county was based upon the evaluation of the county\u2019s tax base and the services that the county is required to provide for all residents of the county in contrast to the revenues generated to pay for those services. She noted that according to manufactured home values provided by the Tax Administrator there is a substantial decrease in the value of a manufactured home during the first 10 years, and that a 10-year old manufactured home has about the same value as a used vehicle. Ms. White stated that she believes it is within the county\u2019s authority to enact the proposed regulations.\nThe proposed change to the Ordinance passed by a four-to-two vote. Article III was amended to state \u201c[manufactured homes must have an attached HUD label and shall not be more than ten (10) years old on the date of application for a building permit for the purpose of permanent set-up.\u201d\nPlaintiff acquires mobile and manufactured homes for sale, transportation, and set up within the County. Plaintiff filed a complaint on 7 September 2001 seeking a declaratory judgment that the amendment exceeded the County\u2019s statutory authority and violated plaintiff\u2019s substantive due process, procedural due process, and equal protection rights. Plaintiff also sought both a preliminary and permanent injunction restraining the County from enforcing the Ordinance as amended.\nPlaintiff alleged: (1) it had an inventory of ten manufactured homes more than ten years old on 21 May 2001; (2) it entered into a contract sometime between 21 May 2001 and 5 June 2001 to sell and set up a twenty-three-year-old manufactured home; (3) it applied for a building permit for the permanent setup of this manufactured home on 5 June 2001; (4) the County \u201cdenied [its] application for a building permit because the manufactured home was more than ten years in age on the date of [its] application and because the manufactured home was not listed in the Pasquotank County Tax Assessor\u2019s office as of the date the ordinance was ratified[;]\u201d (4) it applied for a building permit for the permanent setup of a mobile home on 17 August 2001; and (5) the County denied its application for the same reasons the County denied its 5 June 2001 application.\nOn 26 November 2001, the County answered plaintiff\u2019s complaint and moved to dismiss. Plaintiff filed a motion for summary judgment on 5 January 2006 and the case was scheduled for a non-jury trial. Plaintiff and the County subsequently advised the trial court that the case \u201cwas in the proper posture for summary judgment[.]\u201d The trial court entered summary judgment in favor of the County on 10 April 2008. Plaintiff appeals.\nII.Issues\nPlaintiff argues the trial court erred when it entered summary judgment in favor of the County because the County: (1) exceeded its statutory authority; (2) violated plaintiff\u2019s due process rights; and (3) violated plaintiff\u2019s equal protection rights.\nIII. Standard of Review\nThis Court-reviews a trial court\u2019s order for summary judgment de novo to determine \u201cwhether, on the basis of materials supplied to the trial court, there was a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law.\u201d Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003); Robins v. Town of Hillsborough, 361 N.C. 193, 196, 639 S.E.2d 421, 423 (2007).\nIV. Statutory Authority\nPlaintiff argues the County \u201cexceeded its statutory authority by restricting the location of manufactured homes within [the County] based solely on age.\u201d We agree.\n\u201cCounties are creatures of the General Assembly and have no inherent legislative powers. They are instrumentalities of state government and possess only those powers the General Assembly has conferred upon them.\u201d Craig v. County of Chatham, 356 N.C. 40, 44, 565 S.E.2d 172, 175 (2002) (citations omitted).\nIn 1874, our Supreme Court adopted what has become known as Dillon\u2019s Rule:\na municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words-, second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation.\nSmith v. Newbern, 70 N.C. 14, 18 (1874), modified, 73 N.C. 303 (1875) (citations omitted). Recently, however, Dillon\u2019s Rule has come under attack.\nIn 1973, the General Assembly enacted Section 153A-4 of the North Carolina General Statutes. N.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 the power.\nIn Homebuilders Assn. of Charlotte v. City of Charlotte, our Supreme Court analyzed the interplay of Dillon\u2019s Rule with N.C. Gen. Stat. \u00a7 160A-4 (1987), a statute similar to that of N.C. Gen. Stat. \u00a7 153A-4. 336 N.C. 37, 43-44, 442 S.E.2d 45, 49-50 (1994); see also N.C. Gen. Stat. \u00a7 160A-4 (2001). Our Supreme Court held \u201cthat the proper rule of construction is the one set forth in [N.C. Gen. Stat. \u00a7 160A-4].\u201d Homebuilders Assn. of Charlotte, 336 N.C. at 44, 442 S.E.2d at 50.\nThis Court has since interpreted Homebuilders Assn. of Charlotte to state that Dillon\u2019s Rule was overruled by N.C. Gen. Stat. \u00a7 160A-4. See BellSouth Telecomms., Inc. v. City of Laurinburg, 168 N.C. App. 75, 81, 606 S.E.2d 721, 725 (\u201cIn its reading of N.C. Gen. Stat. \u00a7 160A-4, the [Supreme] Court found that the narrow rule of construction established over some 100 years prior by common law, known as \u2018Dillon\u2019s Rule,\u2019 had been replaced by the legislature\u2019s 1971 enactment.\u201d (citing Homebuilders Assn. of Charlotte, 336 N.C. at 43-44, 442 S.E.2d at 49-50 and Smith, 70 N.C. at 14)), disc. review denied, 615 S.E.2d 660 2005). This Court has also stated since Homebuilders Assn, of Charlotte that:\n[N.C. Gen. Stat. \u00a7] 153A-4 does state that any legislative act affecting counties should be \u201cbroadly construed and grants of power shall be construed to include any powers that are reasonably expedient to the exercise of the power.\u201d And the clear legislative policy and purpose in the broad construction is so \u201cthat the counties of this State ... [can] have adequate authority to exercise the powers, rights, duties, functions, privileges, and immunities conferred upon them by law.\u201d But, in conjunction with our general rules of statutory construction, only if there is an ambiguity in a statute found in chapter 153A should section 153A-4 be part of the courts\u2019 interpretative process. If, however, the statute is clear on its face, the plain language of the statute controls and section 153A-4 remains idle.\nDurham Land Owners Ass\u2019n v. County of Durham, 177 N.C. App. 629, 633-34, 630 S.E.2d 200, 203 (citations omitted), disc. review denied, 360 N.C. 532, 633 S.E.2d 678 (2006).\nPlaintiff argues the County\u2019s general power to enact ordinances under Section 153A-121 of the North Carolina General Statutes was preempted with regard to the zoning of manufactured housing when the General Assembly adopted N.C. Gen. Stat. \u00a7\u00a7 153A-341.1 and 160A-383.1 in 1987. See N.C. Gen. Stat. \u00a7 153A-121(a) (2001) (\u201cA county may by ordinance define, regulate, prohibit, or abate acts, omissions, or conditions detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the county; and may define and abate nuisances.\u201d). To determine whether the General Assembly intended to preempt its broad grant of authority under N.C. Gen. Stat. \u00a7 153A-121, with its subsequent adoption of N.C. Gen. Stat. \u00a7\u00a7 153A-341.1 and 160A-383.1, we must decide if it has shown an intent to limit a county\u2019s power with regard to zoning regulations for manufactured homes. \u201cIn so doing, the context of the Act and the spirit and reason of the law must be considered, for it is the intention of the Legislature, as expressed in the statute, which controls.\u201d Mullen v. Louisburg, 225 N.C. 53, 58, 33 S.E.2d 484, 487 (1945); see also Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 518, 597 S.E.2d 717, 722 (2004) (\u201cThe foremost task in statutory interpretation is \u2018 \u201cto determine legislative intent while giving the language of the statute its natural and ordinary meaning unless the context requires otherwise.\u201d \u2019 \u201d (citations omitted)).\nN.C. Gen. Stat. \u00a7 153A-341.1 (2001) states \u201c[t]he provisions of [N.C. Gen. Stat. \u00a7] 160A-383.1 shall apply to counties.\u201d N.C. Gen. Stat. \u00a7 160A-383.1 (2001) states:\n(a) The General Assembly finds and declares that manufactured housing offers affordable housing opportunities for low and moderate income residents of this State who could not otherwise afford to own their own home. The General Assembly further finds that some local governments have adopted zoning regulations which severely restrict the placement of manufactured homes. It is the intent of the General Assembly in enacting this section that cities reexamine their land use practices to assure compliance with applicable statutes and case law, and consider allocating more residential land area for manufactured homes based upon local housing needs.\n(d) A city may adopt and enforce appearance and dimensional criteria for manufactured homes. Such criteria shall be designed to protect property values, to preserve the character and integrity of the community or individual neighborhoods within the community, and to promote the health, safety and welfare of area residents. The criteria shall be adopted by ordinance.\nThe General Assembly made \u201cthe context of [N.C. Gen. Stat. \u00a7\u00a7 153A-341.1 and 160A-383.1] and the spirit and reason of the law\u201d clear in subsection (a) of N.C. Gen. Stat. \u00a7 160A-383.1. Mullen, 225 N.C. at 58, 33 S.E.2d at 487. The plain language of N.C. Gen. Stat. \u00a7\u00a7 153A-341.1 and 160A-383.1 therefore controls and N.C. Gen. Stat. \u00a7 153A-4 remains idle. Durham Land Owners Ass\u2019n, 177 N.C. App. at 634, 630 S.E.2d at 203. N.C. Gen. Stat. \u00a7 160A-383.1, as made applicable to counties by N.C. Gen. Stat. \u00a7 153A-341.1, limits a county\u2019s power to enact zoning regulations for manufactured homes. If this Court interprets N.C. Gen. Stat. \u00a7\u00a7 153A-341.1 and 160A-383.1 any other way, N.C. Gen. Stat. \u00a7 160A-383.1(d) becomes meaningless. A county may not therefore use its broad police powers as a guise to enact zoning regulations for manufactured homes inconsistent with N.C. Gen. Stat. \u00a7 160A-383.1.\nIn White v. Union County, this Court, interpreting N.C. Gen. Stat. \u00a7\u00a7 153A-340, -341.1, and 160A-383.1, held that the trial court erred when it allowed Union County\u2019s motion to dismiss for failure to state a claim pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6). 93 N.C. App. 148, 152, 377 S.E.2d 93, 95 (1989). In White, the plaintiffs contended that Union County\u2019s land use ordinance requiring\na resident prove his/her mobile home to be worth at least $5,000.00 in order for that resident to reside in such a mobile home within Union County, is not a legal regulation of land use, and is therefore an ultra vires ordinance, in violation.of N.C.G.S. \u00a7 153A-340.\nId. at 150, 377 S.E.2d at 94. This Court stated:\nThe nub of [the] plaintiffs\u2019 argument [was] that the legislature ha[d] granted the county authority to draft ordinances limiting structures, and mobile homes specifically, only in qualitative terms and not by way of an arbitrary money value. Given the requirements of Dillon\u2019s Rule, [the] plaintiffs . . . stated a direct attack on the ordinance so long as they [could] show that the attack [was] timely under N.C.G.S. \u00a7 153A-348.\nId. at 152, 377 S.E.2d at 95.\nHere, the Ordinance, as amended, states \u201c[mjanufactured homes must have an attached HUD label and shall not be more than ten (10) years old on the date of application for a building permit for the purpose of permanent set-up.\u201d At the time of the adoption of the amendment to the Ordinance, the rational basis proffered by the proponents of the Ordinance was to increase the tax base. At oral argument, counsel for the County contended that increasing the tax base by requiring manufactured homes to have a certain value was a legitimate governmental interest. This contention was advanced by the record evidence of Chairman Wood who stated:\n[T]here is a significant tax problem in this situation because rental mobile homes are taxed as personal property and the values decrease substantially over a ten year period. [Chairman Wood] said the county provides services for these property owners, but has no vehicle for collecting sufficient revenues to pay for these services.\nThe intent of the Ordinance is to increase the tax base by elimination of housing which rapidly depreciates in value. This wealth based criterion is neither an appearance nor dimensional criteria. The nexus between the County\u2019s intention and its statutory authority \u201cto protect property values, to preserve the character and integrity of the community or individual neighborhoods within the community, and to promote the health, safety and welfare of area residents []\u201d is too tenuous. N.C. Gen. Stat. \u00a7 160A-383.1(d). The County cannot accomplish by indirect legislation what it cannot achieve by direct legislation. The County therefore exceeded the power the General Assembly has conferred upon it with regard to zoning regulations for manufactured homes. The trial court erred when it denied plaintiff\u2019s motion for summary judgment and entered summary judgment in favor of the County.\nIn light of our holding, it is unnecessary to review plaintiff\u2019s remaining assignments of error.\nV. Conclusion\nThe Ordinance, as amended, does not employ appearance and dimensional .criteria as intended by the General Assembly in N.C. Gen. Stat. \u00a7\u00a7 153A-341.1 and 160A-383.1. The County exceeded its statutory authority. The trial court erred when it denied plaintiff\u2019s motion for summary judgment and entered summary judgment in favor of the County. The trial court\u2019s judgment is reversed.\nReversed.\nJudges McGEE and JACKSON concur.",
        "type": "majority",
        "author": "HUNTER, JR., Robert N., Judge."
      }
    ],
    "attorneys": [
      "Homthal, Riley, Ellis & Maland, L.L.P., by Benjamin M. Gallop and John D. Leidy, for plaintiff-appellant.",
      "The Twiford Law Firm, P.C., by John S. Morrison and T. Taylor Manning, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "FIVE C\u2019S, INC., Plaintiff v. COUNTY OF PASQUOTANK, Defendant\nNo. COA08-771\n(Filed 17 February 2009)\nZoning\u2014 manufactured homes \u2014 age\u2014absence of \u2014 appearance and dimensional criteria\nA county ordinance requiring manufactured homes to be no more than 10 years old in order for the owner to obtain a building permit for permanent set up exceeded the county\u2019s statutory authority because it does not employ appearance and dimensional criteria as intended by the General Assembly in N.C.G.S. \u00a7\u00a7 153A-341.1 and 160A-383.1.\nAppeal by plaintiff from judgment entered 10 April 2008 by Judge J. Richard Parker in Pasquotank County Superior Court. Heard in the Court of Appeals 28 January 2009.\nHomthal, Riley, Ellis & Maland, L.L.P., by Benjamin M. Gallop and John D. Leidy, for plaintiff-appellant.\nThe Twiford Law Firm, P.C., by John S. Morrison and T. Taylor Manning, for defendant-appellee."
  },
  "file_name": "0410-01",
  "first_page_order": 442,
  "last_page_order": 449
}
