{ "id": 4164367, "name": "TOWN OF PINEBLUFF, Plaintiff v. WILLIAM A. MARTS and SANDRA MARTS, Defendants", "name_abbreviation": "Town of Pinebluff v. Marts", "decision_date": "2009-03-17", "docket_number": "No. COA08-434", "first_page": "659", "last_page": "668", "citations": [ { "type": "official", "cite": "195 N.C. App. 659" } ], "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": "326 N.C. 100", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305276 ], "opinion_index": -1, "case_paths": [ "/nc/326/0100-01" ] }, { "cite": "659 S.E.2d 739", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640817, 12640818 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/659/0739-01", "/se2d/659/0739-02" ] }, { "cite": "362 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12640677, 12640810, 12640812, 12640813, 12640814, 12640817, 12640818 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/658/0663-03", "/se2d/659/0736-01", "/se2d/659/0736-03", "/se2d/659/0737-01", "/se2d/659/0738-01", "/se2d/659/0739-01", "/se2d/659/0739-02" ] }, { "cite": "654 S.E.2d 825", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640087 ], "pin_cites": [ { "page": "827" } ], "opinion_index": 0, "case_paths": [ "/se2d/654/0825-01" ] }, { "cite": "649 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639270 ], "weight": 4, "year": 2007, "pin_cites": [ { "page": "661" }, { "page": "671-72" }, { "page": "661" }, { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0658-01" ] }, { "cite": "388 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1990, "pin_cites": [ { "page": "550-51" }, { "page": "550" }, { "page": "551", "parenthetical": "internal citations omitted" }, { "page": "541" } ], "opinion_index": 0 }, { "cite": "500 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "60" } ], "opinion_index": 0 }, { "cite": "348 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659878 ], "year": 1998, "pin_cites": [ { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0130-01" ] }, { "cite": "416 S.E.2d 4", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497813 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0361-01" ] }, { "cite": "166 S.E.2d 686", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558343 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0234-01" ] }, { "cite": "164 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "633" } ], "opinion_index": 0 }, { "cite": "3 N.C. App. 348", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554945 ], "year": 1968, "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/nc-app/3/0348-01" ] }, { "cite": "407 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "897", "parenthetical": "explaining that \"it is this Court's duty to apply the ordinance irrespective of any opinion we may have as to its wisdom, for it is our duty to 'declare what the law is . . . [not] what the law ought to be' \" (quoting Vinson v. Chappell, 3 N.C. App. 348, 350, 164 S.E.2d 631, 633 (1968" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 79", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520190 ], "year": 1991, "pin_cites": [ { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0079-01" ] }, { "cite": "505 A.2d 1143", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7915940 ], "year": 1986, "pin_cites": [ { "page": "1145-46", "parenthetical": "holding that statute granting court authority to order removal of building in violation of zoning ordinance did not abrogate principle that prior to granting injunction to municipality to enforce ordinance, trial court must balance equities" } ], "opinion_index": 0, "case_paths": [ "/a2d/505/1143-01" ] }, { "cite": "821 So.2d 300", "category": "reporters:state_regional", "reporter": "So. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "795 So.2d 191", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9479697 ], "year": 2001, "pin_cites": [ { "page": "207", "parenthetical": "holding that trial court was not required to balance equities before issuing an injunction to enforce a development ordinance because statute authorizing action said nothing about weighing equities" } ], "opinion_index": 0, "case_paths": [ "/so2d/795/0191-01" ] }, { "cite": "342 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 475", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697809 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0475-01" ] }, { "cite": "323 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "769", "parenthetical": "holding that the trial court erred in failing to make findings of fact about the \"relative convenience-inconvenience and the comparative injuries to the parties\" before issuing injunction" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 143", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526327 ], "year": 1984, "pin_cites": [ { "page": "149", "parenthetical": "holding that the trial court erred in failing to make findings of fact about the \"relative convenience-inconvenience and the comparative injuries to the parties\" before issuing injunction" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0143-01" ] }, { "cite": "535 S.E.2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 664", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684960 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0664-01" ] }, { "cite": "528 S.E.2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "27" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 247", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11092856 ], "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0247-01" ] }, { "cite": "283 S.E.2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564967, 8565000, 8565070, 8565049, 8565023 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0234-01", "/nc/301/0234-02", "/nc/301/0234-05", "/nc/301/0234-04", "/nc/301/0234-03" ] }, { "cite": "267 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "575" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 405", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549821 ], "pin_cites": [ { "page": "414" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0405-01" ] }, { "cite": "574 S.E.2d 157", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "162", "parenthetical": "holding that county was not estopped from enforcing uniform development ordinance against plaintiff even though it had not done so at earlier hearing" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 391", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250342 ], "year": 2002, "pin_cites": [ { "page": "398", "parenthetical": "holding that county was not estopped from enforcing uniform development ordinance against plaintiff even though it had not done so at earlier hearing" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0391-01" ] }, { "cite": "61 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1950, "pin_cites": [ { "page": "902" } ], "opinion_index": 0 }, { "cite": "232 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611765 ], "year": 1950, "pin_cites": [ { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/nc/232/0629-01" ] }, { "cite": "77 S.E.2d 669", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "672" } ], "opinion_index": 0 }, { "cite": "238 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602050 ], "year": 1953, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0174-01" ] }, { "cite": "200 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561057, 8561091, 8561072, 8561044, 8561113 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0253-02", "/nc/284/0253-04", "/nc/284/0253-03", "/nc/284/0253-01", "/nc/284/0253-05" ] }, { "cite": "198 S.E.2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "772" } ], "opinion_index": 0 }, { "cite": "19 N.C. App. 361", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553380 ], "pin_cites": [ { "page": "364-65" } ], "opinion_index": 0, "case_paths": [ "/nc-app/19/0361-01" ] }, { "cite": "249 S.E.2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "852", "parenthetical": "\"Defendant failed to exercise the remedies available to it under the zoning ordinance and may not as a defense to the city's action for injunctive relief collaterally complain that the city denied it due process of law.\"" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 236", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551312 ], "year": 1978, "pin_cites": [ { "page": "238", "parenthetical": "\"Defendant failed to exercise the remedies available to it under the zoning ordinance and may not as a defense to the city's action for injunctive relief collaterally complain that the city denied it due process of law.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0236-01" ] }, { "cite": "322 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "657", "parenthetical": "\"A zoning ordinance may not be collaterally attacked by a party that failed to avail herself of the judicial review that the ordinance and statutes authorize.\"" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 611", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526041 ], "year": 1984, "pin_cites": [ { "page": "614", "parenthetical": "\"A zoning ordinance may not be collaterally attacked by a party that failed to avail herself of the judicial review that the ordinance and statutes authorize.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0611-01" ] }, { "cite": "269 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "262" }, { "page": "262" }, { "page": "262" } ], "opinion_index": 0 }, { "cite": "48 N.C. App. 408", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550906 ], "year": 1980, "pin_cites": [ { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/nc-app/48/0408-01" ] }, { "cite": "188 N.C. App. 129", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155245 ], "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0129-01" ] }, { "cite": "591 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "358 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985562 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/358/0131-01" ] }, { "cite": "580 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "735" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 208", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186665 ], "year": 2003, "pin_cites": [ { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0208-01" ] }, { "cite": "185 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8212179 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "672" }, { "page": "672" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0668-01" ] }, { "cite": "326 N.C. 100", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305276 ], "pin_cites": [ { "page": "121-22" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0100-01" ] } ], "analysis": { "cardinality": 1020, "char_count": 22675, "ocr_confidence": 0.751, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13596854488427704 }, "sha256": "5ff9d5a4acfa78fa90e83db4a910683d8bfef0f177357bfe5cc62bf8e1accf71", "simhash": "1:85a8c643ef2d3733", "word_count": 3724 }, "last_updated": "2023-07-14T21:32:21.117771+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ROBERT C. HUNTER and ELMORE concur." ], "parties": [ "TOWN OF PINEBLUFF, Plaintiff v. WILLIAM A. MARTS and SANDRA MARTS, Defendants" ], "opinions": [ { "text": "GEER, Judge.\nDefendants William A. and Sandra Marts appeal from the trial court\u2019s order granting summary judgment to the Town of Pinebluff and issuing an injunction requiring the Marts to comply with the Town\u2019s zoning ordinance and maintain a mini-park and open space in a subdivision they developed. The bulk of the Marts\u2019 arguments on appeal constitute a collateral attack on the zoning ordinance and, therefore, were not properly raised as a defense to the Town\u2019s action for an injunction enforcing the ordinance. The Marts had the ability and the opportunity to assert their contentions regarding the validity of the ordinance by seeking a variance from the ordinance or obtaining review of decisions by the Town, but chose not to do so. Since we find the remainder of the Marts\u2019 contentions also unpersuasive, we affirm the trial court\u2019s order.\nFacts\nIn 2001, the Town enacted the \u201cTown of Pinebluff Unified Development Ordinance\u201d (\u201cthe UDO\u201d), Article XIII of which requires developers of new residential developments to provide mini-parks and open space for the recreational use of their residents. The Marts are the original developers of the Willow Creek Subdivision located in the Town. Before the UDO was adopted, the Marts obtained the Town\u2019s approval and began development of Phase I of Willow Creek with the intention of subsequently proceeding with Phases II and I\u00cdI. The Town subsequently notified the Marts that Phases II and III of Willow Creek would have to comply with the requirements of the newly-adopted UDO.\nOn 18 August 2003, the Marts submitted an application for a conditional use permit for the development of Phases II and III. The application included a memo to the Town from the Marts referring to \u201cParks and Open Space\u201d and stating that they \u201cagree[d] to install a mini-park before the start of sales of the third phase of the Willow Creek Subdivision.\u201d The application also attached draft restrictive covenants that would establish a homeowners\u2019 association among the development\u2019s residents to provide assessments for the maintenance of common areas, including open space and a mini-park. The Marts, however, never recorded those covenants.\nIn October 2003, the Town\u2019s Board of Commissioners held a public hearing on the Marts\u2019 conditional use permit application for Phases II and III. Following that hearing, the Board approved the conditional use permit subject to the mini-park\u2019s being developed before the final plat approval for Phase III.\nThe final plat for Phase II was approved on 1 November 2004. In May 2005, Mr. Marts sought final plat approval for Phase III so that he could sell the lots in Phase III, along with the remaining lots in Phase II, to Ron Jackson. Mr. Marts indicated that the Marts would retain ownership of one lot and would install the mini-park on that lot. In order to ensure that the Marts built the mini-park, the Town accepted from Mr. Marts an irrevocable letter of credit in the amount of $10,000, although the Town never called the bond, which lapsed after one year.\nThe Phase III final plat was approved on 19 May 2005 and, subsequently, the Marts sold the remainder of the subdivision to Mr. Jackson. In September 2006, the Marts informed the Town that they did not intend to build the mini-park, and they were thinking about posting a \u201cno trespassing\u201d sign in the area reserved as open space.\nOn 11 December 2006, the Town brought suit against the Marts in Moore County Superior Court, contending that, the Marts were \u201cin continuing violation of the UDO\u201d and seeking an injunction ordering the Marts to comply with the UDO by installing a mini-park and reserving open space in Willow Creek. On 25 January 2008, the Honorable James M. Webb granted the Town\u2019s motion for summary judgment, ordering the Marts to install a mini-park and provide open space in the development by 31 May 2008. The Marts timely appealed to this Court.\nDiscussion\nThis Court reviews an order granting summary judgment de novo. Wilkins v. Safran, 185 N.C. App. 668, 672, 649 S.E.2d 658, 661 (2007). \u201c \u2018Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u2019 \u201d Id. at 671-72, 649 S.E.2d at 661 (quoting Draughon v. Harnett County Bd. of Educ., 158 N.C. App. 208, 212, 580 S.E.2d 732, 735 (2003), aff\u2019d per curiam, 358 N.C. 131, 591 S.E.2d 521 (2004)). \u201c \u2018If the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal.\u2019 \u201d Rakestraw v. Town of Knightdale, 188 N.C. App. 129, 131, 654 S.E.2d 825, 827 (quoting Wilkins, 185 N.C. App. at 672, 649 S.E.2d at 661), disc. review denied, 362 N.C. 237, 659 S.E.2d 739 (2008).\nI\nThe Marts first challenge the UDO\u2019s validity, contending that the ordinance is an illegal restraint on alienation, void as against the Rule Against Perpetuities, and invalid due to the Town\u2019s failure to comply with statutory notice requirements. The Marts did not, however, challenge the UDO in a direct action against the Town, but rather assert their arguments only as a defense to the Town\u2019s action for an injunction enforcing the ordinance.\nIn City of Elizabeth City v. LFM Enters., Inc., 48 N.C. App. 408, 413, 269 S.E.2d 260, 262 (1980), the city filed an action seeking an injunction requiring the defendants to comply with a city ordinance. The defendants had previously filed an application for a variance from the ordinance that was denied, but did not seek judicial review of that decision. When, however, the city sought to enforce the injunction, the defendants challenged the ordinance\u2019s validity. Id. at 412, 269 S.E.2d at 262. This Court affirmed the trial court\u2019s grant of summary judgment to the city, holding that the defendants \u201cfailed to exercise the remedies available to them under the zoning ordinance and may not as a defense to the plaintiff\u2019s action for injunctive relief collaterally attack the validity of the ordinance.\u201d Id. at 413, 269 S.E.2d at 262.\nThe principle in LFM Enters. is well established. See also Wil-Hol Corp. v. Marshall, 71 N.C. App. 611, 614, 322 S.E.2d 655, 657 (1984) (\u201cA zoning ordinance may not be collaterally attacked by a party that failed to avail herself of the judicial review that the ordinance and statutes authorize.\u201d); City of Hickory v. Catawba Valley Mach. Co., 39 N.C. App. 236, 238, 249 S.E.2d 851, 852 (1978) (\u201cDefendant failed to exercise the remedies available to it under the zoning ordinance and may not as a defense to the city\u2019s action for injunctive relief collaterally complain that the city denied it due process of law.\u201d); Forsyth County v. York, 19 N.C. App. 361, 364-65, 198 S.E.2d 770, 772 (holding that defendant, who could have challenged constitutionality of zoning ordinance by seeking review of Board of Adjustment decision, \u201cmay not now challenge the validity of the zoning ordinance he allegedly violated in an effort to avoid a summary judgment\u201d), cert. denied, 284 N.C. 253, 200 S.E.2d 653 (1973).\nIn this case, the Marts could have raised their arguments regarding the validity of the UDO by seeking relief from the ordinance\u2019s requirement of a mini-park and open space or by seeking review of the Town\u2019s determination that Phases II and III were required to comply with the UDO. Rather than directly challenging the UDO, the Marts waited to object to the ordinance until after the Town sought to enforce it as a result of their undisputed non-compliance. We cannot meaningfully distinguish the above cases and, therefore, hold that the Marts may not in this action collaterally attack the validity of the UDO as an illegal restraint on alienation, as void as against the Rule Against Perpetuities, and as invalid due to the Town\u2019s failure to comply with the statutory notice requirements. Because of our resolution of this issue, we need not address the Town\u2019s argument that the Marts\u2019 contentions are barred by the statute of limitations.\nII\nThe Marts also contend that the Town is equitably estopped from seeking an injunction requiring them to comply with the mini-park and open space requirements of the UDO. The elements of equitable estoppel are \u201c(1) lack of knowledge and the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party sought to be estopped; and (3) action based thereon of such a character as to change his position prejudicially.\u201d Hawkins v. M&J Fin. Corp., 238 N.C. 174, 178, 77 S.E.2d 669, 672 (1953). The Marts base their estoppel defense on their claim that the Town approved the plat for the entire subdivision before adopting the UDO, and the Marts then proceeded with the development of Phases II and III of the subdivision without knowledge that the Town intended to enforce the UDO as to those phases despite the initial plat approval.\nWe need not address the factual or legal bases for this defense since estoppel cannot apply when a municipality is enforcing a zoning ordinance. \u201cIn enacting and enforcing zoning regulations, a municipality acts as a governmental agency and exercises the police power of the State.\u201d City of Raleigh v. Fisher, 232 N.C. 629, 635, 61 S.E.2d 897, 902 (1950). Our courts have held that this police power \u201ccannot be bartered away by contract, or lost by any other mode.\u201d Id. Therefore, \u201ca municipality cannot be estopped to enforce a zoning ordinance against a violator by the conduct of its officials in encouraging or permitting such violator to violate such ordinance in times past.\u201d Id. See also Overton v. Camden County, 155 N.C. App. 391, 398, 574 S.E.2d 157, 162 (2002) (holding that county was not estopped from enforcing uniform development ordinance against plaintiff even though it had not done so at earlier hearing); City of Winston-Salem v. Hoots Concrete Co., 47 N.C. App. 405, 414, 267 S.E.2d 569, 575 (\u201cA city cannot be estopped to enforce a zoning ordinance against a violator due to the conduct of a zoning official in encouraging or permitting the violation.\u201d), disc. review denied, 301 N.C. 234, 283 S.E.2d 131 (1980). Accordingly, the trial court did not err in failing to conclude that the Town was estopped from enforcing the UDO against the Marts.\nIll\nThe Marts next argue that the trial court erred in issuing an injunction ordering them to comply with the UDO without first considering the Marts\u2019 \u201cpotential inconvenience, expenses, and exposure to liability.\u201d We disagree.\nEach of the cases relied upon by the Marts in support of their contention that the trial court was required to \u201cbalance the equities\u201d before issuing an injunction involve a private party seeking an injunction to remedy a private injury. See Hodge v. N.C. Dep\u2019t of Transp., 137 N.C. App. 247, 253, 528 S.E.2d 22, 27 (\u201cIn deciding whether to issue an injunction, the judge should engage in a balancing process, weighing potential harm to the plaintiff if the injunction is not issued against the potential harm to the defendant if the injunction is issued.\u201d), reversed on other grounds, 352 N.C. 664, 535 S.E.2d 32 (2000); Clark v. Asheville Contracting Co., 72 N.C. App. 143, 149, 323 S.E.2d 765, 769 (1984) (holding that the trial court erred in failing to make findings of fact about the \u201crelative convenience-inconvenience and the comparative injuries to the parties\u201d before issuing injunction), aff\u2019d as modified, 316 N.C. 475, 342 S.E.2d 832 (1986). We believe that actions by municipalities to enforce ordinances present a distinguishable situation.\nThe Town was entitled to seek an injunction pursuant to N.C. Gen. Stat. \u00a7 160A-375 (2007) and N.C. Gen. Stat. \u00a7 160A-389 (2007). N.C. Gen. Stat. \u00a7 160A-375(a) (emphasis added) provides that a municipality \u201cmay bring an action for injunction of any illegal subdivision, transfer, conveyance, or sale of land, and the court shall, upon appropriate findings, issue an injunction and order requiring the offending party to comply with the subdivision ordinance.\u201d N.C. Gen. Stat. \u00a7 160A-389 authorizes a municipality to file actions \u201cto restrain, correct or abate the violation\u201d of a municipality\u2019s zoning ordinance. The North Carolina courts have not addressed, however, whether a trial court entering an injunction pursuant to these statutes must still balance the equities of the parties.\nWe note that other jurisdictions are split regarding whether a trial court is required to \u201cbalance the equities\u201d before issuing an injunction to enforce a zoning ordinance. Compare Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191, 207 (Fla. Dist. Ct. App. 2001) (holding that trial court was not required to balance equities before issuing an injunction to enforce a development ordinance because statute authorizing action said nothing about weighing equities), review denied, 821 So.2d 300 (2002), with City of East Providence v. Rhode Island Hosp. Trust Nat\u2019l Bank, 505 A.2d 1143, 1145-46 (R.I. 1986) (holding that statute granting court authority to order removal of building in violation of zoning ordinance did not abrogate principle that prior to granting injunction to municipality to enforce ordinance, trial court must balance equities). We need not decide the rule for North Carolina, however, because the Marts have failed to make a showing that enforcement of the injunction would be inequitable.\nThe Marts argue that the court erred because it \u201cnever considered the financial obligation that was thus imposed on [the Marts] and completely overlooked the potential liability that [they] would face\u2014 forever\u2014in the likely event that children and others at play in these areas might be injured on the playground equipment or elsewhere.\u201d They further argue that \u201cJudge Webb never considered whether the existence of a mini-park or open spaces might serve as a magnet for undesirables in the area to congregate and engage in illegal activities, perhaps involving drug peddling or usage, or both.\u201d\nThese \u201cequities,\u201d however, go to the effect of the ordinance and not to the effect of the issuance of the injunction. Only the Town\u2019s Board of Commissioners may consider the policy concerns raised by the Marts regarding the effect of the ordinance\u2019s requirement of a mini-park and open space. It is not the role of the courts to decide the wisdom of an ordinance. See, e.g., Town of Pine Knoll Shores v. Evans, 104 N.C. App. 79, 83, 407 S.E.2d 895, 897 (1991) (explaining that \u201cit is this Court\u2019s duty to apply the ordinance irrespective of any opinion we may have as to its wisdom, for it is our duty to \u2018declare what the law is . . . [not] what the law ought to be\u2019 \u201d (quoting Vinson v. Chappell, 3 N.C. App. 348, 350, 164 S.E.2d 631, 633 (1968), aff\u2019d, 275 N.C. 234, 166 S.E.2d 686 (1969))), aff\u2019d as modified, 331 N.C. 361, 416 S.E.2d 4 (1992). Because the Marts have not pointed to any inequities resulting from the injunction itself, we need not decide whether the trial court was required to \u201cbalance the equities\u201d as contended by the Marts.\nIV\nThe Marts further argue that the Town\u2019s application of the UDO to Phases II and III constitutes a retroactive application of the UDO and an unconstitutional impairment of contract in violation of U.S. Const, art. I, \u00a7 10 (\u201cNo state shall. . . pass any . . . law impairing the obligation of contracts ....\u201d). Our Supreme Court has held that in order to determine whether there has been an unconstitutional impairment of contract, courts must apply a three-part test and determine: \u201c(1) whether a contractual obligation is present, (2) whether the state\u2019s actions impaired that contract, and (3) whether the impairment was reasonable and necessary to serve an important public purpose.\u201d Bailey v. State, 348 N.C. 130, 141, 500 S.E.2d 54, 60 (1998).\nThe Marts have made no attempt to show that they submitted sufficient evidence regarding each of these elements. Instead, they simply assert that \u201c[although the Developer was going to develop the property in stages, he made it clear to the Planning Board that there would be three phases in all, and the Town\u2019s initial approval implicitly recognized that.\u201d The Marts then argue that the application of the UDO to Phases II and III \u201cnotwithstanding that the Developer had made clear from the outset that this project ultimately involved three phases\u201d was retroactive and unconstitutional.\nThese assertions are not, however, sufficient to demonstrate either factually or legally that any contractual obligation existed. The Town submitted the affidavit of Stephen Minks, the Town\u2019s Planning Director/Zoning Administrator, in which Mr. Minks stated that the initial approval given to the Marts was only for Phase I. According to Mr. Minks, the Marts did not seek approval of Phase II and Phase III until 2002 and 2003 respectively, after the UDO had been adopted. The Marts have cited no evidence to the contrary. In addition, the Marts have pointed to no authority that would suggest that the Town\u2019s knowledge, at the time that it approved Phase I, that the Marts intended later to seek approval of Phases II and III constituted the \u201ccontractual obligation\u201d required by Bailey. The Marts have, therefore, failed to establish any unconstitutional impairment of contract.\nV\nFinally, the Marts argue that the Town\u2019s requiring that they reserve open space and install a mini-park is an unconstitutional taking. In River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 121-22, 388 S.E.2d 538, 550-51 (1990), however, our Supreme Court upheld a similar ordinance against a takings challenge.\nIn River Birch Assocs., the ordinance required that the developer reserve open space and convey it to the homeowners\u2019 association as a common area. Id. at 120, 388 S.E.2d at 550. The Court observed first that \u201c[t]he objective of preserving open space is within the scope of a municipality\u2019s police power\u201d and that \u201cthe General Assembly has recognized the importance of preserving open space and has given broad authority to municipalities to take action to conserve open space.\u201d Id. at 121, 388 S.E.2d at 550 (citing N.C. Gen. Stat. \u00a7\u00a7 160A-402, -372 (1987)). In language equally applicable to this case, the Court then noted that the ordinance was \u201cpart of a comprehensive plan of development that applies uniformly to all property owners and from which all property owners, including developers, will benefit.\u201d Id. The Court then held that \u201c[a] requirement of dedication of park space for subdivision approval does not necessarily constitute a taking. Where the subdivider creates the specific need for the parks, it is not unreasonable to charge the subdivider with the burden of providing them. Here, the increased density of development renders necessary the setting aside of open space.\u201d Id. at 122, 388 S.E.2d at 551 (internal citations omitted).\nWe believe that River Birch Assocs. controls. The Marts attempt to distinguish River Birch Assocs. by suggesting that the developer was allowed to develop its subdivision in a manner more intensively than other subdivisions and, thus, received a benefit that made the requirement of open space not a taking. The Marts have misread the opinion: the Supreme Court indicated that the subdivision at issue met all of the city\u2019s subdivision requirements and, therefore, the developer did not receive any special benefit. Id. at 105, 388 S.E.2d at 541. The Supreme Court simply held that because a subdivision is more intensively developed than other property, subdivision ordinances requiring open space of the type in River Birch Assocs. are not a taking. We, therefore, hold that the ordinance in this case falls within the scope of River Birch Assocs. The trial court, consequently, did not err in granting summary judgment and enjoining the Marts\u2019 violation of the UDO.\nAffirmed..\nJudges ROBERT C. HUNTER and ELMORE concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "The Brough Law Firm, by William C. Morgan, Jr. and Michael B. Brough, for plaintiff-appellee.", "Michael G. Walsh for defendants-appellants." ], "corrections": "", "head_matter": "TOWN OF PINEBLUFF, Plaintiff v. WILLIAM A. MARTS and SANDRA MARTS, Defendants\nNo. COA08-434\n(Filed 17 March 2009)\n1. Zoning\u2014 UDO\u2014collateral attack\u2014not allowed\nDefendants could not collaterally attack the validity of a Unified Development Ordinance where they waited to object to the ordinance until after the Town sought to enforce it as a result of their undisputed noncompliance.\n2. Zoning\u2014 enforcement of ordinance\u2014estoppel\u2014not applicable\nEstoppel cannot apply when a municipality is enforcing a zoning ordinance because the police power of the state cannot be bartered away by contract or otherwise lost; the trial court did not err here by failing to conclude that the Town was estopped from enforcing the ordinance.\n3. Zoning\u2014 injunction to enforce ordinance\u2014balancing of equities\u2014not properly raised\nThe question of whether the trial court was required to balance the equities in issuing an injunction requiring compliance with a zoning ordinance was not before the appellate court where defendants pointed only to inequities from the ordinance, and not inequities resulting from the injunction itself. It is not the role of the courts to decide the wisdom of the ordinance.\n4. Zoning\u2014 multi-phase development\u2014no implicit approval of subsequent stages\u2014not an impairment of contract\nA Town\u2019s application of a zoning ordinance to the last two phases of a development did not constitute a retroactive application of the ordinance or an unconstitutional impairment of contract where the ordinance was passed after Phase I was begun, permits were issued for Phases II and III with certain conditions related to the ordinance, and the Town eventually sought an injunction for enforcement of the ordinance when the conditions were not met. Defendants asserted that there was an implicit approval of the later phases in the approval of Phase I, but the Town submitted evidence that the initial approval was for Phase I only and that defendants did not seek approval of Phases II and III until after the ordinance had been adopted. No authority was presented that the Town\u2019s knowledge of defendants\u2019 intent to seek approval of Phases II and III constituted a contractual obligation.\n5. Zoning\u2014 reservation of open space\u2014violation properly enjoined\nA zoning ordinance requiring that a developer reserve open space and install a mini-park fell within the scope of River Birch Assocs. v. City of Raleigh, 326 N.C. 100, and the trial court did not err by granting summary judgment for plaintiff town and enjoining defendants\u2019 violation of the ordinance.\nAppeal by defendants from order entered 25 January 2008 by Judge James M. Webb in Moore County Superior Court. Heard in the Court of Appeals 23 September 2008.\nThe Brough Law Firm, by William C. Morgan, Jr. and Michael B. Brough, for plaintiff-appellee.\nMichael G. Walsh for defendants-appellants." }, "file_name": "0659-01", "first_page_order": 691, "last_page_order": 700 }