{ "id": 4165928, "name": "NORTH IREDELL NEIGHBORS FOR RURAL LIFE, JERRY O. MISHOE, REBECCA MISHOE, BRYAN EDWARD LEACH, SHERLENE NINA LEACH, WILLIAM B. PITT, LUCINDA D. PITT, DWIGHT R. BRIDGES, JUANITA BRIDGES, BARRY D. MASON, RANDA J. MASON, FRANKLIN D. REAVIS, AMY L. REAVIS, ASHLEY DEAN REAVIS, ROBERT E. REAVIS, JANE REAVIS, RICKEY EUGENE REAVIS, CYNTHIA REAVIS, ROBERT LOUIS TAYLOR, CARROLL EUGENE WARD, NANCY WARD, STEVE KENNETH SOMERS as trustee for THE STEVE KENNETH SOMERS REVOCABLE LIVING TRUST, DONNA S. SOMERS as trustee for THE DONNA S. SOMERS REVOCABLE LIVING TRUST, and LORRIE E. MARION BARKER, Plaintiffs v. IREDELL COUNTY, HARRY PHILLIP McLAIN, LOUISE DUARTE McLAIN, CHARLES MICHAEL McLAIN, and JANET HEWITT McLAIN, Defendants", "name_abbreviation": "North Iredell Neighbors for Rural Life v. Iredell County", "decision_date": "2009-04-07", "docket_number": "No. COA08-1068", "first_page": "68", "last_page": "80", "citations": [ { "type": "official", "cite": "196 N.C. App. 68" } ], "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": "639 S.E.2d 421", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637514 ], "year": 2007, "pin_cites": [ { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/se2d/639/0421-01" ] }, { "cite": "239 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "574", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "293 N.C. 688", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566967 ], "year": 1977, "pin_cites": [ { "page": "701", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0688-01" ] }, { "cite": "528 S.E.2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "635", "parenthetical": "citation omitted" }, { "page": "635", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 461", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11094063 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "464-65", "parenthetical": "citation omitted" }, { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0461-01" ] }, { "cite": "274 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "opinion_index": 0 }, { "cite": "301 N.C. 719", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570610, 8570516, 8570454, 8570489, 8570555 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/301/0719-05", "/nc/301/0719-03", "/nc/301/0719-01", "/nc/301/0719-02", "/nc/301/0719-04" ] }, { "cite": "269 S.E.2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "704", "parenthetical": "\"[D]ogs are not included in the classification of livestock and [ ] dog breeding and the operation of a dog kennel are not 'farming' activities within the meaning of G.S. 153A-340.\"" } ], "opinion_index": 0 }, { "cite": "48 N.C. App. 541", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551645 ], "year": 1980, "pin_cites": [ { "page": "547", "parenthetical": "\"[D]ogs are not included in the classification of livestock and [ ] dog breeding and the operation of a dog kennel are not 'farming' activities within the meaning of G.S. 153A-340.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/48/0541-01" ] }, { "cite": "371 S.E.2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 834", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514028, 2518960, 2516821, 2517941, 2513435 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0834-04", "/nc/322/0834-02", "/nc/322/0834-01", "/nc/322/0834-05", "/nc/322/0834-03" ] }, { "cite": "303 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "239", "parenthetical": "holding the nursery and greenhouse to be a bona fide farm because agricultural operations included growing vegetables, flowers, and shrubs" } ], "opinion_index": 0 }, { "cite": "62 N.C. App. 396", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522664 ], "year": 1983, "pin_cites": [ { "page": "401", "parenthetical": "holding the nursery and greenhouse to be a bona fide farm because agricultural operations included growing vegetables, flowers, and shrubs" } ], "opinion_index": 0, "case_paths": [ "/nc-app/62/0396-01" ] }, { "cite": "507 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571734 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0348-01" ] }, { "cite": "498 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "836", "parenthetical": "\"Although sometimes referred to as 'land farming,' soil remediation does not fit within the above description of agricultural uses. No products are grown or sold and the tilling of the soil is related to a chemical process rather than to production of crops or plants.\"" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 300", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11649817 ], "year": 1998, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0300-01" ] }, { "cite": "551 S.E.2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "498", "parenthetical": "explaining that removal of soil in preparation of a horse pasture and subsequent selling of the soil \"was related and incidental to the farming activities of boarding, breeding, raising, pasturing and watering horses[]\"" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 665", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11439276 ], "year": 2001, "pin_cites": [ { "page": "671", "parenthetical": "explaining that removal of soil in preparation of a horse pasture and subsequent selling of the soil \"was related and incidental to the farming activities of boarding, breeding, raising, pasturing and watering horses[]\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0665-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 106-581.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "page": "(6)" } ], "opinion_index": 0 }, { "cite": "492 S.E.2d 620", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "622", "parenthetical": "citation omitted" }, { "page": "622" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 700", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11799912 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "703", "parenthetical": "citation omitted" }, { "page": "704" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0700-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-69.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2007, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "361 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739419 ], "year": 2007, "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0193-01" ] }, { "cite": "586 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "249" } ], "opinion_index": 0 }, { "cite": "357 N.C. 492", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491872 ], "year": 2003, "pin_cites": [ { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0492-01" ] }, { "cite": "521 S.E.2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "709", "parenthetical": "quoting Veazey, 231 N.C. at 362, 57 S.E.2d at 381" }, { "page": "709" } ], "opinion_index": 0 }, { "cite": "351 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155764 ], "year": 1999, "pin_cites": [ { "page": "174-75", "parenthetical": "quoting Veazey, 231 N.C. at 362, 57 S.E.2d at 381" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0172-01" ] }, { "cite": "59 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "232 N.C. 744", "category": "reporters:state", "reporter": "N.C.", "year": 1950, "opinion_index": 0 }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1950, "pin_cites": [ { "page": "381" }, { "page": "381" }, { "page": "381" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "weight": 3, "year": 1950, "pin_cites": [ { "page": "362" }, { "page": "362" }, { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] } ], "analysis": { "cardinality": 1085, "char_count": 27863, "ocr_confidence": 0.737, "pagerank": { "raw": 6.767530067399406e-08, "percentile": 0.4093381506026027 }, "sha256": "b2aa017980e8514852a1494be6c8c5d996cd36d6a5044302a35effa5a73fc028", "simhash": "1:d3ab542e5eceacd4", "word_count": 4493 }, "last_updated": "2023-07-14T15:08:58.268450+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and JACKSON concur." ], "parties": [ "NORTH IREDELL NEIGHBORS FOR RURAL LIFE, JERRY O. MISHOE, REBECCA MISHOE, BRYAN EDWARD LEACH, SHERLENE NINA LEACH, WILLIAM B. PITT, LUCINDA D. PITT, DWIGHT R. BRIDGES, JUANITA BRIDGES, BARRY D. MASON, RANDA J. MASON, FRANKLIN D. REAVIS, AMY L. REAVIS, ASHLEY DEAN REAVIS, ROBERT E. REAVIS, JANE REAVIS, RICKEY EUGENE REAVIS, CYNTHIA REAVIS, ROBERT LOUIS TAYLOR, CARROLL EUGENE WARD, NANCY WARD, STEVE KENNETH SOMERS as trustee for THE STEVE KENNETH SOMERS REVOCABLE LIVING TRUST, DONNA S. SOMERS as trustee for THE DONNA S. SOMERS REVOCABLE LIVING TRUST, and LORRIE E. MARION BARKER, Plaintiffs v. IREDELL COUNTY, HARRY PHILLIP McLAIN, LOUISE DUARTE McLAIN, CHARLES MICHAEL McLAIN, and JANET HEWITT McLAIN, Defendants" ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nNorth Iredell Neighbors for Rural Life (\u201cNINRL\u201d), Jerry O. Mishoe, et seq. (collectively, \u201cplaintiffs\u201d) appeal orders entered: (1) granting Iredell County\u2019s (\u201cthe County\u201d) motion for summary judgment against NINRL and (2) granting Harry Phillip McLain\u2019s, et seq. (collectively, \u201cthe McLains\u201d) motion for summary judgment against plaintiffs. Plaintiffs also appeal the trial court\u2019s denial of their motion for injunctive relief pending appeal. See North Iredell Neighbors for Rural Life v. Iredell County, 196 N.C. App.-,-S.E.2d-(Apr. 7, 2009) (No. COA08-1010). We affirm in part and reverse in part.\nI. Background\nOn 5 September 2007, plaintiffs filed a verified complaint seeking a declaratory judgment that a rezoning ordinance adopted by the Iredell County Board of Commissioners was void and of no effect. Plaintiffs alleged that on or about 20 February 2007 the McLains applied to have a 7.88-acre tract of land rezoned from single-family residential to heavy manufacturing conditional use district. \u201cThe stated purpose of the request was to allow for the \u2018manufacture of soybeans and other crops to biodiesel,\u2019 and the application indicate^] that the proposed specific permitted land use was the \u2018manufacture of biodiesel.\u2019 \u201d\nThe property in question \u201cis part of a larger tract of land consisting of approximately 218 acres, located off Snow Creek Road in . . . an unincorporated area known as the Snow Creek Community.\u201d NINRL \u201crepresents the residents of the Snow Creek Community who are opposed to the [r]ezoning and the operation of a biodiesel manufacturing facility in the community[.]\u201d The remaining plaintiffs are \u201cthe owners of properties that either adjoin or are located in close proximity to the [property\u201d in question.\nThe County Board of Commissioners considered the McLains\u2019 application at a 7 August 2007 \u201cquasi-judicial\u201d public hearing. \u201cThe minutes of the . . . meeting reflect that the Board of Commissioners first voted four to one in favor of amending the Land Use Plan\u201d and then \u201cvoted four to one in favor of the \u2018proposed zoning map amendment.\u2019 \u201d \u201cDuring its August 21, 2007 meeting and by a vote of four to one, the Board of Commissioners voted to adopt findings of fact for the conditional use permit that should have been adopted at the same time the [rjezoning was approved.\u201d\nPlaintiffs\u2019 complaint alleged: (1) \u201cthe Board of Commissioners lacked the authority to adopt a conditional use district rezoning that authorizes [biodiesel manufacturing;]\u201d (2) \u201cthe Board of Commissioners failed to follow their own procedure as required by the Zoning Ordinance[;]\u201d and (3) \u201cthe [r]ezoning . . . constitutes illegal spot zoning . . . .\u201d Plaintiffs requested injunctive relief \u201cuntil such time ... as the [rezoning] has been approved or ratified by a court of law.\u201d On 26 September 2007, plaintiffs filed an amended, verified complaint and further alleged \u201cthe County failed to comply with statutory notice requirements . . . .\u201d\nThe County filed a motion for summary judgment on 27 December 2007. The County\u2019s motion alleged plaintiffs \u201care not aggrieved persons and lack standing to pursue this matter\u201d and \u201c[NINRL] is a non-existent entity or one without power and authority to commence suit or to invoke and use the jurisdiction of the Courts of this State.\u201d The McLains also filed a motion for summary judgment on 27 December 2007. The McLains\u2019 motion alleged that \u201cthe Iredell County Board of Commissioners lacks authority to regulate the activities and that the activities contemplated by the defendants are bona fide farm activities and are not within the authority of the Iredell County Board of Commissioners to regulate pursuant to its zoning power.\u201d\nOn 4 February 2008, the trial court entered two orders. The first order granted the County\u2019s motion for summary judgment against NINRL and denied it against the remaining plaintiffs. The trial court found NINRL failed to \u201cmake an affirmative averment showing its legal existence and capacity to sue as required by Rule 9A of the North Carolina Rules of Civil Procedure.\u201d The second order granted the McLains\u2019 motion for summary judgment against plaintiffs. The trial court found that \u201c[t]he production of biodiesel by a farmer on farm premises for agricultural purposes is a bona fide farm use and as such the production of biodiesel is exempt from county zoning ordinances pursuant to N.C. Gen. Stat. \u00a7 153A-340 (2007).\u201d The trial court further stated that \u201c[s]o long as the McLains do not expand their production activity beyond 500,000 gallons and the biodiesel so produced is used for agricultural purposes on their farm or sold for agricultural use, the production of biodiesel is a bona fide farm use as a matter of law.\u201d Plaintiffs filed their notice of appeal from these judgments on 8 March 2008.\nOn 14 April 2008, plaintiffs filed a motion for an injunction pending appeal. Plaintiffs requested the trial court to\nenter an injunction pursuant to N.C. R. Civ. P. 62(c), enjoining the McLains from constructing or erecting any of the facilities associated with the biodiesel plant or operating the biodiesel plant pending the outcome of the appeal of this action, and also enjoining .'.. [the] County from issuing any permits for the construction or operation of a biodiesel plant on the McLains\u2019 property.\nThe trial court denied plaintiffs\u2019 motion for an injunction pending appeal on 30 April 2008. Plaintiffs appeal.\nII. Interlocutory Anneal\nAs a preliminary matter, we note that this appeal is interlocutory. \u201cAn interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.\u201d Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950), reh\u2019g denied, 232 N.C. 744, 59 S.E.2d 429 (1950).\nA party may appeal an interlocutory order under two circumstances. First, the trial court may certify that there is no just reason to delay the appeal after it enters a final judgment as to fewer than all of the claims or parties in an action. N.C.G.S. \u00a7 1A-1, Rule 54(b) (1990). Second, a party may appeal an interlocutory order that \u201caffects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment.\u201d\nDep\u2019t of Transp. v. Rowe, 351 N.C. 172, 174-75, 521 S.E.2d 707, 709 (1999) (quoting Veazey, 231 N.C. at 362, 57 S.E.2d at 381).\nHere, plaintiffs appeal three orders entered by the trial court. None of the orders appealed from were certified pursuant to Rule 54(b) by the trial court. Nonetheless, plaintiffs\u2019 appeal affects a substantial right and is immediately appealable. Id. at 175, 521 S.E.2d at 709. The trial court\u2019s finding that the \u201c [t]he production of biodiesel by a farmer on farm premises for agricultural purposes is a bona fide farm use and . . . exempt from county zoning ordinances\u201d effectively renders plaintiffs\u2019 challenge of the rezoning of the McLains\u2019 property moot. Plaintiffs may therefore appeal the trial court\u2019s orders because they \u201caffect[] some substantial right . . . and will work an injury to [plaintiffs] if not corrected before an appeal from the final judgment.\u201d Veazey, 231 N.C. at 362, 57 S.E.2d at 381.\nIII. Issues\nPlaintiffs argue the trial court erred when it: (1) granted the County\u2019s motion for summary judgment in part; (2) granted the McLains\u2019 motion for summary judgment; and (3) denied their motion for an injunction pending appeal.\nIV. NINRL\u2019s Standing\nPlaintiffs argue the trial court erred when it found NINRL lacked standing and granted the County\u2019s motion for summary judgment in part because the trial court improperly \u201cimposed pleading requirements where none existed [and] ignored record evidence . . . .\u201d We disagree.\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).\nN.C. Gen. Stat. \u00a7 1-69.1 (2007) states:\n(a) Except as provided in subsection (b) of this section:\n(1) All unincorporated associations, organizations or societies, or general or limited partnerships, foreign or domestic, whether organized for profit or not, may hereafter sue or be sued under the name by which they are commonly known and called, or under which they are doing business, to the same extent as any other legal entity established by law and without naming any of the individual members composing it.\n(2) Any judgments and executions against any such association, organization or society shall bind its real and personal property in like manner as if it were incorporated.\n(3) Any unincorporated association, organization, society, or general partnership bringing a suit in the name by which it is commonly known and called must allege the specific location of the recordation required by G.S. 66-68.\n(b) Unincorporated nonprofit associations are subject to Chapter 59B of the General Statutes and not this section.\n(Emphasis added.)\nN.C. Gen. Stat. \u00a7 1A-1, Rule 9(a) (2007) states:\nAny party not a natural person shall make an affirmative averment showing its legal existence and capacity to sue. . . . When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader\u2019s knowledge.\n(Emphasis added.)\nThe County\u2019s motion for summary judgment filed 27 December 2007 alleged, among other things, that \u201c[NINRL] is a non-existent entity or one without power and authority to commence suit or to invoke and use the jurisdiction of the Courts of this State.\u201d The trial court entered the following findings of fact in its order granting the County\u2019s motion for summary judgment with regard to NINRL:\n1. [NINRL] did not allege a specific location of recordation as required by N.C. Gen. Stat. \u00a7 1-69.1 for unincorporated associations bringing a suit in the North Carolina courts.\n2. [NINRL] did not allege that it is a nonprofit unincorporated association bringing suit with standing under Chapter 59B.\n3. [NINRL] did not make an affirmative averment showing its legal existence and capacity to sue as required by Rule 9A of the North Carolina Rules of Civil Procedure.\nPlaintiffs\u2019 amended complaint stated only that \u201c[NINRL] represents the residents of the Snow Creek' Community who are opposed to the Rezoning and the operation of a biodiesel manufacturing facility in the community[.]\u201d While N.C. Gen. Stat. \u00a7 1-69.1(b) eliminates the pleading requirements set forth in N.C. Gen. Stat. \u00a7 l-69.1(a)(3), N.C. Gen. Stat. \u00a7 1A-1, Rule 9(a) required NINRL to affirmatively aver that it was an unincorporated nonprofit association. Plaintiffs failed to \u201cmake an affirmative averment showing [NINRL\u2019s] legal existence and capacity to sue.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 9(a). The trial court properly found that NINRL \u201cd[id] not have standing to bring suit in this matter.\u201d This assignment of error is overruled.\nV. Bona Fide Farm Use\nPlaintiffs argue the trial court erred when it found \u201c[t]he production of biodiesel by a farmer on farm premises for agricultural purposes is a bona fide farm use and... exempt from county zoning ordinances . . . .\u201d We agree.\n[W]hen the General Assembly granted authority to the counties to regulate and restrict the use of land by means of zoning ordinances in N.C. Gen. Stat. \u00a7 153A-340, including the power to regulate and restrict the \u201cuse of buildings, structures, and land for trade, industry, residence, or other purposes,\u201d it carved out one important exception to the counties\u2019 jurisdiction: the authority to regulate land being used for \u201cbona fide farm purposes.\u201d Specifically, county zoning \u201cregulations may not affect bona fide farms, but any use of farm property for nonfarm purposes is subject to the regulations.\u201d Although the statute does not define \u201cbona fide farm,\u201d it does define \u201cbona fide farm purposes\u2019^.]\nSedman v. Rijdes, 127 N.C. App. 700, 703, 492 S.E.2d 620, 622 (1997) (citation omitted). \u201c[B]ona fide farm purposes include the production and activities relating or incidental to the production of crops, fruits, vegetables, ornamental and flowering plants, dairy, livestock, poultry, and all other forms of agricultural products as defined in G.S. 106-581.1 having a domestic or foreign market.\u201d N.C. Gen. Stat. \u00a7 153A-340(b)(2) (2007).\nWhen performed on the farm, \u201cagriculture\u201d, \u201cagricultural\u201d, and \u201cfarming\u201d also include the marketing and selling of agricultural products, agritourism, the storage and use of materials for agricultural purposes, packing, treating, processing, sorting, storage, and other activities performed to add value to crops, livestock, and agricultural items produced on the farm, and similar activities incident to the operation of a farm.\nN.C. Gen. Stat. \u00a7 106-581.1(6) (2007).\nFive cases decided by this Court provide additional clarification on the definition of a bona fide farm use. See County of Durham v. Roberts, 145 N.C. App. 665, 671, 551 S.E.2d 494, 498 (2001) (explaining that removal of soil in preparation of a horse pasture and subsequent selling of the soil \u201cwas related and incidental to the farming activities of boarding, breeding, raising, pasturing and watering horses[]\u201d); Ball v. Randolph County Bd. of Adjust., 129 N.C. App. 300, 304, 498 S.E.2d 833, 836 (1998) (\u201cAlthough sometimes referred to as \u2018land farming,\u2019 soil remediation does not fit within the above description of agricultural uses. No products are grown or sold and the tilling of the soil is related to a chemical process rather than to production of crops or plants.\u201d), disc. review improvidently allowed, 349 N.C. 348, 507 S.E.2d 272 (1998); Sedman, 127 N.C. App. at 704, 492 S.E.2d at 622 (\u201c[T]he activities in which Multiflora is engaged including the construction of a driveway, the use of the driveway by large trucks to export plants from the premises, the operation of thirty-seven fans emitting low frequency sound and the selling of plants on the premises, fall within the bona fide farm purposes exemption . ...\u201d); Baucom\u2019s Nursery Co. v. Mecklenburg Co., 62 N.C. App. 396, 401, 303 S.E.2d 236, 239 (1983) (holding the nursery and greenhouse to be a bona fide farm because agricultural operations included growing vegetables, flowers, and shrubs), disc. review denied, 322 N.C. 834, 371 S.E.2d 274 (1988); Development Associates v. Board of Adjustment, 48 N.C. App. 541, 547, 269 S.E.2d 700, 704 (1980) (\u201c[D]ogs are not included in the classification of livestock and [ ] dog breeding and the operation of a dog kennel are not \u2018farming\u2019 activities within the meaning of G.S. 153A-340.\u201d), disc. review denied, 301 N.C. 719, 274 S.E.2d 227 (1981). While these cases provide some guidance on how this Court has interpreted bona fide farm use in the past, none are particularly instructive on the facts before us.\nHere, the trial court entered the following findings of fact in its order granting the McLains\u2019 motion for summary judgment:\n1. The production of biodiesel involves the pressing of oil seeds including soybeans, canola and sunflower seeds to extract the oil. The oil is treated in order to estrify the oil converting the oil to a combustible fuel. The byproducts include seed meal and glycerin. There is no factual dispute concerning the means and methods of production of biodiesel.\n2. The McLains intend to produce 500,000 gallons per year of biodiesel fuel from various oil seeds grown by them and by their neighbors. The biodiesel produced is to be consumed in the McLains\u2019 farm operation which covers approximately 5000 acres and requires approximately 100,000 gallons of diesel per year. Any excess biodiesel production will be sold for farm uses.\n3. Biodiesel is a preferable fuel for farm equipment since it requires no additives as does diesel produced from petroleum. Biodiesel is suitable for fuel in all types of farm equipment. The key byproduct of biodiesel production is seed meal which is an important ingredient in animal feed. The local dairy, cattle and poultry farmers comprise a ready market for the seed meal.\n4. The raw materials for the production of biodiesel will be grown by the McLains and their neighbors, pressed for oil on the McLain farm and the resulting product will be used to fuel the tractors, trucks, combines and other farm machinery owned and operated by the McLains. Any excess will be sold for farm use.\nUnder, the unique set of facts presented here, we hold that the McLains\u2019 intended biodiesel production, as found by the trial court, is not a bona fide farm use. The hauling of raw materials from surrounding farms, and the production of 500,000 gallons of biodiesel per year, when the McLains\u2019 farming operation requires only 100,000 gallons of biodiesel per year, removes this production from the realm of bona fide farm use to a non-farm independent commercial enterprise. While the McLains\u2019 large scale industrial farming operation has certainly fit under the bona fide farm exception to date, this added industrial process, as they currently intend, is not \u201cthe production and activities relating or incidental to the production of crops, fruits, vegetables, ornamental and flowering plants, dairy, livestock, poultry, and all other forms of agricultural products as defined in G.S. 106-581.1 having a domestic or foreign market.\u201d N.C. Gen. Stat. \u00a7 153A-340(b)(2). The McLains\u2019 intended biodiesel production is therefore subject to zoning.\nWe note that the McLains seem to have recognized this fact when they applied for and received rezoning of their property from single-family residential to heavy manufacturing conditional use district. It is only after receiving the conditional use permit from the County that the McLains asserted their \u201cbona fide\u201d exemption. The new characterization of \u201cexempt\u201d activity undermines plaintiffs\u2019 contentions on appeal.\nWe also recognize that there may come a time when the economies of scale are such that a farming operation may be able to produce, through its own crops, only that amount of biodiesel necessary for its own operations, but those facts are not before us and we express no opinion on whether that would be a bona fide farm use as a matter of law.\nThe trial court erred when it entered summary judgment in favor . of the McLains. In light of this holding, it is unnecessary to review plaintiffs\u2019 remaining assignments of error relating to the McLains\u2019 motion for summary judgment.\nVI. Injunction Pending Appeal\nPlaintiffs argue the trial court erred when it \u201crefused to grant injunctive relief preventing the building and operation of the biodiesel refinery while the legality of that refinery is an open question.\u201d We disagree.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 62(c) (2007) states:\nWhen an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.\n(Emphasis added.)\nWe review the trial court\u2019s denial of plaintiffs\u2019 Rule 62(c) motion for an abuse of discretion. Id. \u201cAn abuse of discretion results where the [trial] court\u2019s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u201d Long v. Harris, 137 N.C. App. 461, 464-65, 528 S.E.2d 633, 635 (2000) (citation omitted).\nIn Investors, Inc. v. Berry, our Supreme Court stated:\nA preliminary injunction ... is an extraordinary measure taken by a court to preserve the status quo of the parties during litigation. It will be issued only (1) if a plaintiff is able to show likelihood of success on the merits of his case and (2) if a plaintiff is likely to sustain irreparable loss unless the injunction is issued, or if, in the opinion of the Court, issuance is necessary for the protection of a plaintiffs rights during the course of litigation.\n293 N.C. 688, 701, 239 S.E.2d 566, 574 (1977) (citations omitted). While no North Carolina court appears to have articulated the standard which a trial court should use when ruling on a Rule 62(c) motion, we hold the two-pronged test articulated by our Supreme Court in Berry to be applicable.\nThe trial court stated in its order denying plaintiffs\u2019 Rule 62(c) motion:\nIrrespective of whether [plaintiffs] prevail on the issue of biodiesel fuel not being a bonafide farm operation, this Court is nevertheless firmly of the opinion that the crushing of soybean and canola seed into oil for sale is, in this Court\u2019s opinion, a bonafide farm operation and that the . . . McLain[s] should be allowed to proceed to crush and extract these respective oils. [The] McLain [s] state in an affidavit that there are no immediate plans to convert the bean and seed oil into biodiesel fuel; however, if [the McLains] choose to continue refinery construction, they do so at their own risk. This Court will not impose an interim injunction specifically noting that from Judge Taylor\u2019s order of February 4, 2008, until the institution of this petition for injunction filed on April 14, 2008, some two months elasped without any contention by [plaintiffs] of an urgent threat of irreparable harm and after having reviewed the standards set forth in both the federal and North Carolina cases, this Court does not believe that the ultimate outcome of this case requires injunctive relief until an appellate decision has been reached.\n[Plaintiffs] further seek to restrain Iredell County from issuing any permits for the construction or operation of a biodiesel plant on the McLain property. This Court has received assurances that no applications have been made to Iredell County for such a permit however this Court will not restrain the permitting process in the event an application is submitted.\nPlaintiffs have failed to show that \u201cthe [trial] court\u2019s ruling [was] manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u201d Long, 137 N.C. App. at 465, 528 S.E.2d at 635 (citation omitted). The trial court did not abuse its discretion when it denied plaintiffs\u2019 Rule 62(c) motion for an injunction pending appeal. This assignment of error is overruled.\nVIL Conclusion\nPlaintiffs failed to \u201cmake an affirmative averment showing [NINRL\u2019s] legal existence and capacity to sue.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 9(a). The trial court did not err when it found NINRL lacked standing. The trial court\u2019s 4 February 2008 order granting the County\u2019s motion for summary judgment in part is affirmed.\nThe trial court erred when it found \u201c[t]he production of biodiesel by a farmer on farm premises for agricultural purposes is a bona fide farm use and . . . exempt from county zoning ordinances[.]\u201d The trial court\u2019s 4 February 2008 order granting the McLains\u2019 motion for summary judgment against plaintiffs is reversed, and this matter is remanded for further proceedings consistent with this opinion.\nThe trial court did not abuse its discretion when it denied plaintiffs motion for an injunction pending appeal. The trial court\u2019s 30 April 2008 order denying plaintiffs\u2019 Rule 62(c) motion is affirmed.\nAffirmed in part; reversed in part; and remanded.\nJudges McGEE and JACKSON concur.", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." } ], "attorneys": [ "Womble Carlyle Sandridge & Rice, PLLC, by Kurt E. Lindquist II and Sarah L. Buthe, for plaintiff-appellants.", "Pope McMillan Kutteh Privette Edwards & Schieck, PA, by Martha N. Peed and William H. McMillan, for the McLains defendant-appellees.", "Pope McMillan Kutteh Privette Edwards & Schieck, PA, by Martha N. Peed and William P. Pope, for Iredell County defendant-appellee.", "North Carolina Farm Bureau Federation, Inc., by Secretary and General Counsel H. Julian Philpott, Jr., and Associate General Counsel Stephen A. Woodson, amicus curiae." ], "corrections": "", "head_matter": "NORTH IREDELL NEIGHBORS FOR RURAL LIFE, JERRY O. MISHOE, REBECCA MISHOE, BRYAN EDWARD LEACH, SHERLENE NINA LEACH, WILLIAM B. PITT, LUCINDA D. PITT, DWIGHT R. BRIDGES, JUANITA BRIDGES, BARRY D. MASON, RANDA J. MASON, FRANKLIN D. REAVIS, AMY L. REAVIS, ASHLEY DEAN REAVIS, ROBERT E. REAVIS, JANE REAVIS, RICKEY EUGENE REAVIS, CYNTHIA REAVIS, ROBERT LOUIS TAYLOR, CARROLL EUGENE WARD, NANCY WARD, STEVE KENNETH SOMERS as trustee for THE STEVE KENNETH SOMERS REVOCABLE LIVING TRUST, DONNA S. SOMERS as trustee for THE DONNA S. SOMERS REVOCABLE LIVING TRUST, and LORRIE E. MARION BARKER, Plaintiffs v. IREDELL COUNTY, HARRY PHILLIP McLAIN, LOUISE DUARTE McLAIN, CHARLES MICHAEL McLAIN, and JANET HEWITT McLAIN, Defendants\nNo. COA08-1068\n(Filed 7 April 2009)\n1. Appeal and Error\u2014 appealability \u2014 interlocutory order\u2014 substantial right\nThree interlocutory orders in a declaratory judgment case regarding a rezoning ordinance affected a substantial right and were immediately appealable by plaintiffs because the trial court\u2019s finding that the production of biodiesel by a farmer on farm premises for agricultural purposes is a bona, fide farm use and exempt from county zoning ordinances effectively rendered moot plaintiffs\u2019 challenge of the rezoning of the individual defendants\u2019 property.\n2. Jurisdiction\u2014 standing \u2014 affirmative averment showing legal existence and capacity to sue required\nThe trial court did not err in a declaratory judgment action by finding NINRL lacked standing and by granting the county\u2019s motion for summary judgment in part because: (1) N.C.G.S. \u00a7 1A-1, Rule 9(a) required NINRL to affirmatively aver that it was an unincorporated nonprofit association; and (2) plaintiffs failed to make an affirmative averment showing NINRL\u2019s legal existence and capacity to sue.\n3. Zoning\u2014 biodiesel production \u2014 not bona fide farm use\nThe trial court erred in a declaratory judgment action when it found the production of biodiesel by a farmer on farm premises for agricultural purposes was a bona fide farm use and exempt from county zoning ordinances because: (1) under the unique set of facts presented in this case, the landowners\u2019 intended biodiesel production was not a bona fide farm use since the hauling of raw materials from surrounding farms, and the production of 500,000 gallons of biodiesel per year, when the landowners\u2019 farming operation required only 100,000 gallons of biodiesel per year, removed this production from the realm of bona fide farm use to a non-farm independent commercial enterprise; and (3) the added industrial process did not fall under the list in N.C.G.S. \u00a7 106-581.1, and thus the intended biodiesel production was subject to zoning which the landowners recognized by applying for and receiving rezoning of their property from single-family residential to heavy manufacturing conditional use district.\n4. Injunction\u2014 denial of motion pending appeal \u2014 building and operation of biodiesel refinery\nThe trial court did not abuse its discretion in a declaratory judgment action when it refused to grant injunctive relief under N.C.G.S., \u00a7 1A-1, Rule 62(c) preventing the building and operation of a biodiesel refinery while the legality of that refinery was an open question because plaintiffs failed to show that the trial court\u2019s ruling was manifestly unsupported by reason or was so arbitrary that it could not have been the result of a reasoned decision.\nAppeal by plaintiffs from judgments entered 4 February 2008 by Judge Kimberly S. Taylor in Iredell County Superior Court. Heard in the Court of Appeals 11 February 2009.\nWomble Carlyle Sandridge & Rice, PLLC, by Kurt E. Lindquist II and Sarah L. Buthe, for plaintiff-appellants.\nPope McMillan Kutteh Privette Edwards & Schieck, PA, by Martha N. Peed and William H. McMillan, for the McLains defendant-appellees.\nPope McMillan Kutteh Privette Edwards & Schieck, PA, by Martha N. Peed and William P. Pope, for Iredell County defendant-appellee.\nNorth Carolina Farm Bureau Federation, Inc., by Secretary and General Counsel H. Julian Philpott, Jr., and Associate General Counsel Stephen A. Woodson, amicus curiae." }, "file_name": "0068-01", "first_page_order": 96, "last_page_order": 108 }