#### CITY OF ASHEBORO v. JOHN R. AUMAN AND NORA AUMAN

No. 7519SC194

(Filed 21 May 1975)

Municipal Corporations § 30— zoning — prohibition of mobile homes

Provision of a zoning ordinance prohibiting mobile homes in a certain area was violated even though the wheels and tongue of the mobile home have been removed and a foundation has been erected.

Appeal by defendants from Long, Judge. Judgment entered 18 December 1974 in Superior Court, Randolph County. Heard in the Court of Appeals 8 May 1975.

The plaintiff City started this action on 7 May 1974 for a permanent injunction to prohibit defendants from allowing a mobile home to remain in an area prohibited by ordinance. On 18 December 1974, the court concluded that there was no genuine issue of material fact and that plaintiff was entitled to judgment as a matter of law. Plaintiff’s motion for summary judgment was allowed and judgment allowing the injunctive relief was. entered.

*88 Smith and Casper, by Archie L. Smith, for plaintiff ap-pellee.

Bell, Ogburn & Redding, by Deane F. Bell and William H. Heafner, for defendant appellants.

VAUGHN, Judge.

Pre-trial stipulations establish the following. The ordinance was adopted pursuant to statute. On 1 May 1973, defendants purchased a two-bedroom used Embassy mobile home, a mobile home within the definition of the ordinance. Defendants thereafter moved the mobile home into an area forbidden by the zoning ordinance and have since occupied it as their residence. The wheels and tongue have since been removed and a foundation has been erected.

Notwithstanding defendants’ contention to the contrary, we hold that the mere removal of the wheels, tongue and the erection of a foundation did not raise a material issue of fact necessary to a determination of the case. Defendants’ original violation was effectively stipulated. We hold, as a matter of law, that the stipulated changes in the mobile home did not change the nature of the offending use of the property.

Defendants’ arguments that the court should have declared the ordinance unconstitutional are overruled.

The judgment from which defendants appeal is affirmed.

Affirmed.

Judges Britt and Parker concur.