County of Hoke v. Byrd

• Citation: 421 S.E.2d 800,107 N.C.App. 658
• Decision Date: 20 October 1992
• Docket Number: No. 9116SC771,9116SC771
• Court: North Carolina Court of Appeals
• Parties: COUNTY OF HOKE v. Huey I. BYRD, and wife Zenobia Ann Smith Byrd.

Page 800

421 S.E.2d 800

107 N.C.App. 658

COUNTY OF HOKE v. Huey I. BYRD, and wife Zenobia Ann Smith Byrd.

No. 9116SC771.

Court of Appeals of North Carolina.

Oct. 20, 1992.

Willcox & McFadyen by Duncan B. McFadyen, III, Raeford, for plaintiff-appellee.

Gill & Dow by Douglas R. Gill, Southern Pines, for defendants-appellants.

WYNN, Judge.

Defendants, Huey I. Byrd and his wife, Zenobia Ann Smith Byrd, have owned a piece of property in Hoke County since 1975. Huey Byrd operates his business, Byrd's Welding and Repair Shop, on this property. Large quantities of scrap metal materials are stored on the property and used by Byrd in his business. They are not enclosed in any building.

On October 19, 1987, the Hoke County Board of Commissioners adopted an ordinance entitled Ordinance Regulating the Operation or Maintenance of Automobile Graveyards, Junkyards and Repair Shops in Hoke County (hereinafter Hoke County Ordinance). This ordinance requires that any automobile graveyard, junkyard or repair shop that is within three-hundred feet of the center line of any public road, within 1/2 mile of any school or church, within any residential area or within three-hundred feet of a housing unit must be entirely surrounded by wire fencing and vegetation. This vegetation "shall be of a type that can reach a minimum height of eight feet within eight years of the date planted and shall be planted ... so that a continuous, unopen hedgerow ... will exist to a height of at least eight feet along the length of the fence...."

The Byrds' property is a junkyard as defined in the ordinance. The property is located within three-hundred feet of the center line of Highway 211 and within three-hundred feet of the nearest residence. Within a 1/4 mile wide strip contiguous and parallel to the outer boundaries of the Byrd property are twelve residences and one church. There is currently no fence nor any vegetation along the one thousand foot perimeter of the Byrd property.

Because Huey Byrd was operating his business prior to the implementation of the ordinance he was required to comply with "Section Seven, Nonconforming Automobile Graveyards, Junkyards and Repair Shops Existing at Effective Date of this Ordinance." Pursuant to this section, Byrd registered Byrd's Welding and Repair Shop with the Hoke County Health Department within 180 days and paid an initial license fee. Section Seven then allotted him a twelve month grace period within which to comply with the fencing and vegetation requirements.

The Byrds are presently in violation of the ordinance because they have failed to erect a wire fence and plant the necessary vegetation. As reason for this failure they cite the prohibitive costs of $6,700 for fencing and $1,900 for shrubbery. They appeal here from the Superior Court's order to remove the scrap materials from their property.

I.

Appellants first assign error to the trial court's determination that the ordinance is statutorily and constitutionally sufficient. In support of this contention, they present three arguments: (A) the ordinance is statutorily insufficient because it imposes prohibitively expensive requirements far beyond those necessary to achieve its purposes; (B) the ordinance violates appellants' constitutional right to equal protection of the laws; and (C) the ordinance is pre-empted by state statute. For the reasons that follow, we disagree.

A. Statutory Basis

North Carolina General Statute § 153A-121 endows the counties with a general police power. Summey Outdoor Advertising v. County of Henderson, 96 N.C.App. 533, 537-38, 386 S.E.2d 439, 442-43 (1989), disc. rev. denied, 326 N.C. 486, 392 S.E.2d 101 (1990). This statute provides that "[a] 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." N.C.Gen.Stat. § 153A-121(a) (1991). The validity of a county ordinance is determined via application of the test articulated by our Supreme Court in A-S-P Associates v. City of Raleigh, 298 N.C. 207, 258 S.E.2d 444 (1979). This test first requires us to determine whether the Hoke County Ordinance represents a valid exercise of the police power. Id. at 214, 258 S.E.2d at 448. We conclude that it does. The ordinance was passed to ensure the safety of Hoke County citizens, to preserve the environment and physical integrity of the land, and to protect Hoke County citizens from the spread of disease and a proliferation of rodents and mosquitoes. Section Two: Purposes and Objectives, Hoke County Ordinance. As such, we find that it is within the broad boundaries of power conferred by the statute.

Once it is determined that the objectives of an ordinance are within the scope of the police power, the A-S-P Associates test next requires a determination that the means chosen to implement those objectives are not unreasonable. A-S-P Associates, 298 N.C. at 214, 258 S.E.2d at 448-49. In the subject case, the ordinance requires that any automobile graveyard, junkyard or repair shop that is within three-hundred feet of the center line of any public road, within 1/2 mile of any school or church, within 1/2 mile of any residential area, or within three-hundred feet of a housing unit must be entirely surrounded by wire fencing and vegetation. Appellants assert that these requirements are unreasonable. We disagree.

In determining whether the means by which the Hoke County Board of Commissioners has chosen to regulate are reasonable, we must employ the two-pronged inquiry set forth in A-S-P Associates: "(1) Is the [ordinance] in its application reasonably necessary to promote the accomplishment of a public good and (2) is the interference with the owner's right to use his property as he deems appropriate reasonable in degree?" Id.

Regarding the first prong, we note that the reasons for which the Hoke County Ordinance was passed, discussed supra, also articulate the public good the Board hopes to achieve. The findings published by the Board of Commissioners at the beginning of the ordinance establish that the Board's regulation of automobile graveyards, junkyards and repair shops is reasonably necessary to achieve that desired public good. These findings indicate that, when located near public roads and schools, such establishments are "patently offensive to the dignity and aesthetic quality of the environment in Hoke County unless at least partially obstructed from view by appropriate fencing or combination of fencing and vegetation." Hoke County Ordinance at 1. Further, when such businesses are located near public roads, residential areas, schools and churches, the health, safety and welfare of citizens, residents and children are at risk "due to the hazard of fire, the possible entrapment of children and others in areas of confinement ... and the possibility of injury to persons, especially children, resulting from said persons coming into contact with metal, glass or other rigid materials." Id.

Appellants contend that the ordinance is unreasonable because there are other less burdensome means by which Hoke County could achieve its purposes. While it is possible that the regulation might be just as effective with some lesser means of enclosing the targeted properties, it is equally possible that any less burdensome means would be inadequate. "When the most that can be said against [an ordinance] is that whether it was an unreasonable, arbitrary or unequal exercise of power is fairly debatable, the courts will not interfere." A-S-P Associates, 298 N.C. at 214, 258 S.E.2d at 449 (citations omitted). The Hoke County Board of Commissioners has been charged, via statute, with determining what actions are in the best interests of its citizens. As a rule, therefore, this Court should not substitute its own judgment for the Board's discretion. Id.

Appellants contend that State v. Vestal, 281 N.C. 517, 189 S.E.2d 152 (1972), lends support to their argument that the ordinance, as applied to them, is invalid. We, however, find that case to be distinguishable from the case at bar. The ordinance in Vestal was applied to the owner of an automobile wrecking yard located in a "general industrial district." Id. at 523, 189 S.E.2d at 157. It was found to be invalid because it had "no substantial relation to the public health, morals or safety such as will sustain the requirement as a legitimate exercise of the police power of the State for any of these purposes." Id. The "general industrial district" in which Vestal's automobile wrecking yard was located is much different than the rural area, surrounded by houses and churches, in which the Byrds' property is located. The Vestal Court recognized that in populated areas where "the safety of pedestrians upon adjoining sidewalks, the fire hazard inherent in an accumulation of junk, the threat to the public health incident to the attraction of such yards for rats ... and the attraction of materials therein for playing children" are at issue, then there is a legitimate need for secure fencing. Id. at 524, 189 S.E.2d at 157. That describes precisely the location of the Byrds' property. Even though it is in what would be classified a rural area, it is near enough to a residential, populated area to warrant the fencing and vegetation requirements imposed by the Hoke County Ordinance. The ordinance establishes reasonable means to achieve its objectives and therefore meets the first prong set forth in A-S-P Associates.

The second prong is also met: The interference with the Byrds' right to use their property as they deem appropriate is reasonable in degree. Appellants argue that because Byrd's Welding and Repair Shop realized a net profit of only $527 in 1989, the $8,600 cost they will incur in complying with the ordinance will likely prohibit them from continuing the business. However, appellants present no evidence to...