Patmore v. Town of Chapel Hill N.C.

• Decision Date: 01 April 2014
• Docket Number: No. 13–1049.,13–1049.
• Citation: 757 S.E.2d 302
• Court: North Carolina Court of Appeals
• Parties: Mark R. PATMORE; Mercia Residential Properties, LLC; William T. Gartland; and 318 Brooks LLC, Plaintiffs, v. TOWN OF CHAPEL HILL NORTH CAROLINA, Defendant.

757 S.E.2d 302

Mark R. PATMORE; Mercia Residential Properties, LLC; William T. Gartland; and 318 Brooks LLC, Plaintiffs,

v.TOWN OF CHAPEL HILL NORTH CAROLINA, Defendant.

No. 13–1049.

Court of Appeals of North Carolina.

April 1, 2014.

Appeal by plaintiffs from order entered 4 June 2013 by Judge W. Osmond Smith, III, in Orange County Superior Court. Heard in the Court of Appeals 4 February 2014.

The Brough Law Firm, by G. Nicholas Herman, Chapel Hill, for plaintiff-appellants.

Parker Poe Adams & Bernstein, LLP, Charlotte, by Anthony Fox, and Benjamin R. Sullivan, for defendant-appellee.

STEELMAN, Judge.

Where defendant enforced a zoning amendment by citing the owners of rental properties rather than their tenants because it was a more effective method of enforcement, their enforcement against property owners was rationally related to the purpose of the zoning restriction and did not violate plaintiffs' right to substantive due process. N.C. Gen.Stat. § 160A–301 governs a municipality's authority to regulate parking in public vehicular areas, while the zoning amendment was a land use restriction intended to curb over-occupancy of rental properties by limiting the number of cars parked on a rental property. Because the zoning amendment and N.C. Gen.Stat. § 160A–301 do not address the same subject, the principle of expressio unius est exclusio alterius does not apply. Lanvale Properties, LLC v. County of Cabarrus, 366 N.C. 142, 731 S.E.2d 800, reh'g denied,366 N.C. 416, 733 S.E.2d 156 (2012), held that an ordinance was not a zoning ordinance, and did not change the law governing the requirements for a valid zoning ordinance.

I. Factual and Procedural Background

Defendant Town of Chapel Hill enacted a zoning ordinance as part of its Land Use Management Ordinance. One of the zoning districts created is the Northside Neighborhood Conservation District (NNC district), a residential neighborhood located near the campus of UNC–Chapel Hill. Special design standards apply to development in the NNC district and govern such things as maximum building height and the bedroom to bathroom ratio of rental houses. Despite the standards in the zoning ordinance, over-occupancy, or rental to a greater number of tenants than bedrooms, was a “significant problem” in the NNC district for several years, and was associated with a number of problems, including parking and traffic congestion, excess garbage, and “significantly higher complaints of violations” of town regulations than in other town residential neighborhoods.

Defendant's planning department determined that although “it is not a perfect measure, the number of vehicles parked on a residential lot in the [NNC] is a reasonable approximation of how many people are living at the property.” After conducting a public hearing to address “the community's concerns about student rental,” the Town Council adopted an amendment to the zoning ordinance that limited the number of cars that may be parked on a residential lot in the NNC district to four cars. The amendment was adopted on 9 January 2012 and took effect on 1 September 2012. The amendment is applied to both owner-occupied and rental properties. If a property is rented, the amendment is enforced by citing the owner of the property for violations, rather than the tenants. Plaintiffs are property owners who rent houses in the NNC district and were cited for violation of the amendment. Plaintiffs do not dispute that their properties were in violation of the ordinance.

On 27 November 2012 plaintiffs filed a complaint and an application for declaratory judgment and permanent injunction. Plaintiffs alleged that defendant enforced the zoning amendment “solely against the owner(s) of record of the real properties subject to the Zoning Regulation” “without any determination as to the reason for the parking of those cars” and that plaintiffs were not “in any position to control the number of cars parked” on the properties that they owned and rented. Plaintiffs asserted that the zoning amendment was “unlawful, ultra vires, and void” and that “its enforcement and applicationis unreasonable, arbitrary and capricious, and violates Article I § 19 of the North Carolina Constitution and substantive due process [.]” On 7 December 2012 plaintiffs filed an amended complaint seeking either “a judgment declaring the Zoning Regulation unlawful, void and unenforceable, and permanently enjoin[ing] the enforcement of the Zoning Regulation” or an injunction “permanently enjoin[ing] the enforcement of the Zoning Regulation against property owners who have no knowledge of and/or have taken no action to create or maintain any violation of the Zoning Regulation [.]” In its answer to the amended complaint, defendant admitted citing plaintiffs for violation of the zoning amendment, but denied plaintiffs' allegations concerning their ability to control the number of cars on their properties, and moved for dismissal of plaintiffs' complaint under N.C. Gen.Stat. § 1A–1, Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

Defendant and plaintiffs filed cross-motions for summary judgment on 22 and 28 May 2013, respectively. The parties' summary judgment motions were heard by the trial court on 3 June 2013, and on 4 June 2013 the trial court entered an order granting summary judgment in favor of defendant.

Plaintiffs appeal.

II. Standard of Review

Under N.C. Gen.Stat. § 1A–1, Rule 56(a), summary judgment is properly entered “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.” “In a motion for summary judgment, the evidence presented to the trial court must be admissible at trial, N.C.G.S. § 1A–1, Rule 56(e) (2003), and must be viewed in a light most favorable to the non-moving party.” Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 467, 597 S.E.2d 674, 692 (2004) (citing Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975)). “We review a trial court's order granting or denying summary judgment de novo. ‘Under a de novo review, the court considers the matter anew and freely substitutes its own judgment’ for that of the lower tribunal.” Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (quoting In re Appeal of The Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).

III. N.C. Constitution Art. I § 19

In their first argument, plaintiffs contend that the “enforcement and application” of the zoning amendment “against Plaintiffs violates substantive due process under Article I, Section 19 of the North Carolina Constitution, the Law of the Land Clause” “because the ordinance is enforced exclusively based on the existence of more than four parked cars on a lot without any determination as to the reason for the parking of those cars.” We disagree.

N.C. Constitution Art. I, § 19 provides that:

No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.

“The term ‘law of the land’ as used in Article I, Section 19, of the Constitution of North Carolina, is synonymous with ‘due process of law’ as used in the Fourteenth Amendment to the Federal Constitution.” In re Moore, 289 N.C. 95, 98, 221 S.E.2d 307, 309 (1976) (citing Surplus Store, Inc. v. Hunter, 257 N.C. 206, 125 S.E.2d 764 (1962)).

“Due process has come to provide two types of protection for individuals against improper governmental action, substantive and procedural due process.” State v. Bryant, 359 N.C. 554, 563–64, 614 S.E.2d 479, 485 (2005) (citing State v. Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 282 (1998)). “ ‘The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property.’ ” Johnston v. State, ––– N.C.App. ––––, ––––, 735 S.E.2d 859, 875, (2012) (quoting Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548, 556 (1972)), aff'd ––– N.C. ––––, 749 S.E.2d 278 (2013). In this case, plaintiffs do not allege the deprivation of a constitutionally protected interest. Rather, plaintiffs assert a violation of their right to substantive due process.

“Substantive due process is a guaranty against arbitrary legislation, demanding that the law be substantially related to the valid object sought to be obtained.” Lowe v. Tarble, 313 N.C. 460, 461, 329 S.E.2d 648, 650 (1985) (citing State v. Joyner, 286 N.C. 366, 211 S.E.2d 320 (1975)). “Similar to the rational basis test for equal protection challenges, ‘as long as there could be some rational basis for enacting [the statute at issue], this Court may not invoke [principles of due process] to disturb the statute.’ ” Rhyne v. K–Mart Corp., 358 N.C. 160, 181, 594 S.E.2d 1, 15 (2004) (quoting Lowe, 313 N.C. at 462, 329 S.E.2d at 650) (alterations in Rhyne ). “If the challenging party cannot prove that the statute bears no rational relationship to any legitimate government interest, the statute is valid.” Liebes v. Guilford Cnty. Dep't of Pub. Health, 213 N.C.App. 426, 429, 724 S.E.2d 70, 73 (citing State v. Fowler, 197 N.C.App. 1, 26, 676 S.E.2d 523, 544 (2009), disc. review denied,364 N.C. 129, 696 S.E.2d 695 (2010)), disc. review denied,365 N.C. 361, 718 S.E.2d 396 (2011). Plaintiffs concede that their complaint “does not challenge the ordinance on any substantive due process ground that the ordinance was enacted without any conceivable rational relationship to a legitimate governmental objective.” “Instead, Plaintiffs...