IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-671
Filed 1 April 2026
Forsyth County, No. 23CVS002108-330
KIMBERLY DUNCKEL and FAIRYTALE FARM ANIMAL SANCTUARY, Plaintiffs,
v.
CITY OF WINSTON-SALEM, NORTH CAROLINA; ALLEN JOINES, in his official capacity as City Mayor; DENISE D. ADAMS, BARBARA H. BURKE, ROBERT C. CLARK, JOHN C. LARSON, JEFF MACINTOSH, KEVIN MUNDY, ANNETTE SCIPPIO, JAMES TAYLOR, JR., in their official capacities as City Council members; and CHRIS MURPHY, in his official capacity as Director of Planning & Development Services Department, Defendants.
Appeal by plaintiffs from order entered 28 February 2025 by Judge Troy J.
Stafford in Forsyth County Superior Court. Heard in the Court of Appeals 11
February 2026.
Institute for Justice, by Caroline Grace Brothers and Renée D. Flaherty, and Akerman LLP, by Bryan G. Scott and Jasmine Pitt, for plaintiffs-appellants.
Marissa A. West and Anargiros N. Kontos, Assistant City Attorneys, City of Winston-Salem, for defendants-appellees.
DILLON, Chief Judge.
Plaintiffs Kimberly Dunckel and Fairytale Farm Animal Sanctuary appeal
following the entry of the trial court’s order granting Defendants’ motion for summary
judgment on Plaintiffs’ constitutional claims. Essentially, the trial court concluded
that the City of Winston-Salem (the “City”) did not violate Plaintiffs’ constitutional DUNCKEL V. CITY OF WINSTON-SALEM
Opinion of the Court
rights by prohibiting Plaintiffs from operating an animal sanctuary on property zoned
by the City as residential. We conclude the trial court did not err in granting
summary judgment and affirm.
I. Background
In 2017, Plaintiff Dunckel and her family purchased a 3.33-acre property in
the City. Prior to purchasing the property, Plaintiff Dunckel learned the property
was zoned residential. A few years later in 2021 she began to operate Fairytale Farm
Animal Sanctuary, a nonprofit organization, on the property. Plaintiff Sanctuary
housed various farm and small animals (usually around 60 to 70 animals at a time)
and hosted different volunteer activities, educational opportunities, and fundraising
events, some of which had several hundred guests.
In January 2023, the City received an anonymous complaint prompting the
City to investigate the property, after which the City concluded Plaintiffs were
operating a nonprofit animal sanctuary in an area zoned for single-family residential
purposes (RS-9). Thus, after email correspondence and a second site visit, the City
informed Plaintiffs could seek a home via a home occupation permit for the nonprofit
or Plaintiffs could “close the nonprofit and have the animals as . . . personal pets, but
absolutely not both.” Specifically, the City contends Plaintiffs’ use of the property as
an animal sanctuary was not permitted under the City’s Unified Development
Ordinance. See, e.g., Winston-Salem/Forsyth County, N.C., Uniform Development
Ordinances §§ 5.1.1, .3(A) (2023) (hereinafter the “UDO”].
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The City directed Plaintiffs to cease sanctuary operations, and Plaintiffs
voluntarily complied. Due to Plaintiffs’ voluntary compliance, Defendants did not
issue a formal Notice of Violation (“NOV”).
As the basis for its decision, the City interpreted its UDO to prohibit Plaintiff
Sanctuary entirely because “animal sanctuaries” are not a use listed in the UDO and
uses similar to “animal sanctuaries” are not allowed in RS-9 zoning districts. See
UDO § 5.1.1. Under the UDO, when a proposed use is not listed in the Principal Use
Table, the Director of Inspections must classify the use “with that use in the Table
most similar” to the unlisted use and then enforce the requirements applicable to that
use. Id. § 5.1.3(A). To that end, because no formal NOV was issued prior to or during
this litigation, City officials unofficially considered Plaintiffs’ use to be comparable to
that of an animal shelter or possibly an indoor or outdoor kennel. In any event,
Plaintiffs concede the closest existing use under the UDO would be an animal shelter.
Animal shelters are prohibited in RS-9 zones. Id. § 5.1.1.
Plaintiffs sued, alleging Defendants’ decision to shut down their nonprofit
animal sanctuary violated the Fruits of Their Own Labor Clause, Law of the Land
Clause, and the Equal Protection Clause of the North Carolina Constitution. After
conducting discovery, both parties moved for summary judgment. On 28 February
2025, after a hearing on the matter, the trial court entered an order granting
Defendants’ motion and denying Plaintiffs’ motion. Plaintiffs timely appealed.
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II. Analysis
Plaintiffs assert the trial court erroneously granted Defendants’ motion for
summary judgment on Plaintiffs’ Fruits of Their Labor, Law of the Land, and Equal
Protection claims.
A. Standard of Review
We review issues of standing de novo as they pose a question of law. Town of
Midland v. Harrell, 385 N.C. 365, 370 (2023). “This Court reviews a trial court’s . . .
award of summary judgment de novo.” Willowmere Cmty. Ass’n, Inc. v. City of
Charlotte, 370 N.C. 553, 556 (2018).
A trial court properly grants summary judgment “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 judgment as a matter of law.” N.C.G.S. § 1A-1, Rule 56(c). “[A]ll inferences
of fact . . . must be drawn against the movant and in favor of the [non-movant].”
Forbis v. Neal, 361 N.C. 519, 524 (2007) (ellipses in original and citation omitted).
When there is a genuine dispute of material fact, a motion for summary judgment is
properly denied. Id.
B. Standing
Prior to reaching the merits of Plaintiffs’ appeal, we begin with the issue of
whether Plaintiffs have standing to bring this action under our Declaratory
Judgment Act (the “DJA”), see G.S. 1-253 et. seq. Plaintiffs, quoting our Supreme
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Court’s decision in Taylor v. City of Raleigh, 290 N.C. 608, 620 (1976), essentially
contend they have standing under the DJA because they have “a specific personal
and legal interest in the subject matter affected by the zoning ordinance” and were
“directly and adversely affected thereby[,]” notwithstanding that the City never
issued a formal NOV. That language was recently cited by our Court in Gardner v.
Richmond Cnty., 297 N.C. App. 751, 756 (2025) and Camp Carefree, Inc. v.
Rockingham Cnty., 920 S.E.2d 221, 230 (N.C. Ct. App. 2025). We believe, however,
this line of cases does not resolve the present standing issue.
In Byron v. Synco Properties, Inc., this Court explained that there are three
standing tests relevant to zoning challenges. 258 N.C. App. 372, 375–76 (2018).
Relevant to this appeal is the third test, which involves challenges to a zoning
statute’s or ordinance’s constitutionality.1 Id. at 376. In these challenges, “a
[claimant] must produce evidence that he has sustained an injury or is in immediate
danger of sustaining an injury as a result of enforcement of the challenged ordinance.”
Id. at 380 (quoting Grace Baptist Church v. City of Oxford, 320 N.C. 439, 444 (1987)).
In Grace Baptist decided by our Supreme Court, the city-defendant enacted an
ordinance in 1970 that required parking areas to be paved. 320 N.C. at 441. In 1972,
1 The first test, or the Taylor test, permits a claimant to bring a declaratory judgment action
to challenge a rezoning ordinance if the claimant “has a specific personal and legal interest in the subject matter affected by the zoning ordinance and who is directly and adversely affected thereby.” Byron, 258 N.C. App. at 375 (emphasis removed) (quoting Taylor, 290 N.C. at 620). The second test confers standing to claimants who seek to challenge a zoning statute, and it “requires that the statute directly and adversely affect the [claimant].” Id. (citation omitted).
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the church-plaintiff obtained a special use permit and constructed its church in a
residential zone. Id. Despite the special use permit’s requirement that the building
comply with city ordinances, the church’s parking lot was unpaved. Id. The church
then brought a declaratory judgment action, claiming in part that the city had
violated the church’s constitutional right to equal protection by selectively enforcing
the ordinance against the church. Id. at 441–42. In its answer, the city admitted it
was seeking injunctive relief to prevent the church from using its property in violation
of the ordinance. Id. at 442, 444.
Though the city had not yet formally cited the church for violating an ordinance
when the church filed its action, our Supreme Court concluded the church had
standing. Id. at 444. The Court explained “to challenge the constitutionality of an
ordinance, a [claimant] must produce evidence that he has sustained an injury or is
in immediate danger of sustaining an injury as a result of enforcement of the
challenged ordinance.” Id. In concluding the church had standing, the Court cited
the city’s answer, which prayed for injunctive relief that “ordered [the church] to
immediately cease use of its property” until compliant and the trial court’s finding
which, in essence, stated the city intended and currently intends to enforce the
ordinance. Id.
We conclude Defendants’ answer and uncontroverted evidence found in the
record establish Plaintiffs were similarly “in immediate danger of sustaining injury.”
See Grace Baptist, 320 N.C. at 444. While Defendants never issued a formal NOV,
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Defendants admitted the following in their answer: “Kimberly Dunckel was told that
she could not host events for the Animal Sanctuary on the property or a[n] [NOV]
would be issued[.]” Defendants’ internal communications and communications to
Plaintiffs likewise establish an imminency of injury. After the City’s staff visited
Plaintiff Dunckel’s property, Plaintiff Dunckel began corresponding with the staff by
email; in those emails the staff made clear “the current use of the property will have
to stop operating[,]” and specifically, Plaintiffs “would not be able to run/operate an
animal rescue/sanctuary[,]” because of the RS-9 zoning designation. Similarly, in a
memo to Defendant Mayor and Defendants City Council Members, the memo
explained “[t]he nonprofit is in violation of the [UDO] for operating as a commercial
business in a residential area[,]” but “[t]he [C]ity hasn’t issued a[n] [NOV] because
the [S]anctuary is working with them[ ]”—a position confirmed by Defendant Chris
Murphy, the City’s 30(b) witness and the City’s Director of Planning and
Development Services Department. Finally, Defendant Murphy also explained that
had Plaintiffs not filed the present lawsuit and if they continued to operate the
sanctuary the City would have issued Plaintiffs an NOV.
Thus, the evidence and pleadings indicate Defendants viewed Plaintiffs as in
violation of the UDO and informed Plaintiffs that the current use of the property was
required to cease. Between Defendants’ answer and other evidence in the record,
Defendants intended to enforce the UDO but refrained from enforcement only
because Plaintiffs voluntarily cooperated. Therefore, following our Supreme Court’s
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rationale in Grace Baptist, we hold Plaintiffs have standing under the DJA because
Defendants “intend[] to enforce the provision” thereby placing Plaintiffs “in
immediate danger of sustaining injury.” See Grace Baptist, 320 N.C. at 444.
Defendants, however, contend any claim under the DJA has been foreclosed by
recent enactments by our General Assembly, contending that Plaintiffs may only
bring any challenge under Chapter 160D, which does not allow a claim to be brought
until after a final NOV has been sent. See, e.g., An Act to Clarify, Consolidate, and
Reorganize the Land-Use Regulatory Laws of the State, S.L. 2019-111, 2019 N.C.
Sess. Laws 424; An Act to Complete the Consolidation of Land-Use Provisions into
One Chapter of the General Statues as Directed by S.L. 2019-111, as Recommended
by the General Statutes Commission, S.L. 2020-25, 2020 N.C. Sess. Laws 152.
Indeed, at the trial court below, the parties disagreed about whether G.S. 160D-
1403.1 superseded Plaintiffs’ claims under the DJA (G.S. 1-253 et. seq.).
General Statute 160D-1403.1 does provide that a person with standing may
bring an action for declaratory relief to challenge the constitutionality of a land use
regulation, but can do so only after “a final and binding decision” has been made by
the city. Specifically, subsection (a) provides that a civil action may be brought by an
owner to challenge the constitutionality of a land development regulation:
Except as otherwise provided in this section for claims involving questions of interpretation, in lieu of any remedies available under G.S. 160D-405 or G.S. 160D- 108(h), a person with standing, as defined in subsection (b) of this section, may bring an original civil action seeking
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declaratory relief, injunctive relief, damages, or any other remedies provided by law or equity, in superior court or federal court to challenge the enforceability, validity, or effect of a local land development regulation for any of the following claims:
(1) The ordinance, either on its face or as applied, is unconstitutional.
(2) The ordinance, either on its face or as applied, is ultra vires, preempted, or otherwise in excess of statutory authority.
(3) The ordinance, either on its face or as applied, constitutes a taking of property. . . .
N.C.G.S. § 160D-1403.1(a) (emphasis added). Subsection (b), however, explains that
an owner has standing under G.S. 160D-1403.1 only after a final, binding decision
has been made:
Any of the following criteria provide standing to bring an action under this section:
(1) The person has an ownership, leasehold, or easement interest in, or possesses an option or contract to purchase the property that is the subject matter of a final and binding decision made by an administrative official charged with applying or enforcing a land development regulation.
(2) The person was a development permit applicant before the decision-making board whose decision is being challenged.
(3) The person was a development permit applicant who is aggrieved by a final and binding decision of an administrative official charged with applying or enforcing a land development regulation.
Id. § 160D-1403.1(b) (emphasis added).
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Section 160D-1401 provides that actions authorized under G.S. 160D-1403.1
may be brought pursuant to the DJA:
Challenges of legislative decisions of governing boards, including the validity or constitutionality of development regulations adopted pursuant to this Chapter, and actions authorized by G.S. 160D-108(h) or (i) and G.S. 160D-1403.1 may be brought pursuant to Article 26 of Chapter 1 of the General Statutes. The governmental unit making the challenged decision shall be named a party to the action.
(Emphasis added). Further, Section 160D-1404 provides that “[e]xcept as expressly
stated, this Article does not limit the availability of civil actions otherwise authorized
by law[,]” which arguably would include an owner’s right to seek a declaratory
judgment under the DJA (G.S. 1-253 et. seq.).
Our Supreme Court has instructed that “[s]tatutes are to be read harmoniously
in a way that renders them internally compatible, not [contradictorily].” Terry v. Pub.
Serv. Co. of N.C., Inc., 385 N.C. 797, 805–06 (2024) (citations omitted). Relatedly, we
employ a presumption against rendering a statute superfluous. Fearrington v. City
of Greenville, 386 N.C. 38, 53 (2024) (“We presume . . . that the General Assembly
does not adopt superfluous legislation.” (citation omitted)).
We note that nowhere in G.S. 160D-1401 or -1403.1 is there an express
statement of limitation on “the availability of civil actions” that are otherwise
permitted by law. See G.S. 160D-1404 (“Except as expressly stated . . . .”).
Accordingly, we hold that Plaintiffs have standing under Grace Baptist, and
G.S. 160D-1403.1 does not preclude Plaintiffs from bringing their actions under the
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Declaratory Judgment Act.
C. Fruits of Their Labor and Law of the Land Clauses
Having resolved the standing issue, we turn to the merits of Plaintiffs’ appeal.
First, we consider Plaintiffs’ argument that the trial court erred in granting
Defendants’ motion for summary judgment on Plaintiffs’ Fruits of Their Labor and
Law of the Land claims. We disagree.
The first section of our state constitution provides: “We hold it to be self-
evident that all persons are created equal; that they are endowed by their Creator
with certain inalienable rights; that among these are life, liberty, the enjoyment of the
fruits of their own labor, and the pursuit of happiness.” N.C. Const. art. I, § 1
(emphasis added). The italicized portion, aptly named the “Fruits of Their Labor
Clause,” guarantees our citizenry’s fundamental right to earn a living. See Howell v.
Cooper, 388 N.C. 71, 80 (2025) (“Our state constitution enshrines the fundamental
right to conduct a lawful business or to earn a livelihood as one of the first principles
of freedom.” (citations and internal marks omitted)).
Likewise, this fundamental right is also guaranteed by Article I, Section 19 of
our state constitution. Id. That section, also known as the Law of the Land Clause,
provides: “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.” N.C. Const. art. I, § 19.
When a claimant asserts state action has burdened his or her fundamental
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right to earn a living, we analyze whether the action is valid under both above-
mentioned clauses with the same test. Howell, 388 N.C. at 79. Recently, our Supreme
Court clarified this test in Kinsley v. Ace Speedway Racing, Ltd., 386 N.C. 418 (2024).
The Court explained that state action passes constitutional muster when the state
demonstrates it is “reasonably necessary to promote the accomplishment of a public
good, or to prevent the infliction of a public harm.” Id. at 424 (citation omitted).
Practically, though, “[t]his test involves a ‘twofold’ inquiry: ‘(1) is there a proper
governmental purpose for the statute, and (2) are the means chosen to effect that
purpose reasonable?’ ” Id. (quoting Poor Richard’s v. Stone, 322 N.C. 61, 64 (1988)).
In answering the first prong of the inquiry, we must ascertain the actual
purpose of the state action, whether that purpose be the one “proffered by the
government” or the one offered by the claimant after establishing “the State’s
asserted purpose is not the true one[.]” N.C. Bar & Tavern Ass’n v. Stein, 388 N.C.
149, 160 (2025) (quoting Ace Speedway, 386 N.C. at 424–25). Once we determine the
actual purpose, we ask whether the “actual purpose is a proper governmental
purpose.” Id. A purpose is proper when it “ ‘addresses the public interest’ and
‘promote[s] the accomplishment of a public good, or . . . prevent[s] the infliction of a
public harm.’ ” Id. (alterations and ellipses in original) (citation omitted).
After establishing that the actual purpose is a proper governmental purpose,
we must assess whether “the means chosen to effect that purpose [are] reasonable[,]”
which is “a fact-intensive analysis” that “assess[es] two fact-specific questions[.]” Ace
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Speedway, 386 N.C. at 426 (citation omitted). The first question asks, “how effective
is the state action at achieving the desired public purpose and, [the] second, how
burdensome is that state action to the targeted businesses[?]” Id.; see also Poor
Richard’s, 322 N.C. at 66 (“The means used must be measured by balancing the public
good likely to result from their utilization against the burdens resulting to the
businesses being regulated.”). Finally, after analyzing the benefits and burdens of
the state action, “[t]he analysis then becomes ‘a question of degree’—given all the
options available to the state to advance the governmental purpose, was it reasonable
for the state to choose this approach, with its corresponding benefits and burdens?”
Id. (citation omitted).
We begin with the questions of what Defendants’ actual purpose is and
whether it is a proper government purpose. See Ace Speedway, 386 N.C. at 424–25;
N.C. Bar & Tavern, 388 N.C. at 160. The UDO expressly states that its purpose “is
to promote the health, safety, and general welfare of the residents within the zoning
jurisdiction[.]” UDO § 2.2.2. With respect to residential districts and specifically RS-
9 (single-family residential) zones, Defendants’ purpose in preventing certain
commercial uses in those districts is to “preserve the residential character of
neighborhoods to promote health, safety, and general welfare.”2
2 Even certain residential uses are not permitted in areas zoned RS-9. For instance, the following residential uses are not even permitted: duplexes, townhouses, twin homes, multifamily homes, certain classes of manufactured homes, manufactured housing developments, boarding or
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Plaintiffs do not argue this purpose is not Defendants’ actual purpose, nor do
Plaintiffs argue Defendants’ purpose is not a proper government purpose; rather,
Plaintiffs argue Defendants’ actions fail constitutional scrutiny because the burden
to Plaintiffs outweighs any benefit to Defendants given that the UDO’s regulation is
ineffective at achieving Defendants’ purpose. See, e.g., Howell, 388 N.C. at 81 (“[T]his
case seems to focus on the second prong: whether the [regulation was] a reasonable
means to effect the purpose of [preserving residential character].”)
Turning to prong two, we must analyze whether Defendants’ enforcement of
the UDO against the Sanctuary is a reasonable way of achieving Defendants’ goal of
preserving their residential neighborhoods’ character. See Ace Speedway, 386 N.C.
at 426; Howell, 388 N.C. at 80–81; N.C. Bar & Tavern, 388 N.C. at 160.
By regulating and preventing Plaintiffs’ commercial use in Plaintiffs’
neighborhood, Defendants’ goal of preserving the residential character of RS-9
districts is achieved. By hosting events—some of which required guests to pay for
tickets and others that hosted several hundred guests—and operating the nonprofit
as Plaintiffs did previously and seek to do in the future, Plaintiffs have engaged and
will engage in a non-residential, commercial use. Stated differently, by virtue of
operating the nonprofit, a commercial entity, Plaintiffs are altering the residential
nature of their RS-9 neighborhood. And by enforcing the UDO in this case,
rooming houses, certain family group homes, fraternities or sororities, and life care communities. UDO § 5.1.1.
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Defendants worked to preserve the character and integrity of the specific RS-9
district’s residential character by eliminating a commercial use from the district. In
light of this, Defendants’ enforcement is very effective at achieving their “desired
public purpose.” Ace Speedway, 386 N.C. at 426.
However, Plaintiffs contend that the enforcement is not effective because there
is evidence tending to show Plaintiffs did not negatively impact traffic, noise, and
odors nearby Plaintiffs’ property. Plaintiffs’ attempts to analyze the discrete
segments of a commercial use overlooks the fact Plaintiffs are still using the property
in a commercial manner even if some of the negative impacts are not present based
on the factual record before us.
Next we are required to “determine[ ] the extent of the burden the state action
places on the targeted businesses.” Howell, 388 N.C. at 81. It is evident that
Plaintiffs are burdened—because of the UDO Plaintiffs are unable to operate the
Sanctuary at Plaintiff Dunckel’s property. Additionally, Plaintiffs are further
burdened because moving the Sanctuary to another location would be costly. Despite
this burden, however, uncontroverted facts also indicate that Plaintiffs’ animal
sanctuary, whether classified as an animal shelter or as an indoor or outdoor kennel,
would be permitted in certain commercial and industrial districts. Thus, while
Plaintiffs are burdened, Defendants have not prohibited Plaintiffs from operating at
all, but rather only in certain zoning districts. Indeed, Plaintiffs held a few off-site
events after Defendants informed Plaintiffs the commercial use of the property
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needed to cease, and Plaintiffs are permitted to operate the office aspects of the
nonprofit from Plaintiff Dunkel’s home if they applied for a home occupation permit.
See Poor Richard’s, 322 N.C. at 66 (explaining that the upheld statute did not
“regulate all aspects of a sales facility[ ]” but “only those transactions which involve
military property[ ]”).
Finally, we must “decide whether, given all the options available, it was
reasonable for [Defendants] to choose the selected approach.” Howell, 388 N.C. at 81
(citation omitted). When a claimant asserts their fundamental right to earn a living
has been infringed, the applicable Fruits of Their Labor and Law of the Land test
does not require that the means be the best method of achieving the state’s goal;
rather, the means chosen must be “reasonably necessary.” See Ace Speedway, 386
N.C. at 424. We believe that, in light of other options, it was reasonable for
Defendants to prevent the operation of the Sanctuary at Plaintiff Dunckel’s property.
While burdensome to Plaintiffs, enforcement here aids in Defendants’
accomplishment of their goal. By permitting Plaintiffs to operate as they previously
did, potentially having hundreds of guests present at Plaintiffs’ property on a single
day, or even permitting Plaintiffs to operate at a much smaller scale (as Plaintiffs
seek to do now), Defendants would still be allowing an otherwise unauthorized
commercial use within a RS-9 zoning district, thereby frustrating their ultimate goal.
Moreover, as mentioned above, Plaintiffs are permitted to operate at Plaintiff
Dunckel’s property if they comply with the applicable home occupation permit
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requirements and Plaintiffs can operate in an appropriate zoning district.
We also note that Defendants’ enforcement of the UDO is not the same as state
action described in other Fruits of Their Labor and Law of the Land cases in which
the opinions draw a distinction between government action regulating a business and
instances where the government excludes or prohibits individuals from engaging in
a business altogether.
As stated in Howell, “ ‘the [State’s] police power is severely curtailed’ when the
government endeavors to ‘exclude persons from engaging in [an ordinary business or
occupation].’ ” Howell, 388 N.C. at 81 (alterations in original) (quoting State v. Harris,
216 N.C. 746, 758 (1940)). “It follows that there is a well[-]recognized gap between
the regulation of a business or occupation and restrictions preventing persons from
engaging in them to which courts must pay careful attention.” Harris, 216 N.C. at
759 (striking down licensing requirement for dry cleaners); see also Town of Clinton
v. Standard Oil Co., 193 N.C. 432, 435–36 (1927) (ordinance prohibiting the operation
of additional gas stations within the town’s fire district held unconstitutional); State
v. Ballance, 229 N.C. 764, 772 (1949) (photography licensing regime held
unconstitutional as the scheme does not merely regulate but unreasonably curtails
one’s right to pursue their calling); Roller v. Allen, 245 N.C. 516, 523–26 (1957)
(unconstitutional tile contracting license scheme); Howell, 388 N.C. at 76 (reciting
language from this Court’s Howell opinion describing the executive orders that
directly or indirectly closed the plaintiffs’ businesses as a “blanket prohibition . . . of
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an entire economic sector[ ]”); Proctor v. City of Jacksonville, 296 N.C. App. 665, 675–
76 (2024) (complaint sufficiently alleged Fruits and Law of the Land claims because
of an allegation that the city “enacted the UDO” “to protect brick-and-mortar
restaurants from competition[ ]”); but see Poor Richard’s, 322 N.C. at 66 (“Further,
the statute does not seek to regulate all aspects of a sales facility. It regulates only
those transactions which involve military property.”). As we have stated, although
Plaintiffs are burdened, they are not burdened to the point of out-right prohibition.
Nor is there a system in place that works to exclude Plaintiffs from the animal
sanctuary business: Defendants have told Plaintiffs that Plaintiffs are unable to
operate at Plaintiff Dunckel’s property, Defendants have not told Plaintiffs that
Plaintiffs are forbidden from operating at all.
Finally, we believe our Supreme Court’s decision in Kinney v. Sutton is
persuasive at the very least, if not controlling of the present issues. There, a city
adopted zoning ordinances that created residential, business, and industrial zoning
districts. Kinney v. Sutton, 230 N.C. 404, 405 (1949). In the newly created residential
district where the plaintiff’s property was located the ordinances did not allow
commercial uses, but did allow religious uses, educational uses, social uses, small
scale agricultural uses, health care uses, non-conforming uses at the time of
enactment, and “[c]ommercial activities, if carried on by members of the immediate
family, and not more than two employed persons[.]” Id. at 405–07. After the city
required the plaintiff to shut down and the plaintiff administratively appealed, the
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plaintiff argued the ordinance: (1) was not a proper exercise of the city’s police power;
(2) “constitute[d] arbitrary, unreasonable, and discriminatory restriction” on his
property rights; and (3) violated the Law of the Land Clause and the Fourteenth
Amendment in that the ordinance “deprive[d] [the plaintiff] of his property without
due process . . . .” Id. at 408, 410.
Our Supreme Court dismissed the plaintiff’s first argument on appeal before
turning to the second and third issues. Id. at 410–411. In holding the ordinances
were not “arbitrary, unreasonable and discriminatory restrictions[,]” the Court
reasoned the ordinances were “aptly phrased to secure their object[:] to establish and
preserve a restricted residential district free from substantial commercial and
industrial activities.” Id. at 411. Notably, the Court raised no issue with the fact
that religious, educational, social, and health care uses were permitted in residential
districts. Dealing with the other carve-outs, the Court explained such exemptions
were reasonable, had a “sound basis[,]” and, for the limited commercial operations,
were inherently different from “unlimited commercial and industrial activities.” Id.
at 411. Finally, because the ordinances were a proper exercise of the city’s police
power and because they were “not arbitrary, unreasonable, or discriminatory in
character,” our Supreme Court held the ordinances did not unconstitutionally deprive
the plaintiff of his property without due process. Id. at 412.
Relevant here, despite not being a case that involved the fundamental right to
earn a living, Kinney instructs this Court that a zoning ordinance may still be “aptly
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phrased to secure [its] object” by establishing and preserving a “restricted residential
district free from substantial commercial and industrial activities[ ]” even though
certain non-residential uses are permitted with the residential district. Id. at 411.
What this means for Plaintiffs’ case is the fact that some non-residential uses are
permitted does not render the statute unconstitutional—the ordinance’s purpose is
still being achieved.
Expanding on this point, we are not persuaded by Plaintiffs’ comparison to
other non-residential uses that are permitted in RS-9 districts. Plaintiffs attempt to
liken language in Ace Speedway to the proposition that Defendants’ enforcement of
the UDO is not reasonable. Specifically, Plaintiffs point to where our Supreme Court
stated:
“[T]his would mean that the State sought to achieve this governmental purpose by issuing an abatement order shutting down a single business while choosing to ignore many others presenting identical risks to the public. This is a particularly ineffective means of achieving the asserted governmental interest, while simultaneously imposing a tremendous burden on Ace Speedway.”
Ace Speedway, 386 N.C. at 427. Essentially, Plaintiffs contend we should hold
Defendants’ enforcement of the UDO to be unconstitutional because the other non-
residential uses exist in RS-9 districts and these uses generate negative impacts that
alter a district’s residential character. Although the UDO allows certain non-
residential or commercial uses (such as schools, churches, and home day care
centers), Defendants’ enforcement of the UDO still achieves Defendants’ goal of
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preserving the district’s residential character.
More to the point, the non-residential uses that are permitted (assuming the
appropriate permit or review is obtained) are not the rule but rather the exception.
On the Principal Use Table, 24 out of 138 listed non-residential uses are permitted in
RS-9.3 UDO § 5.1.1. Being that such a small number of non-residential uses are
actually permitted, Plaintiffs’ case differs factually from Ace Speedway because we
are not confronted by a situation where the state’s justification for shutting down a
single business is severely undermined by the widespread operation of many other
businesses presenting a similar risk. Ace Speedway, 386 N.C. at 427.
Thus, because we hold, under Ace Speedway, enforcement is constitutionally
permissible, as it is a reasonable means of achieving Defendants’ goal, we therefore
do not seek to question the expediency of the permitted uses as it relates to the
accomplishment of Defendants’ goal. See Harris, 216 N.C. at 758 (“The mere
expediency of legislation is a matter for the Legislature, when it is acting entirely
within constitutional limitations, but whether it is so acting is a matter for the courts
. . . .”).
3 By use category: three “agricultural uses,” zero “retail and wholesale trade uses,” one “business and personal service use,” three “recreational uses,” eleven “institutional and public uses,” zero “manufacturing and mining” uses, and six “transportation and utilities” uses. UDO § 5.1.1. More specifically, only one use between the “retail and wholesale trade uses” and “business and personal service uses” categories, the latter category being the one that indoor and outdoor kennels fall in, and only eleven uses of the “institutional and public uses” category, the category animal shelters fall under, are permitted, despite those three categories comprising substantial portion of the listed non- residential uses. Id.
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In summary, after applying to applicable test enunciated in Ace Speedway, we
hold the trial court did not err in granting Defendants’ motion for summary judgment
with respect to Plaintiffs’ Fruits of Their Labor and Law of the Land claims.
D. Equal Protection
Finally, Plaintiffs contend Defendants violated their rights under our state
constitution’s Equal Protection Clause. Again, we disagree.
Our Equal Protection Clause states: “No person shall be denied the equal
protection of the laws[.]” N.C. Const. art I, § 19. “When the claim involves neither a
suspect class nor a fundamental right, . . . [a] ‘rationality’ standard is employed.” N.C.
Bar & Tavern, 388 N.C. at 163 (citation omitted). However, it should be noted that
despite the right to earn a living being a fundamental right, our Supreme Court has
consistently applied rational basis to Equal Protection claims involving that right.
Id. (citing Duggins v. N.C. State Bd. of Certified Pub. Acct. Exam’rs, 294 N.C. 120,
131 (1978)). Accordingly, we will apply rational basis review to Plaintiffs’ Equal
Protection claims even though the right to earn a living is fundamental.
When rational basis review applies in the Equal Protection context, our state
constitution permits the government to “classify . . . activities when there is [a]
reasonable basis for such classification and for the consequent difference in treatment
under the law.” Responsible Citizens in Opposition to Flood Plain Ordinance v. City
of Asheville, 308 N.C. 255, 267–68 (1983) (citation omitted). Thus, “[c]lassifications
are not offensive to the Constitution ‘when the classification is based on a reasonable
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distinction and the law is made to apply uniformly to all the members of the class
affected.’ ” Poor Richard’s, 322 N.C. at 67 (citation omitted); see also White v. Pate,
308 N.C. 759, 766–67 (1983) (“The ‘rational basis’ standard merely requires that the
governmental classification bear some rational relationship to a conceivable
legitimate interest of government.”). “In essence, ‘[e]qual protection requires that all
persons similarly situated be treated alike.’ ” Holmes v. Moore, 384 N.C. 426, 437
(2023) (alteration in original) (citation omitted). “ ‘[P]ersons who are in all relevant
respects alike’ are ‘similarly situated.’ ” Clayton v. Branson, 170 N.C. App. 438, 457
(2005) (citation omitted). However, “[t]he reasonableness of a particular
classification is a question of law for determination by the court.” A-S-P Associates v.
City of Raleigh, 298 N.C. 207, 226 (1979).
We conclude there is a reasonable basis for the classification and difference in
treatment of the Sanctuary; and, therefore, Defendants’ action does not offend Article
I, Section 19’s Equal Protection Clause. Essentially, Plaintiffs compare themselves
to three different groups: (1) residents with personal pets, (2) home day care centers,
and (3) schools and churches. We conclude it was reasonable to differentiate between
Plaintiffs and the listed groups. With respect to the first group, the difference is
readily apparent, and as a result, there is a “reasonable distinction.” While residents
with “personal pets” may have the same type and theoretically the same number of
animals as Plaintiffs, those residents are not engaging in a non-residential,
commercial use like Plaintiffs. As to groups two and three, it is conceivable that,
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despite seeking to maintain the district’s residential character, certain uses which
are integral to residential life should still be permitted. Schools, places of worship,
and home day care centers are all integral to the everyday lives of residents, and thus
it is reasonable for these uses to be permitted. Notably, two of these uses are also
protected by our state constitution’s Declaration of Rights. See N.C. Const. art I, §§
13, 15 (fundamental rights of religious liberty and education, respectively).
Accordingly, the trial court properly granted summary judgment in favor of
Defendants on Plaintiffs’ Equal Protection claims.
III. Conclusion
Considering the foregoing, we conclude Plaintiffs have standing to challenge
the enforcement of the UDO. We further hold that the trial court did not err in
granting Defendants summary judgment on Plaintiffs’ Fruits of Their Labor, Law of
the Land, and Equal Protection claims. We affirm the trial court’s order.
AFFIRMED.
Judges FLOOD and FREEMAN concur.
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