Jones v. Davis

594 S.E.2d 235, 163 N.C. App. 628, 2004 N.C. App. LEXIS 577
CourtCourt of Appeals of North Carolina
DecidedApril 20, 2004
DocketNo. COA03-594.
StatusPublished

This text of 594 S.E.2d 235 (Jones v. Davis) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Davis, 594 S.E.2d 235, 163 N.C. App. 628, 2004 N.C. App. LEXIS 577 (N.C. Ct. App. 2004).

Opinions

TYSON, Judge.

Howard C. Jones, II, Frankie Hayes Southard, Jimmy Roy Rogers, Madilyn Kay Rogers, Gregory E. Bowers, Natalie W. Bowers, Daniel Ray Sammons, and Sharon P. Sammons (collectively, "plaintiffs") appeal from the trial court's order granting summary judgment to Robert Wayne Davis ("Davis"), Glenda K. Davis, Jerry Allan Allred, and Yvonne Davis Allred (collectively, "defendants") and the judgment entered following this order in favor of defendants. We affirm.

I. Background

The parties stipulated to the majority of facts found by the trial court. Defendants are owners of approximately forty-one acres of land in Surry County, North Carolina. Plaintiffs are property owners who live in *237close proximity to defendants' property. One of the defendants, Davis, submitted an application to the Surry County Planning Board ("Planning Board") for approval of a manufactured home park pursuant to the Surry County Manufactured Home and Manufactured Home Park Ordinance ("Manufactured Home Park Ordinance") in September 1997. Defendants took no further steps to have that application considered or approved.

In November 1997, Davis submitted a preliminary subdivision plat of approximately twenty acres ("Section One of Kaye's Subdivision") of defendants' property pursuant to the Surry County Subdivision Ordinance for approval as a homeowners' association subdivision to the Planning Board. The Planning Board preliminarily approved Section One of Kaye's Subdivision on 8 December 1997. The Surry County Board of Commissioners ("County Commissioners") approved the plat on 15 December 1997. Section One of Kaye's Subdivision contains twenty lots. The plat was never recorded.

Davis also submitted a preliminary plat for "Section Two of Kaye's Subdivision," which the Planning Board preliminarily approved on 12 January 1998. Plaintiffs admit attending the County Commissioners' hearings and assert they "repeatedly requested and were denied enforcement of the [Manufactured Home Park Ordinance]." Plaintiffs did not appeal the decisions of the Planning Board or the County Commissioners' approval of any of defendants' subdivision plats.

Beginning in April 1998, defendants rented several of the lots in Section One of Kaye's Subdivision to tenants, who placed tenant-owned manufactured homes on the subdivided lots. In November 1998, Davis resubmitted a plat of Section One of Kaye's Subdivision for preliminary and final approval because the prior approved plat had not been recorded within six months after approval. He also submitted Section Two of Kaye's Subdivision for final approval. Both subdivisions received final approval as a homeowners' association subdivision.

By the end of 1999, approximately twelve to fourteen of the subdivision lots in Kaye's Subdivision had been rented to third persons. At all times, Surry County had a Subdivision Ordinance and a Manufactured Home and Manufactured Home Park Ordinance in effect. The parties stipulated that all hearings and meetings regarding Kaye's Subdivision were properly scheduled and that all votes were properly taken and recorded by the Planning Board and County Commissioners. At the time all plats were approved, the County Commissioners had not adopted a zoning ordinance to restrict uses on defendants' property.

In addition to these facts stipulated to among the parties, the trial court found that defendants properly obtained approval from Surry County for the subdivision of the land in question. Further, the approved maps of this subdivision were properly recorded with the Surry County Register of Deeds.

On 4 June 2002, this Court reversed the trial court's order awarding summary judgment to plaintiffs in an unpublished opinion. The case was remanded to the trial court for further proceedings. This matter came on for trial in January 2003. The trial court entered summary judgment in favor of defendants based on stipulated facts, affidavits, depositions, and additional arguments. Plaintiffs appeal.

II. Issues

The issues on appeal are whether the trial court erred in: (1) concluding that the definition of a subdivision as the division of land "for the purpose of sale or building development" includes the rental of spaces to third parties for placement of their mobile homes and (2) concluding that the Subdivision Ordinance does not regulate use of land and that the project was properly subdivided.

III. Definition of "Subdivision"

Plaintiffs contend the trial court erred in concluding "`for the purpose of sale or building development' includes the construction or placing of improvements on lots in the subdivision, so that the lots can be leased to third parties." Plaintiffs argue the definition of a "subdivision," as used in the ordinance does not allow the rental of lots to third parties, who later place their owned mobile homes thereon. We disagree.

*238"A county may by ordinance regulate the subdivision of land within its territorial jurisdiction." N.C. Gen.Stat. § 153A-330 (2003). Plaintiffs' assignment of error regarding the interpretation of the Subdivision Ordinance is a question of law, requiring this Court to apply de novo review of the trial court's judgment. Capricorn Equity Corp. v. Town of Chapel Hill, 334 N.C. 132, 137, 431 S.E.2d 183, 187 (1993).

Here, the Subdivision Ordinance defines a subdivision as "all divisions of a tract or parcel of land into two or more lots, building sites, or other divisions for the purpose of sale or building development (whether immediate or future)...." The definition lists four exclusions, which the parties do not argue apply to the case at bar. Plaintiffs argue the Subdivision Ordinance does not allow for the rental of spaces to tenants for placement of their mobile homes and the project was not properly subdivided.

"In interpreting a[n] ... ordinance, `the basic rule is to ascertain and effectuate the intent of the legislative body.'" Id. at 138, 431 S.E.2d at 187 (quoting Concrete Co. v. Board of Commissioners, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980)). In determining the intent of the legislative body, we must examine the language, spirit, and goal of the ordinance. Capricorn Equity Corp., 334 N.C. at 138, 431 S.E.2d at 188.

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Bluebook (online)
594 S.E.2d 235, 163 N.C. App. 628, 2004 N.C. App. LEXIS 577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-davis-ncctapp-2004.