Templeton v. Town of Boone

701 S.E.2d 709, 208 N.C. App. 50, 2010 N.C. App. LEXIS 2079

• Court: Court of Appeals of North Carolina
• Decided: November 16, 2010
• Docket: COA09-1332
• Status: Published

Opinions

STROUD, Judge.

Jeffrey Brooks Templeton and Elizabeth A. Colonna Bird, trustee of the Elizabeth A. Colonna Bird Revocable Trust, (referred to collectively as “plaintiffs”) appeal from a trial court’s order in favor of the Town of Boone (“defendant”) dismissing their complaint with prejudice “for failure to state a claim upon which relief can be granted[.]” For the following reasons, we affirm the trial court’s dismissal of plaintiffs’ claims.

I. Background

Plaintiffs’ complaint alleged the following: On 21 April 2005, the Boone Town Council adopted a resolution to form a task force to “Study Issues Relating to Development of Steep Slopes and MultiFamily Housing” in order “to work with town staff to develop a recommended strategy relating to the future development of steep slopes and large multi-family housing projects.” The task force prepared a recommended “zoning map and text amendments” to the town’s Unified Development Ordinance. These recommendations resulted in a proposal for the Steep Slope Ordinance and the Viewshed Protection Ordinance amendments (“the subject zoning ordinance amendments”), which the Boone Town Council adopted on 2 October 2006.

Plaintiffs allege they are owners of real property “located in, and subject to, the zoning and extraterritorial zoning jurisdiction of the Town of Boone[,]” and are “directly and adversely affected” “by the zoning ordinances adopted by the Town of Boone.” Plaintiff Bird was notified by letter from the Town of Boone that property owned by the Elizabeth A. Colonna Bird Revocable Trust was located within that area that would be affected by the proposed ordinance amendments. However, upon inspection of the Viewshed Protection Map, she determined that the trust property was not within the Viewshed area. Plaintiffs allege that without notice to plaintiff Bird or a change in the Viewshed Protection Map, the town improperly subjected the trust property to the Viewshed Protection Ordinance.

On 31 November 2006, plaintiff Templeton commenced this action against defendant by filing an “Application and Order extending time to file Complaint.” On 21 December 2006, plaintiff Templeton and nine other plaintiffs, not including plaintiff Bird, filed a complaint in Superior Court, Watauga County against defendant alleging that the adoption of the subject ordinance amendments was a violation of plaintiffs’ Constitutional substantive due process rights; a violation of plaintiffs’ civil rights pursuant to 42 U.S.C. § 1983; an unlawful rezoning and limitation of the use of property; an inverse condemnation/unlawful taking; arbitrary and capricious; and an unlawful preemption of state building code. Plaintiffs sought a declaratory judgment and injunctive relief. This complaint was removed to the United States District Court for the Western District of North Carolina by defendants. Plaintiffs then amended their complaint and it was remanded to Superior Court, Watauga County; defendant filed a motion to dismiss; and on 8 October 2007, plaintiff Templeton and the other nine plaintiffs filed a “Notice of Voluntary Dismissal” without prejudice.

On 7 October 2008, plaintiffs Templeton and Bird filed the complaint which is the subject of this appeal in Superior Court, Watauga County. In plaintiffs’ first two claims they request a declaratory judgment that the subject zoning ordinance amendments be declared “facially defective, vague and unenforceable[;]” because (1) the ordinances give “[u]nbridled, unqualified authority and discretion” to the Town’s staff “in excess of the Town’s legislative authority[;]” (2) the ordinances amount to a violation of plaintiffs’ procedural due process rights as (a) the ordinances fail to give notice as to which properties are affected by them, and (b) the procedures used by defendant to enact the ordinances failed to give proper notice to plaintiffs in violation of town ordinances and state law; (3) the ordinances amount to a violation of plaintiffs’ substantive due process rights as (a) they are vague and unenforceable, (b) arbitrary and capricious, (c) unreasonable, (d) overreaching, and (e) were enacted in bad faith; (4) the Viewshed Protection Ordinance amounts to an unconstitutional taking;'and (5) the Steep Slope Ordinance unlawfully preempts state building codes. In plaintiffs’ additional claims they allege that defendant’s “unlawful adoption” of the subject zoning ordinance amendments “changed the zoning and use of Plaintiffs’ land, and the lands of all persons who own property in the Town of Boone or its ETJ area[,]” and the subject zoning ordinance amendments are a violation of plaintiffs’ rights under Article I, § 19 of the North Carolina Constitution as they amount to a “deprivation of their rights and privileges as property owners[.]” On 18 May 2009, defendant filed a motion to dismiss plaintiffs’ suit pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), Rule 12(b)(1), and Rule 12(c). On 10 June 2009, the trial court granted defendant’s motion to dismiss “for failure to state a claim upon which relief can be granted[.]” Plaintiffs appealed.

On appeal plaintiffs bring forth substantive arguments as to the statute of limitations, substantive due process, procedural due process, statutory claims, and arguments addressing standing. As “[standing is a necessary prerequisite to a court’s proper exercise of subject matter jurisdictionf,]” Perdue v. Fuqua, 195 N.C. App. 583, 585, 673 S.E.2d 145, 147 (2009), we first review plaintiffs’ standing to bring this suit.

II. Standing

A. Standard of Review

This Court has held that “[a] ruling on a motion to dismiss for want of standing is reviewed de novo.” Metcalf v. Black Dog Realty, LLC, - N.C. App. -, -, 684 S.E.2d 709, 714 (2009) (citation omitted). “In our de novo review of a motion to dismiss for lack of standing, we view the allegations as true and the supporting record in the light most favorable to the non-moving party.” Mangum v. Raleigh Bd. of Adjustment, 362 N.C. 640, 644, 669 S.E.2d 279, 283 (2008). The party invoking jurisdiction has the burden of establishing standing. Neuse River Found. v. Smithfield Foods, 155 N.C. App. 110, 113, 574 S.E.2d 48, 51 (2002) (citation omitted), disc. review denied, 356 N.C. 675, 577 S.E.2d 628 (2003). The elements of standing are:

(1) ‘injury in fact’-—an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;

(2) the injury is fairly traceable to the challenged action of the defendant;

(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Marriott v. Chatham County, 187 N.C. App. 491, 494, 654 S.E.2d 13, 16 (2007) (citation and quotation marks omitted). “If a party does not have standing to bring a claim, a court has no subject matter jurisdiction to hear the claim.” Id. at 496, 654 S.E.2d at 17 (citation and quotation marks omitted). “If a court finds at any stage of the proceedings that it lacks jurisdiction over the subject matter of a case, it must dismiss the case for want of jurisdiction.” State v. Linemann, 135 N.C. App. 734, 739, 522 S.E.2d 781, 785 (1999) (citation omitted).

Plaintiffs first contend that “the trial court erred in granting defendants’ motion to dismiss pursuant to Rule 12(b)(1) of the Rules of Civil Procedure on the grounds that plaintiffs pled sufficient facts demonstrating that they have standing and the trial court has subject-matter jurisdiction.” However, it appears that the trial court based its order dismissing plaintiffs’ claims on N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2005) (“Failure to state a claim upon which relief can be granted”), not N.C. Gen. Stat. § 1A-1, Rule 12(b)(1) (“Lack of jurisdiction over the subject matter”). This Court has held that even if dismissal was for the wrong reason,

a trial court’s ‘ruling must be upheld if it is correct upon any theory of law[,]’ and thus it should ‘not be set aside merely because the court gives a wrong or insufficient reason for [it].’ Manpower, Inc. v. Hedgecock, 42 N.C. App. 515, 519, 257 S.E.2d 109, 113 (1979). See also Sanitary District v. Lenoir, 249 N.C. 96, 99, 105 S.E.2d 411, 413 (1958) (if correct result reached, judgment should not be disturbed even though court may not have assigned the correct reasons for the judgment entered); Payne v. Buffalo Reinsurance Co., 69 N.C. App. 551, 555, 317 S.E.2d 408, 411 (1984) (it is common learning that a correct judgment must be upheld even if entered for the wrong reason).

Opsahl v. Pinehurst Inc., 81 N.C. App. 56, 63, 344 S.E.2d 68, 73, cert. granted, 318 N.C. 284, 347 S.E.2d 465 (1986), disc. review improvidently allowed, 319 N.C. 222, 353 S.E.2d 400 (1987). Therefore, we must determine whether the trial court’s dismissal of plaintiffs’ claims was “correct upon any theory of law[.]” See id. First, we address whether the trial court could have dismissed plaintiffs’ complaint for lack of standing. Plaintiffs brought constitutional claims and statutory challenges to the subject zoning ordinance amendments. We will first address the issue of standing as to plaintiffs’ constitutional claims.

B. Standing for Plaintiffs’ Constitutional Challenges

Plaintiffs argue that they have standing to bring constitutional challenges to the subject zoning ordinance amendments as they have sufficiently alleged an “imminent danger” from the application of those ordinances to their property interests. Defendant, citing Grace Baptist Church v. Oxford, 320 N.C. 439, 358 S.E.2d 372 (1987), contends that to challenge the constitutionality of a zoning ordinance, the plaintiff must allege evidence that he has sustained an injury or is in immediate danger of sustaining an injury as a result of enforcement of the subject ordinances. Defendant concludes that there is no allegation by plaintiffs of an immediate danger of sustaining an injury because “there is no factual allegation in the Complaint. .. indicating that the Town enforced or attempted to enforce the Ordinances against [plaintiff] Templeton.”

In Grace, the plaintiff brought an action against the defendant-city alleging “that portions of the Oxford ordinance of 1970” that regulated the size of signs and required paved off-street parking “were unlawful in that they deprived appellant of due process of law and denied it equal protection of the law.” Id. at 441-42, 358 S.E.2d at 374. On the defendant-city’s motion to dismiss, the trial court declared that the ordinance requiring paved off-street parking was constitutional on its face and as applied. Id. at 442, 358 S.E.2d at 374. The plaintiff appealed, but “the Court of Appeals did not address the question of whether the challenged ordinance had been selectively enforced, inasmuch as it found that no enforcement action had been brought against appellant.” Id. On appeal from this Court, to our Supreme Court, the plaintiff argued that the city ordinance was facially unconstitutional and “violated the equal protection clause of the fourteenth amendment because it was selectively enforced against the church.” Id. at 443-44, 358 S.E.2d at 375. The Court held that the challenged ordinance was facially constitutional and found that the Court of Appeals erred in declining to address the question of whether the ordinance, as applied, was selectively enforced against the appellant. Id. at 443-44, 358 S.E.2d at 375. The Court held that “[i]n order to challenge the constitutionality of an ordinance, a litigant 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 444, 358 S.E.2d at 375. (citing Town of Atlantic Beach v. Young, 307 N.C. 422, 298 S.E.2d 686, appeal dismissed, 462 U.S. 1101, 77 L. Ed. 2d 1328 (1983)). The Court, in applying this rule, held that the plaintiff’s complaint, alleging that the defendant-city intended to require it to pave its parking lot, in itself did not confer standing. Id. However, the Court held that when combined with the defendant-city’s answer, which asked the court to order the church to immediately cease use of its property until “they are in compliance with the said Ordinance [,]” and the trial court’s finding that the defendant-city, “at the commencement of this action and presently,” intends to enforce the provision requiring paved parking lots, “the church was in immediate danger of sustaining injury” and thus “had standing to challenge the constitutionality of the ordinance.” Id.

Here, plaintiffs brought several constitutional claims alleging that the subject zoning ordinance amendments amounted to violations of plaintiffs rights under procedural due process, substantive due process, an unconstitutional taking of property, and a violation of their rights “to use their land” pursuant to Article 1, Section 19 of the North Carolina Constitution.” However, there is no allegation in plaintiffs’ complaint indicating that defendant enforced or attempted to enforce the subject zoning ordinance amendments against either plaintiff Templeton or plaintiff Bird. Plaintiffs’ complaint simply states that plaintiffs own or have an interest in property within an area of town that will be affected by the subject zoning ordinance amendments. Without an allegation that the subject zoning ordinance amendments will be or have been enforced against property owned by plaintiffs, plaintiffs have failed to demonstrate that they have “sustained an injury or [are] in immediate danger of sustaining an injury” from enforcement of the ordinance amendments against them. See id. at 444, 358 S.E.2d at 375. Therefore, plaintiffs failed to carry their burden to make sufficient allegations to establish standing to bring their constitutional claims against defendant. Neuse River Found., 155 N.C. App. at 113, 574 S.E.2d at 51. Accordingly, we affirm the trial court’s dismissal of plaintiffs’ constitutional claims. Linemann, 135 N.C. App. at 739, 522 S.E.2d at 785.

C. Standing for Statutory Challenges

Plaintiffs, citing Thrash Ltd. Partnership v. County of Buncombe, 195 N.C. App. 678, 673 S.E.2d 706 (2009) (“Thrash 7”), argue that they have standing to bring statutory challenges alleging that defendant failed to follow proper procedures as to how it enacted the subject zoning ordinance amendments. Defendant counters that plaintiff Templeton does not have standing to bring his statutory claims because he failed to allege sufficient facts to show that he owns property in an area affected by the subject zoning ordinance amendments.

We note that in Thrash I the disputed ordinance was a countywide zoning ordinance and the location of the plaintiffs’ property was not at issue as every property in the County was affected by the ordinance. 195 N.C. App. at 680, 673 S.E.2d at 708. Here, unlike Thrash I, the subject zoning ordinance amendments are not county-wide amendments, but ordinance amendments that are applicable only to properties located within 100 feet from major traffic corridors within the county or that have a slope value of 30% or greater. In Thrash Ltd. Partnership v. County of Buncombe, 195 N.C. App. 727, 673 S.E.2d 689 (2009) ("Thrash II"), a related case involving the same parties as Thrash I, this Court addressed the issue of standing in the context of statutory procedural challenges to the defendant-county’s property elevation restriction ordinance which was only applicable to those properties located more than 2500 feet above sea level.

In Thrash II, the plaintiff filed a declaratory judgment action alleging that the defendant-county did not follow the proper “prerequisite statutory requirements” when it adopted the “Multi-Family Dwelling Ordinance” which set “rules for properties located above 2500 feet above sea level,” and “for properties located 3000 feet above sea level.” Id. at 729, 673 S.E.2d at 691. The ordinance did not apply to properties located below 2500 feet above sea level. Id. On a summary judgment motion, the defendant-county argued that the plaintiffs did not have standing to challenge the ordinance. Id. The trial court held that the plaintiffs had standing but granted summary judgment in favor of the defendant-county. Id. Defendant-county cross-appealed the trial court’s ruling on standing. Id. This Court held that

landowners in the area of a county affected by a zoning ordinance are allowed to challenge the ordinance on the basis of procedural defects in the enactment of such ordinances. See Frizzelle v. Harnett County, 106 N.C. App. 234, 416 S.E.2d 421 (1992) (plaintiffs, as landowners in the area of the county affected by the zoning ordinance, were allowed to challenge the ordinance on the basis of inadequate notice); Lee v. Simpson, 44 N.C. App. 611, 261 S.E.2d 295 (1980) (plaintiffs, who were owners of property adjacent to property that was rezoned, succeeded in overturning the rezoning ordinance for lack of proper notice); George v. Town of Edenton, 294 N.C. 679, 680, 242 S.E.2d 877, 878 (1978) (“Plaintiffs, as residents of Chowan County within the jurisdiction of the zoning powers of defendants, challenge in their complaint the legality of both actions of the Town Council and ask the court to determine their validity.”); Blades v. City of Raleigh, 280 N.C. 531, 544, 187 S.E.2d 35, 42 (1972) (“The plaintiffs, owners of property in the adjoining area affected by the ordinance, are parties in interest entitled to maintain the action.”).

Id. at 730, 673 S.E.2d at 691-92. As the location of the plaintiffs’ property was relevant, the Court held that

‘[a] party has standing to challenge a zoning ordinance in an action for declaratory judgment only when it ‘has a specific personal and legal interest in the subject matter affected by the zoning ordinance and ... is directly and adversely affected thereby.” Village Creek Prop. Owners Ass’n v. Town of Edenton, 135 N.C. App. 482, 485, 520 S.E.2d 793, 795 (1999) (quotation omitted).

Id. at 731, 673 S.E.2d at 692. In applying this rule to determine if the plaintiffs had standing to bring their statutory challenges, the Court then analyzed whether plaintiffs were in an area “directly and adversely affected” by the “Multi-Family Dwelling Ordinance[:]”

The Multi-Family Dwelling Ordinance contains regulations of land which are contingent upon the elevation and use of the land. Plaintiff’s land is located at an elevation above 2500 feet above sea level, and is suitable for multi-family dwelling use. Therefore, plaintiff’s use of its land was limited by the zoning regulations.

We hold that plaintiff has standing to challenge the validity of the Multi-Family Dwelling Ordinance.

Id.

Here, plaintiffs make several statutory challenges to the procedures defendant used to enact the subject zoning ordinances. As to the Viewshed Protection Ordinance (“VPO”), plaintiffs in their first claim made the following allegations challenging defendant’s procedure in enacting this amendment to the town’s Unified Development Ordinance (“UDO”):

i. Adoption of the VPO amounted to substantial amendments to the UDO. The notices that preceded the September 25, 2006 public hearing, which formed the basis for the said amendments were fatally defective.

ii. The changes to the text of the VPO made after the September 14, 2006 public hearing were substantial enough to require new notice in accordance with the provisions of N.C.G.S. § 160A-364 and Town of Boone Ordinance § 21-380[c],

iii. In violation of the provisions of Town of Boone Ordinance § 21-380[d], the changes made to the August 24, 2006 Viewshed Protection Map after the September 14, 2006 public hearing were not made available until the time of [the] public hearing on September 25, 2006. The new map included properties not depicted on the August 24 map.

iv. In violation of Boone Ordinance § 21-379, the Town failed to provide to the public the analysis of the ordinances to determine compliance with the Comprehensive Plan ....

As to the Steep Slope Protection Ordinance (“SSPO”), plaintiffs made the following allegations challenging defendant’s procedure in enacting this zoning ordinance amendment:

i. Adoption of the SSPO amounted to substantial amendments to the UDO. The notices that preceded the September 25, 2006 public hearing, which formed the basis for the said amendments were fatally defective.

ii. In violation of N.C.G.S. § 160A-364 and Town of Boone Ordinance § 21-380[c], the changes made to the texts of the SSPO after the public hearing were substantial enough to require new notice;

iii. The changes made in the Steep Slope text after the September 14, 2006 public hearing were not made available until the time of public hearing dated September 25, 2006;

iv. The Defendant failed to provide to the public the analysis of the ordinances to determine compliance with the Comprehensive Plan as required by Town of Boone Ordinance § 21-379.¹

Here, contrary to the facts in Thrash II, we cannot determine from plaintiffs’ complaint whether the Viewshed Protection Ordinance “directly and adversely affect[s]”, the property owned by plaintiff Templeton. See id. The Viewshed Protection Ordinance is applicable only to properties located “more than 100 feet above the nearest major traffic corridor” and which can be seen from a major traffic corridor “during any season of the year . . . .” Even though plaintiffs’ complaint alleges that plaintiff Templeton is the owner of real property “affected by the zoning ordinances adopted by the Town of Boone which are subject of this action and he is directly and adversely affected thereby[,]” the complaint makes no specific allegation that plaintiff Templeton’s property is located within 100 feet of a major traffic corridor or that any portion of his property could be seen from a major traffic corridor. Therefore, unlike Thrash II, plaintiffs’ complaint does not make factual allegations which would support a finding that plaintiff Templeton’s property is “directly and adversely affected!,]” see id, by the Viewshed Protection Ordinance. Accordingly, we hold that plaintiff Templeton has not made sufficient allegations to carry his burden of establishing standing to bring his statutory claims against the Viewshed Protection Ordinance adopted by defendant, Neuse River Found., 155 N.C. App. at 113, 574 S.E.2d at 51, and those claims were properly dismissed by the trial court. Linemann, 135 N.C. App. at 739, 522 S.E.2d at 785.

As to plaintiff Bird, plaintiffs’ complaint does allege that the Viewshed Protection Ordinance affects the trust property, as it alleges that “the Town subjected the trust property to the onerous regulations of the Viewshed Ordinance Map.” Taking this allegation as true, Mangum, 362 N.C. at 644, 669 S.E.2d at 283, the trust property must be located within 100 feet of a major traffic corridor or a portion of the trust property can be seen from a major traffic corridor. Therefore, we hold that this allegation is sufficient to establish that the trust property is “directly and adversely affected” by the Viewshed Protection Ordinance, see Thrash II, 195 N.C. App. at 731, 673 S.E.2d at 692, and to give plaintiff Bird standing to bring her statutory claims against the Viewshed Protection Ordinance adopted by defendant.

The Steep Slope Ordinance is only applicable to properties with a slope value of 30% or greater. Plaintiffs’ complaint makes no allegation that the slope value of the property owned by plaintiff Templeton or plaintiff Bird is 30% or greater and subject to this ordinance. Accordingly, plaintiffs failed to carry their burden to establish standing to bring a statutory claim against the Steep Slope Ordinance adopted by defendant, Neuse River Found., 155 N.C. App. at 113, 574 S.E.2d at 51, and those claims were properly dismissed by the trial court. Linemann, 135 N.C. App. at 739, 522 S.E.2d at 785.

In addition to the above statutory procedural challenges, plaintiffs also alleged that the subject zoning ordinance amendments unlawfully preempt “regulation reserved by our legislature to the North Carolina State Building Code Council, in violation of NCGS §143-138(e)[,]” and established standards for the exercise of authority and discretion in excess of defendant’s “legislative authority!.]” As there is an allegation that the trust property was “subjected to” the Viewshed Protection Ordinance, plaintiffs’ complaint makes sufficient allegations for plaintiff Bird to have standing to bring further statutory challenges to the Viewshed Protection Ordinance. See Thrash II, 195 N.C. App. at 731, 673 S.E.2d at 692. As stated above, plaintiffs’ complaint does not give either plaintiff standing to make any further statutory challenges against the subject zoning ordinance amendments, and those claims were also properly dismissed by the trial court. Linemann, 785.

Plaintiffs in their complaint allege that defendant’s “unlawful adoption” of the subject zoning ordinance amendments “changed the zoning and use of Plaintiffs’ land, and the lands of all persons who own property in the Town of Boone or its ETJ area.” This claim does not allege a particular statutory or constitutional reason that the defendant’s adoption of the subject zoning ordinance amendments was “unlawful[.]” Adoption of zoning ordinances in accordance with the governing statutes is clearly not “unlawful[;]” N.C. Gen. Stat. § 160A-381 (2005)² permits a municipality to pass a zoning ordinance that changes the use of a landowner’s property and N.C. Gen. Stat. § 160A-385 (2005)³ allows a municipality to supplement or change those zoning ordinances. Therefore, plaintiffs’ claim could be interpreted as alleging that the amendments were “unlawfully] ” adopted in that defendant failed to follow proper statutory procedures, as already discussed above. Plaintiffs’ claim could also be interpreted as alleging an unlawful limitation to the use of plaintiffs’ property, which could be a constitutional claim. It is thus unclear whether this claim is a statutory or constitutional claim, as the subject zoning ordinance amendments could be “unlawful” because their adoption violated the statutory scheme governing zoning changes in Chapter 160A of our General Statutes, see N.C. Gen. Stat. §§ 160A-381 to 160A-392 (2005), or amounted to a violation of plaintiffs’ rights under the North Carolina Constitution or the United States Constitution. In any event, plaintiffs failed to bring sufficient allegations to establish standing to bring their constitutional claims against defendant, and any constitutional allegations in plaintiffs’ claim were properly dismissed. As to any statutory claims that the subject zoning ordinance amendments or their adoption was “unlawful” in this claim, only plaintiff Bird would have standing to bring statutory claims against the Viewshed Protection Ordinance. Any other statutory claims in plaintiffs complaint were properly dismissed by the trial court. Linemann, 135 N.C. App. at 739, 522 S.E.2d at 785. Therefore, we conclude that plaintiff Templeton does not have standing to bring a constitutional or statutory claim against defendant; plaintiff Bird failed to allege facts sufficient to have standing to bring constitutional claims or a statutory claim against defendant to challenge the Steep Slope Ordinance. However, plaintiff Bird does have standing to bring a statutory challenge against the Viewshed Protection Ordinance including the enactment procedures defendant used, whether this zoning amendment is preempted by state law, whether it grants authority and discretion in excess of defendant’s statutory authority, or if its amounts to “unlawful” zoning.

III. Statute of Limitations

Plaintiffs contend next that “the trial court erred in granting defendant’s motion to dismiss pursuant to Rule 12(b)(6)” as plaintiff Bird’s claims are not barred by the applicable statute of limitations. Defendant counters that “[u]nder the clear language of the statute of limitations and case law, Bird’s claims are barred by the two-month statute of limitations.”

N.C. Gen. Stat. § 160A-364.1 (2005) states that “[a] cause of action as to the validity of any zoning ordinance, or amendment thereto, adopted under this Article or other applicable law shall accrue upon adoption of the ordinance, or amendment thereto, and shall be brought within two months as provided in G.S. 1-54.1.” (emphasis added). Here, plaintiffs alleged that defendant adopted the subject zoning ordinance amendments on 2 October 2006. Plaintiffs’ complaint, which included plaintiff Bird as a party, was filed on 7 October 2008, more than two years following defendant’s adoption of these ordinances. Therefore, plaintiff Bird’s statutory claims are barred by the applicable statute of limitations.

Plaintiffs cite Thrash Ltd. Partnership v. County of Buncombe, 195 N.C. App. 678, 673 S.E.2d 706 (2009) (“Thrash I”), Beach Mt. Vacations, Inc. v. Fin., Inc., 167 N.C. App. 639, 605 S.E.2d 714 (2004), Miller v. Talton, 112 N.C. App. 484, 435 S.E.2d 793 (1993), Frizzelle v. Harnett County, 106 N.C. App. 234, 416 S.E.2d 421 (1992), Sofran Corp. v. Greensboro, 327 N.C. 125, 393 S.E.2d 767 (1990), George v. Edenton, 31 N.C. App. 648, 230 S.E.2d 695 (1976), reversed in part by, 294 N.C. 679, 242 S.E.2d 877 (1978), Walker v. Elkin, 254 N.C. 85, 118 S.E.2d 1 (1961) in support of their argument that the statute of limitations should not bar plaintiff Bird’s claims because the Viewshed Map plaintiff Bird saw at the public hearing on 25 September 2006 showed that the trust property was not located in an area affected by the ordinance, but defendant subjected it to the ordinance later without notifying her and that is why she delayed in filing her action. Defendant, citing Thompson v. Town of Warsaw, 120 N.C. App. 471, 462 S.E.2d 691 (1995), argues that “it is well established that the statute of limitations bars all claims challenging the validity of an ordinance, even if the notice of hearing for such a zoning ordinance was invalid.” (Emphasis omitted).

In Thompson, the plaintiffs argued that the statute of limitations for filing a complaint against a zoning ordinance was not applicable because the challenged zoning ordinance was amended by the defendant-town without complying with the statutory notice provisions. Id. at 473-74, 462 S.E.2d at 692. This Court noted that it had “previously held that even where an amendment is adopted inconsistent with the notice requirements of Chapter 160A, an action which attacks the validity of the amendment [but is] commenced more than [the statutory period] from the adoption of the amendment is barred.” Id. at 473, 462 S.E.2d at 692 (citing Pinehurst Area Realty, Inc. v. Village of Pinehurst, 100 N.C. App. 77, 80, 394 S.E.2d 251, 253 (1990) (rejecting the plaintiff’s argument that its challenge to a zoning ordinance was not barred by the statute of limitations because the defendant failed to properly notify plaintiff of impending zoning action in violation of N.C. Gen. Stat. § 160A-34), disc. rev. denied, 328 N.C. 92, 402 S.E.2d 417, cert. denied, 501 U.S. 1251, 115 L. Ed. 2d 1055 (1991)). Accordingly, we hold that even if defendant failed to properly notify plaintiffs pursuant to Chapter 160A, plaintiff Bird’s claims are still barred by the applicable statute of limitations. Thrash I and the other cases cited by plaintiffs are not applicable as they do not address the effect of the statute of limitations on a zoning ordinance challenge. Plaintiff Bird’s claims are barred by the applicable statute of limitations and were properly dismissed by the trial court.

IV. Conclusion

As plaintiffs’ claims were properly dismissed by the trial court, we affirm the trial court’s order.

AFFIRMED.

Judge ELMORE concurs. Judge JACKSON concurs in part and dissents in part in a separate opinion.

1 . We note that the procedural challenges in plaintiffs’ claims one and two are also alleged violations of procedural due process. However, as we held that plaintiff did not properly allege facts sufficient to establish standing for their constitutional challenges to the subj ect zoning ordinance amendments, our focus is limited to reviewing only the statutory challenges in these claims.

2 . N.C. Gen. Stat. § 160A-381(a) states that “[f]or the purpose of promoting health, safety, morals, or the general welfare of the community, any city may adopt zoning and development regulation ordinances. These ordinances may be adopted as part of the unified development ordinance or as a separate ordinance. A zoning ordinance may regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lots that may be occupied, the size of yards, courts and other open spaces, the density of population, the location and use of buildings, structures and land....”

3 . N.C. Gen. Stat. § 160A-385(a)(l) states that “[z]oning ordinances may from time to time be amended, supplemented, changed, modified or repealed....”