1. Zoning--city/county ordinance--soil extraction--bona fide farm purpose--livestock
The trial court did not err by finding that defendant landowner's soil extraction on land
that defendant planned to operate a horse farm for her family's enjoyment constituted a bona fide
farm purpose within the meaning of N.C.G.S. § 153A-340 and was therefore exempt from a
city/county zoning ordinance, because: (1)N.C.G.S. § 153A-340(b) provides that all bona fide
farms with the exception of swine farms are exempt from zoning regulations; (2) the term
“livestock” under the statute includes horses; and (3) defendant's plan to breed and raise horses
means she is involved in the production and activities relating or incidental to the production of
livestock as required by the statute.
2. Injunction--soil extraction--dissolution of preliminary injunction--denial of
permanent injunction
The trial court did not err by dissolving a preliminary injunction and by denying
intervenors' request for a permanent injunction to prevent defendant landowner's soil extraction
on land that defendant planned to operate a horse farm for her family's enjoyment, because no
basis for injunctive relief exists when defendant's activities are bona fide farm purposes within
the meaning of N.C.G.S. § 153A-340(b)(2) that are exempt from a city/county zoning ordinance.
3. Appeal and Error--appealability--documents in appendix to brief--failure to cite
case authority
Although defendant landowner contends the trial court erred by concluding as a matter of
law that the removal and excavation of soil constitutes “resource extraction” as defined under a
city/county zoning ordinance, this assignment of error is abandoned because: (1) external
documents included in an appendix to a brief but not included in the record are not considered;
and (2) defendant sets forth no case authority in the text of her argument.
Lowell L. Siler for plaintiff-appellee Durham County.
No brief filed for defendant-appellee Luther Roberts.
Thomas H. Stark for defendant-appellee Sheila Roberts.
The Brough Law Firm by Michael B. Brough and Pulley, Watson,
King & Lischer by Richard N. Watson for intervenors- appellants.
THOMAS, Judge.
Intervenors appeal a decision by the trial court that found
soil extraction a legitimate farm purpose where the landowner
planned to operate a horse farm for her family's enjoyment.
Defendant, landowner Sheila Roberts, cross-appeals the trial
court's finding that the operation in question constituted soil
extraction within the meaning of the Durham County Ordinances.
For the reasons discussed herein, we affirm the trial court.
At the time of this action, defendants Luther and Sheila
Roberts, then married, owned approximately 113 acres of land in
northern Durham County. Defendants subsequently divorced and
Sheila Roberts became the sole owner of the land. Pursuant to the
local zoning ordinance, the land was zoned Rural District and
located in the Falls-Jordan Watershed, outside of the Urban Growth
Area. The zoning ordinance precludes resource extraction, which is
only allowed in industrial districts or with a permit.
In the fall of 1998, defendants hired a contractor to excavate
and remove soil consisting of jurassic clay so they could operate
a horse farm. The original soil was of negligible nutritional
value and the ponds were inadequate, such that the original
landscape would not support a horse farm. The removal of less than
three feet of the clay allowed the soil to become better drained
and support a pasture necessary to breed and raise horses. The
drainage was directed to the existing ponds, which kept them
filled. To finance this expensive undertaking, defendants sold theexcavated clay to the excavation contractor, who had a landfill
contract with the City of Durham.
In the midst of the excavation and removal, on 12 October
1998, zoning enforcement officer Dennis Doty (Doty) observed
several dump trucks being filled by a trackhoe and then exiting the
property. Doty informed Luther Roberts, who was present at the
site, that the Durham City/County Zoning Ordinance prohibited
resource extraction in their Rural District and in the Watershed
District.
Subsequently, Doty delivered a written notice of violation to
Luther Roberts and his attorney on 16 October 1998, stating that
the resource extraction must immediately cease to correct the
violation. On 19 October 1998, Doty returned to the site only to
find the extraction continuing. He then issued a $100 civil
citation to Luther Roberts. Afterward, from October 20-22, 24, 26
and 27 of 1998, Doty observed trackhoes excavating and dump trucks
removing the soil from the site. Doty issued four additional
citations totaling $1100 and, on 30 October 1998, plaintiff Durham
County requested a temporary restraining order, alleging defendants
were violating the zoning ordinance and that Durham County would
suffer immediate and irreparable injury, loss or damage. Plaintiff
further requested a declaratory judgment, alleging defendants were
engaged in the operation of resource extraction, as well as a $1200
money judgment for the five citations issued to defendants.
The temporary restraining order was granted and defendants
were ordered to “cease all activities in connect[ion] with the
operation of resource extraction in violation of the [variousDurham ordinances.]” On 20 November 1998, the trial court issued
a preliminary injunction, finding inter alia, that defendants had
violated the Durham City/County Zoning Ordinance by engaging in
resource extraction. The trial court concluded defendants
knowingly engaged in the operation of resource extraction, as they
were issued a notice of violation and several civil citations and
that injunctive relief was appropriate. Luther Roberts was
enjoined from further resource extraction or soil removal from the
site.
Following the granting of the preliminary injunction, Sheila
Roberts filed a motion on 24 November 1998 to modify the
preliminary injunction to allow her to finish the two ponds on the
site and have the extracted dirt transported to the landfill site.
She noted she was the sole owner of the site and had never been
served with any legal process connected to the action. She further
stated that if the project, already half-finished, were left
unfinished, she would suffer irreparable harm.
On 24 February 1999, Luther Roberts filed a motion to dismiss
and an answer. He based his motion to dismiss on failure of
service of process and failure to state a claim upon which relief
can be granted. In his answer, Luther Roberts claimed the site was
a “local historic site and [had] been used primarily for farming
and agricultural purposes for decades.” He contended the site was
therefore exempt from the zoning ordinance because he was carrying
on a bona fide farming and/or agricultural activity.
Defendant Sheila Roberts filed an answer on 23 April 1999,
moving to dismiss based on insufficiency of process, insufficiencyof service of process and failure to state a claim upon which
relief can be granted. She also claimed her actions did not
violate the zoning ordinance and were only permissible agricultural
improvements.
On 3 December 1999, appellants, Kent and Linda Fogleman, Ralph
Emory, Tony A. Fogleman, Ardis Geddings, Gerald and Judith
Kendrick, and Carla, Steven and Daisy Wall, who owned real property
adjacent to or in the vicinity of the site, filed a motion to
intervene, stating the district regulations were designed to
encourage the maintenance of the area's open and rural character.
They further alleged the removal of the soil would disturb the
quality of the district's drinking water. Intervenors filed an
amended motion to intervene on 9 December 1999, adding: (1) the
dump trucks created too much noise; (2) the dump trucks showered
the area with dirt and dust; (3) defendants' illegal operation
lowered the intervenors' property values; (4) intervenors had been
advised that plaintiff would consent to defendants' actions; and
(5) intervenors' interest thus could not be adequately represented
by plaintiff. Intervenors filed a complaint requesting a permanent
injunction such that defendants could not continue the extraction
and could not sell the dirt to the State of North Carolina
Department of Transportation under a settlement agreement. The
motion to intervene was granted and, on 19 January 2000, the trial
court filed a memorandum of decision and order.
In the order, the trial court found the soil extraction was
not violative of the zoning ordinance because of an exemption set
out in N.C. Gen. Stat. § 74-67, which provides in pertinent part: The provisions of this Article shall not
apply to those activities of the Department of
Transportation, nor of any person, firm, or
corporation acting under contract with said
Department of Transportation, on highway
rights-of-way or borrow pits maintained solely
in connection with the construction, repair,
and maintenance of the public road systems of
North Carolina[.]
N.C. Gen. Stat. § 74-67 (1999). The trial court further found (1)
excavating for the Durham landfill was not exempted; (2) the soil
excavation and removal constituted “soil extraction” as defined by
the zoning ordinance; (3) the project was for bona fide farm and
agricultural purposes and; (4) it was therefore exempt from the
zoning ordinance under N.C. Gen. Stat. § 153A-340, which provides
that zoning regulations do not affect bona fide farms. The trial
court then granted defendants' motion to dissolve the preliminary
injunction.
Intervenors appeal the trial court's conclusion that the soil
extraction is exempt from the zoning ordinance under N.C. Gen.
Stat. § 153A-340, setting forth two assignments of error.
Defendant Sheila Roberts moved to dismiss the intervenors' appeal
due to an untimely filing and service of the transcript agreement,
but was denied. Sheila Roberts then cross-appealed, setting forth
one assignment of error.
[1]By intervenors' first assignment of error, they argue the
trial court erred in concluding defendant's soil extraction
operation constituted a bona fide farm purpose within the meaning
of N.C. Gen. Stat. § 153A-340. We disagree.
The North Carolina General Statutes discuss the grant of power
to counties via zoning regulations in section 153A-340(a). SeeN.C. Gen. Stat. § 153A-340(a) (1999). However, zoning regulatio
ns
are limited in how they may affect lands used for bona fide farms.
All bona fide farms, with the exception of swine farms, are exempt
from zoning regulations. N.C. Gen. Stat. § 153A-340(b) (1999).
Bona fide farm purposes are defined in section 153A-340 as
including “the production and activities relating or incidental to
the production of crops, fruits, vegetables, ornamental and
flowering plants, dairy, livestock, poultry, and all other forms of
agricultural products having a domestic or foreign market.” N.C.
Gen. Stat. § 153A-340(b)(2) (1999). Intervenors contend
“livestock” as used in the statute does not include raising horses.
We note livestock includes horses in several of our statutes.
For example, the Livestock Dealer Licensing Act defines livestock
as “cattle, sheep, goats, swine, horses and mules.” N.C. Gen.
Stat. § 106-418.8(2) (2000). Under Chapter 68's livestock law,
“livestock” includes “equine animals, bovine animals, sheep, goats,
llamas, and swine.” N.C. Gen. Stat. § 68-15 (2000). The
Regulations of the Interstate Commerce Commission include horses in
its rates applicable to “livestock.” See Schroader v. Railway
Express Agency, 237 N.C. 456, 75 S.E.2d 393 (1953). Under N.C.
Gen. Stat. § 1-322, titled “Cost of Keeping Livestock,” horses are
listed. In the statutes criminalizing the pursuing or injuring of
livestock with the intent to steal, and poisoning livestock, horses
are the first of the listed animals in both statutes. See N.C.
Gen. Stat. § 14-85 (2000); N.C. Gen. Stat. § 14-163 (2000). In the
statute protecting livestock running at large, horses are alsoincluded. See N.C. Gen. Stat. § 14-367 (2000). Under the
statutory registration and protection of livestock brands,
“livestock” is defined as “cattle, horses, ponies, mules, and
asses.” N.C. Gen. Stat. § 80-58(d) (2000). The Sedimentation
Pollution Control Act of 1973 defines “livestock” as including
“beef cattle, llamas, sheep, swine, horses, ponies, mules, and
goats.” N.C. Gen. Stat. § 113A-52.01(1)(d) (2000).
Further, as the statute at issue is silent as to the
definition of “livestock,” the term must be given its ordinary
meaning. Dictionaries define “livestock” as “[d]omestic animals,
such as cattle or horses, raised for home use or for profit,” and
“[d]omestic animals used or raised on a farm.” American Heritage
Dictionary 737 (2d. Coll. Ed. 1985); Black's Law Dictionary 935
(6th ed. 1990). Therefore, there are ample instances in which
horses are considered to be livestock and we hold that, in the
instant case as well, horses are deemed livestock.
Intervenors next contend even if horses are “livestock,”
Sheila Roberts is not involved in the “production and activities
relating or incidental to the production” of livestock, as is
required in section 153A-340. Intervenors take the phrase
“producing livestock” to mean defendant must breed horses for
commercial uses. Sheila Roberts has clarified that she plans to
breed and raise horses for the enjoyment of her family, not for
commercial purposes. However, we find nothing in intervenors'
brief to suggest why “breeding” horses is not “producing” them.
“Produce” is not defined by the applicable statute. However, it is
defined in a common dictionary as “[t]o bring forth; yield: produceoffspring.” American Heritage College Dictionary 1091 (
3d ed.
1997) (emphasis in original). We thus hold defendant's breeding
and raising of horses for the benefit of herself and her family is
the production of livestock.
Intervenors further contend the excavation was not necessary
for defendant's purposes. However, that issue is not appropriately
before this Court. Intervenors cite no authority for this
contention and appear to ask this Court to impose a requirement not
present in the statute itself. This we refuse to do. Section
153A-340(b)(2) provides that the activity need only be “relating or
incidental to” bona fide farm purposes, not “necessary and
customary.” It is clear that the activity undertaken by defendant
was related and incidental to the farming activities of boarding,
breeding, raising, pasturing and watering horses. Accordingly,
this assignment of error is rejected. As we have already held
defendant's activities fall under the bona fide farm purposes
exception, we do not address intervenors' other concerns in
connection with this issue.
[2]By their second assignment of error, intervenors argue the
trial court erred in dissolving the preliminary injunction and in
denying their request for a permanent injunction. We have held
defendant's activities are bona fide farm purposes within the
meaning of N.C. Gen. Stat. § 153A-340(b)(2) and exempt from the
zoning ordinance. Therefore, no basis for injunctive relief
exists. We accordingly reject this assignment of error.
[3]By her first and only cross-assignment of error, Sheila
Roberts argues the trial court erred in concluding as a matter oflaw that the removal and excavation of soil constitutes “resource
extraction” as that term is described under the Durham Zoning
Ordinance.
None of the documents attached to defendant's brief in support
of this contention were admitted at trial or otherwise included in
the official record of this case. It is well established that this
Court can judicially know only what appears in the record. In re
Warrick, 1 N.C. App. 387, 390, 161 S.E.2d 630, 632 (1968).
Further, concerns which are addressed in a brief, or exhibits in an
appendix to the brief, which are outside the record will not be
addressed. Id. Therefore, the external documents included in the
appendix to defendant's brief are not considered here. Because
defendant sets forth no case authority in the text of her argument,
this assignment of error is deemed abandoned. See Joyner v. Adams,
97 N.C. App. 65, 387 S.E.2d 235 (1990).
For the reasons stated above, we affirm the trial court.
AFFIRMED.
Judges MARTIN and BIGGS concur.
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