1. Zoning--validity of ordinance creating extraterritorial jurisdiction--barred by
statute of limitations
The trial court did not err in a zoning case by granting summary judgment in favor of
defendant City of Hamlet based on plaintiff's challenge to the validity of the ordinance creating
extraterritorial jurisdiction (ETJ) being barred by the two-month statute of limitations under
N.C.G.S. § 160A-364.1 even though the City failed to record the ETJ map at the register of
deeds, because: (1) the requirement in N.C.G.S. § 160A-22 that a map and/or written description
depicting the ETJ be recorded in the register of deeds office is to give property owners notice as
to whether their property is within the extraterritorial zoning authority of a city; (2) the City's
actions both before and after the ordinance creating the ETJ was adopted gave all persons with an
interest in property affected by the ordinance sufficient notice of the ETJ's existence; and (3)
except for the City's failure to timely record the map or written description of the ETJ at the
register of deeds, the City fulfilled all the requirements under N.C.G.S. § 160A-360(b).
2. Zoning--jurisdiction--review of zoning officer's determination--failure to avail self
of judicial review
The trial court did not err in a zoning case by finding that it lacked jurisdiction over the
zoning officer's determination that the sale of beer in the store would constitute an unlawful
expansion of a non-conforming use, because: (1) plaintiff failed to file an appeal under N.C.G.S.
§ 160A-388 with the City's Board of Adjustment contesting the zoning officer's determination
and instead filed a rezoning petition requesting that his property be rezoned; and (2) therefore,
plaintiff failed to avail himself of the only judicial review authorized by statute and may not
otherwise collaterally attack the determination of the zoning officer.
Drake & Pleasant, by Henry T. Drake, for plaintiff-appellant.
Cranfill, Sumner & Hartzog, L.L.P., by Susan K. Burkhart, for
defendant-appellee.
EAGLES, Chief Judge.
In August 1997, Alfred Potter (Potter) purchased Green's
Grocery (store) from William Green (Green). Approximately one
month after purchasing the store, Potter contacted the ABCCommission about acquiring a permit to sell beer for off-premises
consumption. The ABC Commission granted Potter a temporary permit,
but informed him that he would need to obtain zoning approval from
the City before a permanent permit could be issued.
In an effort to obtain the necessary zoning approval from the
City, Potter's brother-in-law, Woodrow Herring (Herring), took an
ABC zoning compliance form to Hamlet City Hall. Lisa Vierling
(Vierling), the zoning officer responsible for enforcing the City's
zoning ordinance and issuing zoning permits, received the form.
Vierling determined that the store was not in compliance with the
zoning ordinance because it was located in an area zoned I-2,
“heavy industrial.” Vierling interpreted the zoning ordinance to
mean that Potter could continue to operate the store as a non-
conforming use but that the addition of beer sales would be an
unlawful expansion of a non-conforming use. Accordingly, on 22
September 1997, Vierling completed the ABC zoning compliance form
indicating a zoning classification of I-2, “heavy industrial,” and
“non compliance.” In her affidavit, Vierling said she then
informed Herring that Potter could either appeal her non-conforming
use interpretation to the City's Board of Adjustment or could
petition the City Council to change the zoning of the property to
allow convenience stores.
Potter did not appeal Vierling's decision to the City's Board
of Adjustment. Instead, in November 1997, Potter requested the
tract upon which the store is located be rezoned to B-3,
“neighborhood business.” Pursuant to Hamlet's zoning ordinance,
Potter's rezoning petition was first presented to the City'sPlanning Board for consideration and a non-binding recommendation.
Public hearings were held on 15 December 1997, after which the
Planning Board recommended that Potter's petition be denied. On 13
January 1998, Potter's request to rezone his property from I-2 to
B-3 came before the Hamlet City Council. The City Council voted
unanimously to deny the rezoning, citing concern about illegal spot
zoning.
Following the decision by the City Council, on 12 February
1998, Potter filed a complaint against the City in Richmond County
Superior Court. In Potter's complaint, he alleged that: (1) his
store was more than one mile outside the City limits and was
therefore not subject to the City's zoning regulations; (2) even if
the store was within one mile of the City limits, there was “some
question . . . as to whether or not the extra-territorial zoning
ordinance was adopted as required under the Statutes;” and (3) even
if Potter was subject to the City's zoning authority, Vierling
erred in determining that the sale of beer would constitute an
unlawful expansion of a non-conforming use.
On 19 April 1999, Potter moved for summary judgment in
Richmond County Superior Court. On 27 May 1999, the City also
moved for summary judgment. On 16 July 1999, the trial court
granted the City's summary judgment motion, dismissing all counts
of Potter's complaint. In its order, the trial court made the
following relevant findings:
1. That the plaintiff is barred by the
Statute of Limitations to challenge the
validity of the zoning ordinance.
That in any event the City of Hamlet
complied with North Carolina G.S. 160A inexercising its extra territorial jurisdiction
and the only irregularity was in the failing
to file a map in the Register of Deeds Office,
and that this does not invalidate an otherwise
valid procedure.
2. That there is no genuine issue of
material fact in regards to the question of
whether or not the plaintiff's property is
within the extra territorial jurisdiction of
the City of Hamlet . . . .
3. That the plaintiff has failed to
properly contest the issue of a non-conforming
use by failing to appeal to the Board of
Adjustment and the Court is without
jurisdiction to hear the plaintiff's claims
. . . .
Potter appeals.
Summary judgment is properly granted if “there is no genuine
issue as to any material fact and . . . any party is entitled to a
judgment as a matter of law.” G.S. § 1A-1, Rule 56(c). The moving
party has the burden to establish that there is no genuine issue as
to any material fact. Holley v. Burroughs Welcome, Co., 318 N.C.
352, 355, 348 S.E.2d 772, 774 (1986); Toole v. State Farm Mut.
Auto. Ins. Co., 127 N.C. App. 291, 294, 488 S.E.2d 833, 835 (1997).
“Once the moving party has met its burden, the nonmoving party must
'produce a forecast of evidence demonstrating that the [nonmoving
party] will be able to make out at least a prima facie case at
trial.'” Toole, 127 N.C. App. at 294, 488 S.E.2d at 835 (quoting
Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376
S.E.2d 425, 427 (1989)). If the non-moving party fails to meet
this burden, summary judgment is properly granted for the movant.
Here, we conclude that because there are no genuine issues of
material fact and the City was entitled to judgment as a matter oflaw, summary judgment was proper.
[1]Potter first argues that the trial court erred in finding
that his challenge to the validity of the ordinance creating the
extraterritorial jurisdiction (ETJ) was barred by the Statute of
Limitations. Potter argues that because the City failed to record
the ETJ map at the Register of Deeds, the zoning ordinance creating
the ETJ is void, and the Statute of Limitations should not apply to
his cause of action. We disagree.
G.S. § 160A-360 authorizes cities to exercise certain powers
within their city limits and “within a defined area extending not
more than one mile beyond its limits.” G.S. § 160A-360(a). The
statute further provides that any city wishing to exercise such
“extraterritorial jurisdiction”
shall adopt . . . an ordinance specifying the
area to be included . . . . Boundaries shall
be defined, to the extent feasible in terms of
geographical features identifiable on the
ground . . . . The boundaries specified in the
ordinance shall at all times be drawn on a
map, set forth in a written description, or
shown by a combination of these techniques.
This delineation shall be maintained in the
manner provided in G.S. 160A-22 . . . and
shall be recorded in the office of the
register of deeds of each county in which any
portion of the area lies.
G.S. § 160A-360(b). G.S. § 160A-22 provides that “[t]he current
city boundaries shall at all times be drawn on a map, or set out in
a written description, or shown by a combination of these
techniques. This delineation shall be retained permanently in the
office of the city clerk.”
In 1994, the City enacted an ordinance creating an ETJ. The
ETJ extended the City's zoning jurisdiction one mile outside thecity limits. Before the ordinance was enacted, notice was given to
all property owners within the boundaries of the proposed ETJ of
public hearings on the issue. Green, from whom Potter purchased
the store in 1997, was mailed a letter from the City's Office of
the City Manager on 16 December 1993 notifying him of the proposed
ETJ. Several public hearings were held, after which the ordinance
creating the ETJ was adopted on 8 February 1994. A map depicting
the ETJ boundaries is displayed in the Hamlet City Hall in the
Clerk's office, and a metes and bounds description of the ETJ is
attached to the ordinance which is part of the Hamlet zoning
ordinance. However, prior to April, 1999, neither the ETJ map nor
the written description were recorded at the Richmond County
Register of Deeds Office as required by the statute.
The statutory requirement that a map and/or written
description depicting the ETJ be recorded in the register of deeds
office is to give property owners notice as to whether their
property is within the extraterritorial zoning authority of a city.
Sellers v. City of Asheville, 33 N.C. App. 544, 236 S.E.2d 283
(1977) (holding that the purpose of the statutory mandate in
subsection (b) that boundaries be defined, to the extent feasible,
is so owners of property outside the city can easily and accurately
ascertain whether their property is within the city's zoning
authority). Here, the City's actions both before and after the
ordinance creating the ETJ was adopted gave all persons with an
interest in property affected by the ordinance sufficient notice of
the ETJ's existence. Moreover, except for the City's failure to
timely record the map or written description of the ETJ at theRichmond County Register of Deeds Office the City fulfilled all the
requirements under G.S. § 160A-360(b). Therefore, we hold that the
City substantially complied with G.S. § 160A-360(b).
Because the City substantially complied with G.S. § 160A-
360(b) Potter is barred from attacking the validity of the
ordinance based on procedural grounds by the Statute of Limitations
provided in G.S. § 160A-364.1. G.S. § 160A-364.1 creates a Statute
of Limitations, providing that any “cause of action as to the
validity of any zoning ordinance . . . shall accrue upon the
adoption of the ordinance . . . and shall be brought within two
months . . . .” Under the statute, Potter's cause of action arose
when the ordinance was enacted in 1994. Potter filed his complaint
four years later in 1998, well outside the two month Statute of
Limitations period set out in G.S. § 160A-364.1.
Potter argues that the Statute of Limitations should not apply
to him because the City failed to file a copy of the ETJ map at the
Register of Deeds Office. “There is a strong need for finality
with respect to zoning matters so that landowners may use their
property without fear of a challenge years after zoning has
apparently been determined.” Pinehurst Area Realty, Inc. v.
Village of Pinehurst, 100 N.C. App. 77, 80-81, 394 S.E.2d 251, 253
(1990), disc. rev. denied, 328 N.C. 92, 402 S.E.2d 417, cert.
denied, 501 U.S. 1251, 115 L.Ed. 2d 1055 (1991). As such, our
courts have strictly applied Statutes of Limitation in zoning
cases. Id.; Thompson v. Town of Warsaw, 120 N.C. App. 471, 473,
462 S.E.2d 691, 692 (1995). Therefore, the trial court properlyfound Potter's action barred by the Statute of Limitations.
Parenthetically we note that G.S. § 160A-366 validates city
ordinances adopted since 1 January 1972 under “Chapter 160A,
Article 19 . . . notwithstanding the fact that such ordinances were
not recorded pursuant to G.S. 160A-360(b) . . . .”
[2]Potter next argues that the trial court erred in finding
that it lacked jurisdiction over Vierling's determination that the
sale of beer in the store would constitute an unlawful expansion of
a non-conforming use. We are not persuaded.
The statutory procedure for challenging a decision of a zoning
officer is contained in G.S. § 160A-388. The statute provides, in
pertinent part:
The board of adjustment shall hear and decide
appeals from and review any order,
requirement, decision, or determination made
by an administrative official charged with the
enforcement of any ordinance adopted pursuant
to this Part . . . .
G.S. § 160A-388(b). Any party not satisfied with the ruling of the
board may in turn appeal to superior court, and the review is in
the nature of certiorari review. G.S. § 160A-388(e); Midgette v.
Pate, 94 N.C. App. 498, 502-03, 380 S.E.2d 572, 575 (1989); Wil-
Hol Corp. v. Marshall, 71 N.C. App. 611, 613, 322 S.E.2d 655, 657
(1984). On certiorari review, the superior court is not the trier
of fact. Grandfather Village v. Worsley, 111 N.C. App. 686, 688,
433 S.E.2d 13, 15 (1993). “The board of adjustment is the final
arbiter of fact.” Id.
Here it is uncontested that Potter failed to file an appeal
with the City's Board of Adjustment contesting Vierling'sdetermination that the sale of beer in the store would constitute
an unlawful expansion of a non-conforming use. Instead, Potter
filed a rezoning petition requesting that his property be rezoned
from I-2 to B-3. Thus, Potter failed to avail himself of the only
judicial review authorized by statute and may not otherwise
collaterally attack the determination of the zoning officer.
Grandfather Village, 111 N.C. App. at 689, 433 S.E.2d at 15; Wil-
Hol Corp., 71 N.C. App. at 614, 322 S.E.2d at 657. Accordingly,
this assignment of error fails.
We have reviewed defendant's remaining assignments of error
and find them without merit. We affirm the trial court's order of
16 July 1999.
Affirmed.
Judges WALKER and HUNTER concur.
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