Appeal by defendants from judgment and order of abatement
entered 12 December 2001 by Judge Ronald K. Payne in Buncombe
County Superior Court. Heard in the Court of Appeals 14 May 2003.
Roberts & Stevens, P.A., by Carl W. Loftin and Sarah Patterson
Brison Meldrum, for plaintiff-appellee.
Stanford K. Clontz, P.A., by Stanford K. Clontz, for
defendant-appellants.
HUNTER, Judge.
Ronnie Morris (“defendant Morris”) and his wife, Kathy
(“defendant Kathy”) (collectively “defendants”), appeal the trial
court's grant of a motion for summary judgment in favor of the Town
of Weaverville (“plaintiff”) and an order of abatement regarding
defendants' operating and maintaining a junk yard in violation of
plaintiff's zoning ordinance. For the reasons stated herein, we
affirm.
Defendant Morris is the owner of real property located within
the extraterritorial zoning jurisdiction of Weaverville, NorthCarolina. On 22 August 2000, plaintiff filed a complaint against
defendant Morris alleging that he was operating and maintaining a
junk yard on his real property in violation of Section 17-560 of
plaintiff's zoning ordinance, which prohibits a nonconforming land
use of that nature in an R-2 residential zoning district.
Plaintiff's complaint alleged, inter alia:
9. The Defendant, Ronnie L. Morris, is
operating and maintaining a junk yard on
the Property.
. . . .
12. The junk yard operated and maintained by
Defendant, Ronnie L. Morris, on the
Property was not a lawful use of the
Property at the time the extraterritorial
jurisdiction was extended to the
Property, having been previously
determined by the County of Buncombe as
an unlawful use under the Buncombe County
Code of Ordinances.
. . . .
16. The Plaintiff is entitled to an
injunction enjoining Defendant, Ronnie L.
Morris, from his continued violation of
the Zoning Ordinance and order of
abatement directing removal of the junk
yard.
Plaintiff also named defendant Kathy in the complaint based “upon
her possible marital interest in the Property.”
Defendants timely filed an answer denying plaintiff's
entitlement to relief and alleging that defendant Morris had been
operating and maintaining a car repair shop on the property for
more than twenty years. However, defendants' answer did not
specifically deny the allegations contained in paragraphs 9 and 12
of plaintiff's complaint. Also, defendants' answer stated that theallegations contained in paragraph 16 of the complaint were
“admitted upon information and belief.”
Thereafter, plaintiff filed a motion for summary judgment on
17 September 2001. The motion was accompanied by the affidavit of
Michael Morgan (“Morgan”), the Town Manager/Zoning Administrator,
and photographs of defendant Morris' property that were taken by
Morgan. Morgan's affidavit stated that his inspections of
defendant Morris' property indicated that the property was a junk
yard in violation of plaintiff's zoning ordinance.
In response to plaintiff's motion, defendant Morris filed an
affidavit that reiterated he was operating a car repair business on
the property and “[t]hat in the course of said business [he] often
w[ould] acquire several vehicles to cannibalize and use as spare
parts for the repair of other vehicles for customers and/or for
sale.” The affidavit further stated that although defendant Morris
did not consider his property to be a junk yard, he had attempted
to register the property as such with the County of Buncombe and
plaintiff but was denied.
Plaintiff's motion for summary judgment was heard on 24
October 2001. The trial court determined that defendants' use of
the property constituted a junk yard in violation of plaintiff's
zoning ordinance. Thus, in a judgment and order entered 12
December 2001, summary judgment was granted in favor of plaintiff
with defendants being (1) permanently enjoined from violating
plaintiff's zoning ordinance, and (2) ordered to abate the
maintenance and use of their property as a junk yard. Defendantsfiled a notice of appeal on 11 March 2002 with respect to the
judgment and order of abatement.
On 9 May 2002, defendants filed a motion for relief from
judgment. The motion was accompanied by a second affidavit from
defendant Morris, which stated that it was his intention to deny
paragraphs 9 and 12 of plaintiff's complaint and the failure to do
so was “mere inadvertence” on the part of his former attorney. The
affidavit also stated that defendant Morris' property was used
substantially to generate income from the rental of a residential
dwelling located on that property. The motion for relief from
judgment was denied on 13 June 2002.
I.
First, defendants argue the trial court erred in granting
plaintiff's motion for summary judgment (which included injunctive
relief and an order of abatement) because plaintiff failed to meet
its burden of showing there was no genuine issue of material fact
as to whether defendants were operating a junk yard as defined by
Section 17-410 of plaintiff's zoning ordinance.
Summary judgment may be granted to resolve matters regarding
the interpretation of zoning ordinances.
See Craig v. County of
Chatham, 356 N.C. 40, 565 S.E.2d 172 (2002). In these matters, as
in any other matters involving the grant or denial of summary
judgment, an appellate court must review the lower court's judgment
de novo.
Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807,
809, 513 S.E.2d 572, 574 (1999). “A party moving for summary
judgment has the burden of establishing the lack of any genuineissue of material fact and that he is entitled to a judgment as a
matter of law.”
Daniel v. Daniel, 132 N.C. App. 217, 218, 510
S.E.2d 689, 690 (1999). Once that burden is met, “an adverse party
may not rest upon the mere allegations or denials of his pleading,
but his response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a genuine
issue for trial.” N.C. Gen. Stat. § 1A-1, Rule 56(e) (2001).
In the instant case, Section 17.410 of plaintiff's zoning
ordinance defines a “junk yard” as:
A lot, land or structure, or part thereof,
used primarily for the collection, storage and
sale of waste paper, rags, scrap metal, or
other discarded material; or for the
collecting, dismantling, storage or salvaging
of machinery or vehicles not in operating
condition. This shall include the sale of
parts from such machinery or vehicles.
Defendants contend plaintiff's failure to establish that the
property was used
primarily for the “storage or salvaging of . . .
vehicles not in operating condition” should have prevented the
grant of summary judgment. Defendants further contend that the
serious deficiencies and errors in their answer (whereby they did
not deny plaintiff's allegations in paragraph 9 and 12, and
admitted the allegations in paragraph 16) should not have been
considered by the court in granting summary judgment because the
remainder of their answer and defendant Morris' second affidavit
indicated that defendants actually intended to deny those
allegations. We disagree.
Whether or not defendants intended to deny specific
allegations, plaintiff still met its burden of establishingdefendants' primary use of the property as a junk yard. The
evidence before the trial court established: (1) defendant Morris
stored numerous vehicles on his property that were inoperable; (2)
defendant Morris attempted to register his property as a junk yard
twice; (3) Morgan's affidavit and pictures of defendant Morris'
property indicated that the property was a junk yard, constituting
a “public health and safety hazard and . . . a nuisance[.]” Having
met its burden, defendants were required to set forth specific
facts showing that there was a genuine issue for trial. Yet,
defendant Morris only set forth general denials in his first
affidavit, such as “I do not consider my property a junkyard[,]”
which were insufficient to set forth specific facts required to
rebut a motion for summary judgment.
See Daniel, 132 N.C. App. at
219, 510 S.E.2d at 690. Defendant Morris did eventually
affirmatively deny the allegations in paragraphs 9 and 12 of
plaintiff's complaint and stated that the property was being used
primarily to generate residential rental income. But, these
assertions (1) were made in defendant Morris' second affidavit
which was not available to the court until after its judgment and
order of abatement was entered, and (2) were completely contrary to
defendant Morris' assertion in his first affidavit that the
property was used primarily for his car repair business.
Accordingly, plaintiff's motion for summary judgment was properly
granted.
II.
Next, defendants argue the trial court erred in its judgment
and order of abatement as to defendant Kathy. Defendants contend
that while plaintiff's complaint alleged defendant Kathy was “named
as a defendant based upon her possible marital interest in the
Property[,]” it did not allege any acts on her part nor give her
notice that she might be obligated to remove and dispose of “all
personal property, refuse and vehicles considered to constitute a
junk yard” on the property. Plaintiff's complaint, however, did
not direct its request for an order of abatement towards either
defendant individually and thus, was directed towards both
defendants. Moreover, Section 160A-175 of our statutes provides
that a city may secure injunctions and abatement orders for
violations of its ordinances and:
If the defendant fails or refuses to comply
with an injunction or with an order of
abatement within the time allowed by the
court, he may be cited for contempt, and the
city may execute the order of abatement. The
city shall have a lien on the property for the
cost of executing an order of abatement in the
nature of a mechanic's and materialman's lien.
N.C. Gen. Stat. § 160A-175(e) (2001). As defendant Morris' wife,
any marital interest defendant Kathy had in the property would be
affected by a potential lien on that property if abatement was
ordered and both defendants failed to comply. Therefore, this
assigned error is overruled.
III.
Defendants finally argue the court erred in denying their
motion for relief from judgment. However, defendants only filed
notice of appeal from the judgment and order of abatement and notfrom their motion for relief from judgment. Since the record does
not show that defendants gave proper notice of appeal from their
motion for relief from judgment, the order denying that motion is
not properly before this Court for review.
In re Laney, ___ N.C.
App. ___, 577 S.E.2d 377 (2003).
Affirmed.
Judges MARTIN and GEER concur.
Report per Rule 30(e).
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