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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
HOWARD C. JONES, II; FRANKIE HAYES SOUTHARD; JIMMY ROY ROGERS and
wife, MADILYN KAY ROGERS; GREGORY E. BOWERS and wife, NATALIE W.
BOWERS; and DANIEL RAY SAMMONS and wife, SHARON P. SAMMONS,
Plaintiffs, v. ROBERT WAYNE DAVIS and wife, GLENDA K. DAVIS;
JERRY ALLAN ALLRED and wife, YVONNE DAVIS ALLRED, and SURRY
Filed: 20 April 2004
1. Zoning_-subdivision ordinance--leasing of lots--mobile homes
A county subdivision ordinance which defined subdivision as the division of land for
the purpose of sale or building development allowed a tract of land to be divided into lots to be
leased by the landowners to third parties for the placement of mobile homes thereon.
2. Zoning_-manufactured home
A manufactured home park ordinance did not prohibit subdivision owners from leasing
lots to third parties for placement of mobile homes thereon because the ordinance applied only to
a tract of unsubdivided land.
3. Zoning--subdivision ordinance--use of land not regulated
A county subdivision ordinance which provided that subdivisions and lots created
thereunder must comply with all applicable local and state laws, including any zoning
ordinance which may apply to the area to be subdivided does not regulate the use of land and
thus does not prohibit subdivision lots from being leased to third parties for the placement of
mobile homes thereon.
Judge WYNN dissenting.
Appeal by plaintiffs from order entered 10 February 2003 and
judgment entered 11 February 2003 by Judge John O. Craig, III, in
Surry County Superior Court. Heard in the Court of Appeals 3
Elizabeth Horton, Urs R. Gsteiger, and Howard C. Jones, II,
Finger, Parker, Avram & Roemer, L.L.P., by Raymond A. Parker,
for defendants-appellees Robert Wayne Davis, and wife, Glenda
K. Davis, and Jerry Allan Allred, and wife, Yvonne Davis
Folger and Folger, by Fred Folger, Jr., for defendant-appellee
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
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 close 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
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 8December 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
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'
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'
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 allvotes 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.
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.
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
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. Further, somedeference is given to the [Board of Commissioners'] interpretation
of its own [ordinance]. Tucker v. Mecklenburg Cty. Zoning Bd. of
Adjust., 148 N.C. App. 52, 57, 557 S.E.2d 631, 635 (2001), aff'd in
part and rev. improvidently allowed in part, 356 N.C. 658, 576
S.E.2d 324 (2003).
During oral argument, the parties stipulated that the homes
placed on the lots were proper and allowed, and plaintiffs do not
contest that the tenants who rented defendants' lots had complied
with all applicable Surry County ordinances and permitting
requirements for the homes. Plaintiffs also conceded that
defendants or their tenants could have constructed site-built homes
or moved modular or factory built homes onto the lots. At the time
this action arose, Surry County had not adopted a zoning ordinance
regulating the use of defendants' land. See Orange County v.
Heath, 278 N.C. 688, 691, 180 S.E.2d 810, 812 (1971) (A zoning
ordinance is a legislative determination as to what restrictions
should be placed on the use of land.).
The phrase for the purpose of sale or building development,
whether immediate or future, is not defined within the Subdivision
Ordinance. In Article IV, the Subdivision Ordinance clearly states
its purpose and intent to establish procedures and standards for
the development and subdivision of land within Surry County,
insure accurate legal identification, promote orderly layout of the
land, provide suitable building sites, avoid overcrowding of the
land, and protect the health, safety, and welfare of Surry County
residents. Nothing in the Subdivision Ordinance addresses or
limits the type of buildings or structures that may be placed onthe subdivided land. The Subdivision Ordinance also allows
subdivisions to be held in single ownership as a Homeowners'
Association Subdivision. Kaye's Subdivision was approved by the
County Commissioners as a homeowners' association subdivision.
 In contrast, the Manufactured Home Park Ordinance does not
conflict with the trial court's ruling, because a manufactured
home park, by its express terms, applies only to a tract of
unsubdivided land. Here, Defendants' land was approved to be
subdivided. After the maps were recorded, Surry County issued
individual ad valorem property tax bills for each lot. The
Manufactured Home Park Ordinance states that this ordinance is not
intended to interfere with, abrogate, or annul . . . ordinances of
[Surry] County. Further, the Planning Board was aware of the
project's potential development and use.
The County Commissioners were also aware that Davis intended
to rent the subdivided lots to tenants for placement of their
mobile homes on the property. Plaintiffs requested the County
Commissioners to enforce the Manufactured Home Park Ordinance, but
they refused to take any enforcement action. The Planning Board
and County Commissioners did not condition their approval of the
subdivision plats for defendants' property and did not at any time
require defendants to obtain manufactured home permits for any of
the subdivided lots.
When zoning restrictions are met, and subdivision regulations
as set out in the ordinance are complied with, permits must be
issued. Nazziola v. Landcraft Props., Inc., 143 N.C. App. 564,
566, 545 S.E.2d 801, 803 (2001) (citing Quandrant Corp. v. City ofKinston, 22 N.C. App. 31, 205 S.E.2d 324 (1974)). The Subdivision
Ordinance, Section 31 states, [n]o real property within the
jurisdiction of this Ordinance shall be subdivided . . . until a
preliminary and a final plat have been reviewed and approved as
provided hereinafter. Article VI of the Subdivision Ordinance,
Sections 60 through 65, requires the owner to submit a sketch plan,
gain approval of a preliminary plat by the Planning Board, obtain
approval of the final plat by the Planning Board and County
Commissioners, and record the final plat with the Surry County
Register of Deeds. The parties stipulated that defendants complied
with all of these conditions.
The preliminary site plans for Kaye's Subdivision received
recommended approval by the Planning Board, and the County
Commissioners gave its final approval as a homeowners' association
subdivision. The plats were properly recorded with the Surry
County Register of Deeds. The Subdivision Ordinance states, [t]he
Register of Deeds shall not file or record a plat of a subdivision
of land located within the territorial jurisdiction of Surry County
that has not been approved in accordance with these provisions . .
. . Plaintiffs do not contest the trial court's conclusion that
the approved maps of the subdivision were properly recorded. These
uncontroverted facts show that defendants complied with the
procedures set forth in the Subdivision Ordinance. The Planning
Board and County Commissioners approved the subdivision of
defendants' land through proper procedures. The Manufactured Home
Park Ordinance expressly applies only to unsubdivided land.
The dissenting opinion concludes that the placing of mobilehomes on the land does not constitute for the purpose of sale or
building development under the Subdivision Ordinance. This Court,
however, has recognized that a mobile home park can meet the
definition of a subdivision. State v. Turner, 117 N.C. App. 457,
459, 451 S.E.2d 20 (1994). Although Turner is a criminal case, we
adopted the definition of a subdivision used in Black's Law
Dictionary, 5th ed. (1979) as, [d]ivision into smaller parts of
the same thing or subject-matter. The division of a lot, tract or
parcel of land into two or more lots, tracts, parcels or other
divisions of land for sale or development. Id. (emphasis
supplied). This definition is virtually identical to the
definition used in the Subdivision Ordinance at bar. In Turner, we
stated, [t]he evidence shows that Timberline Mobile Home Park is
owned by one individual, who has divided the property into lots for
lease. The mobile home park thus fits within the foregoing
definition of a subdivision. Id.
We hold that the stipulated facts and the approval of Kaye's
Subdivision by the County Commissioners support the trial court's
conclusion that for the purpose of sale or building development
includes construction on subdivision lots, which are leased to
third parties who place their own improvements on the property.
Further, nothing in the Subdivision Ordinance prevents the owner
from leasing a lot in the subdivision. This assignment of error is
IV. Subdivision Ordinance
 Plaintiffs contend the trial court erred in concluding
that the Subdivision Ordinance does not regulate use of land. Plaintiffs argue both the Subdivision Ordinance and the
Manufactured Home Park Ordinance regulate use, and therefore, the
Manufactured Home Park Ordinance is the more restrictive and
governs the operation of the project. We disagree.
In support of their argument, plaintiffs included in their
brief copies of this Court's unpublished opinion and the trial
court's order in the case of Murphy v. McKnight. Neither our
unpublished opinion nor the trial court's order in the Murphy case
are precedent in this case, and these documents were not part of
the record on appeal. We will not consider any argument based on
these documents and grant defendants' motion to strike these
portions of plaintiffs' brief. See Horton v. New South Ins., 122
N.C. App. 265, 268, 468 S.E.2d 856, 858, cert. denied, 343 N.C.
511, 472 S.E.2d 8 (1996); see also N.C.R. App. P. 30(e)(3) (2004).
'Every person owning property has the right to make any
lawful use of it he sees fit, and restrictions sought to be imposed
on that right must be carefully examined . . . .' Wise v.
Harrington Grove Cmty. Ass'n, 357 N.C. 396, 401, 584 S.E.2d 731,
736, reh'g denied, 357 N.C. 582, 588 S.E.2d 811 (2003) (quoting
Vance S. Harrington & Co. v. Renner, 236 N.C. 321, 324, 72 S.E.2d
838, 840 (1952)). The general requirements stated within the
Subdivision Ordinance provide, [a]ll subdivisions and lots created
under this Ordinance must comply with all applicable local and
state laws, including any zoning ordinance which may apply to the
area to be subdivided. Use of these words shows the intent to
distinguish between the Subdivision Ordinance and zoning
ordinances, which regulate land use, and supports the trial court'sconclusion. Further, the County Manager's deposition shows that
Surry County has not yet determined what [constitutes] a valid
activity [within] a legal subdivision. He also testified that
the subdivision ordinance does not restrict the activity that
occurs there. Because the Subdivision Ordinance does not regulate
land use, plaintiffs' assignment of error is overruled.
The parties stipulated to the majority of the facts at bar.
Based on those stipulations and the clear and unambiguous language
of the ordinances, the trial court did not err in concluding that
the definition of for the purpose of sale or building development
in the Subdivision Ordinance includes the rental of subdivided lots
to third parties for placement of tenants' mobile homes thereon.
The trial court properly concluded that the Subdivision Ordinance
does not regulate land use on defendants' property. The trial
court's judgment is affirmed.
Judge MCGEE concurs.
Judge WYNN dissents.
WYNN, Judge dissenting.
The Surry County Subdivision Ordinance defines 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). As I believe
Defendants' rental or lease of lots to third parties for the
placement of mobile or manufactured homes does not constitute asale of a lot or building development, I dissent.
The terms 'sale' and 'building development' are not defined in
the ordinance. As neither term is defined by [Surry County's
Subdivision] Ordinance, [what constitutes a sale or building
development] must be based upon each terms' normal meaning. See
Appalachian Outdoor Advertising Co. v. Boone Board of Adjustment,
128 N.C. App. 137, 493 S.E.2d 789 (1997).
According to Black's Law Dictionary the term 'sale'
constitutes a contract between two parties, called, respectively,
the seller (or vendor) and the buyer (or purchaser), by which the
former, in consideration of the payment or promise of payment of a
certain price in money, transfers to the latter the title and
possession of property. In this case, the record indicates
Defendants advertised the lots for rent to mobile home owners and
rented spaces to 12 to 14 mobile home owners. Defendants also
admit they never placed a price on any of the lots, never
advertised or offered any of the lots for sale, and never agreed to
sell any of the lots to anyone. As the lots were rented or leased
to the mobile home owners, a transfer of title did not occur.
Although Defendant, Yvonne Allred, testified the lessees had an
option to buy the lots, she admitted the lease did not contain a
provision to that effect and there were no other writings
indicating the lessees had such an option. Moreover, the lessees
were not provided with any information as to when they could
exercise the option or the lot prices. Thus, at the time of the
lawsuit, the land was not for sale.
Moreover, the rent or leasing of the lots to third parties forthe placement of mobile or manufactured homes does not constitute
building development. According to American Heritage Dictionary,
Third Edition, 'develop' means to cause a (tract of land) to serve
a particular purpose and 'development' means the act of
developing; the state of being developed; a significant event, or
occurrence, or change, or a group of dwellings built by the same
contractor. By statute, a manufactured home is a structure,
transportable in one or more sections, which, in the traveling
mode, is eight feet or more in width or is 40 feet or more in
length, or when erected on site, is 320 or more square feet, and
which is built on a permanent chassis and designed to be used as a
dwelling with or without a permanent foundation when connected to
the required utilities, and includes the plumbing, heating, air
conditioning and electrical systems contained therein. N.C. Gen.
Stat. § 143-143.9(6). Based upon this definition, a manufactured
home is assembled in components at a factory and hooked together
upon delivery to the mobile home site, which does not constitute a
building development on a tract of land.
Defendants merely rented the lots and did not have any
involvement with the placement of trailers onto the lots. Relying
upon a criminal case, State v. Turner, 117 N.C. App. 457, 451
S.E.2d 19 (1994), the majority concludes lot rentals for mobile
homes constitute the sale of land or building development. Unlike
the present case where this Court has to construe the meaning of a
zoning ordinance and N.C. Gen. Stat. § 153A-335, which provides
the statutory definition of subdivision, the issue in State v.
Turner concerned whether a road in a mobile home park was a publicvehicular area within the meaning of N.C. Gen. Stat. § 20-
4.01(32). In Turner, the defendant was arrested for drunk driving
in an area that the facts concede to have been a privately-owned
mobile home park. Turner, 117 N.C. App. at 458, 451 S.E.2d at 19.
The issue in that case was not whether the county had properly
zoned the area as a mobile home park; rather, the issue was whether
the defendant was driving on a highway, street or public vehicular
area within the meaning of N.C. Gen. Stat. § 20-4.01(32). In
reaching the conclusion that a jury could find the street was a
public vehicular area within the meaning of N.C. Gen. Stat. § 20-
4.01(32), this Court held a mobile home park fits within the
definition of a subdivision. Thus, in Turner, this Court did not
(1) address the present issue, (2) determine whether mobile home
lot rentals constituted a sale within the meaning of the Surry
County zoning ordinance or N.C. Gen. Stat. § 153A-335, nor (3)
determine whether the placement of mobile homes onto a lot
constituted building development. Thus, I believe State v. Turner
does not control the disposition of the legal issues presented by
this civil case.
All of the testimony indicates Defendants were developing the
lots for trailer hookups and not the construction of dwellings or
buildings. Defendants initially sought planning board approval for
a mobile home park and, after changing their plans, they sought
approval for a subdivision in an attempt to circumvent the
requirements of the Surry County Manufactured Home and Manufactured
Home Park Ordinance which imposes minimum development standards for
a manufactured home park. Indeed, Defendants testified that theydid not want to incur the expense of planting the tree screen and
wanted to avoid road maintenance expenses. With a subdivision,
Defendants did not have to plant a buffer zone (tree screen) and
road maintenance could be turned over to the State or a Homeowner's
Association. The Defendants' circumvention of the Manufactured
Home Park Ordinance should not be sanctioned by this Court.
Moreover, as I believe Defendants' lot rentals do not comport with
the Surry County Subdivision Ordinance definition of subdivision,
I hereby dissent.
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