Appeal by plaintiffs from order entered 12 April 2004 by Judge
Jack W. Jenkins in Brunswick County Superior Court. Heard in the
Court of Appeals 20 April 2005.
Fletcher, Ray & Satterfield, L.L.P., by George L. Fletcher and
Kimberly L. Moore, for plaintiff-appellants.
Womble, Carlyle, Sandridge & Rice, P.L.L.C., by Douglas W.
Hanna, Sean E. Andrussier, and Melody C. Ray-Welborn, for
In 2002, plaintiffs filed this lawsuit against the Village of
Bald Head Island (the Village), challenging the legality of the
Village's permit fee schedule for the use of internal combustion
engine (ICE) vehicles on the island. On 12 December 2003, the
court dismissed the plaintiffs' commerce clause claim pursuant to
the Village's Rule 12(c) motion to dismiss. In April 2004, the
court granted summary judgment to the Village on plaintiffs'
remaining claims and denied plaintiffs' cross-motion for summary
judgment. Plaintiffs appeal. We affirm the trial court.
Bald Head Island is a coastal island community located near
Southport, North Carolina. The General Assembly has recognized the
unique nature of Bald Head Island with its
combination of structures, land, and
vegetation, including the oldest standing
lighthouse along the coast of the State and
approximately 172 acres of publicly owned
prime maritime forest, that exist in a
delicate ecological balance requiring careful
planning, nurture, and support, as evidenced
in the development plan for the island.
S.L. 1997-324. This unique environment requires a unique form of
transportation and ordinary travel on the island is by electric-
powered golf cart. The narrow roads on Bald Head Island,
constructed to blend into the natural environment, were built to
accommodate golf carts rather than motor vehicles, and do not
comply with Department of Transportation specifications. TheVillage greatly limits the use of gasoline-powered vehicles_-
although its emergency vehicles are gas-powered, other gas-powered
vehicles, including those used for construction and deliveries, are
allowed only by permit.
In recognition of these unique circumstances, the General
Assembly empowered the Village, in its Charter, to regulate motor
vehicles. S.L. 1997-324. For a number of years, the Village has
had an ICE ordinance, whereby it charges fees to those who operate
ICE vehicles on Bald Head Island. In February 2000, the Village
adopted the current ICE ordinance, which determines permit fees
based on the vehicle's gross weight, width, and duration of use.
Before 2000, the fees ranged only as high as $200 per year for a
construction or delivery truck. Under the new ordinance, a daily
permit ranges from $20 to $200, and an annual permit costs from
$200 to $2,000. In 2002, plaintiffs, who are contractors subject
to the permit fees, filed suit seeking declaratory judgment. Also
in 2002, the General Assembly amended the Village Charter, granting
the Village the express power to regulate vehicles through the
assessment of fees.
 Before reaching the merits of plaintiffs' arguments, we
must address plaintiffs' violations of the Rules of Appellate
Procedure. Rule 28(b)(6) requires that the argument sections in the
appellant's brief must make reference to the assignments of error
pertinent to the question, identified by their numbers and by the
pages at which they appear in the printed record on appeal. N.C.
R. App. P. 28(b)(6) (2004). Plaintiffs failed to reference theirassignments of error in their brief, although they did submit a
Notice of Errata prior to oral argument which amended the
headings in their brief to comply with Rule 28(b)(6).
It is well-established that rules violations may result in
dismissal of an appeal. See, e.g., Hines v. Arnold,
103 N.C. App.
31, 37-38, 404 S.E.2d 179, 183 (1991). Recently, in Viar v. N.C.
our Supreme Court reiterated the importance of compliance with
the Rules of Appellate Procedure and admonished this Court not to
use Rule 2 to create an appeal for an appellant. 359 N.C. 400,
402, 610 S.E.2d 360, 361 (2005). Rule 2 of the Rules of Appellate
Procedure allows this Court to review an appeal, despite rules
violations. N.C. R. App. P. 2 (2005).
This Court has previously
reviewed at least one appeal pursuant to Rule 2 where the appellant
rectified his errors in an errata sheet. Pugh v. Pugh,
App. 118, 121, 431 S.E.2d 873, 875 (1993). Here, because
plaintiffs submitted their notice of errata before oral argument,
and because we need not create an appeal for appellants, we
choose to review the appeal pursuant to our discretion under Rule
 We review a trial court's grant of summary judgment to
determine whether there is a genuine issue of material fact and
whether the movant is entitled to judgment as a matter of law.
Draughon v. Harnett Cty. Bd. of Educ.
, 158 N.C. App. 705, 707, 582
S.E.2d 343, 345 (2003), aff'd
, 358 N.C. 137, 591 S.E.2d 520 (2004),
, 358 N.C. 381, 597 S.E.2d 129 (2004). Because the
facts here are not at issue, we consider only whether the courtproperly concluded that the Village was entitled to judgment as a
matter of law. Any error made in interpreting a statute is an
error of law. In re Appeal of North Carolina Sav. & Loan League
302 N.C. 458, 464, 276 S.E.2d 404, 409 (1981).
In their first argument, plaintiffs essentially argue that the
Village exceeded its statutory powers in imposing fees on ICE
vehicles. Plaintiffs contend that the Village transformed the fees
permitted by statute into an unauthorized form of taxation. We
Plaintiffs assert that fees are connected to regulatory
activity while taxes are a revenue device to raise funds for the
general public benefit. They contend that because the fees
collected by the Village exceed the cost of enforcement and
subsidize the maintenance and building of roads, they are a tax
because the money raised confers a public benefit. Plaintiffs rely
on Homebuilders Association of Charlotte, Inc. v. City of
336 N.C. 37, 442 S.E.2d 45 (1994), for the
contention that fees must be roughly equal to the cost of the
regulatory program. However, we conclude that Homebuilders
, the General Assembly had authorized the City
to regulate development, but had not explicitly authorized user
fees, and the City imposed user fees to reimburse it for services
provided in connection with development activities. Id
Carolina Supreme Court ruled that the City had the implied power
impose such user fees: municipal power to regulate an activityimplies the power
to impose a fee in an amount sufficient to cover
the cost of regulation. Id
442 S.E.2d at 49
added). Although plaintiffs correctly contend that the Court in
required that the fees be reasonable, we do not
believe that Homebuilders
applies here, where
the legislature gave
the Village express power to impose fees. Rather, we conclude that
here the issue is whether the Village has exercised that expressly
granted power properly. Thus, we need not address whether the fees
charged by the Village are more aptly considered a fee or a tax,
but must determine whether the Village exceeded the authority the
In 1997, the General Assembly granted the Village, in its
Charter, the authority to regulate motor vehicles as follows:
The Village may by ordinance exempt from the
provisions of Articles 3, 3A, 11, and 13 of
Chapter 20 of the General Statutes, in whole
or in part, the registration, licensing,
regulation, inspection, or equipping of motor
vehicles and may regulate the use, operation,
possession, and ownership of motor vehicles
within the jurisdiction of the Village of Bald
Head Island. Additionally, notwithstanding
the provisions of Chapter 20 of the General
Statutes or any other statute, and in addition
to those powers now or hereafter conferred by
law, the Village shall have the authority to
regulate motor vehicles and other means of
transportation within the jurisdiction of the
Village, including the following:
(1) Regulation of the use and operation of
all vehicles, as defined in G.S. 20-4.01(49).
(2) Regulation of all electrically powered
vehicles or vehicles powered by fossil fuel or
internal combustion engines.
(3) Regulation of the size, weight, lighting,
safety standards, and engine or motor size orpower characteristics of all vehicles or other
means of transportation within the
jurisdiction of the Village.
S.L. 1997-324. In 2002, the General Assembly revised the Charter,
in An Act . . . to clarify that the regulation of motor vehicles
on Bald Head Island includes the ability to charge fees for their
use on the island, by adding the following provisions:
Regulation of the use and operation of all
vehicles, as defined in G.S. 20-4.01(49). The
Village may impose a fee on the use of
vehicles within the Village's jurisdiction.
The amount of the fee may vary based on
criteria that bear upon the Village's costs
arising from the operation of that vehicle on
the Village's streets, roads, and
rights-of-way. Such criteria may include gross
weight, length, number of axles, and motor or
* * *
The fees collected under Section 10.1 of this
Article shall be used by the Village to
finance the establishment and maintenance of
the Village's streets, roads, and rights-of-
S.L. 2002-129 §§ 10.1 (1) & (2) (emphasis added). The General
Assembly made these sections retroactive to 24 July 1997.
Plaintiffs object to the amount of fees collected and the
ultimate use of the revenue. However, the General Assembly did not
place a limit on the fees, but stated that the amount may be based
on criteria that bear upon the Village's costs associated with the
operation of vehicles on its roads and that such criteria may
include gross weight, length, number of axles, and motor or engine
characteristics. (Emphasis added). In adopting the ICE ordinance,
the Village made the following uncontroverted findings: [T]he use of the streets and roads within the
Village by large, wide, and heavy vehicles
cause[s]. . . significant damage to the
pavement and shoulders of such streets and
roads . . . . Construction delivery vehicles,
construction equipment vehicles, delivery,
repair and maintenance vehicles, arrival and
departure transportation vehicles, public
service and utility vehicles . . . are, by
their nature, required to carry loads heavier
than those for which battery-propelled vehicles
As the fees are based on a vehicle's weight and width, and on the
duration of the permit, we conclude that they are squarely within
the legislative grant of power to assess fees based on criteria
that bear upon the Village's costs. Furthermore, in the amended
Charter, the General Assembly explicitly stated that the fees must
be used to finance the establishment and maintenance of the
Village's roads. Accordingly, we conclude that the Village has not
exceeded its statutory authority.
Plaintiffs also argue that the ICE fees assessed by the Village
violate N.C. Gen. Stat. § 20-97, which limits municipal taxes on
vehicles to $5.00 per year. N.C. Gen. Stat. § 20-97(b) (2004).
However, the General Assembly has explicitly authorized the Village
to exempt itself from Article 2 of Chapter 20, which includes N.C.
Gen. Stat. § 20-97. S.L. 1997-324; S.L. 2002-129. Plaintiffs
suggest that N.C. Gen. Stat. § 20-97 provides a complete and
integrated regulatory scheme to the exclusion of local regulation,
but here, the local regulation was authorized by the State.
[i]t is a well established principle of
statutory construction that a section of a
statute dealing with a specific situationcontrols, with respect to that situation, other
sections which are general in their application
. . . . When, however, the section dealing with
a specific matter is clear and understandable
on its face, it requires no construction. In
such case, the Court is without power to
interpolate or superimpose conditions and
limitations which the statutory exception does
not of itself contain.
State ex rel. Utilities Com. v. Lumbee River Electric Membership
, 275 N.C. 250, 260, 166 S.E.2d 663, 670-71 (1969) (internal
citations and quotation marks omitted). Thus, we conclude that this
argument has no merit.
Plaintiffs also argue that the ICE ordinance violates both the
North Carolina and United States Constitutions. However,
plaintiffs fail to specify which provisions of the constitutions the
ordinance allegedly violates, making assertions such as, [s]imply
put, the fees are unconstitutional, and [the] ordinance . . . is
'inconsistent' with both state and federal constitutions and
'infringes' guaranteed liberties. We cannot review such vague
The function of all briefs required or
permitted by these rules is to define clearly
the questions presented to the reviewing court
and to present the arguments and authorities
upon which the parties rely in support of their
respective positions thereon. Review is limited
to questions so presented
in the several
N.C. R. App. P. 28(a) (2004) (emphasis added). Here, plaintiffs'
brief does not define clearly the question they wish for us to
review, and this Court may not create an appeal for an appellant.
, 359 N.C. at 402, 610 S.E.2 at 361. Thus, we cannot review
these arguments. We also note that to the extent that plaintiffsmay have been presenting a commerce clause argument, we lack
jurisdiction to review such an argument, as plaintiffs' commerce
clause claim was dismissed pursuant to Rule 12(c) and plaintiffs did
not appeal from that order nor assign error to the dismissal of this
N.C. R. App. P. 3(d) & 10(a) (2004).
Finally, plaintiffs assert that the ICE ordinance deprives them
of due process. Here, unlike in their previous constitutional
argument, plaintiffs assert a violation of a specific constitutional
right, and thus we are able to review this assignment of error. We
review substantive due process challenges to economic regulation
under the rational basis standard, which
merely requires that a
regulation bear some rational relationship to a conceivable
legitimate interest of government. Huntington Prop. LLC v.
, 153 N.C. App. 218, 230, 569 S.E.2d 695, 704
(2002). We conclude that the ICE fee classification, based on
weight and width, as well as duration of use, is rationally related
to the Village's regulation and maintenance of its roads.
Accordingly, we reject this argument.
Judges HUNTER and GEER concur.
*** Converted from WordPerfect ***