An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA05-1086
            
                                        
NORTH CAROLINA COURT OF APPEALS
        
                                            
Filed: 2 May 2006



NAGS HEAD CONSTRUCTION
AND DEVELOPMENT, INC.
    Plaintiff,

v .                                 Dare County
                                    No. 04 CVS 55
TOWN OF NAGS HEAD,
    Defendant.


    Appeal by plaintiff from order entered 12 April 2005 by Judge J. Richard Parker in Dare County Superior Court. Heard in the Court of Appeals 9 March 2006.

    Holt York McDarris & High, LLP, by W. Hackney High, Jr. for plaintiff-appellant.

    Hornthal, Riley, Ellis & Maland, LLP, by Donald I. McRee, Jr. and Benjamin M. Gallop for defendant-appellee.

    LEVINSON, Judge.

    Plaintiff appeals from an order that (1) granted defendant's motion to dismiss under Rule 12(b)(1) (lack of subject matter jurisdiction), and Rule 12(b)(6) (failure to state a claim upon which relief can be granted), and (2) denied plaintiff's request for a writ of mandamus. We affirm.
    The pertinent facts may be summarized as follows: On 20 August 2003, the Town of Nags Head adopted the “Large Structure Ordinance” of the Nags Head Code of Zoning Ordinances. The ordinance imposedarchitectural design and size requirements for the construction of new residential structures.
    Nags Head Construction and Development, Inc., a residential builder, filed a complaint on 20 October 2003 in Dare County Superior Court that is not the subject of this appeal. The 20 October 2003 complaint sought a declaratory judgment that the Large Structure Ordinance was invalid. The trial court dismissed this action for lack of standing. Thereafter, on 23 December 2003, plaintiff applied for a permit from the Town of Nags Head to build a new structure. The Nags Head Zoning Department denied plaintiff's application because the site plan failed to comply with the Large Structure Ordinance.
    On 4 February 2004 plaintiff filed the subject complaint in Dare County Superior Court, seeking a declaratory judgment that the Large Structure Ordinance was invalid on constitutional grounds. By an order entered 12 April 2005, the trial court granted defendant's motion to dismiss on the ground that plaintiff failed to state claim upon which relief may be granted because plaintiff's complaint was barred by the applicable statutes of limitations contained in N.C. Gen. Stat. § 160A-364.1 and § 1-54.1 (2005). Plaintiff appeals.
    Plaintiff contends that the trial court erred by dismissing its complaint under Rule 12(b)(6) for failure to state a claim upon which relief can be granted because the complaint was filed within the applicable statute of limitations. This argument lacks merit.    A motion to dismiss based on Rule 12(b)(6) should be granted when the plaintiff has failed “to state a claim upon which relief can be granted.” See N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2005). A defendant may raise the defense of the statute of limitations in a Rule 12(b)(6) motion to dismiss “if it appears on the face of the complaint that such a statute bars the claim.” Hargett v. Holland, 337 N.C. 651, 653, 447 S.E.2d 784, 786 (1994) (citations omitted). Once a defendant has raised this defense, the burden shifts to the plaintiff to show that the action was timely instituted. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). “A plaintiff sustains this burden by showing that the relevant statute of limitations has not expired.” Horton v. Carolina Medicorp, Inc., 344 N.C. 133, 136, 472 S.E.2d 778, 780 (1996).
    The applicable statute of limitations, G.S. § 160A-364.1, provides that “[a] cause of action as to the validity of any zoning ordinance, or amendment thereto, adopted under this Article or other applicable law shall accrue upon adoption of the ordinance, or amendment thereto, and shall be brought within two months as provided in G.S. 1-54.1.” The zoning ordinance at issue in this appeal was adopted on 20 August 2003. Pursuant to G.S. § 160A-364.1, plaintiff had until two months thereafter to file a suit challenging the ordinance. Although plaintiff filed a complaint on 20 October 2003, that complaint was dismissed for lack of standing and this Court subsequently affirmed the dismissal. See Nags Head Constr. & Dev., Inc. v. Town of Nags Head, 169 N.C.App. 843, ___ S.E.2d ___ (2005) (unpublished)(trial court properly dismissed the complaint as plaintiff failed to show an existing case or controversy with the Town and that plaintiff would suffer direct injury because a permit was neither sought or denied).
    Plaintiff next filed the subject complaint challenging the zoning ordinance on 4 February 2004, more than five months after the expiration of the two month limitations period. On these facts, the trial court properly determined that the plaintiff had not sustained his burden of showing that the action was instituted within the prescribed period. Thus, the order granting defendant's Rule 12(b)(6) motion was proper. This assignment of error is overruled.
     Finally, we observe that, to the extent plaintiff's complaint constitutes a writ of certiorari to the superior court for review of the denial of plaintiff's site plan, such review was premature because the plaintiff had not exhausted applicable remedies set forth in N.C. Gen. Stat. § 160A-388 (2005).
    Plaintiff's remaining arguments on appeal are without merit. Affirmed.
    Judges McCULLOUGH and TYSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***