Appeal by Plaintiff from judgment entered 9 May 2006 by Judge
Narley L. Cashwell in Superior Court, Alamance County. Heard in
the Court of Appeals 25 April 2007.
Kennedy Covington Lobdell & Hickman, L.L.P., by Eric M. Braun
and Ann M. Anderson, for Plaintiff-Appellant.
Nexsen Pruet Adams Kleemeier, PLLC, by David S. Pokela; and
Alamance County Attorney David I. Smith, for Defendant-
Asheville City Attorney Robert W. Oast, Jr. for the City of
Asheville, amicus curiae.
The town of Green Level (Green Level) filed a complaint on 18
June 2004 seeking a declaratory judgment (1) validating an
ordinance enacted by the Green Level Town Council extending Green
Level's extraterritorial jurisdiction (the ETJ ordinance); and (2)
invalidating Alamance County's (the County) enactment of an
amendment to its Watershed Protection Ordinance (the 2004
ordinance). The ETJ ordinance and the 2004 ordinance purported to
assert jurisdiction over the same geographic area (the proposed ETJ
area). After a bench trial, the trial court entered judgment on 9
May 2006 in favor of the County.
The evidence at trial tended to show that Green Level and the
County each asserted jurisdiction over the proposed ETJ area.
Green Level contended that when the County learned that Green Level
was taking steps to extend its ETJ, the County enacted the 2004
ordinance, which covered the same area, solely to thwart Green
Level's expansion. Green Level further argued that in enacting the
2004 ordinance, the County acted for an improper purpose under our
zoning enabling statutes. The County contended that it was
responding to a request by citizens residing in the proposed ETJ
area to rezone the property, and that the 2004 ordinance was notenacted for an improper purpose.
The uncontroverted facts show that Green Level began
researching the statutory process to extend its extraterritorial
jurisdiction (ETJ) in or around July 2003. Green Level received a
letter from the County dated 19 December 2003. The letter stated
the County's position that, pursuant to N.C. Gen. Stat. § 160A-
360(e), Green Level was required to obtain the County's permission
to extend its ETJ into the proposed ETJ area. After researching
the matter, Green Level's Town Administrator, Quentin McPhatter,
disagreed with the County's position. Green Level and the County
met to discuss the issue, but could not reach an agreement. Green
Level initially scheduled a public hearing for 6 May 2004, but
moved the public hearing to 22 April 2004 after learning that the
County was taking steps to prevent Green Level from proceeding with
the ETJ ordinance. Green Level sent the required notices to the
affected citizens and published the required legal notices. Green
Level enacted the ETJ ordinance on 22 April 2004.
Meanwhile, the County began the process of amending its
existing Watershed Protection Ordinance (the 1997 ordinance). The
11 March 2004 minutes of the Alamance County Planning Board show
that a citizens' group called "Citizens Against ETJ Expansion"
expressed its opposition to Green Level's proposed ETJ expansion.
The group requested that the County "zone their property." An
Agenda Item Profile, prepared for the 19 April 2004 meeting of the
Alamance County Board of Commissioners (the Board) stated that "the
Planning Board voted 12 to 2 to instruct staff to come up with a
way to extend county zoning into an unzoned area between thecurrent watershed zoning and the city limits of Green Level[.]"
The 19 April 2004 minutes of the Board show that a public hearing
was held on the 2004 ordinance and was unanimously approved by the
Board. The minutes also show that several individuals spoke in
favor of the 2004 ordinance, stating that it was "set up to protect
the water and to prevent towns from encroaching on the lakes."
Others commented that they "want[ed] to live in a rural setting,
not a town; that Green Level cannot control what it has; and that
Green Level has nothing to offer except taxes."
A bench trial was held on Green Level's complaint on 20 March
2006 and 10-11 April 2006. In its judgment entered 9 May 2006, the
trial court made several relevant conclusions of law. First, the
trial court concluded that the 1997 ordinance was a "zoning
ordinance." Alternatively, the trial court concluded that the 2004
ordinance (1) was enacted in accordance with the County's
comprehensive plan; (2) promoted the health and general welfare of
the County; (3) was enacted after reasonable consideration was
given to Green Level's expansion, development, and orderly growth;
and (4) was not arbitrary and capricious. Therefore, the trial
court concluded that pursuant to N.C. Gen. Stat. § 160A-360(e),
Green Level was precluded from extending its ETJ. The trial court
further concluded that Green Level's ETJ ordinance was not valid or
enforceable. Green Level and the County each bring assignments of
error before this Court.
When a judgment has been rendered in a non-jury trial, our
standard of review
is whether there is competent evidence to
support the trial court's findings of fact andwhether the findings support the conclusions
of law and ensuing judgment. Findings of fact
are binding on appeal if there is competent
evidence to support them, even if there is
evidence to the contrary.
Sessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d 160, 163
(citation omitted), disc. review denied, 354 N.C. 365, 556 S.E.2d
577 (2001). We review de novo the trial court's conclusions of
law. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 15, 356
S.E.2d 599, 601 (1987), aff'd per curiam, 321 N.C. 589, 364 S.E.2d
 Green Level argues (1) that the 2004 ordinance was enacted
arbitrarily and capriciously and for a purpose not authorized by
the zoning enabling statutes; (2) that the 2004 ordinance was not
enacted "with reasonable consideration to expansion and development
of [Green Level] so as to provide for [Green Level's] orderly
growth" as required by N.C. Gen. Stat. § 153A-341; (3) that the
County was not enforcing zoning over the proposed ETJ area; and (4)
that the prior jurisdiction rule invalidates the County's action.
We conclude that the trial court erred by concluding that the
County had enacted and enforced zoning in the proposed ETJ area by
way of the 1997 ordinance. We also conclude that the County acted
arbitrarily and capriciously when it enacted the 2004 ordinance.
N.C. Gen. Stat. § 160A-360(e) (2005) governs the conditions
under which a municipality may extend its ETJ. This statute
No city may hereafter extend its
extraterritorial powers under this Article
into any area for which the county at that
time has adopted and is enforcing a zoningordinance and subdivision regulations and
within which it is enforcing the State
Building Code. However, the city may do so
where the county is not exercising all three
of these powers, or when the city and the
county have agreed upon the area within which
each will exercise the powers conferred by
Green Level and the County stipulated that the County was
enforcing subdivision regulations and the State Building Code in
the proposed ETJ area. Therefore, if the County was enforcing a
zoning ordinance in the proposed ETJ area under the 1997 ordinance
or under the 2004 ordinance, then Green Level was precluded from
extending its ETJ without the County's permission.
A. The 1997 ordinance
In 1987, the County adopted a Watershed Protection Ordinance.
The 1997 ordinance amended this Watershed Protection Ordinance.
The trial court made the following conclusions of law relevant to
the 1997 ordinance:
1. The 1997 Ordinance expressly created
watershed "zones" and regulated land use and
development, like zoning does, in certain
districts, areas or zones of the county, to
wit: stream buffer zones, watershed critical
zones and balance of watershed zones.
2. Boyds Creek and the stream-fed ponds which
are perennially full are subject to the
buffers provided for by section 204 of the
3. The 1997 Ordinance, including Section 204
relating to stream and pond buffers,
constitutes a zoning ordinance.
4. Plaintiff Town of Green Level was precluded
under N.C. Gen. Stat. § 160A-360(e) from
extending its extra territorial jurisdiction
to the proposed ETJ Area because defendant
Alamance County had already adopted and was
enforcing a zoning ordinance (in the form of
the 1997 Ordinance) and subdivisionregulations as well as enforcing the State
Building Code within the proposed ETJ Area
prior to the enactment of the ETJ Ordinance on
April 22, 2004.
We conclude that these conclusions of law were erroneous.
In order for a county to exercise its zoning authority, N.C.
Gen. Stat. § 153A-344(a) (2005) mandates that a county "create or
designate a planning agency" which "shall prepare a proposed zoning
ordinance, including both the full text of such ordinance and maps
showing proposed district boundaries." Thus, both the text of an
ordinance and a map showing proposed district boundaries are
[A] zoning ordinance must contain a map as
well as detailed textual instructions. First,
the text of the ordinance describes what land
uses are permitted in each district, what
development standards have to be met in that
district, and the like. . . . Second, a map
places the land in the jurisdiction into
various zoning districts. This map is an
official part of the zoning ordinance.
David W. Owens, Introduction to Zoning
ed. 2001). The
County argues that the proposed ETJ area was zoned because the 1997
ordinance established (1) the watershed critical district; (2) the
balance of the watershed district; and (3) stream buffers.
Further, because the proposed ETJ area contained Boyds Creek, and
a number of ponds, the County contends the area was therefore zoned
for purposes of N.C. Gen. Stat. § 160A-360(e). We disagree.
Section 201 of the 1997 ordinance is entitled "Establishment
of Watershed Zones" and provides:
The purpose of this Section is to list and
describe the watershed zones herein adopted.
For purposes of this Ordinance, watersheds in
Alamance County are hereby divided into the
following zones, as appropriate:
Watershed Critical Area (WCA)
Balance of Watershed (BOW)
Ex. 17, p.4. Section 204 of the 1997 ordinance is entitled "Stream
Buffer" and provides:
A fifty foot (50') stream buffer shall be
maintained on both sides of all perennial
streams at all times to retard rapid water
runoff and soil erosion. Perennial streams
are identified as the solid blue lines on
United States Geological Survey (U.S.G.S.)
The 1997 ordinance also provides in Section 101 that its provisions
"shall be defined and established on the maps entitled, 'Watershed
Protection Map of Alamance County, North Carolina' . . . which is
adopted simultaneously herewith." A review of the map entitled
"Watershed Protection Map of Alamance County" reveals two shaded
areas. The watershed critical area is shaded in pink, and the
balance of watershed area is shaded in blue.
In light of the text of the 1997 ordinance and the
corresponding map, we cannot conclude that the 1997 ordinance
extended zoning into the proposed ETJ area. The language of
Section 201 of the 1997 ordinance states that its purpose is to
"list and describe" the watershed zones established by the
ordinance, yet nothing in that section refers to stream buffers.
Moreover, the provisions which follow Section 201 describe in
detail the watershed critical area and the balance of watershed
areas, and list allowed uses, prohibited uses, and density limits.
No such description appears in the 1997 ordinance for stream
buffers, which the County argues constituted zoning in the proposed
ETJ area. Additionally, the proposed ETJ area is unshaded on theWatershed Protection Map adopted as part of the 1997 ordinance. No
stream buffers are shown on the map, nor does the legend contain
any designation for streams or stream buffers. Craig Harmon
(Harmon), the County's Planning Manager, admitted at trial that
neither the watershed critical area nor the balance of watershed
overlapped with the proposed ETJ area. Furthermore, although the
County also used U.S. Geological Survey (U.S.G.S) maps, the
U.S.G.S. maps were not part of the 1997 ordinance, and in fact,
were not maintained or controlled by the County. Therefore, the
U.S.G.S. maps could not supply the required map. We are unable to
conclude that the 1997 ordinance applied zoning to the proposed ETJ
area and we reverse the trial court's relevant findings of fact and
conclusions of law.
B. The 2004 ordinance
Next, we consider whether the trial court properly concluded
that, pursuant to N.C. Gen. Stat. § 160A-360(e), the County's
adoption of the 2004 ordinance precluded Green Level from extending
its ETJ. Green Level argues that the 2004 ordinance is invalid
because (1) the ordinance was enacted arbitrarily and capriciously,
and not for a purpose authorized by the enabling statute; and (2)
the ordinance was not enacted with reasonable consideration to
Green Level's expansion and development as required by N.C. Gen.
Stat. § 153A-341. In support of its arbitrary and capricious
argument, Green Level contends that no evidence was presented at
trial to show that the County enacted the 2004 ordinance for a
health, safety, or welfare purpose. For the reasons set forth
below, we must agree. At the time the 2004 ordinance was enacted, N.C. Gen. Stat. §
153A-340(a) (2003) stated that a county could enact various types
of zoning regulations "[f]or the purpose of promoting health,
safety, morals, or the general welfare[.]" N.C. Gen. Stat. § 153A-
341 (2003) provided:
Zoning regulations shall be made in accordance
with a comprehensive plan and designed to
lessen congestion in the streets; to secure
safety from fire, panic, and other dangers; to
promote health and the general welfare; to
provide adequate light and air; to prevent the
overcrowding of land; to avoid undue
concentration of population; and to facilitate
the adequate provision of transportation,
water, sewerage, schools, parks, and other
public requirements. The regulations shall be
made with reasonable consideration as to,
among other things, the character of the
district and its peculiar suitability for
particular uses, and with a view to conserving
the value of buildings and encouraging the
most appropriate use of land throughout the
county. In addition, the regulations shall be
made with reasonable consideration to
expansion and development of any cities within
the county, so as to provide for their orderly
growth and development.
Our Supreme Court has stated:
Counties are creatures of the General Assembly
and have no inherent legislative powers. They
are instrumentalities of state government and
possess only those powers the General Assembly
has conferred upon them.
Craig v. County of Chatham
, 356 N.C. 40, 44, 565 S.E.2d 172, 175
(2002) (citations omitted). "County commissioners are authorized
to rezone property when reasonably necessary to promote the public
health, safety, morals, and welfare; however, this authority may
not be exercised in an arbitrary or capricious manner." Gregory v.
County of Harnett
, 128 N.C. App. 161, 164, 493 S.E.2d 786, 788
(1997). A zoning ordinance is presumed valid, and the burden toshow otherwise falls upon its challenger. Durham County v.
, 262 N.C. 280, 282, 136 S.E.2d 600, 602 (1964). Further,
although N.C. Gen. Stat. § 153A-4 "mandate[s] that grants of
authority to local governments be broadly interpreted, zoning
authority cannot be exercised in a manner contrary to the express
provisions of the zoning enabling authority." County of Lancaster
v. Mecklenburg County
, 334 N.C. 496, 509, 434 S.E.2d 604, 613
(1993). "Any action of a local unit of government that disregards
these fundamental zoning concepts may be arbitrary and capricious."
, 128 N.C. App. at 164, 493 S.E.2d at 788.
It is well established that the grant or
denial of a rezoning request is purely a
legislative decision which will be deemed
arbitrary and capricious if "the record
demonstrates that it had no foundation in
reason and bears no substantial relation to
the public health, the public morals, the
public safety or the public welfare in its
Ashby v. Town of Cary
, 161 N.C. App. 499, 503, 588 S.E.2d 572, 574
(2003) (quoting Graham v. City of Raleigh
, 55 N.C. App. 107, 110,
284 S.E.2d 742, 744 (1981)).
, this Court concluded that the Harnett County Board
of Commissioners had acted arbitrarily and capriciously when they
approved a rezoning application only three days after denying a
similar application. Id.
at 164-65, 493 S.E.2d at 788-89. We
stated that "there [was] no evidence in the record showing that the
Commissioners considered the character of the land, the suitability
of the land for the uses permitted in the proposed zoning district,
the comprehensive plan, or the existence of changed circumstances
justifying the rezoning application." Id.
at 165, 493 S.E.2d at789. We find the present case to be similar.
The Agenda Item Profile detailed the action before the 19
April 2004 meeting of the Board and stated that after hearing the
citizens' group request, "the Planning Board voted 12 to 2 to
instruct staff to come up with a way to extend county zoning into
an unzoned area between the current watershed zoning and the city
limits of Green Level[.]" Harmon testified that he prepared this
profile. Further, the minutes of the 19 April 2004 meeting of the
Board reveal that Harmon stated that "a group of citizens presented
a petition to the Planning Board asking the County to help in their
effort to keep Green Level from extending an Extraterritorial
Jurisdiction . . . into their area of the county." The minutes
The Planning Board instructed staff to look
into the issue to come up with a way to put
zoning into that area of the county. . . . Mr.
Harmon stated the major change [in the 2004
ordinance] is that a new zone is added, the
Rural Community District (RCD), which is
similar to the Balance of Watershed (BOW) zone
that already exists.
Additionally, the legal notice sent by the County to the property
owners in the proposed ETJ area stated:
During the March 2004 Alamance County Planning
Board meeting, a community group (Citizens
Against ETJ Expansions) brought a petition
before the board asking the county to extend
zoning into its community. This community
group hopes that by [the] county extending
zoning into this area it will prevent the Town
of Green Level from establishing an ETJ
(Extraterritorial Jurisdiction) in their area.
No mention of the County's comprehensive plan was made in the
minutes of the meeting at which the County adopted the 2004
ordinance. Although the minutes reflect that members of theaudience supported the 2004 ordinance because it "was set up to
protect the water," the record lacks any evidence to support that
statement. Harmon testified that he could not identify any
references to the comprehensive plan in the minutes of any meetings
of the planning board, or in the minutes of any meetings of the
Board, nor in the "agenda packets, public notice letters, or any
other item . . . prepared in relation" to the 2004 ordinance.
Further, the County argues that the 2004 ordinance promoted
the public welfare by preserving rural property uses, but the
testimony of Harmon, as the Rule 30(b)(6) designee of the County,
contradicts this contention. Harmon testified that automobile
manufacturing plants, chemical manufacturing plants, meat-packing
plants, and construction and debris landfills were permitted uses
in the proposed ETJ area under the 2004 ordinance, and that "[s]ome
of those uses [are] probably not" consistent with a rural
For the above reasons, we conclude that the enactment of the
2004 ordinance was arbitrary and capricious and that the trial
court erred by concluding otherwise. Therefore, since the 1997
ordinance did not extend zoning into the proposed ETJ area, and the
2004 zoning ordinance was enacted arbitrarily and capriciously, we
conclude that Green Level was not precluded from extending its ETJ
pursuant to N.C. Gen. Stat. § 160A-360(e).
Because we conclude that neither the 1997 ordinance nor the
2004 ordinance precluded Green Level from extending its ETJ, we
now determine the County's cross-assignments of error.
A. Meaningful extension of land use powers
 The County argues that because Green Level's "ETJ
ordinance will not result in the meaningful extension of land use
powers by Green Level, Green Level has not substantially complied
with N.C. Gen. Stat. § 160A-360." Green Level argues (1) that this
argument was not properly preserved for appellate review; and (2)
alternatively, that it has no merit.
Rule 10 of the Rules of Appellate Procedure mandates that a
present to the trial court a timely request,
objection or motion, stating the specific
grounds for the ruling the party desired the
court to make if the specific grounds were not
apparent from the context. It is also
necessary for the complaining party to obtain
a ruling upon the party's request, objection
N.C.R. App. P. 10(b)(1). To be properly made the basis of a cross-
assignment of error, an action or omission of the trial court must
have been properly preserved for appellate review. N.C.R. App. P.
At the close of Green Level's evidence, the County moved to
dismiss under N.C. Gen. Stat. § 1A-1, Rule 41, stating "for all the
arguments . . . in our trial brief[.]" The County proceeded to
argue the various issues raised in Green Level's assignments of
error discussed above, but did not present any argument as to
whether Green Level had provided meaningful extension of land use
powers under N.C. Gen. Stat. § 160A-360. The County did list this
issue as part of its pretrial order, and this order is contained in
the record, but we are unable to determine from the order whether
the trial court was presented with any argument on this issue orwhether the trial court made any ruling on this issue. No mention
of this issue is made in the trial court's judgment. Therefore, we
cannot address this issue and we overrule this cross-assignment of
B. Timely adoption of official plans
 In its next cross-assignment of error, the County argues
that Green Level's ETJ ordinance is invalid because Green Level
failed to timely adopt official plans pursuant to N.C. Gen. Stat.
§ 160A-360(b). Green Level argues (1) that this argument is not
properly preserved for our review; and (2) alternatively, that it
lacks merit. For the same reasons stated above, we can find no
ruling on this issue in the record. Therefore, this cross-
assignment of error is overruled.
C. Expert witness testimony
 In its third and final cross-assignment of error, the
County argues that the trial court improperly admitted the
testimony of Donald Lee Clark (Clark), an expert witness for Green
Level. The County argues that Clark improperly testified regarding
questions of law, specifically, whether the stream buffers in the
1997 ordinance constituted zoning in the proposed ETJ area.
that Clark's testimony was improper, our
review of the trial court's judgment does not reveal that Clark's
testimony was used to support its findings and conclusions. In
fact, the trial court's findings and conclusions were contrary to
Clark's testimony. "In a nonjury trial, it is presumed that if
incompetent evidence was admitted, it was disregarded and did not
influence the judge's findings." Gunther v. Blue Cross/BlueShield
, 58 N.C. App. 341, 344, 293 S.E.2d 597, 599 (1982), disc.
, 306 N.C. 556, 294 S.E.2d 370 (1982). We find
nothing to overcome that presumption. Therefore, we overrule this
cross-assignment of error.
Judges LEVINSON and JACKSON concurred.
Judge Levinson concurred in this opinion prior to 7 July 2007.
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