White v. Union County , 93 N.C. App. 148 ( 1989 )

377 S.E.2d 93 (1989)

Margaret WHITE and Leona Blount Helms, Appellants,
v.
UNION COUNTY and Union County Zoning Board Of Adjustment, Appellees.

No. 8820SC671.

Court of Appeals of North Carolina.

March 7, 1989.

Legal Services of Southern Piedmont, Inc. by Thomas W. Brudney, Gastonia, and Theodore O. Fillette, Charlotte, for petitioners-appellants.

Griffin, Caldwell, Helder & Steelman by Thomas J. Caldwell, and Love & Milliken by John R. Milliken, Monroe, for respondents-appellees.

ARNOLD, Judge.

Plaintiff contends that the trial court erred in allowing defendant's motion to dismiss for failure to state a claim pursuant to N.C.R.Civ.P. 12(b)(6) and in failing to allow plaintiff's motion to amend her complaint pursuant to N.C.R.Civ.P. 15(a). We agree.

A motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). For purposes of the motion to dismiss, the allegations of the complaint are taken as true. Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282, 79 A.L.R. 3d 651 (1976). The complaint is to be liberally construed to determine if a claim has been stated upon which relief can be granted on any theory. Brewer v. Hatcher, 52 N.C.App. 601, 279 S.E.2d 69 (1981).

On appeal plaintiffs contend that the trial court should have allowed their amendment to recaption the complaint "Petition for Writ of Certiorari" or treated the complaint as a direct attack. A direct attack is allowed as prescribed under N.C.G. S. § 153A-348:

A cause of action as to the validity of any zoning ordinance, or amendment thereto ... shall accrue upon adoption of the ordinance, or amendment thereto, and shall be brought within nine months as provided in G.S. 1-54.1.

Plaintiffs' first claim for relief contends that the Union County land use ordinance requiring:

a resident prove his/her mobile home to be worth at least $5,000.00 in order for that resident to reside in such a mobile home within Union County, is not a legal regulation of land use, and is therefore an ultra vires ordinance, in violation of N.C.G.S. § 153A-340.

N.C.G.S. § 153A-340 is the enabling statute which grants power to the county to draft zoning regulations. In pertinent part that statute states:

For the purpose of promoting health, safety, morals, or the general welfare, a county may regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lots that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence....

... The regulations may provide that a board of adjustment may determine and vary their application in harmony with their general purpose and intent and in accordance with general or specific rules therein contained. The regulations may also provide that the board of adjustment or the board of commissioners may issue special use permits or conditional use permits in the classes of cases or situations and in accordance with the principles, conditions, safeguards, and procedures specified therein and may impose reasonable and appropriate conditions and safeguards upon these permits.

... [E]very such decision of the board of commissioners shall be subject to review by the superior court by proceedings in the nature of certiorari. (Emphasis added).

The well-settled rule in North Carolina, commonly called Dillon's Rule, states that:

``[A] municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation....'

Greene v. City of Winston-Salem, 287 N.C. 66, 72, 213 S.E.2d 231, 235 (1975) [citations omitted]. On appeal plaintiffs point to N.C.G.S. § 160A-383.1 for additional authority for their argument that the $5,000.00 valuation requirement exceeds the power granted by N.C.G.S. § 153A-340 to draft ordinances:

§ 160A-383.1. ZONING REGULATIONS FOR MANUFACTURED HOMES.

(a) The General Assembly finds and declares that manufactured housing offers affordable housing opportunities for low and moderate income residents of this State who could not otherwise afford to own their own home. The General Assembly further finds that some local governments have adopted zoning regulations which severely restrict the placement of manufactured homes. It is the intent of the General Assembly in enacting this section that cities reexamine their land use practices to assure compliance with applicable statutes and case law, and consider allocating more residential land area for manufactured homes based upon local housing needs.

* * * * * *

(d) A city may adopt and enforce appearance and dimensional criterial for manufactured homes. Such criteria shall be designed to protect property values, to preserve the character and integrity of the community or individual neighborhoods within the community, and to promote the health, safety and welfare of area residents. The criteria shall be adopted by ordinance. (Emphasis added).

N.C.G.S. § 160A-383.1 is equally applicable to counties. N.C.G.S. § 153A-341.1.

The nub of plaintiffs' argument is that the legislature has granted the county authority to draft ordinances limiting structures, and mobile homes specifically, only in qualitative terms and not by way of an arbitrary money value. Given the requirements of Dillon's Rule, plaintiffs have stated a direct attack on the ordinance so long as they can show that the attack is timely under N.C.G.S. § 153A-348. For purposes of N.C.G.S. § 153A-348, the timing of plaintiff's complaint should be considered as it would have been on 4 January 1988, the date it was originally brought in superior court. Though not fatal to this appeal, plaintiffs neglected to state the date of adoption of the ordinance and include a copy of the ordinance in the record. Such proof will be necessary on remand.

Plaintiffs also contend that the trial court erred in denying their motion to amend, so that, in the alternative, they could proceed with their appeal under N.C. G.S. § 153A-345(e). N.C.G.S. § 153A-345(e) requires that "[e]ach decision of the board [of adjustment] is subject to review by the superior court by proceedings in the nature of certiorari." Defendant argues that plaintiffs' pleading is fatally flawed because it failed to request the court to issue a writ of certiorari or to review the board's action. Defendant's argument is without merit.

After a responsive pleading has been served, as in this case, "a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." N.C.R.Civ.P. 15(a). The denial of a motion to amend is not reviewable absent a clear showing of abuse of discretion. United Leasing Corp. v. Miller, 60 N.C.App. 40, 298 S.E.2d 409 (1982), disc. rev. denied, 308 N.C. 194, 302 S.E.2d 248 (1983). However, abuse of discretion can be shown when there is no justifying reason for denying the amendment such as undue delay, bad faith, undue prejudice or futility. Id. at 43, 298 S.E.2d at 411.

In this case no reason for the denial of the amendment was given, nor can one be deduced from the record. Plaintiffs' original complaint invoked jurisdiction under the very statute that defendants claim plaintiffs should have proceeded under. Further, when a verified pleading alleges facts sufficient to establish the right to review by certiorari, and "contains a general prayer for such remedy as the court shall deem meet and proper.... its validity as a pleading is not impaired by the fact that the petitioner does not specifically pray that the court issue a writ of certiorari...." Russ v. Board of Education, 232 N.C. 128, 131, 59 S.E.2d 589, 592 (1950). The amendment should have been allowed.

Should plaintiffs proceed "in the nature of certiorari" pursuant to N.C.G.S. § 153A-345(e) the requirements for that hearing are set out in Coastal Ready-Mix Concrete Co. v. Board of Commissioners, 299 N.C. 620, 265 S.E.2d 379 (1980). See Humble Oil and Refining Co. v. Board of Aldermen, 284 N.C. 458, 202 S.E.2d 129 (1974). However, judging from the record, it appears that plaintiffs' cause fits more squarely within the parameters of N.C.G.S. § 153A-348.

We find it unnecessary to reach plaintiffs' arguments concerning a regulatory taking and equal protection.

For the reasons stated above the orders of the trial court are

REVERSED AND REMANDED.

HEDRICK, C.J., and ORR, J., concur.