Town of Southern Pines v. Mohr

226 S.E.2d 865 (1976) 30 N.C. App. 342

TOWN OF SOUTHERN PINES, A Municipal Corporation
v.
Dr. Jack MOHR et al., Defendants, and
Constance M. Baker, Additional Defendant.

No. 7520SC931.

Court of Appeals of North Carolina.

August 4, 1976.

W. Lamont Brown, Southern Pines, William D. Sabiston, Jr., Hurley E. Thompson, Jr., Carthage, and W. Daniel Pate, Southern Pines, for plaintiff-appellant.

Lee & Lee by Helen H. Madsen and W. Osborne Lee, Jr., Lumberton, Seawell, Pollock, Fullenwider, VanCamp & Robbins by James R. VanCamp, Southern Pines, Blanchard, Tucker, Twiggs & Denson, by Howard F. Twiggs, Raleigh, for original defendant-appellees.

MORRIS, Judge.

Plaintiff appellant contends in its sole assignment of error that the trial court erred in entering summary judgment for the original defendants. There is no merit to this contention.

Pursuant to Section 9.1 of the plaintiff's zoning ordinance, "permitted uses" include "[p]ublic buildings—town, county, city, state, federal or regional authority." In its brief plaintiff concedes that:

"1. The Center is a local mental health clinic administered by the Department of Human Resources under Article 2A of Chapter 122 of the General Statutes of North Carolina. It is operated under the supervision and direction of the Department of Human Resources and funded by Federal-State grants-in-aid.

2. The Center is engaged in carrying out a program for emotionally disturbed children in certain counties of the State—but not in Moore County—under the direct control and supervision of the Department of Human Resources. The defendant, A. Eugene Douglas, is Area Director of the Center and is responsible to the Regional Director of the Regional Offices of the Division of Mental Health Services, and all these persons answer to and are under the authority of the Secretary of The Department of Human Resources.

3. The Department of Human Resources supervises all activities and controls policy in the operation of Duncraig Manor. It also audits the use of State funds by the Center.

4. The Center is subject to and employs personnel under the North Carolina Personnel Act including its operation at Duncraig Manor. Motor vehicles in use at Duncraig Manor bear permanent State vehicle license tags, and gasoline tax is not charged on gasoline bought for these vehicles. The Center and Duncraig Manor have the use of consultation services of all State agencies and for these services they pay no fee.

5. Funding for the Center is about 90% from the Department of Human Resources and funding for its operation at Duncraig Manor is more than 90% from the Department of Human Resources."

Plaintiff, however, maintains that the defendants do not perform any "governmental function". We consider plaintiff's position wholly without merit and hold that the defendants' use of the Center is a permitted use under the relevant zoning ordinances for the plaintiff town.

According to the defendants' uncontroverted evidence, the Center is primarily funded and controlled through a chain of command by the North Carolina Department of Human Resources. The facility is rented from defendant Baker and the defendant Southeastern Regional Mental Health Center is the lessee. The Southeastern Regional Mental Health Center is, according to the affidavit of the Secretary of the Department of Human Resources, ". . . under the direct control and supervision of the Department of Human Resources and that the fiscal control of such is under the Department of Human Resources;. . ." According to the affidavit of Henry Carparco, an administrator with the Southeastern Regional Mental Health Center, the defendant Center "Duncraig Manor" is part of the Southeastern Regional Mental Health Center, and the Department of Human Resources ". . . directly supervises and controls all activity and policy at the children's treatment centers and specifically at Duncraig Manor by and through written directives which originate in Raleigh at the State offices of the Department of Human Resources and are channeled through Southeastern Regional Mental Health Center to Duncraig Manor and other children's treatment centers.. . ." Furthermore, the defendants' employees are hired pursuant to the North Carolina State Personnel Act. The defendants also utilize the State's computers at no charge, follow State directives, and use State vehicles.

In short, we consider this overwhelming evidence that the defendants are performing a public governmental function as an agency of the State and that such an agency can operate at Duncraig Manor pursuant to the permitted use clause of Section 9.1 of the plaintiff's zoning ordinance.

Furthermore, the statutory authority creating this system of regional and localized mental health centers and clinics support our conclusion that the defendants are performing governmental functions. See: G.S. 122-35.1 et seq., especially G.S. 122-35.2.

We note also that included among the permitted uses of Section 9.1 of the ordinance are "[h]ospitals, nursing homes or sanitariums provided no buildings so used shall be within three hundred (300) feet of any lot line." Sanatorium is defined as "an establishment for the treatment of the sick esp. if suffering from chronic disease (as alcoholism, tuberculosis, nervous or mental disease) requiring protracted care." Webster's Third New International Dictionary of the English Language Unabridged (1968), p. 2008.

As we stated previously in Pridgen v. Hughes, 9 N.C.App. 635, 638, 177 S.E.2d 425, 427 (1970),

"`Summary judgment is to avoid a useless trial. It is a device to make possible the prompt disposition of controversies on their merits without a trial, if in essence there is no real dispute as to the salient facts. . . . While a day in Court may be a constitutional necessity when there are disputed questions of fact, the function of the motion of summary judgment is to smoke out if there is any case, i. e., any genuine dispute as to any material fact, and, if there is no case, to conserve judicial time and energy by avoiding an unnecessary trial and by providing a speedy and efficient summary disposition.'" (Citations omitted.)

Here, there is no dispute as to any material facts, and therefore, the Superior Court's entry of summary judgment is

Affirmed.

HEDRICK and ARNOLD, JJ., concur.