Patmore v. Town Of Chapel Hill

NO. 13-1049

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

MARK R. PATMORE; MERCIA
RESIDENTIAL PROPERTIES, LLC;
WILLIAM T. GARTLAND; and
318 BROOKS LLC,

Plaintiffs,

v. Orange County
No. 12 CVS 1766
TOWN OF CHAPEL HILL
NORTH CAROLINA,

Defendant.

Appeal by plaintiffs from order entered 4 June 2013 by

Judge W. Osmond Smith, III, in Orange County Superior Court.

Heard in the Court of Appeals 4 February 2014.

The Brough Law Firm, by G. Nicholas Herman, for plaintiff-
appellants.

Parker Poe Adams & Bernstein, LLP, by Anthony Fox, and
Benjamin R. Sullivan, for defendant-appellee.

STEELMAN, Judge.

Where defendant enforced a zoning amendment by citing the

owners of rental properties rather than their tenants because it

was a more effective method of enforcement, their enforcement
 -2-
against property owners was rationally related to the purpose of

the zoning restriction and did not violate plaintiffs’ right to

substantive due process. N.C. Gen. Stat. § 160A-301 governs a

municipality’s authority to regulate parking in public vehicular

areas, while the zoning amendment was a land use restriction

intended to curb over-occupancy of rental properties by limiting

the number of cars parked on a rental property. Because the

zoning amendment and N.C. Gen. Stat. § 160A-301 do not address

the same subject, the principle of expressio unius est exclusio

alterius does not apply. Lanvale Properties, LLC v. County of

Cabarrus, 366 N.C. 142, 731 S.E.2d 800, reh’g denied, 366 N.C.

416, 733 S.E.2d 156 (2012), held that an ordinance was not a

zoning ordinance, and did not change the law governing the

requirements for a valid zoning ordinance.

I. Factual and Procedural Background

Defendant Town of Chapel Hill enacted a zoning ordinance as

part of its Land Use Management Ordinance. One of the zoning

districts created is the Northside Neighborhood Conservation

District (NNC district), a residential neighborhood located near

the campus of UNC-Chapel Hill. Special design standards apply to

development in the NNC district and govern such things as

maximum building height and the bedroom to bathroom ratio of

rental houses. Despite the standards in the zoning ordinance,
 -3-
over-occupancy, or rental to a greater number of tenants than

bedrooms, was a “significant problem” in the NNC district for

several years, and was associated with a number of problems,

including parking and traffic congestion, excess garbage, and

“significantly higher complaints of violations” of town

regulations than in other town residential neighborhoods.

Defendant’s planning department determined that although

“it is not a perfect measure, the number of vehicles parked on a

residential lot in the [NNC] is a reasonable approximation of

how many people are living at the property.” After conducting a

public hearing to address “the community’s concerns about

student rental,” the Town Council adopted an amendment to the

zoning ordinance that limited the number of cars that may be

parked on a residential lot in the NNC district to four cars.

The amendment was adopted on 9 January 2012 and took effect on 1

September 2012. The amendment is applied to both owner-occupied

and rental properties. If a property is rented, the amendment is

enforced by citing the owner of the property for violations,

rather than the tenants. Plaintiffs are property owners who rent

houses in the NNC district and were cited for violation of the

amendment. Plaintiffs do not dispute that their properties were

in violation of the ordinance.
 -4-
On 27 November 2012 plaintiffs filed a complaint and an

application for declaratory judgment and permanent injunction.

Plaintiffs alleged that defendant enforced the zoning amendment

“solely against the owner(s) of record of the real properties

subject to the Zoning Regulation” “without any determination as

to the reason for the parking of those cars” and that plaintiffs

were not “in any position to control the number of cars parked”

on the properties that they owned and rented. Plaintiffs

asserted that the zoning amendment was “unlawful, ultra vires,

and void” and that “its enforcement and application is

unreasonable, arbitrary and capricious, and violates Article I §

19 of the North Carolina Constitution and substantive due

process[.]” On 7 December 2012 plaintiffs filed an amended

complaint seeking either “a judgment declaring the Zoning

Regulation unlawful, void and unenforceable, and permanently

enjoin[ing] the enforcement of the Zoning Regulation” or an

injunction “permanently enjoin[ing] the enforcement of the

Zoning Regulation against property owners who have no knowledge

of and/or have taken no action to create or maintain any

violation of the Zoning Regulation[.]” In its answer to the

amended complaint, defendant admitted citing plaintiffs for

violation of the zoning amendment, but denied plaintiffs’

allegations concerning their ability to control the number of
 -5-
cars on their properties, and moved for dismissal of plaintiffs’

complaint under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) for

failure to state a claim upon which relief can be granted.

Defendant and plaintiffs filed cross-motions for summary

judgment on 22 and 28 May 2013, respectively. The parties’

summary judgment motions were heard by the trial court on 3 June

2013, and on 4 June 2013 the trial court entered an order

granting summary judgment in favor of defendant.

Plaintiffs appeal.

II. Standard of Review

Under N.C. Gen. Stat. § 1A-1, Rule 56(a), summary judgment

is properly entered “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that any party is entitled to a judgment

as a matter of law.” “In a motion for summary judgment, the

evidence presented to the trial court must be admissible at

trial, N.C.G.S. § 1A-1, Rule 56(e) (2003), and must be viewed in

a light most favorable to the non-moving party.” Howerton v.

Arai Helmet, Ltd., 358 N.C. 440, 467, 597 S.E.2d 674, 692 (2004)

(citing Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379,

381 (1975)). “We review a trial court’s order granting or

denying summary judgment de novo. ‘Under a de novo review, the
 -6-
court considers the matter anew and freely substitutes its own

judgment’ for that of the lower tribunal.” Craig v. New Hanover

Cty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009)

(quoting In re Appeal of The Greens of Pine Glen Ltd. P’ship,

356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).

III. N.C. Constitution Art. I § 19

In their first argument, plaintiffs contend that the

“enforcement and application” of the zoning amendment “against

Plaintiffs violates substantive due process under Article I,

Section 19 of the North Carolina Constitution, the Law of the

Land Clause” “because the ordinance is enforced exclusively

based on the existence of more than four parked cars on a lot

without any determination as to the reason for the parking of

those cars.” We disagree.

N. C. Constitution Art. I, § 19 provides that:

No person shall be taken, imprisoned, or
disseized of his freehold, liberties, or
privileges, or outlawed, or exiled, or in
any manner deprived of his life, liberty, or
property, but by the law of the land. No
person shall be denied the equal protection
of the laws; nor shall any person be
subjected to discrimination by the State
because of race, color, religion, or
national origin.

“The term ‘law of the land’ as used in Article I, Section

19, of the Constitution of North Carolina, is synonymous with

‘due process of law’ as used in the Fourteenth Amendment to the
 -7-
Federal Constitution.” In re Moore, 289 N.C. 95, 98, 221 S.E.2d

307, 309 (1976) (citing Surplus Store, Inc. v. Hunter, 257 N.C.

206, 125 S.E. 2d 764 (1962)).

“Due process has come to provide two types of protection

for individuals against improper governmental action,

substantive and procedural due process.” State v. Bryant, 359

N.C. 554, 563-64, 614 S.E.2d 479, 485 (2005) (citing State v.

Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 282 (1998). “‘The

requirements of procedural due process apply only to the

deprivation of interests encompassed by the Fourteenth

Amendment’s protection of liberty and property.’” Johnston v.

State, __ N.C. App. __, __, 735 S.E.2d 859, 875, (2012) (quoting

Board of Regents v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701,

2705, 33 L. Ed. 2d 548, 556 (1972)), aff’d __ N.C. __, 749

S.E.2d 278 (2013). In this case, plaintiffs do not allege the

deprivation of a constitutionally protected interest. Rather,

plaintiffs assert a violation of their right to substantive due

process.

“Substantive due process is a guaranty against arbitrary

legislation, demanding that the law be substantially related to

the valid object sought to be obtained.” Lowe v. Tarble, 313

N.C. 460, 461, 329 S.E.2d 648, 650 (1985) (citing State v.

Joyner, 286 N.C. 366, 211 S.E. 2d 320 (1975)). “Similar to the
 -8-
rational basis test for equal protection challenges, ‘as long as

there could be some rational basis for enacting [the statute at

issue], this Court may not invoke [principles of due process] to

disturb the statute.’” Rhyne v. K-Mart Corp., 358 N.C. 160, 181,

594 S.E.2d 1, 15 (2004) (quoting Lowe, 313 N.C. at 462, 329

S.E.2d at 650) (alterations in Rhyne). “If the challenging party

cannot prove that the statute bears no rational relationship to

any legitimate government interest, the statute is valid.”

Liebes v. Guilford Cnty. Dep’t of Pub. Health, 213 N.C. App.

426, 429, 724 S.E.2d 70, 73 (citing State v. Fowler, 197 N.C.

App. 1, 26, 676 S.E.2d 523, 544 (2009), disc. review denied, 364

N.C. 129, 696 S.E.2d 695 (2010)), disc. review denied, 365 N.C.

361, 718 S.E.2d 396 (2011). Plaintiffs concede that their

complaint “does not challenge the ordinance on any substantive

due process ground that the ordinance was enacted without any

conceivable rational relationship to a legitimate governmental

objective.” “Instead, Plaintiffs challenge the ordinance on the

ground” that “enforcement of the ordinance solely against non-

culpable landowner-lessors is arbitrary and capricious in

violation of [Art.] I, [§] 19 of the North Carolina

Constitution[.]”

Although plaintiffs characterize themselves as “non-

culpable” and assert that they have no ability to control the
 -9-
number of cars on their rental properties, they failed to submit

any affidavits or other evidence addressing this issue.

Furthermore, plaintiffs proffered leases establishing that they

have a number of mechanisms for enforcing the terms of such

agreements, including eviction, indemnification, and security

deposits. Therefore, we do not consider plaintiffs’ allegations

regarding their “innocence” or their inability to enforce the

terms of the leases executed with their tenants, as these

assertions were not supported by affidavits before the trial

court. Moreover, plaintiffs have not challenged defendant’s

determination that the number of cars on a lot generally

indicates the number of residents, which we accept as accurate

for purposes of this appeal.

Plaintiffs do not allege that enforcement of the zoning

amendment implicated a fundamental right, protected class, or

denial of their right to equal protection. Instead, plaintiffs

assert, without citation to authority, that “the enforcement of

the Town’s ordinance solely against owners or lessors of

property, based solely on the existence of more than four cars

on a lot and irrespective of the actual reasons for and

person(s) who caused or permitted the violation, is entirely

irrational, arbitrary and capricious.” However, as discussed

above, the zoning amendment was enacted to address the problem
 -10-
of over-occupancy of rental houses, and thereby reduce the

problems associated with over-occupancy. Plaintiffs do not

dispute that over-occupancy leads to other problems, or that

decreasing the over-occupancy of rental properties is a valid

goal of a zoning ordinance. In addition, in support of their

summary judgment motion, defendant submitted the affidavit of

Judy Johnson, defendant’s Senior Planner in the town’s Planning

Department, which averred that:

When the parking regulation at issue is
violated with respect to a [rental] property
. . . the Town cites the Property’s owner
for the violation rather than the tenants.
Trying to cite tenants and enforce the
parking regulation directly against them
would be burdensome, impractical, and
ineffective. Based on my years of experience
with enforcing zoning regulations, compared
to property owners, tenants tend to be more
transient and difficult to locate, and many
District tenants are students who are not
permanent residents of the Town. If the Town
issued citations to tenants, it often would
be difficult to locate those tenants once
they moved out of the District, and it would
be administratively difficult to collect
fines from such tenants if they no longer
lived in Town or even in the State of North
Carolina. By comparison, someone who owns
property in the District will generally be
easier to locate for purposes of issuing
citations and enforcing zoning regulations.
And, because a property owner will have a
lease with his or [her] tenants, the owner
can use his authority under the lease to
help ensure that tenants comply with the
parking regulations. As a result, enforcing
the parking regulation against property
owners instead of against tenants makes the
 -11-
regulation more effective and reduces the
Town’s administrative burdens and costs in
enforcing the regulation.

(emphasis added). Defendant also submitted the affidavit of

Chelsea Laws, defendant’s Senior Code Enforcement Officer, who

averred that:

Based on my experience as a Senior Code
Enforcement Officer for the Town, enforcing
the new parking regulation against property
owners is less burdensome and difficult, and
more effective, than it would be to enforce
the regulation against tenants. Tenants tend
to change their places of residence
frequently. This is especially true of
students, who represent a significant
portion of the tenants in the NNC District.
In contrast with tenants, owners of District
properties . . . are easier to locate. This
make it less burdensome and more effective
to enforce zoning regulations and penalties
against the owners rather than against
tenants, as the tenants may be hard to
locate and may move away without paying any
penalties assessed against them for
violating Town regulations.

(emphasis added). These affidavits, which were tendered by

defendant’s employees with experience in enforcing zoning

regulations, state that enforcement of the zoning amendment

against property owners was more effective than trying to track

down transient student tenants. We hold that the increased

effectiveness of this enforcement mechanism is rationally

related to the goal of decreasing over-occupancy in the NNC

district. “On its face, the practice of more avidly enforcing
 -12-
the Code against owners of property in the City than against

their relatively transient tenants appears to be reasonably

calculated to efficiently and effectively secure compliance with

the Housing Code.” Cunningham v. City of E. Lansing, 2001 U.S.

Dist. LEXIS 15967, *7-8 (W.D. Mich. Sept. 28, 2001).

Plaintiffs do not dispute that it is more effective to

enforce the zoning amendment against property owners than their

tenants, but simply argue that it is wrong to impose liability

on property owners for the number of cars parked on a rental

property without proof that the landlord had “knowledge of the

violation or any ability to prevent or correct the violation.”

Plaintiffs’ argument is that an alternative enforcement plan

might have been fairer to them. However, “[a] duly adopted

zoning ordinance is presumed to be valid. The burden is on the

complaining party to show it to be invalid. ‘When the most that

can be said against such ordinances is that whether it was an

unreasonable, arbitrary or unequal exercise of power is fairly

debatable, the courts will not interfere.’” Graham v. City of

Raleigh, 55 N.C. App. 107, 110, 284 S.E.2d 742, 744 (1981)

(quoting In re Appeal of Parker, 214 N.C. 51, 55, 197 S.E. 706,

709 (1938)). We conclude that the zoning amendment did not

violate plaintiffs’ rights to substantive due process of law.

This argument is without merit.
 -13-
III. N.C. Gen. Stat. § 160A-301

In their next argument, plaintiffs contend that the zoning

amendment “is invalid as being unauthorized under N.C. Gen.

Stat. § 160A-301.” We disagree.

N.C. Gen. Stat. § 160A-301 is part of Chapter 160A Article

15, “Streets, Traffic and Parking,” and provides that a city

“may by ordinance regulate, restrict, and prohibit the parking

of vehicles on the public streets, alleys, and bridges within

the city.” The statute addresses a city’s authority to “regulate

the use of lots, garages, or other facilities owned or leased by

the city and designated for use by the public as parking

facilities,” or to “regulate the stopping, standing, or parking

of vehicles in specified areas of any parking areas or driveways

of a hospital, shopping center, apartment house, condominium

complex, or commercial office complex, or any other privately

owned public vehicular area[.]” Plaintiffs contend that the fact

that N.C. Gen. Stat. § 160A-301 only addresses a city’s

authority to regulate parking in public vehicular areas

represents a legislative intent to prohibit municipalities from

regulating parking on private property, and that “the doctrine

of expressio unius est exclusion alterius forecloses” any

argument that defendant had the authority to enact the zoning

amendment. We do not agree.
 -14-
“Under the doctrine of expressio unius est exclusio

alterius, when a statute lists the situations to which it

applies, it implies the exclusion of situations not contained in

the list.” Evans v. Diaz, 333 N.C. 774, 779-80, 430 S.E.2d 244,

247 (1993) (citations omitted). However, “the canon expressio

unius est exclusio alterius does not apply to every statutory

listing or grouping; it has force only when the items expressed

are members of an ‘associated group or series,’ justifying the

inference that items not mentioned were excluded by deliberate

choice, not inadvertence.” Barnhart v. Peabody Coal Co., 537

U.S. 149, 168, 123 S. Ct. 748, 760, 154 L. Ed. 2d 653, 671

(2003) (quoting United States v. Vonn, 535 U.S. 55, 65, 152 L.

Ed. 2d 90, 122 S. Ct. 1043 (2002).

“The foremost task in statutory interpretation is ‘to

determine legislative intent while giving the language of the

statute its natural and ordinary meaning unless the context

requires otherwise.’” Carolina Power & Light Co. v. City of

Asheville, 358 N.C. 512, 518, 597 S.E.2d 717, 722 (2004)

(quoting Spruill v. Lake Phelps Vol. Fire Dep't, Inc., 351 N.C.

318, 320, 523 S.E.2d 672, 674 (2000)) (internal quotation

omitted). In this regard, we note that the ordinary meaning of

“park” is to “put or leave (a vehicle) for a time in a certain

location.” The American Heritage College Dictionary 993 (3rd.
 -15-
ed. 1997). N.C. Gen. Stat. § 160A-301 clearly deals with

regulation of parking in this ordinary sense of the word.

However, the zoning amendment was “drafted to help address

the [NNC] neighborhood’s over-occupancy problem directly.”

Defendant’s planning department found that “the number of

vehicles parked on a residential lot” provided a “reasonable

approximation of how many people are living at the property” and

determined that “[l]imiting the number of parked cars therefore

helps limit over-occupancy” without “trying to count and limit

the number of occupants directly.” We conclude that, although

the parties have referred to the zoning amendment as a “parking”

regulation, the context establishes that the amendment was

intended to regulate the ratio of bedrooms to tenants in rental

properties in the NNC District by restricting the number of

vehicles parked in the yard.1

We hold that regulation of parking in public vehicular

areas is fundamentally different from zoning restrictions on the

1
The zoning amendment was enacted to increase compliance with
the zoning ordinance’s restrictions on over-occupancy of rental
properties, by using the number of cars in a yard as an
indication of the number of tenants. Plaintiffs have not
challenged the general accuracy of this measure, or asserted
that in any specific instance the house where excess cars were
parked was not over-occupied. Given this factual scenario, we
are not called upon to express an opinion concerning whether it
would be a valid defense to a citation that the number of cars
on a property did not indicate the number of tenants, but
instead were cars belonging to temporary visitors.
 -16-
number of cars that may be parked on a private lot by tenants of

a house, and that there is no basis for assuming that our

General Assembly intended legislation allowing a city to

regulate parking in public vehicular areas to diminish a town’s

authority to adopt land use zoning regulations that deal with

population density or over-occupancy of rental homes. The fact

that defendant chose to restrict the number of cars parked on a

lawn as a rough proxy for the number of tenants does not

transform this into a “parking” ordinance within the meaning of

N.C. Gen. Stat. § 160A-301. We hold that the doctrine of

expressio unius est exclusio alterius is not applicable to the

relationship between N.C. Gen. Stat. § 160A-301 and the zoning

amendment.

For similar reasons, we reject plaintiffs’ argument that

N.C. Gen. Stat. § 160A-301 is a more “specific” statute that

renders the provisions of N.C. Gen. Stat. § 160A-4 inapplicable.

Defendant cites N.C. Gen. Stat. § 160A-4, “Broad Construction,”

which provides that:

It is the policy of the General Assembly
that the cities of this State should have
adequate authority to execute the powers,
duties, privileges, and immunities conferred
upon them by law. To this end, the
provisions of this Chapter and of city
charters shall be broadly construed and
grants of power shall be construed to
include any additional and supplementary
powers that are reasonably necessary or
 -17-
expedient to carry them into execution and
effect[.]

Defendant contends that N.C. Gen. Stat. § 160A-4 should be

applied to N.C. Gen. Stat. § 160A-383, which provides in

relevant part that:

Zoning regulations shall be designed to
promote the public health, safety, and
general welfare. To that end, the
regulations may address, among other things,
the following public purposes: to provide
adequate light and air; to prevent the
overcrowding of land; to avoid undue
concentration of population; to lessen
congestion in the streets; to secure safety
from fire, panic, and dangers; and to
facilitate the efficient and adequate
provision of transportation, water,
sewerage, schools, parks, and other public
requirements. . . .

Defendant asserts that its zoning amendment was “reasonably

necessary” to achieve its statutorily approved purpose of

regulating population density and traffic congestion. Plaintiffs

do not dispute this contention, but argue that because N.C. Gen.

Stat. § 160A-301 deals specifically with parking, the general

rule stated in N.C. Gen. Stat. § 160A-4 is not applicable, based

on the longstanding “principle ‘that where there are two

opposing acts or provisions, one of which is special and

particular and certainly includes the matter in question, and

the other general, which, if standing alone, would include the

same matter, and thus conflict with the special act or
 -18-
provision, the special must be taken as intended to constitute

an exception to the general act.’” Blair v. Commissioners, 187

N.C. 488, 489-90, 122 S.E. 298, 299 (1924) (quoting State v.

Johnson, 170 N.C. 685, 690, 86 S.E. 788, 791 (1915) (other

citation omitted). “[T]o the extent of any necessary repugnancy

between them, the special statute . . . will prevail over the

general statute.” Krauss v. Wayne Cty. Dep’t of Soc. Servs., 347

N.C. 371, 378, 493 S.E.2d 428, 433 (1997) (internal quotation

omitted). However, we have held that the zoning amendment, which

addresses the number of vehicles that may be parked on a private

lot, does not address the same subject as N.C. Gen. Stat. §

160A-301, which governs ordinary parking on public vehicular

areas. Therefore, N.C. Gen. Stat. § 160A-301 is not a more

“specific” statute, but simply addresses a different subject.

IV. Lanvale Properties, LLC v. County of Cabarrus

In their next argument, plaintiffs contend that the

decision of our Supreme Court in Lanvale Properties, LLC v.

County of Cabarrus, 366 N.C. 142, 731 S.E.2d 800 (2012),

“establishes that the instant parking regulation is not

authorized by the general zoning power.” We disagree.

Lanvale arose from Cabarrus County’s enactment of an

“adequate public facilities ordinance (‘APFO’) that effectively

conditions approval of new residential construction projects on
 -19-
developers paying a fee to subsidize new school construction to

prevent overcrowding in the County’s public schools.” Lanvale,

366 N.C. at 143, 731 S.E.2d at 803. Defendant appealed from the

trial court’s entry of summary judgment in favor of plaintiff-

developer and from its ruling that defendant did not have the

authority under zoning or subdivision statutes to enact an APFO.

This Court affirmed the trial court, and defendant appealed to

our Supreme Court, arguing that it was authorized under its

general zoning power to adopt the APFO. The Supreme Court first

addressed the “distinction between zoning ordinances and

subdivision ordinances[,]” and observed that “the primary

purpose of county zoning ordinances is to specify the types of

land use activities that are permitted, and prohibited, within

particular zoning districts.” Lanvale at 157-58, 731 S.E.2d at

811-12 (citing Chrismon v. Guilford County, 322 N.C. 611, 617,

370 S.E.2d 579, 583 (1988)). Based upon its review of the

characteristics of zoning regulations, the Court held that “the

APFO does not define the specific land uses that are permitted,

or prohibited, within a particular zoning district” and that

“the County’s APFO cannot be classified as a zoning ordinance

because . . . [it] simply does not ‘zone.’” Id. at 160, 731

S.E.2d at 813. Because the Supreme Court held in Lanvale that

the ordinance at issue was not a zoning regulation, the Court
 -20-
did not address a local government’s authority to enact a bona

fide zoning ordinance or the requirements of a valid zoning

regulation. We conclude that plaintiffs are not entitled to

relief on the basis of the holding in Lanvale.

For the reasons discussed above, we conclude that the

zoning amendment did not violate plaintiffs’ right to

substantive due process, and was not barred by N.C. Gen. Stat. §

160A-301 or the holding in Lanvale, and that the trial court’s

summary judgment order should be affirmed.

AFFIRMED.

Judges McGEE and ERVIN concur.