P.D. Hanes DUGGINS and Wife Lucy Taylor Duggins
v.
TOWN OF WALNUT COVE.
No. 8217SC544.
Court of Appeals of North Carolina.
September 6, 1983.*188 Michael B. Brough, Carrboro, for plaintiffs-appellants.
Womble, Carlyle, Sandridge & Rice by Roddey M. Ligon, Jr., Winston-Salem, for defendant-appellee.
Jordan, Brown, Price & Wall by R. Frank Gray, Raleigh, for amicus curiae North Carolina Manufactured Housing Institute.
WEBB, Judge.
In their first argument, plaintiffs contend that defendant's attempt to "zone out" mobile homes as defined in the ordinance exceeds defendant town's statutory authority both because the zoning enabling act does not authorize defendant to regulate the types of structures used for single-family residential purposes and because defendant's ordinance constitutes a back door attempt to intrude into a field preempted by state and federal law. We disagree.
G.S. 160A-381, which authorizes municipalities to enact zoning ordinances within specified guidelines, provides in relevant part:
"For the purpose of promoting health, safety, morals, or the general welfare of the community, any city is hereby empowered to 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 or other purposes."
Plaintiffs maintain that the only characteristic under the ordinance that differentiates mobile homes from modular and site-built homes is that they are constructed in accordance with different building codes. Because of this, they interpret the zoning ordinance as having the effect of distinguishing between structures used for the same purposesingle-family residences based solely on the construction methods and materials used. We do not agree with plaintiffs' interpretation of the ordinance. It is obvious from the definitions in the ordinance that the different applicable building codes is not the only factor differentiating mobile homes from modular homes. Therefore, the ordinance does not have the effect suggested by plaintiffs. Defendant is clearly authorized by G.S. 160A-381 to regulate and restrict the location and use of any buildings or structures for residential and other purposes, and that is exactly what defendant has done in restricting the location of mobile homes.
Similarly, plaintiffs attack the ordinance on the grounds it is an impermissible attempt to regulate construction practices. Defendant's ordinance was not intended to and does not have the effect of regulating *189 construction practices in any way. Rather, the ordinance deals solely with the location and use of buildings and structures as the statute expressly authorizes. Plaintiffs attempt to read more into defendant's enactment of the ordinance is not warranted. Accordingly, we hold both aspects of plaintiffs' first argument are meritless.
The plaintiffs also challenge the constitutionality of the zoning ordinance. They argue that it violates the Fourteenth Amendment to the United States Constitution and Article I, Section 19 of the Constitution of North Carolina. The Fourteenth Amendment provides in part:
"Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Article I, Section 19 provides in part:
"No person shall be ... deprived of his... property, but by the law of the land. No person shall be denied the equal protection of the laws."
The plaintiffs also contend that the enforcement of the ordinance is not within the police power of defendant Town of Walnut Cove. We believe the test as applied in this case is the same for the due process, law of the land, and equal protection clauses of the United States and North Carolina Constitutions as well as the validity of the exercise of the police power by defendant Town of Walnut Cove. If the enactment and enforcement of the zoning ordinance is rationally related to a legitimate governmental objective, the plaintiff in this case must fail. See Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980), and Mobile Homes Sales, Inc. v. Tomlinson, 276 N.C. 661, 174 S.E.2d 542 (1970).
We upheld a similar zoning ordinance against constitutional attack in Currituck County v. Willey, 46 N.C.App. 835, 266 S.E.2d 52 (1980). The plaintiffs contend Currituck does not control. They argue that Currituck holds that the property owner in that case did not offer evidence sufficient to overcome the presumption of the constitutionality of the ordinance whereas in this case they make allegations in their complaint which if proven will show that the ordinance is unconstitutional. Assuming plaintiffs are correct in their reading of Currituck, we believe their attack on the Walnut Cove ordinance must fail.
If any state of facts can be conceived that will sustain the zoning ordinance, the existence of that state of facts must be assumed. Mobile Home Sales, Inc. v. Tomlinson, supra 276 N.C. at 669, 174 S.E.2d 542. In this case the ordinance classifies mobile homes differently from modular and site-built homes based on the method of construction. The protection of property values in the zoned area is a legitimate governmental objective. We believe that the method of construction of homes may be determined by a city governing board as affecting the price of homes. The prohibition of such buildings is rationally related to the protection of the value of other homes in the area. We cannot interfere with this legislative decision.
The plaintiffs argue at length that they can prove, if given the chance, that once mobile homes are in place, they sell at prices comparable to site-built and modular homes. We do not believe we should make this factual determination. This is a matter for the governing body of Walnut Cove. We believe they were rational in their decision.
The North Carolina Manufactured Housing Institute has filed a brief in which they make a very persuasive argument that mobile homes should not be excluded from areas in which site-built homes and modular homes may be placed. We believe this is an argument which should be made to the City Council.
Affirmed.
WHICHARD and BRASWELL, JJ., concur.