Opinion
No. COA02-947
Filed 17 June 2003 This case not for publication
Appeal by defendants from judgment and order of abatement entered 12 December 2001 by Judge Ronald K. Payne in Buncombe County Superior Court. Heard in the Court of Appeals 14 May 2003.
Roberts Stevens, P.A., by Carl W. Loftin and Sarah Patterson Brison Meldrum, for plaintiff-appellee. Stanford K. Clontz, P.A., by Stanford K. Clontz, for defendant-appellants.
Buncombe County No. 00 CVS 4200.
Ronnie Morris ("defendant Morris") and his wife, Kathy ("defendant Kathy") (collectively "defendants"), appeal the trial court's grant of a motion for summary judgment in favor of the Town of Weaverville ("plaintiff") and an order of abatement regarding defendants' operating and maintaining a junk yard in violation of plaintiff's zoning ordinance. For the reasons stated herein, we affirm.
Defendant Morris is the owner of real property located within the extraterritorial zoning jurisdiction of Weaverville, North Carolina. On 22 August 2000, plaintiff filed a complaint against defendant Morris alleging that he was operating and maintaining a junk yard on his real property in violation of Section 17-560 of plaintiff's zoning ordinance, which prohibits a nonconforming land use of that nature in an R-2 residential zoning district. Plaintiff's complaint alleged, inter alia:
9. The Defendant, Ronnie L. Morris, is operating and maintaining a junk yard on the Property.
. . . .
12. The junk yard operated and maintained by Defendant, Ronnie L. Morris, on the Property was not a lawful use of the Property at the time the extraterritorial jurisdiction was extended to the Property, having been previously determined by the County of Buncombe as an unlawful use under the Buncombe County Code of Ordinances.
. . . .
16. The Plaintiff is entitled to an injunction enjoining Defendant, Ronnie L. Morris, from his continued violation of the Zoning Ordinance and order of abatement directing removal of the junk yard.
Plaintiff also named defendant Kathy in the complaint based "upon her possible marital interest in the Property."
Defendants timely filed an answer denying plaintiff's entitlement to relief and alleging that defendant Morris had been operating and maintaining a car repair shop on the property for more than twenty years. However, defendants' answer did not specifically deny the allegations contained in paragraphs 9 and 12 of plaintiff's complaint. Also, defendants' answer stated that the allegations contained in paragraph 16 of the complaint were "admitted upon information and belief."
Thereafter, plaintiff filed a motion for summary judgment on 17 September 2001. The motion was accompanied by the affidavit of Michael Morgan ("Morgan"), the Town Manager/Zoning Administrator, and photographs of defendant Morris' property that were taken by Morgan. Morgan's affidavit stated that his inspections of defendant Morris' property indicated that the property was a junk yard in violation of plaintiff's zoning ordinance.
In response to plaintiff's motion, defendant Morris filed an affidavit that reiterated he was operating a car repair business on the property and "[t]hat in the course of said business [he] often w[ould] acquire several vehicles to cannibalize and use as spare parts for the repair of other vehicles for customers and/or for sale." The affidavit further stated that although defendant Morris did not consider his property to be a junk yard, he had attempted to register the property as such with the County of Buncombe and plaintiff but was denied.
Plaintiff's motion for summary judgment was heard on 24 October 2001. The trial court determined that defendants' use of the property constituted a junk yard in violation of plaintiff's zoning ordinance. Thus, in a judgment and order entered 12 December 2001, summary judgment was granted in favor of plaintiff with defendants being (1) permanently enjoined from violating plaintiff's zoning ordinance, and (2) ordered to abate the maintenance and use of their property as a junk yard. Defendants filed a notice of appeal on 11 March 2002 with respect to the judgment and order of abatement.
On 9 May 2002, defendants filed a motion for relief from judgment. The motion was accompanied by a second affidavit from defendant Morris, which stated that it was his intention to deny paragraphs 9 and 12 of plaintiff's complaint and the failure to do so was "mere inadvertence" on the part of his former attorney. The affidavit also stated that defendant Morris' property was used substantially to generate income from the rental of a residential dwelling located on that property. The motion for relief from judgment was denied on 13 June 2002.
I.
First, defendants argue the trial court erred in granting plaintiff's motion for summary judgment (which included injunctive relief and an order of abatement) because plaintiff failed to meet its burden of showing there was no genuine issue of material fact as to whether defendants were operating a junk yard as defined by Section 17-410 of plaintiff's zoning ordinance.
Summary judgment may be granted to resolve matters regarding the interpretation of zoning ordinances. See Craig v. County of Chatham, 356 N.C. 40, 565 S.E.2d 172 (2002). In these matters, as in any other matters involving the grant or denial of summary judgment, an appellate court must review the lower court's judgment de novo. Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999). "A party moving for summary judgment has the burden of establishing the lack of any genuine issue of material fact and that he is entitled to a judgment as a matter of law." Daniel v. Daniel, 132 N.C. App. 217, 218, 510 S.E.2d 689, 690 (1999). Once that burden is met, "an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." N.C. Gen. Stat. § 1A-1, Rule 56(e) (2001).
In the instant case, Section 17.410 of plaintiff's zoning ordinance defines a "junk yard" as:
A lot, land or structure, or part thereof, used primarily for the collection, storage and sale of waste paper, rags, scrap metal, or other discarded material; or for the collecting, dismantling, storage or salvaging of machinery or vehicles not in operating condition. This shall include the sale of parts from such machinery or vehicles.
Defendants contend plaintiff's failure to establish that the property was used primarily for the "storage or salvaging of . . . vehicles not in operating condition" should have prevented the grant of summary judgment. Defendants further contend that the serious deficiencies and errors in their answer (whereby they did not deny plaintiff's allegations in paragraph 9 and 12, and admitted the allegations in paragraph 16) should not have been considered by the court in granting summary judgment because the remainder of their answer and defendant Morris' second affidavit indicated that defendants actually intended to deny those allegations. We disagree.
Whether or not defendants intended to deny specific allegations, plaintiff still met its burden of establishing defendants' primary use of the property as a junk yard. The evidence before the trial court established: (1) defendant Morris stored numerous vehicles on his property that were inoperable; (2) defendant Morris attempted to register his property as a junk yard twice; (3) Morgan's affidavit and pictures of defendant Morris' property indicated that the property was a junk yard, constituting a "public health and safety hazard and . . . a nuisance[.]" Having met its burden, defendants were required to set forth specific facts showing that there was a genuine issue for trial. Yet, defendant Morris only set forth general denials in his first affidavit, such as "I do not consider my property a junkyard[,]" which were insufficient to set forth specific facts required to rebut a motion for summary judgment. See Daniel, 132 N.C. App. at 219, 510 S.E.2d at 690. Defendant Morris did eventually affirmatively deny the allegations in paragraphs 9 and 12 of plaintiff's complaint and stated that the property was being used primarily to generate residential rental income. But, these assertions (1) were made in defendant Morris' second affidavit which was not available to the court until after its judgment and order of abatement was entered, and (2) were completely contrary to defendant Morris' assertion in his first affidavit that the property was used primarily for his car repair business. Accordingly, plaintiff's motion for summary judgment was properly granted.
II.
Next, defendants argue the trial court erred in its judgment and order of abatement as to defendant Kathy. Defendants contend that while plaintiff's complaint alleged defendant Kathy was "named as a defendant based upon her possible marital interest in the Property[,]" it did not allege any acts on her part nor give her notice that she might be obligated to remove and dispose of "all personal property, refuse and vehicles considered to constitute a junk yard" on the property. Plaintiff's complaint, however, did not direct its request for an order of abatement towards either defendant individually and thus, was directed towards both defendants. Moreover, Section 160A-175 of our statutes provides that a city may secure injunctions and abatement orders for violations of its ordinances and:
If the defendant fails or refuses to comply with an injunction or with an order of abatement within the time allowed by the court, he may be cited for contempt, and the city may execute the order of abatement. The city shall have a lien on the property for the cost of executing an order of abatement in the nature of a mechanic's and materialman's lien.
N.C. Gen. Stat. § 160A-175(e) (2001). As defendant Morris' wife, any marital interest defendant Kathy had in the property would be affected by a potential lien on that property if abatement was ordered and both defendants failed to comply. Therefore, this assigned error is overruled.
III.
Defendants finally argue the court erred in denying their motion for relief from judgment. However, defendants only filed notice of appeal from the judgment and order of abatement and not from their motion for relief from judgment. Since the record does not show that defendants gave proper notice of appeal from their motion for relief from judgment, the order denying that motion is not properly before this Court for review. In re Laney, ___ N.C. App. ___, 577 S.E.2d 377 (2003).
Affirmed.
Judges MARTIN and GEER concur.
Report per Rule 30(e).