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Onslow County v. Moore

May 05, 1998

ONSLOW COUNTY, APPELLEE-PLAINTIFF,
v.
GENE MOORE, APPELLANT-DEFENDANT. KIMBERLY MCKILLOP, APPELLANT-PLAINTIFF,
v.
ONSLOW COUNTY, APPELLEE-DEFENDANT. PATRICIA TREANTS, APPELLANT-PLAINTIFF,
v.
ONSLOW COUNTY, APPELLEE-DEFENDANT.



Appeal by defendant in case No. 95 CvS 2836 from order entered 3 July 1996 by Judge W. Allen Cobb, Jr., in Onslow County Superior Court. Appeal by plaintiff and defendant in case No. 94 CvS 1980 from judgment entered 3 July 1996 by Judge W. Allen Cobb, Jr., in Onslow County Superior Court. Appeal by plaintiff and defendant in case No. 94 CVS 1981 from judgment entered 3 July 1996 by Judge W. Allen Cobb, Jr., in Onslow County Superior Court. The appeals were consolidated and originally heard in the Court of Appeals 16 September 1997. This Court dismissed the appeals for violations of the Rules of Appellate Procedure on 21 October 1997. 127 N.C. App. __, 491 S.E.2d 670 (1997). In an order dated 5 March 1998, the Supreme Court of North Carolina vacated the decision of the Court of Appeals and remanded the case to the Court of Appeals for consideration on the merits. Heard in the Court of Appeals on remand on 19 March 1998.

The opinion of the court was delivered by: Smith, Judge.

Appellants Gene Moore, Kimberly McKillop and Patricia Treants each own businesses alleged to be in violation of an ordinance of appellee Onslow County (the County) entitled "Ordinance to Regulate Adult Businesses and Sexually Oriented Businesses in Onslow County, NC." (the ordinance). The ordinance, which contains specific definitions of an "adult business," a "sexually oriented business," "specified anatomical areas" and "specified sexual activities," provides that adult and sexually oriented businesses shall not be permitted in any building located within 1000 feet in any direction from a residence, house of worship, public school or playground, or other adult or sexually oriented business. All adult and sexually oriented businesses operating on 21 September 1992, the effective date of the ordinance, were required to comply with the terms of the ordinance within two years. The ordinance also provided that injunctive relief and the issuance of orders of abatement could be used to enforce compliance with the ordinance. A resolution adopted by the County Board of Commissioners stated that

after comprehensive study of potential deleterious secondary effects of certain types of sexually oriented adult businesses, the Board of Commissioners of Onslow County finds that it is appropriate and necessary to prevent those deleterious secondary effects which can reasonably be expected to result from the inappropriate location or concentration of such businesses . . . .

In addition, Article II of the Ordinance stated that "[f]or the purpose of promoting the health, safety, morals and general welfare of the citizenry of Onslow County, this Ordinance is adopted by the Board of Commissioners to regulate adult and sexually oriented businesses, as hereby defined, located in Onslow County."

After being notified of the necessity of compliance with the ordinance, McKillop and Treants filed complaints on 20 September 1994 seeking declarations that the ordinance violated the North Carolina General Statutes and the North Carolina Constitution. Both complaints requested that the trial court enter judgments declaring the ordinance invalid and unconstitutional and enjoining the County from enforcing the ordinance. In response to the complaints, the County filed answers and counterclaims. Alleging that McKillop and Treants operated businesses in violation of the ordinance, the County requested that the complaints be dismissed and that McKillop and Treants be enjoined from operating their businesses as nonconforming adult and sexually oriented businesses. In response to the County's answers and counterclaims, McKillop and Treants alleged the ordinance violated the United States Constitution. On 3 July 1996, the trial court entered judgments dismissing the complaints with prejudice and enjoining McKillop and Treants from operating their businesses in any building located within 1000 feet of a residence, house of worship, or public school or playground. However, the trial court specifically found and concluded that the ordinance was partially preempted by N.C. Gen. Stat. § 14-202.11 (1993), which prohibits any building from containing more than one adult establishment.

On 5 December 1995, the County filed an action against Moore, pursuant to the ordinance, seeking a mandatory and/or prohibitory preliminary and permanent injunction and order of abatement commanding Moore to comply with the provisions of the ordinance. On 18 January 1996, nunc pro tunc 15 December 1995, the trial court found that Moore operated a sexually oriented business in violation of the ordinance and entered a preliminary injunction commanding Moore to bring the business in compliance with the ordinance and prohibiting him from violating the ordinance. This order was filed with the Onslow County Clerk of Court on 26 March 1996. Moore gave notice of appeal from the entry of the preliminary injunction on 18 April 1996. On 3 July 1996, the trial court entered an order finding that Moore willfully failed to comply with the provisions of the injunction and holding him in contempt. On 3 December 1996, this Court, in an unpublished opinion (COA96-828), dismissed Moore's appeal of the preliminary injunction as interlocutory.

McKillop and Treants appeal the judgments dismissing their complaints with prejudice and permanently enjoining them from operating their businesses in buildings located within 1000 feet of a residence, house of worship, or public school or playground. The County appeals from the portion of these judgments declaring the ordinance partially preempted by N.C. Gen. Stat. § 14-202.11. Moore appeals the 3 July 1996 order finding him in contempt of the preliminary injunction issued 18 January 1996, nunc pro tunc 15 December 1995.

I. McKillop's and Treants' appeals

In their first two assignments of error, McKillop and Treants contend the trial court erred by denying their motions to dismiss and by denying their motions to amend their replies to the County's counterclaims. However, McKillop and Treants only gave notice of appeal from the trial court's judgments entered 3 July 1996 dismissing their complaints and enjoining them from violating the ordinance. Our Rules of Appellate Procedure require that a party entitled to appeal from a judgment or order "may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties within the time prescribed by subdivision (c) of this rule." N.C.R. App. P. 3(a). The notice of appeal "shall designate the judgment or order from which appeal is taken . . . ." N.C.R. App. P. 3(d). "Appellate Rule 3 is jurisdictional and if the requirements of this rule are not complied with, the appeal must be dismissed." Currin-Dillehay Bldg. Supply v. Frazier, 100 N.C. App. 188, 189, 394 S.E.2d 683, 683, disc. review denied and appeal dismissed, 327 N.C. 633, 399 S.E.2d 326 (1990).

McKillop and Treants cite In re Foreclosure of Allan & Warmbold Constr. Co., 88 N.C. App. 693, 696, 364 S.E.2d 723, 725, disc. review denied, 322 N.C. 480, 370 S.E.2d 222 (1988), for the proposition that an appeal from a final judgment or order includes intermediate orders "`involving the merits and necessarily affecting the judgment[]'" (quoting N.C. Gen. Stat. § 1-278). In Allan & Warmbold, the trial court permitted an upset bidder in a public foreclosure sale to withdraw his bid and directed that the property in question be resold. Id. at 694, 364 S.E.2d at 724. The appellants did not appeal from the resale order but from the final order confirming the second resale four months later. Id. This Court determined that the validity of the order withdrawing the upset bid and directing a resale of the foreclosed property could properly be considered in an appeal from the order confirming the second resale. Id. at 696, 364 S.E.2d at 725. Noting that the order withdrawing the upset bid was interlocutory, we stated that

we are not barred from considering the validity of the order . . . because the appellants did not appeal from it within the time required by Rule 3, N.C. Rules of Appellate Procedure. G.S. 1-278 permits us, incident to an appeal from a final judgment or order, to review intermediate orders `involving the merits and necessarily affecting the judgment,' and the order striking the upset bid and requiring a resale is such an order.

Id. (emphasis added). It is apparent that Allan & Warmbold discusses the appealability issue with respect to the time within which an appeal must be filed as set forth in N.C.R. App. P. 3(c), and not whether a notice of appeal must be filed. The record on appeal and briefs in Allan & Warmbold reflect that the precise issue before this Court was whether notice of appeal from the resale order had to be given within ten days (now 30 days) following signing and entry of the resale order. In fact, the appeal from the resale order was filed within 10 days of the entry of the final order of confirmation. We therefore believe Allan & Warmbold is inapposite to the instant case.

We do, however, find the case of Rite Color Chemical Co. v. Velvet Textile Co., 105 N.C. App. 14, 411 S.E.2d 645 (1992), instructive. In Rite Color Chemical Co., we held that where defendant gave notice of appeal from the trial court's order on unconscionability and directed verdict, and from a subsequent judgment, the notice of appeal did not give this Court jurisdiction to review the trial court's orders denying defendant's motions to amend its pleadings. Id. at 17, 411 S.E.2d at 647. Because McKillop and Treants failed to file notices of appeal from the trial court's denials of their motions to dismiss and to amend their replies to the County's counterclaims, we need not address those issues.

McKillop and Treants next contend the trial court erred by issuing an injunction which orders them to obey an ordinance that violates Chapter 153 of the General Statutes, is preempted by state law, and violates their federal and state constitutional rights. However, for the reasons set forth below, we conclude the trial court properly enjoined McKillop and Treants from operating their businesses within 1000 feet of a residence, house of worship, or public school or playground.

A. The ordinance is a valid exercise of the general police powers granted to the County by the North Carolina Legislature

McKillop and Treants argue that the ordinance is a zoning ordinance, and as such is invalid since it was not adopted pursuant to a comprehensive zoning plan for the County. This Court recently addressed the same challenge by the manager of an adult business to the same Onslow County ordinance in Maynor v. Onslow County, 127 N.C. App. 102, 488 S.E.2d 289, appeal dismissed, 347 N.C. 268, 493 S.E.2d 458, cert. denied, 347 N.C. 400, 496 S.E.2d 385 (1997). In Maynor, we noted that N.C. Gen. Stat. § 153A-121(a) (1991) permits counties to enact ordinances to "`define, regulate, prohibit, or abate acts, omissions, or conditions detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the county.'" Maynor, 127 N.C. App. at 105-06, 488 S.E.2d at 291-92. We also observed that "[c]ounties may enact ordinances regulating land use in two fashions: one, pursuant to a comprehensive zoning plan, N.C. Gen. Stat. § 153A-341 (1991) and two, pursuant to their police powers, N.C. Gen. Stat. § 153A-121 (1991)." Maynor, 127 N.C. App. at 105, 488 S.E.2d at 291 (emphasis added). We further stated that "[w]hen a county adopts an ordinance designed to promote the health, safety and welfare of the county's residents, N.C. Gen. Stat. § 153A-121 empowers the county to adopt such ordinance without complying with the procedural safeguards provided in N.C. Gen. Stat. § 153A-341." Maynor, 127 N.C. App. at 106, 488 S.E.2d at 292. After citing Summey Outdoor Advertising, v. County of Henderson, 96 N.C. App. 533, 386 S.E.2d 439 (1989), disc. review denied, 326 N.C. 486, 392 S.E.2d 101 (1990), which held that a County's failure to adopt a county-wide zoning ordinance did not preclude the county from regulating outdoor advertising signs under N.C. Gen. Stat. ยง 153A-121, we held that Onslow County's adoption of the ordinance regulating the location of adult and sexually oriented businesses was "well within the parameters of N.C. Gen. ...


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