                               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.
