North Carolina Court Cases

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Zoning/Health Ordinances Nuisance
State v. Rice Mayes v. Tabor
City of Roanoke Rapids v. Peedin Parker v. Barefoot
Prestage Farms, Inc. v. The Board of Supervisors of Noxubee County (Mississippi Case)
Baucom's Nursery Co. v. Mecklenburg Co.   (1983)
Baucom's Nursery Co. v. Mecklenburg Co.   (1988)
Sedman v. Rijdes
Durham v. Britt

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Zoning/Health Ordinances


State v. Rice, 158 N.C. 635, 74 S.E. 582 (1912)

The defendant was indicted for keeping hogs outside the corporate limits of Greensboro, within one-fourth of a mile away from those city limits. The N.C. Supreme Court upheld the indictment. It stated that city governments are authorized to make rules and regulations for the preservation of public health. City governments have jurisdiction over areas outside of their municipal limits in adjacent districts.



 City of Roanoke Rapids v. Peedin, 124 N.C. App. 578, 478 S.E.2d 528 (1996)

The City of Roanoke Rapids challenged the statutory authority of the Halifax County Board of Health to create a county health rule governing smoking. The Court of Appeals held that the Board of Health did not have the statutory authority to issue a rule where factors other than health were a basis for it. For example, regulation of smoking based on the type of establishment, rather than for any health related reason, exceeds the authority of the Board. Boards of health must consider only health-related factors when issuing rules to protect the public health and welfare, as permitted by G.S. 130A-19.



Prestage Farms, Inc. v. The Board of Supervisors of Noxubee County, 23 F. Supp. 2d 663 (1998)


Plaintiffs claimed that ordinances passed by the Board of Supervisors of Chickasaw County and Noxubee County, Mississippi were preempted by regulations promulgated by the Mississippi Department of Environmental Quality and that the county ordinances violated their rights to due process. The plaintiffs sought preliminary and permanent injunctions to prevent the ordinances from being enforced. The United States District Court for the Northern District of Mississippi, Eastern Division granted the preliminary injunction. The Court held that there was a "substantial likelihood" that the plaintiffs would succeed in arguing that state regulations would preempt the siting restrictions contained in both local ordinances and that the ordinances would be determined to be in violation of plaintiff’s due process rights. Editor's Note: This Mississippi case is include here because it directly addresses the authority of boards of health to create health ordinances as does the preceding case; City of Roanoke Rapids v. Peedin 124 N.C. App. 578, 478 S.E.2d 528 (1996).


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Baucom's Nursery Co. v. Mecklenburg Co. 62 NC App 396, 303 S.E.2d 236 (1983)

A greenhouse operation challenged a Mecklenburg County zoning ordinance based upon the bona fide farming operation exemption to county zoning. The Court of Appeals held that the greenhouse operation was a "bona fide farm", as defined by G.S. 153A-340, and thus exempt from the zoning ordinance.



Baucom's Nursery Co. v. Mecklenburg Co., 89 N.C. App. 542 366 S.E.2d 558 (1988), disc. rev. denied, 322 N.C. 834, 371 S.E.2d 274 (1988)

The zoning ordinance challenged in the previous case was amended during the pendency of the case. The greenhouse operation challenged the amended Mecklenburg County zoning ordinance. The owners of the operation were not allowed to bring an action against the county since the statute of limitations for doing so had expired. G.S. 153A-348 provided for a statute of limitations that barred challenges to a zoning ordinance more than nine months after its amendment or adoption. Editor's Note: The statute of limitation for judicial challenges to zoning amendments for both counties and cities was changed to two months in 1996 (G. S. 1-54.1). 



 Sedman v. Rijdes, 127 N.C. App. 700, 492 S.E.2d 620 (1997)

Neighbors filed suit against a greenhouse operation alleging that it was in violation of an Orange County Zoning Ordinance. The Court of Appeals held that the operation was an agricultural operation falling under the designation "bona fide farm" as defined by G.S. 153A-340, that it was used for farm purposes, and thus could not be subject to county zoning regulation.



 Durham v. Britt 117 N.C. App. 250, 451 S.E.2d 1 (1994), disc. rev. denied, 456 S.E.2d 828 (N.C. 1995)

Neighbors filed suit against the owner of a farming operation, which changed from a turkey farm to a hog farm, claiming that the operation constituted a nuisance. The owner sought an exemption from a nuisance suit under the "right-to-farm" law because his farm, while raising turkeys, had been in operation for over 25 years. The Court of Appeals held, however, that when an agricultural operation is fundamentally changed, such as a change in what is being grown or the hours of operation, it is not exempt from nuisance suits under N.C.'s "right-farm-law", G.S. 106-701.


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Mayes v. Tabor, 77 N.C. App. 197, 334 S.E.2d 489 (1985)

Neighbors that operated a summer camp that had been in operation about 60 years filed suit against a hog farming operation claiming the operation constituted a nuisance due to the smell and proximity of the operation to their property line. The hog farming operation had been in existence for about 15 years. The Court of Appeals held that the "right-to-farm" law does apply where the claim of nuisance was not based upon changes in the land use around the farm.



Parker v. Barefoot, 130 N.C. App. 18, 502 S.E.2d 42 (1998), reversed, No. 408A98 (N.C. filed October 8, 1999)

Neighbors filed suit against a hog farming operation claiming the operation constituted a nuisance, due to the smell from waste lagoons. The owners of the operation sought to use in their defense that they had used "state of the art technology to control odors. The Court of Appeals held that "state-of-the-art" technology could not be used as a defense to a nuisance action. However, the use of state-of-the-art technology might be important to deciding whether an injunction is available. Based upon the reasoning of the dissent in this decision, the N.C Supreme Court reversed.





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