http://www.aoc.state.nc.us/www/public/coa/opinions/2002/unpub/011415-1.htm A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3). NO. COA01-1415 NORTH CAROLINA COURT OF APPEALS Filed: 31 December 2002 TOWN OF WARSAW, Plaintiff v. ANGELIA RODRIGUEZ, Defendant Duplin County No. 00 CVD 979 Appeal by defendant from judgment entered 13 June 2001 by Judge Sarah C. Seaton in District Court, Duplin County. Heard in the Court of Appeals 20 August 2002. Thompson & Mikitka, P.C., by Susan Collins Mikitka, for plaintiff-appellee. Fredric C. Hall for defendant-appellant. TIMMONS-GOODSON, Judge. The Town of Warsaw, North Carolina (“plaintiff” or “the town”), filed the present action against resident, Angelia Rodriguez (“defendant”), based upon her failure to comply with plaintiff's Zoning Ordinance 8.8, governing “R-8 Residential Districts.” In April 2000, defendant applied for and received a building permit to construct a “garage” on her property. Defendant subsequently built a structure which she used to shelter four horses. Based upon complaints from defendant's neighbors, plaintiff notified defendant that she was violating Town of Warsaw Ordinance 8-2002, prohibiting those within the town's corporate limits from maintaining any hog pen, keeping any hogs, cows, chickens or ponies. Believing that defendant's action was more appropriately classified as a property use violation, plaintiff later notified defendant that she was in violation of Zoning Ordinance 8.8 and requested that she remove the horses. Defendant's refusal to cease the nonconforming use prompted plaintiff to file for preliminary and permanent injunctive relief. Plaintiff moved for summary judgment, andthe trial court granted plaintiff's motion in its order of 13 June 2001. From this order, defendant now appeals. _________________________ Defendant presents two arguments on appeal: (I) that defendant did not violate Zoning Ordinances 8.8 by maintaining horses in a “R-8 Residential District;” and (II) that plaintiff's application of the Ordinance to prohibit defendant's allegedly nonconforming use violated the Equal Protection Clause of the United States and North Carolina Constitutions. Summary judgment is appropriate “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.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001). As there is no genuine issues of material fact, we must determine whether defendant was entitled to judgment as a matter of law. I. Defendant first contends that her actions did not violate Zoning Ordinance 8.8 because keeping horses was permitted in “R-8 Zoning Districts.” We disagree. “A zoning ordinance, like any other legislative enactment, must be construed so as to ascertain and effectuate the intent of the legislative body.” In re Application of Construction Co., 272 N.C. 715, 718, 158 S.E.2d 887, 890 (1968) (citations omitted). We apply the same rules of construction to municipal zoning ordinances as apply to legislatively enacted statutes. Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjustment, 354 N.C. 298, 303, 554 S.E.2d 634, 638 (2001). In ascertaining the intent of a municipality in enacting the challenged ordinance, we must consider “the ordinance as a whole, . . . and the provisions in pari materia must be construed together[.]” George v. Town of Edenton, 294 N.C. 679, 684, 242 S.E.2d 877, 880 (1978) (citations omitted). Three of plaintiff's zoning ordinances are relevant to the disposition of the present case. First, plaintiff's Zoning Ordinance 8.6 governs plaintiff's “R-20 Residential Agricultural Districts.” “R-20" districts are multi-use which expressly allow “[a]ny form of agricultural, horticultural, or husbandry uses excluding poultry houses and hog parlors,” and further allow the construction of “public or private stables.” (Emphasis added). Next, Zoning Ordinances 8.7 and 8.8 govern “R-10 Residential Districts” and “R-8 Residential Districts,” respectively. These are, as their titles indicate, typical residential districts allowing family housing, schools, churches, and other similar and ancillary uses. Plaintiff maintains “R-10" districts to encourage the construction and use of land for residential purposes. Likewise, the town maintains “R-8" districts for residential purposes, but with a slightly higher density than “R-10" districts. Plaintiff's ordinances do not allow agricultural uses in district "R-20" or "R- 8.” Defendant's property lies within a “R-8 Residential District.” Here, it is uncontroverted that defendant maintained and sheltered horses within a “R-8 Residential” district. Although this particular use was expressly permitted in “R-20" districts, it was not allowed in a “R-8" district, the district within which defendant resided. It follows that defendant was in clear violation of plaintiff's Zoning Ordinance 8.8.Defendant contends, to the contrary, that her horses were not kept for husbandry or other similar purposes but only as pets, the ownership of which was allowed in her zoning district. We are unpersuaded by defendant's arguments as there is a marked difference between animals ordinarily kept as pets, such as dogs and cats, and a group of horses. This conclusion is confirmed by our General Assembly's consistent categorization of horses as “livestock.” See County of Durham v. Roberts, 145 N.C. App. 665, 669-70, 551 S.E.2d 494, 497-98 (2001) (concluding upon examination of various state statutes concerning animal licensing and the like that horses are livestock). Furthermore, “raising livestock” is an activity squarely within the traditional and ordinary meaning of the word “agriculture,” the uses of which are not permitted within district “R-8.” Webster's New International Dictionary 44 (3rd ed. 1968). Defendant further contends that the structure housing the horses was also allowed in her “R-8"
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