*1 APPEALS IN THE OF COURT v. (1992)] BAREFOOT, BAAS, FRIZZELLE, B. DEBBIE JOHNNIE J. MARTIN ROSCOE STEWART, BETHEA, CHALMERS, L. V. D. WILLIAM N. RICHARD HAYES, MATTHES, STEWART, STEVENS, L. MELVIN THOMAS FOSTER DOUGLAS, PHILLIPS, THORNE, BENNY J. WAYNE RONNIE CALVIN TURNER, OTHERS, CURRIN, AND Plaintiffs HARNETT G. LINWOOD STEWART, SHAW, COLLINS, COUNTY, BILL RUDY REID LLOYD MACK County Commissioners, HUDSON, SMITH, THE HARNETT MAYO COUN- ADJUSTMENTS, SORRELL, P. TY H. L. C. ZONING BOARD OF WHITESIDE, TARKINGTON, ANDREWS, and DAN HAROLD BLOUNT ALLEN, Defendants No. 9111SC247 (Filed 1992) May — (NCI3d)— 30.20 Municipal Corporations sufficiency notice —

Summary was judgment properly granted for defendant county in a to a ordinance where challenge the first notice was the second inadequate gave plaintiffs but the oppor- tunity present objections map their as it pertained county. to their of the The first notices of .section to the enactment of the hearing zoning ordinance were neither nor adequate apprise plaintiffs reasonable and other within the County landowners southern section of Harnett pending process adopting zoning ordinance where the notices were entitled “NOTICE OF PUBLIC HEARING ON Map and First The title was misleading adequate- failed to Quadrant.” ly apprise those landowners in the southern section of the county that their be affected rights might proposed ordinance. defendant Although argues plain- tiff landowners did in fact have notice of the ordinance because some plaintiffs attorney and one plaintiff’s were at present hearing, there is no evidence the record which shows that all of the plaintiffs or landowners in the southern section of Harnett had actual notice of the purpose intended However, of the hearing represented or were at the hearing. defendant gave proper notice to the residents of the southern section in the second notices which were after the enactment of the zoning ordinances and which stated that there would be a on the zoning map for the southern County. half of Harnett The second notices contended, were not inadequate, plaintiffs as they because THE OF IN COUNTY v. HARNETT

FRIZZELLE App. 234 *2 [106 or extension to the enactment and not only map

related county, because half to the southern the ordinance of is an accom- that there implies the mentioning map the mere only re- 153A-344 text. N.C.G.S. ordinance zoning panying § zoning and map both the prepare to zoning agency the quires ordinance; mentioned that both be it not require does notice. legal title of the 50, 2d, §§ 53. Planning Zoning Jur and

Am requirements statutory notice Validity and construction zoning ordinance or amendment adoption to prerequisite 96 ALR2d 449. regulation. — — (NCI3d) zoning ordinance § 30.20 Corporations 2. Municipal implemented county —zoning map have for entire failure to —no error by area area basis on merit where plaintiffs was without

Plaintiffs’ contention there was invalid because ordinance contended that a at county half of the available of the southern map was no the ordinance was when public county to not require 153A-342 does adopted. N.C.G.S. § its county objective when map for the entire have N.C.G.S. by area area basis. on an implement zoning is 153A-342; with N.C.G.S. conjunction read in 153A-344must be § § only a map indicates that together the two statutes reading of the ordinance and the full text being the area then zoned required. are 2d, §§ 53. Planning and Zoning

Am Jur — (NCI3d)— zoning § 30.20 Municipal Corporations 3. procedures amendment — county to section of the of the southern The addition zoned, half, an already constituted which was

the northern ap- 153A-343 ordinance. N.C.G.S. amendment to the areas to be zoned. are available for only maps when tax plies 49, 53. 2d, §§ Planning and Am Jur (NCI3d)— zoning ordinance— § 30.20 Municipal Corporations 4. followed —set aside for amendment —not requirements notice the southern set aside as to A amendment was unequivocal clear and County where the section of Harnett by notice mail required itself language IN THE COURT OF v. posting property and be zoned and failed procedures to follow its own as delineated the ordinance that it wrote. contended that the sections Although apply changes of the ordinance and amendments made area, adoption after the initial of the ordinance in a particular was the drafter of the ordinance and failed to county-wide zoning exclude from the sections notice requiring and mail. posting 2d, Am Jur Planning Validity and statutory construction of notice requirements *3 prerequisite adoption or amendment of ordinance regulation. 96 ALR2d 449. (NCI3d)— § 5. Limitation of Actions 16 challenge — statute of limitations in —raised affidavit The defendants in a challenge to a could not raise the statute of limitations in 1-54.1 N.C.G.S. where affirmatively defendants failed to plead the statute of limita- answer, tions their but raised it summary affidavit at the judgment hearing. Although an affirmative defense be raised for the first time affidavit for the purpose ruling summary on judgment, both parties must be aware of the defense and there is evidence this case plaintiffs that no. were aware of the defense. 2d,

Am Jur Limitation of Actions Judge ORR concurring the result. by plaintiffs Appeal judgment from entered December 1990 Jr., Butterfield,

by G. K. in HARNETT County Superior Court. Heard in the Appeals Court of 4 December 1991.

Plaintiffs initiated this suit 4 August on contesting the validity of the enactment and implementation County of a Harnett zoning ordinance and its application to the residents and landowners southern County. section of Harnett Defendants filed a mo- tion to dismiss and an answer denying invalidity of the zoning ordinance and seeking dismissal of plaintiffs’ discovery, action. After parties both filed summary motions for judgment. Defendants’ mo- summary tion for judgment was granted. Plaintiffs gave timely notice appeal.

IN THE OF

FRIZZELLE v. notices County Board of The Harnett Commissioners Hearing entitled: “NOTICE newspapers, in various local OF PUBLIC Map First Ordinance hearing purpose The notices stated QUADRANT.” County on the residents of Harnett was “to hear the views of addition, will Text. proposed Zoning in the first zoning quadrant views of the residents also solicit of this zoning map quadrant.” on the district boundaries and County Harnett into Cape roughly The Fear River divides The notices defined the first zoning northern and southern sections. as “the area north of the Fear River and west quadrant Cape hearings, of North 210.” At the time of these Highway Carolina July only map showing proposed to 18 district boundaries, Fear Cape related to the first north of quadrant River. voted on

The Harnett Board Commissioners II provid- 1988 to ordinance. Article of the ordinance adopt of the Ordinance shall to the unincor- provisions apply ed “[t]he County as identified and porated specifically areas of Harnett as ‘The zoning map Map delineated on the identified Official ” time, County, map relating Harnett North At that no Carolina.’ to the southern section of the was available. *4 1988, The notices

In of notices were again published. October MAP were entitled: THE OF PUBLIC HEARING ON ZONING “NOTICE County.” pur- The stated the Southern Half of Harnett for the views of the residents pose hearing of this was “to solicit the Southern County proposed Zoning Map of Harnett on the River).” (all County Cape Half the of the area South of the Fear addition, was address an amendment to the hearing to fourth residential district to ordinance text which would add a ordinance. resolution, 1989, by County the Harnett Board April On 3 they imple- deemed it “appropriate of Commissioners stated 18, County, July adopted ment the Ordinance for Harnett 1988, County[.]” Section of Harnett It was resolved the Southern and become County that “the for Harnett shall be Zoning Ordinance County in Harnett unincorporated effective all of the areas applied, ... has not heretofore to which said sections and that for the northern and southern Zoning Maps THE OF IN App. 234 18, 3, in- 1988 and 1989 be County July April Harnett dated County[.]” for Harnett Zoning Maps to form Official tegrated Bain plaintiffs-appellants. and Alton D. R. Bain Edgar for defendants-appellees. W.A. Johnson Johnson and W. Glenn JOHNSON, Judge.

[1] Plaintiffs, contesting validity the Harnett County zoning county, argue first section of as to southern ordinance for sum defendants’ motion granting that the trial court erred hearing prior notices of the mary because the judgment were neither July on 18 enactment other landowners adequate apprise plaintiffs reasonable nor pending proc the southern section of Harnett within therefore, ordinance; the notices were adopting ess of (1987)and due of law. process 153A-323 in contravention granted pleadings, deposi- is if Summary judgment properly file, tions, any with together on interrogatories, and admissions affidavits, any issue as to material genuine show that there is no summary as a matter judgment is entitled to party fact and that a 252, Co., 266 S.E.2d v. Insurance 300 N.C. of law. Johnson (1980). 610, 615 adopting 153A-323 that before provides Statutes General authorized Article the board amending any the ordinance or public hearing shall hold a of commissioners shall cause The statute further that the board provides amendment. once a week for two successive notice of the to be published be not less published calendar weeks and that the notice shall twenty-five days before the date days than ten nor more than the Board caused disputed fixed for the It is not hearing. or- to its enactment of the published prior notices to be however, contend, Plaintiffs-appellants on 18 dinance inadequate, failing were insufficient and that the notices 153A-323 and due of law. process with G.S. comply whose are to process, parties rights of due guarantee As *5 593, Wilson, In re 257 N.C. are entitled to be heard. be affected 187, Wheeler, 596, 489, (1962); v. 249 N.C. 126 S.E.2d 491 State 303, 304, 615, (1958); 193, 238 Gupton, 621 In re N.C. 105 S.E.2d (1953). 716, elé- notice is an essential Consequently, 77 S.E.2d 717 Zuckerman, P.A. Schupak, ment of due Forman & process. IN THE COURT OF APPEALS v. App. (1978). 17, Carolina, 247 S.E.2d 266 In North due process requires adequate notice and an opportunity to be heard. Id. The notice must required reasonably be calculated under all apprise circumstances to interested parties pendency of the action or proceeding and afford them an opportunity to present Id.; their objections. Mullane v. Central Hanover Bank & Trust Co., (1950). 306, 314-15, 865, 339 U.S. 94 L.Ed. The notice must information, also reasonably convey the required as well as afford a reasonable time for those interested to make their Id. appearance. judice, the case sub the first notices published were not notices, adequate. The first published prior to 18 were entitled: “NOTICE OF PUBLIC HEARING ON ZONING AND ORDINANCE Map The title of this notice for Quadrant.” First indicated that the zoning only ordinance was for the first quadrant. The conjunction “and” allowed the reasonable inference that ordinance and the zoning map was exclusive- ly for residents of quadrant. the first We find the notice title misleading, and are of the opinion that it failed adequately ap- prise those landowners the southern county section of the their rights might be affected the proposed zoning ordinance. We find the notices inadequate notwithstanding the in- language notice, body cluded which attempts to explain that residents, the hearing is for Harnett goes but on to speak only of soliciting “the views of residents the first zoning quadrant on the district boundaries and zoning map of this quadrant.”

Defendant argues that plaintiff landowners did in fact ordinance, have notice of the zoning is evidenced presence of some plaintiffs and one plaintiffs attorney at the hear- ing. There is no evidence in the record which shows that all of plaintiffs landowners in the southern section of Harnett County had actual notice of the intended purpose of the hearing evidence, represented or were at the In the hearing. absence of such we are unwilling to hold that parties all interested had notice however, consistent with procedural due process. We do recognize, that such necessary notice was not county’s since the intent at time was to zone the northern section of the county. Moreover, defendant gave proper notice to the residents of the southern section of the in the second notices which were published after the enactment of the zoning ordinance on notices, 18 July 1988. Those in October of stated that there would be a hearing zoning map on the for the southern *6 THE IN COURT OF

FRIZZELLE v. (1992)] App. 234 [106 Plaintiffs, County. hearing, oppor- at this had half of Harnett to the as it tunity objections zoning map pertained to their present county. their section of the to when the second notices were complain

Plaintiffs also that section, zoning for of the southern published regarding hearings to the or exten- only map, the notices related to the not enactment county. the ordinance to the southern half of the The notices sion of stated: Map Hearing Zoning

Notice Public County. . . . purpose The Southern Half of Harnett this is to solicit the views of the residents of Harnett hearing County on the for the Southern half proposed Zoning Map addition, will countyf.] of the also address an to the Text which would add amendment a fourth Residential District to the Ordinance. The plaintiffs’ argument unpersuasive. mentioning We find mere map implies accompanying of the that there is an zoning (1987) Moreover, text. 153A-344 requires G.S. § ordinance; prepare to both the and the statute agency map does not that mentioned in the title of require the.legal both be notice. We find that the residents of the southern section of Harnett County did have an adequate opportunity prepare notice and present objections pending process. assign- their This ment of error is overruled.

[2] Plaintiffs next argue that the failed to conform to the provisions enacting of G.S. 153A-344 county. as it to the southern section of the pertains General Statute 153A-344 provides that order to exercise the power granted § under the portion of Article shall create designate planning agency prepare proposed which shall then ordinance, zoning' both the full text of such ordinance including and maps showing proposed argue district boundaries. Plaintiffs county’s failure to have a for those areas south zoning map Fear River Cape disagree, is fatal. We recognizing county-wide may be undertaken on an area (1987) by area basis 153A-342 pursuant provides: county may

A divide its territorial jurisdiction into districts number, any it shape, and area that consider best carry A purposes suited to out the of this Part. ... THE OF APPEALS IN FRIZZELLE v. HARNETT COUNTY App. 234 require interest does not public that the may determine county be zoned and jurisdiction the entire territorial *7 as of that portions jurisdiction one or more may designate a area or zoning areas[.] case, we conclude that G.S. this statute to the instant

Applying county zoning map the to have a require 153A-342 does not § for the zoning objective implement entire when its is to 153A-344, re- Statutes by area basis. General on an area § zoning including planning agency prepare the quires the map showing proposed full text of the ordinance and a both the boundaries, 153A-342. with G.S. conjunction must be read district § the full text A the two statutes indicates that reading together being the area then zoned only map the ordinance and invalid be- that the ordinance is argument is Plaintiffs’ required. county avail- of the southern half of the map cause there was no 1989, therefore, is without public hearing able at merit.

proper ^[3] G.S. § Plaintiffs county by procedures to extend 153A-344, also contend that amendment and the terms the ordinance to the southern pursuant to G.S. failed § ordinance. 153A-343 to follow the section (1987), provides: Statutes 153A-344 General and zone boundaries and restrictions Zoning regulations modified, amended, changed, supplemented, from time to time be territory existing added to an Whenever is repealed. area, as amendment it shall be treated an designated zoning that area. to the ordinance for of the southern section Accordingly, the addition zoned, an amend- already which was constitutes to the northern half that the amendment argue ordinance. Plaintiffs ment to Plaintiffs, 153A-343. by governed to the ordinance is however, incorrect, tax maps when applies are as this statute zoning, At the time of the the areas to be zoned. are available for County. assign- This tax available for Harnett maps there were no overruled. ment of error is also

[4] application, Although G.S. Harnett 153A-343 is County Zoning qualified and restricted does not contain in its XIII, 3.1 of the sections 3.0 and restrictions. Article such of Commis- time to time the Board that from provide IN THE COURT OF APPEALS v. inay sioners amend the ordinance according following procedure:

Notice Public Hearing

No amendment or map change shall be adopted by Board of Commissioners until and after public notice and hear- ing. public Notice of shall be in a newspaper of general county, circulation at least once a week for two successive weeks to the hearing, the first publication not less being days than 15 nor more than 25 days before the date of the hearing. Notices shall by also be made posting the property concerned and sending notices first class mail to owners of the affected and surrounding property. The Zoning Administrator shall responsible be mailing notices *8 and certifying that the notices were sent.

The clear and unequivocal language of the zoning ordinance itself requires by notice mail and posting of the property to be zoned.

Because the county failed to follow its own procedures as delineated wrote, in the zoning ordinance that it the zoning ordinance must be adjudicated invalid as to the southern section of the county. Our decision finds support Lee v. Simpson, 44 N.C. App. disc, 611, 295, denied, 261 737, S.E.2d review 299 N.C. 267 S.E.2d (1980). 662 In Simpson, the issue was whether the County Union Board of Commissioners provisions violated the of the county’s zoning ordinance when it failed to give notice to adjoining land- holders as required by the ordinance. The ordinance required part that petitions for change the zoning map shall “[a]ll include a legal description of the property involved and the names and addresses of current abutting property Petitioners’ names owners[.]” and addresses were not listed in the rezoning petition. The or- dinance also required the mailing of copies of the petition to the landowners at their last by known address regular mail. The notify failed to the owners in way. this Simpson The Court held that although the 153A-323, board have with complied it Court, must also with comply its own rule. The setting aside, amendment stated: procedural

The rules of an administrative agency are binding upon the agency which enacts them as well as upon the public. valid, ... To be the action of the agency must conform to its rules taken, which are in effect at the time the action is 243

IN THE OF FRIZZELLE v. App. 234 N.C. safeguards designed provide procedural those

particularly Aldermen, Refining Co. v. Board rights. for fundamental 129, (1974); 458, 467-68, George 135 202 S.E.2d (1978). Edenton, Town S.E.2d judice, 296. In the case sub at 261 S.E.2d at Simpson it to the southern is also quadrant ordinance as relates zoning comply failed to with its own notice invalid because board requirements. XIII, 3.0 and

Defendant contends that Article sections only to and amendments zoning apply changes 3.1 of the ordinance in a adoption par- after the initial made area, proper- intent was “that purpose posting ticular and the and adjoining property of owners of relates ty and notification with to the parcels property, respect to actions to re-zone not north or all of the area south initial of all of area In light Fear River.” of the fact that defendant Cape the ordinance in and in a question position was the drafter of chose, unwill- any to include restrictions and it we are qualifications unmanifested, unwritten weight county’s ing give great County county-wide from intention. Harnett failed to exclude 3.0 3.1 the notice requires posting sections and therefore, mail; are, the instant applicable the sections case. Because the Harnett Board of Commissioners violated amending own ordinance’s notice requirements its ordinance, the amendment must be set aside as to the southern county. section of the

the nine month statute of limitations ^[5] *9 addition, defendants argue that set out in this action is barred 1-54.1 (1983). by the statute of limitations affirmatively plead Defendants failed to answer, by summary defense affidavit at the its but raised the may be raised hearing. Although an affirmative defense judgment on a by purposes ruling for the first time affidavit for the must be aware of the summary judgment, parties motion for both Autry, God v. 94 N.C. Heights App. defense. Wilson Church of Sales, (1989); Auto Whitley’s v. Discount 379 S.E.2d 691 Gillis (1984). case, In this there is 70 319 S.E.2d 661 App. were of the defense. indicating plaintiffs evidence aware no considered, was, if it The defense should not have been summary in granting judgment. trial court the trial court is The decision of IN OF APPEALS

244 THE COURT v. HOLDEN

STATE 244 Reversed. EAGLES concurs.

Judge by separate opinion. the result Judge concurring ORR in the result. concurring ORR Judge I with notices agree majority original apprise 1988 were residents of southern inadequate adopt intent to section of of the Commissioners’ not properly ordinance. Those citizens the southern section were However, disagree of this enactment. I with the pending notified 1988pertain- conclusion that the second notice of majority’s October to the southern was to overcome ing adequate half failure. notice pertained pro- the earlier This second Zoning Map and not to the enactment of the actual posed already without proper had been enacted notice county. to the residents of the southern section of the concludes, however, majority Since the that the trial court’s on a properly decision should be reversed based failure to amend ordinance, I in the result. concur STATE OF NORTH CAROLINA WILLIAM LESTER HOLDEN No. 9129SC165 (Filed 1992) May (NCI4th)— § of child rape —prior 1. Evidence Witnesses irrelevancy abuse of child another — child, degree In a first prosecution rape evidence in 1986 that someone else have abused the child was 8C-1, Rule irrelevant and not admissible under N.C.G.S. § 412(b)(2) her in that defendant did not abuse 1989. show 2d, Am Jur Rape (NCI4th)— question Law for new

2. Criminal motion trial — —hearing required of law not *10 The trial not err defendant’s motion denying court did only a question for a new without a where trial