Town of Newton Grove v. Sutton, 111 N.C. App. 376, disc. rev. denied, 335 N.C. 181 (1993)

The North Carolina Fair Housing Act does not require a municipality to allow a mobile home for a handicapped person if location of the home would violate the zoning ordinance.

In 1988, the Town of Newton Grove denied a request to locate a mobile home behind the Suttons' single family residence to house their daughter who has a severe mental illness. The property in question is located in the C-1 business zoning district and the existing residential use is nonconforming under the zoning ordinance. Following passage of the Federal Fair Housing Amendments of 1988 and the North Carolina Fair Housing Amendments of 1989, the Suttons informed the town that, under those laws, they should be allowed to place the mobile home on their property and they intended to do so. The town brought this action seeking a temporary and permanent injunction to prohibit the Suttons from locating a mobile home on their property. The Suttons answered and counterclaimed under the state Fair Housing Act Amendments. After the trial court enjoined the Suttons from placing a mobile home on their property, the Suttons appealed.

The Court of Appeals noted that the parties had stipulated that the existing residential use is nonconforming. Furthermore, there was no question but that the Suttons' daughter is "disabled." The Court then considered whether a mobile home is permitted in the C-1 business district. Reviewing relevant ordinance provisions, the Court held that the addition of the mobile home would be an unlawful extension of a nonconforming use and the mobile home would not be a "customary accessory" use or structure under the ordinance. In addition, the Court rejected the notion that the board of adjustment should have granted a variance since the record is void of any evidence that the Suttons ever applied for a variance.
Next the Court considered the North Carolina Fair Housing Act. Citing the language of G.S. 41A-4(a), the Court indicated that, in order for the Act to apply, the discriminatory practice must "(1) occur in a 'real estate transaction', and (2) discriminate 'because of' one of the reasons listed in the statute," in this case the daughter's handicapped condition. Since the reason the town refused to allow placement of the mobile home was that it would violate the zoning ordinance, the denial was not "because of the daughter's handicapped condition." Furthermore, the effect of the denial was to preserve the business nature of the C-1 zoning district. The refusal was based on a classification of housing type and not on a physical or mental condition.
[Land Use; Ordinance Interpretation; Fair Housing]