An unpublished opinion of the North Carolina Court of Appeals do es not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14

- 177 NORTH CAROLINA COURT OF APPEALS Filed: 16 September 2014

KIM CASOLA, ANTONIO CASOLA, A CASOLA MOTORSPORTS, LLC, d/b/a TRI
- COUNTY MOTOR SPEEDWAY , Plaintiff s

v. C aldwell County No . 12 CVS 839 CALDWELL COUNTY, NORTH CAROLINA , Defendant

Appeal by plaintiffs from order entered 19 August 2013 by Judge Timothy S. Kincaid in Caldwell County Superior Court. Heard in the Court of Appeals 4 June 2014
.

W. Wallace Respess, Jr. , for p laintiff

- a ppellant s . Davis and Hamrick, L.L.P., by Ann C. Rowe , and Wilson, Lackey & Rohr, P.C., by David S. Lackey, for defendant

appellee
.
CALABRIA, Judge.

Kim and Antonio Casola (“the Casolas”) and A Casola Motorsports , LLC, d/b/a Tri

- County Motor Speedway (“the Speedway”) ( collectively “ plaintiff s ”) appeal from the trial- 2
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court’s order granting summary judgment in favor of Caldwell County, North Carolina (“ the County” or “ defendant”) . We affirm
. I. Background The Casolas own and operate the Speedway , a rac etrack which is located in a n area that is zoned primarily for residential and agricultural use pursuant to defendant’s zoning ordinance
. The Speedway has operated as a grandfathered nonconforming use since the adoption of the zoning ordinance in 1990
. During its operation, t he S peedway has been the subject of multiple complaints from residents in the surrounding community , who alleg e that the noise from the Speedway interfere s with the enjoyment of their homes
. In 2009, defendant conducted a study of t he noise levels coming from the Speedway and another racetrack in the County . In December 2009 , the Caldwell County Board of Commissioners (“the Board”) scheduled a public hearing regarding a proposed ordinance (“the ordinance”) designed to limit the dates and time s racing was allowed at the studied racetracks. Specifically , the ordinance permitted racing, testing , and practice (1) only during the months of March

October and (2) only on Thursdays, Fridays and Saturdays, limited to two of those days pe r week. At the conclusion of the public hearing on 7 December 2009, t he Board voted unanimously
to enact the ordinance. The Board amended the ordinance on 21 December 2009 to exempt race events that had been scheduled- 3
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prior to the effective date of the or dinance and to allow the Board to grant special use permits for the raceways to operate at times not otherwise permitted by the ordinance
. Shortly thereafter, plaintiffs filed a complaint challenging the ordinance in Caldwell County Superior Court. Plaint iffs voluntarily dismissed this complaint without prejudice on 14 January 2011. On 18 June 2012, p laintiffs filed

a new complaint seeking to have the ordinance declared void. Specifically, plaintiffs’ complaint allege d that the ordinance was invalid because it violated plaintiffs’ due process and equal protection rights , state regulatory laws , and state zoning laws. On 10 July 2013, d efendant filed a motion for s ummary j udgment . After a hearing on the motion, the trial court entered an order grant ing summary judgment in favor of defendant on 19 August 2013
. Plaintiffs appeal. II. Rule Violations As an initial matter, we are compelled to address the numerous violations of the Rules of Appellate Procedure by plaintiffs. Plaintiffs’ brie f fails to include a statement of the issues presented for review, a statement of the procedural history, a statement of the grounds for appellate review, and a full and complete statement of the facts, all of which are required by N.C.R. App. P. 28(b) (20 13). Nonetheless, plaintiffs’ rule violations are not so egregious as to require- 4
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dismissal of this appeal. See Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co. , 362 N.C. 191, 200, 657 S.E.2d 361, 366 (2008) (Dismissal of an appeal is appropriate “ only in the most egregious instances o f non

- jurisdictional default[.]”). However, we admonish plaintiffs’ counsel to ensure compliance with the Rules of Appellate Procedure in the future.
II I . Standard of Review “Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows 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 re Will of Jones , 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal , 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)). When a mot ion for summary judgment is accompanied by supporting affidavits, “an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” N.C. Gen. Stat. § 1A

- 1, Rule 56(e) (2013)
. I V . Rational Basis Plaintiffs argue that the trial court erred by granting summary judgment in favor of defendant as to their claim that the ordinance violated their constitutional rights because there- 5
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is a genuine issue of material fact as to whether any rational basis for the ordinance exists . We disagree.
Pursuant to N.C. Gen. Stat. § 153A

- 133 (2013), “[a] county
may by ordinance regulate, restrict, or prohibit the production or emission of noises or amplified speech, music, or other sounds that tend to annoy, disturb, or frighten its citizens. ” Counties may also “ regulate and license occupations, businesses, trades, professions, and forms of amusement or entertainment and prohibit those that may be inimical to the public health, welfare, safety, order, or convenience. ” N. C. Gen. Stat. § 153A

134 ( 2013 )
.

[W]hen the exercise of the police power is challenged on constitutional grounds, the validity of the police regulation primarily depends on whether under all the surrounding circumstances and particular facts of the case t he regulation is . . . reasonably calculated to accomplish a purpose falling within the legitimate scope of the police power, without burdening unduly the person or corporation affected. Winston

- Salem v. R.R. , 248 N.C. 637, 642, 105 S.E. 2d 37 , 41 (1958). In the instant case, p laintiff s contend that t he ordinance , which limits the dates and times in which the racetrack may operate, does not have a legitimate purpose and further lacks a

ra tional basis for differentiating between the times racing is allowed and the times when it is not
. However, in support of- 6
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its motion for summary judgment, d efendant provided multiple affidavits which explained the nature of the citizen complaints which provided the impetus for the ordinance as well as explaining that the t ime limitations imposed by the ordinance were consistent with the historical uses of the Speedway. These affidavits sufficiently demonstrated that defendant was acting within its police powers when enacting the ordinance and that the ordinance was reasona bly calculated to deal with the noise issues caused by the Speedway while balancing the rights of plaintiffs to continue the Speedway’s protected historical uses.
P laintiff s presented no evidence which disputed defendant’s affidavits, and thus, failed to meet their burden of providing specific facts which would demonstrat e a genuine issue of material fact regarding whether defendant had either the authority or a rational basis to enact the ordinance
. Accordingly, the trial court properly granted summary judgment in favor of defendant as to this issue. This argument is overruled.
V . Failure to Re

- file Plaintiffs contend that the trial court erred in granting summary judgment for failure to re

- file the action within one year. We disagree.
Pursuant to N.C. Gen. Stat. § 1

- 54, the statute of limitations for “ contesting the validity of any zoning or- 7
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unified development ordinance ” is one year. N.C. Gen. Stat. § 1

- 54 (10) ( 2013 )
. In the instant case, the four th claim in plaintiffs’ compla int allege d that the ordinance operate d as unlawful “exclusionary zoning” and “spot zoning.” It is clear from defendant’s motion for summary judgment and the transcript from the hearing on the motion that this was the only claim that related to the trial court’s Rule 41 ruling. 1
Plaintiffs ’ original complaint was voluntarily dismissed on 14 January 2011
. Pursuant to N.C. Gen. Stat. § 1A

- 1, Rule 41 , when an action is voluntarily dismissed without prejudice, “ a new action bas ed on the same claim may be commenced within one year after such dismissal . . . .” N.C. Gen. Stat. § 1A

- 1, Rule 41(a)(1) (2013). “[I] t is well

- established that the statute of limitations is tolled by the filing of a Rule 41(a) voluntary dismissal, and th e plaintiff is not forbidden from subsequently refiling an action outside the statute of limitations period but within the period proscribed by Rule 41(a) .” Keyzer v. Amerlink, Ltd. , 164 N.C. App. 761, 765, 596 S.E.2d 878, 881 (2004). However, plaintiffs did not re

- file a new complaint until 18 June 2012, approximately eighteen months after they filed their voluntary dismissal
. Therefore, the tolling provision of Rule 41 was no longer applicable and plaintiffs’

1 The trial court’s order did not specifically refer to Rule 41, but the rule was referred to when the court orally rendered its decision at the conclusion of the summary judgment hearing.- 8
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claim that the ordinance was an invalid zoni ng ordinance was barred by the statute of limitations . Accordingly, the trial
court properly grant ed summary judgment in favor of defendant as to this claim. This argument is overruled.
V I . Non
- Conforming Use Finally, p laintiff s argue that there is a genuine issue of material fact as to whether the ordinance depriv ed plaintiffs of their grandfathered rights in a non - conforming use. However, as noted above, defendant submitted multiple affidavits which averred that the Speedway typicall y only operated during the days and times which were still permitted by the ordinance. Plaintiffs provided no evidence which contradicted these affidavits. Thus, plaintiffs failed to demonstrate a genuine issue of material fact as to this issue, and the trial court properly granted summary judgment in favor of defendant. This argument is overruled.
V II . Conclusion Plaintiffs failed to meet their burden of demonstrating a genuine issue of material fact as to whether defendant had a rational basis for enac ting the ordinance
. In addition,
p laintiffs failed to properly re

- file their claim alleging a violation of state zoning laws within the applicable statute of limitations. Finally, p laintiffs failed to establish a genuine issue of material fact as to the al leged deprivation of their- 9
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rights in a grandfathered nonconforming use of the Speedway
. Consequently, the trial court properly granted summary judgment in favor of defendant. The trial court’s order is affirmed. Affirmed
. Judges BRYANT and GEER concur . Report per Rule 30(e).