Cheape v. Town of Chapel Hill, 96PA87
| Decision Date | 03 September 1987 |
| Docket Number | No. 96PA87,96PA87 |
| Citation | 359 S.E.2d 792,320 N.C. 549 |
| Court | North Carolina Supreme Court |
| Parties | Kathleen S.H. CHEAPE, John W. Dixon, Jr., Vivian S. Dixon, James Eder, Mary Eder, Dana Fowlkes, John B. Graham, Scott Herman-Giddens, Lawrence F. London, Emily Dewey London, Susan Lord, Eva McKenna, Rosalie Massengale, George V. Taylor, Margaret E. Taylor, James M. Webb v. TOWN OF CHAPEL HILL, A Municipal Corporation, James C. Wallace, Mayor, Julie Andresen, Councilmember, David Godschalk, Councilmember, Jonathan Howes, Councilmember, David Pasquini, Councilmember, Nancy Preston, Councilmember, R.D. Smith, Councilmember, Bill Thorpe, Councilmember, Arthur Werner, Councilmember, and Fraser Development Company of North Carolina. |
Thomas S. Erwin and Hall, Hill, O'Donnell, Taylor, Manning & Shearon by Raymond M. Taylor, Raleigh, for plaintiffs-appellants.
Womble, Carlyle, Sandridge & Rice, by G. Eugene Boyce and Elizabeth L. Riley, and Adams, McCullough & Beard by Robert W. Spearman, Blair S. Levin, and Douglas Q. Wickham, Raleigh, for defendants-appellees.
Lacy H. Thornburg, Atty. Gen. by Douglas A. Johnston, Asst. Atty. Gen., amicus curiae.
Fred P. Baggett, General Counsel, and S. Ellis Hankins, Associate General Counsel, Raleigh, for North Carolina League of Municipalities, and Henry W. Underhill, Jr., City Atty., and H. Michael Boyd, Deputy City Atty., Charlotte, for The Office of the City Attorney, Charlotte, amici curiae.
Plaintiffs raise four issues before this Court. Initially, they contend that the case should be remanded to the Superior Court, Orange County, for a determination of their standing to bring the instant action. On the merits, they argue that Chapter 961, Session Laws of 1984, is unconstitutional because it is a local act regulating trade and because it permits the Town of Chapel Hill to engage in a joint venture not for a public purpose, acts prohibited by the North Carolina Constitution. Plaintiffs also specifically attack the sale of air rights by defendant Town to Fraser Development Company of North Carolina as being an invalid transaction. We hold:
1) plaintiffs' contention that their standing remains an issue is without merit;
2) Chapter 961, Session Laws of 1984, does not regulate trade in violation of Article II, section 24(j) of the North Carolina Constitution;
3) the agreement between the Town of Chapel Hill and Fraser Development Company does not create a joint venture;
4) the Town of Chapel Hill has the power to convey air rights as discussed herein.
On 22 June 1984, the General Assembly ratified House Bill 1563, which accordingly became Chapter 961, Session Laws of 1984. This act (hereinafter called "The Chapel Hill Act") provides as follows:
AN ACT TO ALLOW THE TOWN OF CHAPEL HILL TO PARTICIPATE IN ECONOMIC DEVELOPMENT PROJECTS.
The General Assembly of North Carolina enacts:
Section. 1. Chapter IV of the Charter of the Town of Chapel Hill, being Chapter 473, Session Laws of 1975, is amended by adding a new Article to read:
(a) In addition to any other authority granted by law, the Town of Chapel Hill may accept grants, expend funds, make grants or loans, acquire property and participate in capital economic development projects, which the Town Council determines will enhance the economic development and revitalization of the Town in accordance with the authority granted by this Article. Such project may include public and/or private buildings or facilities, financed in whole or in part by federal or State grants (including but not limited to urban development action grants), and may include any capital expenditures which the Town Council finds necessary or desirable to complement the project and improve the public tax base and general economy of the Town. By way of illustration, but not limitation, such a project may include the construction or renovation of any one or combination of the following projects:
(1) Privately owned hotel.
(2) Privately owned office building.
(3) Housing.
(4) Parking facilities.
Such project may be partially financed with Town funds received from federal or State sources and being granted or loaned to the private owner for said construction or renovation; in addition, other Town funds from any sources may be used for acquisition, construction, leasing and/or operation of facilities by the Town for the general public and for capital improvements to public facilities which will support and enhance the private facilities and the general economy of the Town.
(b) When the Town Council finds that it will promote the economic development or revitalization in the Town, the Town may acquire, construct and operate or participate in the acquisition, construction, ownership and operation of an economic development project or of specific buildings or facilities within such a project and may comply with any State or federal government grant requirements in connection therewith. The Town may enter into binding contracts with one or more private parties or governmental units with respect to constructing, owning or operating such a project. Such a contract may, among other provisions, specify the responsibilities of the Town and the developer or developers and operators or owners of the project, including the financing of the project. Such a contract may be entered into before the acquisition of any real property necessary to the project by the Town or the developer or other parties.
(1) If the property was acquired under the urban redevelopment law, the property interests may be conveyed in accordance with that law.
(2) If the property was acquired by the Town directly, the Town may convey property interests by any procedure set forth in this charter, or the general law or by private negotiation or sale.
Sec. 2. This act is effective upon ratification.
Pursuant to this Act, the Town of Chapel Hill (hereinafter "Town") passed a resolution on 30 January 1985 finding, inter alia, that a parking shortage existed in downtown Chapel Hill and that the Town had negotiated an agreement with co-defendant Fraser Development Company (hereinafter "Fraser") for the development of certain property owned by the Town, located in the heart of downtown Chapel Hill, as an economic capital development project. The resolution declared this area an economic capital development project area. The area in question is located on Rosemary Street at the intersection of Rosemary and Henderson Streets, behind the shops fronting Franklin Street (Chapel Hill's main street).
The "agreement" between the Town and Fraser is actually two agreements, the development agreement itself and a garage lease agreement. Both are long and complex. Essentially, the development agreement provides for the construction of a four-level public/private parking garage with 516 parking spaces, to be surmounted by a "private section" consisting of a condominium inn with 188 units, a restaurant, shops, offices, and a "plaza" area. Fraser was to have title to 188 spaces in the parking garage; the Town was to own the rest. In very basic terms, the Town agreed to deed to Fraser the air rights for the private section and the 188 parking spaces, to give Fraser a ground lease of the site for $100 per year in rent, to pay a pro-rata share of the costs of constructing the garage through issuance of bonds, and to designate Fraser "construction administrator" in return for a fee. Fraser, for its...
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...of sovereign immunity, see, e.g., Town of Emerald Isle , 320 N.C. at 648–52, 360 S.E.2d at 761–63 ; Cheape v. Town of Chapel Hill , 320 N.C. 549, 557–60, 359 S.E.2d 792, 797–99 (1987), with such results obtaining even in cases involving challenges to legislation related to annexation and th......
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...whether Sullivan II and III violate Article II, Section 24 of the North Carolina Constitution. See Cheape v. Town of Chapel Hill, 320 N.C. 549, 558, 359 S.E.2d 792, 797 (1987). Asheville contends Sullivan II and III relate to health and sanitation, and are thus violative of Article II, Sect......
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State v. Roache
...found the necessary "good cause." See State v. T.D.R., 347 N.C. 489, 506, 495 S.E.2d 700, 710 (1998); Cheape v. Town of Chapel Hill, 320 N.C. 549, 557, 359 S.E.2d 792, 797 (1987). Defendant's assignment of error is overruled. Defendant further argues that the improper jury selection procedu......