Hoag v. Cnty. of Pitt
| Decision Date | 07 April 2020 |
| Docket Number | No. COA 19-826,COA 19-826 |
| Citation | 839 S.E.2d 875 (Table) |
| Parties | Ronald HOAG and Holly Hoag; Jeremy Gonzalez and Kristen Gonzalez; William Harrell and Kathryn Harrell; Eric Finical and Sally Finical; James Lawless and Lisa Lawless; Sandra Hardee ; Diane Semer; Joe McDowell and Lynell McDowell; Scott Pritchard and Donna Pritchard; Vincent Fischer and Patricia Fischer; Michael Bowman and Josie Bowman; John Lowe and Nelda Lowe; Beech Cove Subdivision Homeowners Association, Inc.; Holly Ridge Homeowner’s Association ; and Moss Bend Homeowners Association, Inc., Plaintiffs, v. COUNTY OF PITT; Bill Clark Homes of Greenville, LLC ; and Umberto G. Fontana, Defendants. |
| Court | North Carolina Court of Appeals |
Longleaf Law Partners, by Benjamin L. Worley, for Plaintiffs-Appellants.
Sumrell Sugg, P.A., by Scott C. Hart, for Defendant-Appellee County of Pitt.
Ward and Smith, P.A., by E. Bradley Evans, for Defendant-Appellee Bill Clark Homes of Greenville, LLC.
No brief filed by Defendant-Appellee Umberto G. Fontana.
Plaintiffs appeal from an order dismissing their complaint challenging a rezoning decision by Defendant County of Pitt (the "County") in favor of Defendant Bill Clark Homes of Greenville, LLC ("Clark Homes"). On appeal, Plaintiffs argue that their complaint adequately alleged special damages sufficient to survive a motion to dismiss under Rules 12(b)(1) and 12(b)(6) of the North Carolina Rules of Civil Procedure. After careful review, we affirm the trial court’s order dismissing Plaintiffs’ complaint.
The record below discloses the following:
Defendant Umberto G. Fontana owned a 67.5 acre tract of land (the "Property") in Pitt County which, by February 2018, Mr. Fontana had contracted to sell to Clark Homes.1 That month, Mr. Fontana and Clark Homes filed with the County a rezoning application requesting that the Property be rezoned from Rural Residential to Suburban Residential. The individual plaintiffs own property adjacent to or neighboring the Property. Several but not all of the individual plaintiffs opposed the rezoning and attended a County Planning Board meeting to speak in opposition. At that meeting, those opposed argued that the rezoning would be contrary to the County’s comprehensive land use plan, would negatively impact traffic congestion, and would create unsafe traffic conditions. They also provided a petition to the County Planning Board, in which they asserted the rezoning would: (1) result in development that would be inconsistent with the character of the surrounding area; (2) result in diminution of property values nearby, including those tracts owned by Plaintiffs; (3) be detrimental to the floodplain, nearby streams, and the Tar River; (4) cause adverse impacts to local infrastructure, including NC Highway 33 E; and (5) increase traffic congestion and lead to unsafe traffic conditions in the area. The County Planning Board ultimately voted to recommend that the County Board of Commissioners deny the rezoning application.
The rezoning application, along with the Planning Board’s recommendation, came before the Commissioners in a public meeting on 23 April 2018. Some of the Plaintiffs again spoke in opposition. The Commissioners voted to delay a determination on the application until a later meeting. The Commissioners next considered the matter on 7 May 2018 in another public meeting, and several of the Plaintiffs again spoke in opposition. The Commissioners voted to approve the rezoning application.
Plaintiffs filed a declaratory judgment action in Pitt County Superior Court challenging the rezoning. Plaintiffs’ complaint reiterated the objections to the rezoning raised in their petition and hearing before the County Planning Board. They further alleged that:
Clark Homes filed a combined answer and motion to dismiss under Rules 12(b)(1) and 12(b)(6). The County filed a motion to dismiss under Rule 12(b)(6) in lieu of an answer. Both motions asserted that the Plaintiffs lacked standing.
The motions were heard by the trial court on 13 November 2018. The trial court took the matter under advisement.
On 30 April 2019, the trial court entered an order dismissing Plaintiffs’ complaint. The order concluded that "Plaintiffs have not sufficiently alleged special damages arising from the zoning decision at issue" and the three homeowner’s association plaintiffs "have not alleged that either the associations themselves or all members of the associations have a specific legal interest directly and adversely affected by the rezoning in question." Plaintiffs now appeal.2
Standing may be challenged by a motion to dismiss under either Rule 12(b)(1) or 12(b)(6). Farfield Harbour Property Owners Ass’n, Inc. v. Midsouth Golf, LLC , 215 N.C. App. 66, 72, 715 S.E.2d 273, 280 (2011). Rowlette v. State , 188 N.C. App. 712, 714, 656 S.E.2d 619, 621 (2008) (internal citations and quotations omitted). "In our de novo review of a motion to dismiss for lack of standing, we view the allegations as true and the supporting record in the light most favorable to the non-moving party." Mangum v. Raleigh Bd. of Adjustment , 362 N.C. 640, 644, 669 S.E.2d 279, 283 (2008). "[T]he [C]ourt is not, however, required to accept mere conclusory allegations, unwarranted deductions of fact, or unreasonable inferences as true." Estate of Vaughn v. Pike Elec., LLC , 230 N.C. App. 485, 493, 751 S.E.2d 227, 233 (2013) (citations omitted).
A party challenging a local government’s decision to rezone another’s real property "must allege and show special damages distinct from the rest of the community." Davis v. City of Archdale , 81 N.C. App. 505, 508, 344 S.E.2d 369, 371 (1986) (citation omitted). "Examples of adequate pleadings include allegations that the rezoning would cut off the light and air to the petitioner’s property, increase the danger of fire, increase the traffic congestion and increase the noise level." Kentallen, Inc. v. Town of Hillsborough , 110 N.C. App. 767, 769-70, 431 S.E.2d 231, 232 (1993). The plaintiff must provide a "factual basis to support the argument that he is an aggrieved person[.]" Cox v. Town of Oriental , 234 N.C. App. 675, 680, 759 S.E.2d 388, 391 (2014) ; see also Kentallen, 110 N.C. App. at 769, 431 S.E.2d at 232 ().
Plaintiffs argue that their complaint adequately alleges special damages, because it generally follows the language employed by the plaintiff in Cherry Community Organization v. City of Charlotte , 257 N.C. App. 579, 809 S.E.2d 397 (2018). In that case, the authoring judge of this Court quoted the plaintiff’s complaint and stated that "it is clear that [the plaintiff] met the minimum pleading requirements of standing to survive a motion to dismiss in accordance with Rule 12(b)(6) ... in generally alleging special damages." Id. at 584, 809 S.E.2d at 401. Cherry Community is of limited precedential and persuasive value because the opinion failed to garner a clear majority; one judge concurred in the result only, while the other member of the panel concurred by separate opinion and wrote "separately to concur in the result only." Id. at 587, 809 S.E.2d at 403. Cherry Community is inapposite because it reviewed the trial court’s entry of a summary judgment order, not a motion to dismiss. The Court’s analysis that the complaint would have survived a motion to dismiss is non-binding dicta .
We recognize that Plaintiffs’ allegations in paragraphs 40-41 of their complaint assert general categories of damages that could, if particularized to each plaintiff, constitute special damages sufficient to confer standing. See, e.g., Jackson v. Guilford Cty. Bd. Of Adjustment , 275 N.C. 155, 161, 166 S.E.2d 78, 82 (1969) (); Kentallen, Inc. , 110 N.C. App. at 769-70, 431 S.E.2d at 232. But broad allegations of damages falling within those general categories does not, without more, suffice. See Davis , 81 N.C. App. at 508, 344 S.E.2d at 371 ( ); Lloyd v. Town of Chapel Hill , 127 N.C. App. 347, 351, 489 S.E.2d 898, 900-01 (1997) (...
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