Nello L. Teer Co. v. Orange County

• Decision Date: 09 September 1992
• Docket Number: No. C-89-288-D.,C-89-288-D.
• Citation: 810 F. Supp. 679
• Court: U.S. District Court — Middle District of North Carolina
• Parties: NELLO L. TEER COMPANY v. ORANGE COUNTY, Shirley E. Marshall, Don Willhoit, and Moses Carey, Jr.

810 F. Supp. 679

NELLO L. TEER COMPANY v.ORANGE COUNTY, Shirley E. Marshall, Don Willhoit, and Moses Carey, Jr.

No. C-89-288-D.

United States District Court, M.D. North Carolina, Durham Division.

September 9, 1992.

COPYRIGHT MATERIAL OMITTED

Charles B. Nye, Charles H. Nye, Durham, NC, H. Wayne Phears, Norcross, GA, for plaintiff.

Michael B. Brough, G. Nicholas Herman, Chapel Hill, NC, Douglas Hargrave, Hillsborough, NC, Frayda S. Bluestein, Robert Erwin Hagemann, Chapel Hill, NC, for defendants.

MEMORANDUM OPINION

TILLEY, District Judge.

DefendantsOrange County, Shirley E. Marshall, Don Willhoit, and Moses Carey, Jr. move for summary judgment against PlaintiffNello L. Teer Co.(Teer).The latter three defendants were members of the Orange County Board of Commissioners during the period in dispute here.

Teer asserts that Defendants had no authority to adopt a moratorium under North Carolina law; moreover, that it was invalid because it was adopted without notice; that notice of the proposed zoning amendments was defective and thus they were invalid; that Teer acquired vested rights to use its property as permitted in the zoning ordinance in effect prior to April 1, 1985; and that Teer was denied due process and equal protection by virtue of Defendants' actions.Plaintiff seeks declaratory and injunctive relief, and damages of $5,000,000.

The Defendants' motion for summary judgement is GRANTED.All Plaintiff's claims except those relating to constitutional torts are DISMISSED as untimely.Plaintiff's claims under 42 U.S.C. § 1983 are DISMISSED for lack of a cognizable property interest.The court declines to exercise jurisdiction over the remaining state constitutional tort claims and they too are DISMISSED.

I.

A motion for summary judgment should be granted when, after reviewing all of the record, there is no genuine issue of material fact so that the case may be decided as a matter of law.Fed.R.Civ.P. 56.A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202(1986).

In ruling on a motion for summary judgment, it is the court's obligation to view the facts in the light most favorable to the adverse party and to allow that party the benefit of all reasonable inferences to be drawn from the evidence.Adickes v. S.H. Kress & Co.,398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142(1970).Teer will withstand a summary judgment motion if it can forecast sufficient admissible evidence as would withstand a trial motion for judgment as a matter of law.Fed.R.Civ.P. 50;seeHerold v. HAJOCA Corp.,864 F.2d 317, 319(4th Cir.1988), cert. denied,490 U.S. 1107, 109 S.Ct. 3159, 104 L.Ed.2d 1022(1989).

The forecast of evidence from the affidavits is that Teer is a construction company which mines and sells crushed stone.It had an option to buy 146 acres (the "Shearin tract") located at the intersection of New Hope Church Road and the Interstate 40 (I-40) right-of-way in Orange County.Teer intended to develop the land into a crushed stone quarry.

Commercially minable quantities of rock were discovered, so Teer purchased the tract on January 20, 1984 for $440,730.On June 18, 1984, Plaintiff acquired a lease option on an additional 58 acres (the "Bingham tract") along the northern boundary of the Shearin tract.There, minable quantities of rock were also discovered.When Plaintiff purchased the Shearin tract, it was zoned R-1.Under the county zoning ordinance then in effect, quarry mining was permitted on R-1 property if a Class A special use permit was obtained.When Teer acquired the lease option on the Bingham tract, it was also zoned R-1.Teer has drilled holes and cut drill grids on both properties.

In late 1984, Teer hired Ragsdale Consultants, professional consulting engineers, to complete a set of mining plans for the New Hope site.A complete set of design and construction documents was finished in early 1985.Teer spent approximately $40,000 total.Teer cut down some trees to allow access for the drilling rigs, but has never constructed any structures on its property, nor entered into any contracts for rock quarried from the property.

On January 22, 1985, Susan Smith(Smith) of the county planning staff sent Marvin Collins(Collins), the Director of the Orange County Planning Department, a memorandum listing possible amendments to the zoning ordinance provisions applicable to extractive uses.Smith's recommendations did not delete mining as a permitted use on R-1 property such as Teer possessed.

Collins agreed with Smith's recommendations and had her prepare proposed ordinance amendments based upon them.On February 4, the Orange County Board of Commissioners met with Don Willhoit, Shirley Marshall, Ben Lloyd, and Moses Carey present; Norman Walker was absent.Collins reviewed Smith's proposed amendments to the extractive uses provisions.

Commissioner Carey asked whether any special use permit applications had been filed or were pending; none were.The Board passed this moratorium resolution:

WHEREAS, the Board of County Commissioners of Orange County will be considering amendments to the Orange County Zoning Ordinance which address the provisions of Article 4Permitted Use Table and Article 8Special Use Permits which apply to the issuance of Class A special use permits for extractive uses;

....

NOW, THEREFORE BE IT RESOLVED that the Orange County Board of Commissioners will not accept special use permit applications for extractive uses until after June 1, 1985 in order that the proposed amendments can be acted upon.

The Board also approved a legal advertisement, later published on February 13 and 20, 1985 in the News of Orange County, Chapel Hill Newspaper, and Durham Morning Herald, which stated:

Notice is hereby given that a public hearing will be held ... for the purpose of giving all interested citizens an opportunity to speak for or against the adoption of proposed amendments to the Orange County Zoning Ordinance, Zoning Atlas and Subdivision Regulations.

The amendments under consideration are as follows:

6.ZONING ORDINANCE TEXT AMENDMENTS

c. Amend § 4.3 Permitted Use Table to prohibit extractive uses as permitted uses requiring a Class A Special Use Permit in the following zoning districts: Residential-3 through Residential-13, Local Commercial-1, Neighborhood Commercial-II, Community Commercial-III, General Commercial-IV, Office-Institutional.The amendment may limit the zoning districts in which extractive uses are permitted with a Class A Special Use Permit to Industrial-I, Industrial-II, Industrial-III, Agricultural-Residential and Residential-I.Extractive uses are currently permitted in all Residential and Industrial zoning districts and in the General-Commercial-IV zoning district.

d. Amend § 8.8.1 Extraction of Earth Product (Class A Special Use) as follows:

1.Amend § 8.8.1 Additional Information by adding additional informational requirements for the site plan, operations plan and rehabilitation plan.The additional information would allow for comprehensive analysis and evaluation of the proposal.

2.Amend § 8.8.1.2 Standards of Evaluation by adding additional standards addressing local need; the amount of area under excavation; groundwater impact; buffers and setbacks; operational reports; operational inspections; and abandonment or termination of operation.

3.Standards of evaluation currently in the Ordinance do not address these matters.

All interested citizens are invited to attend the hearing and be heard.Changes may be made in the advertised proposals which reflect debate, objections and discussions at the hearing.

Citizens unable to attend the hearing may express their views by writing to the Orange County Planning Department, 106 East Margaret Lane, Hillsborough, North Carolina 27278.For your concerns to be fully considered, they must be received by the Planning Department prior to the public hearing.

Questions regarding the proposals should be directed to the Orange County Planning Department.Office hours are from 8:00 a.m. to 5:00 p.m. Monday through Friday.

The public hearing, a joint session with the Board of Commissioners and the Planning Board, was rescheduled to March 12, 1985.Smith presented her proposed zoning ordinance amendments pertaining to extractive uses.

On April 1, 1985, the Board of Commissioners met in regular session, with all five commissioners present, to consider the recommendations made by the Planning Board.Commissioner Marshall moved to amend the Article 4 Permitted Use Table to allow extractive uses (with a special use permit) only in A-R and I-I, -II, and -III zones.Marshall's motion was passed, thereby prohibiting extractive uses in all Residential Districts (R-1 through R-13) and in the General Commercial IV zoning district.

Meanwhile, Teer had prepared a rough draft of the special use permit application, photos, and a complete set of engineering plans for a quarry on the Shearin tract.It held these documents for about a month to "fine-tune" them a little more.In late March 1985, one of Teer's geologists, James Sprinkle, arranged to meet Smith and Collins to review a draft special use permit application for a quarry.Sprinkle intended to ask Smith some questions and later return with Teer's final application.Three Teer employees (Sprinkle, the President at the time, and the Vice President of Aggregate at the time) each knew it took three to four months to obtain a special use permit from Orange County.

Smith scheduled the meeting for April 2, 1985.She did not mention the proposed amendments to the zoning ordinances, nor the moratorium resolution against accepting applications for extractive use permits.She has said she scheduled the meeting then so she could see what action the Board would take April 1.At the meeting, Smith told Sprinkle...