Summers v. City of Charlotte
| Decision Date | 02 April 2002 |
| Docket Number | No. COA01-748.,COA01-748. |
| Citation | 149 NC App. 509,562 S.E.2d 18 |
| Court | North Carolina Court of Appeals |
| Parties | Frank V. SUMMERS, Eleanor M. Summers, Gilbert E. Galle, Pamela N. Galle, Patricia G. Selby Living Trust, Peter M. Duggan, Dr. Lee Ann McGinnis, and Dr. Maryrose Turner, Plaintiffs, v. CITY OF CHARLOTTE, North Carolina, A Municipal corporation, SouthPark Mall Limited Partnership, a North Carolina Limited Partnership, J.B. Ivey & Company, a North Carolina Corporation, T.W. Samonds, Jr., Thalhimer Brothers, Incorporated, a Virginia corporation, May Centers Associates Corporation, a Missouri corporation, Rotunda Building, L.L.C., a North Carolina limited liability corporation, Sears, Roebuck and Co., a New York corporation, Belk Charlotte, Inc., a North Carolina corporation, and United States Steel and Carnegie Pension Fund, a Pennsylvania non-profit corporation, Defendants. Frank V. Summers, Eleanor M. Summers, Gilbert E. Galle, Pamela N. Galle, Patricia G. Selby Living Trust, Peter M. Duggan, Dr. Lee Ann McGinnis and Dr. Maryrose Turner, Plaintiffs, v. City of Charlotte, North Carolina, a Municipal corporation, SouthPark Mall Limited Partnership; a North Carolina Limited Partnership, J.B. Ivey & Company, a North Carolina Corporation; T.W. Samonds, Jr.; The May Department Stores Company successor by merger to May Center Associates Corporation; a Missouri corporation, Sears, Roebuck and Co., a New York corporation, Belk, Inc., successor by merger to Belk Charlotte, Inc., a North Carolina corporation and United States Steel and Carnegie Pension Fund, a Pennsylvania non-profit corporation, Defendants. |
Kenneth T. Davies, Charlotte, for plaintiff-appellants.
Office of the City Attorney by Senior Assistant City Attorney Robert E. Hagemann, for defendant-appellee City of Charlotte.
Kennedy Covington, Lobdell & Hickman, L.L.P. by Roy H. Michaux, Jr. and Samuel T. Reaves, Charlotte, for defendant-appellee SouthPark Mall.
Moore & Van Allen, PLLC by Andrew S. O'Hara, Charlotte, for defendant-appellee United States Steel and Carnegie Pension Fund.
Assistant City Attorney Karen A. Sindelar, for City of Durham, amicus curiae.
Mark C. Cramer, Charlotte, for Real Estate and Building Industry Coalition, amicus curiae.
Frank V. Summers, Eleanor M. Summers, Gilbert E. Galle, Pamela N. Galle, Patricia G. Selby Living Trust, Peter M. Duggan, Dr. Lee Ann McGinnis, and Dr. Maryrose Turner (collectively, Plaintiffs) appeal an order filed 2 February 2001 granting a motion to dismiss in favor of SouthPark Mall Limited Partnership, J.B. Ivey & Company, T.W. Samonds, Jr., Thalhimer Brothers, Incorporated, May Centers Associates Corporation, Rotunda Building, L.L.C., Sears, Roebuck and Co., Belk Charlotte, Inc., (collectively, South-Park Defendants), and United States Steel and Carnegie Pension Fund (Pension Fund Defendant); the 2 February order further granted the City of Charlotte's (the City) partial summary judgment motion. Plaintiffs also appeal an order and judgment filed 21 March 2001 granting: summary judgment in favor of SouthPark Defendants,1 except on the issue of Plaintiffs' standing; summary judgment in favor of Pension Fund Defendant; and summary judgment in favor of the City.
On 9 November 1999, Pension Fund Defendant filed a rezoning application (Petition No.2000-51) to have approximately 11.6 acres at the corner of Fairview Road and Assembly Street rezoned from an office-1 district to a Mixed Use Development Optional district (MUDD-O). Petition No.2000-51 attached a site plan and sought approval for a mixed-use development consisting of office space, ground floor retail space, multi-family residential units, and a hotel. Martin R. Crampton, Jr. (Crampton), director of the Charlotte-Mecklenburg Planning Commission Staff (the Commission), testified his office supported Petition No.2000-51 after the proposed office space was reduced from 458,000 square feet to 415,764 square feet. After reviewing Petition No.2000-51 and its attachments, the Commission concluded that the proposed "mixed-use concept [was] consistent with the ... Small Area Plan," but the in order to be consistent with the SouthPark Small Area Plan (the Small Area Plan). The Charlotte Department of Transportation performed a detailed traffic study in connection with Petition No.2000-51 and concluded "the development proposed [would] not significantly affect traffic when compared to the development that could occur by existing zoning."
A community meeting was held on 5 September 2000, with approximately thirty people attending, to discuss Petition No.2000-51. The attendees cited concerns regarding the floor area, building height, open space, traffic, and lighting. In response to comments from the 5 September meeting and other meetings, Pension Fund Defendant made several changes to its site plan, including addressing the design and orientation of site lighting.
On 31 December 1999, SouthPark Defendants filed a petition (Petition No.2000-52) to rezone SouthPark Mall Shopping Center (the SouthPark site), approximately 84 acres, from a business-1 shopping center district to a commercial center district. Attached to Petition No.2000-52 were: a technical data sheet; a schematic site plan; a symphony park concept plan; perspective views of various development elements; a site traffic access and impact study; and development standards. On 27 March 2000, the Charlotte City Council (the Council) adopted the Small Area Plan which provided "a vision of what the SouthPark area could look like in the near future (5-10 years) and contains goals and recommendations for achieving that vision." The goals of the Small Area Plan included: creating a greater mixture of land uses, especially by incorporating more multi-family residential development; identifying and planning for future mass transit service in the SouthPark area; developing a multi-modal transportation system that emphasized pedestrian improvements and linkages to mass transit; developing a public gathering space and a network of green spaces; creating a safe and inviting pedestrian environment; ensuring the long-term viability of neighborhoods and business areas; maintaining a healthy, highly livable natural environment; and establishing ongoing communication linkages between neighborhood residents, businesses, the development community, and local government.
On 6 July 2000, the North Carolina General Assembly enacted Session Law 2000-84 permitting the City to engage in conditional zoning as a legislative process.2 2000 N.C. Sess. Laws ch. 84, § 1(e). A "conditional zoning district" is "a zoning district in which the development and use of the property included in the district is subject to predetermined ordinance standards and the rules, regulations, and conditions imposed as part of the legislative decision creating the district and applying it to the particular property." 2000 N.C. Sess. Laws ch. 84, § 1(a).
Following the enactment of Session Law 2000-84, SouthPark Defendants filed amended Petition No.2000-52 for the SouthPark site and surrounding areas, approximately 95.6 acres, to rezone the site from a business-1 shopping center district, office-1 district and office-2 district to a commercial center district. Included in the amended application was the property known as Dillard's. Consistent with the Small Area Plan, Petition No.2000-52, as amended, indicated the land use of the SouthPark site would include: a shopping center mall; mixed-use development at the corner of Sharon Road and Morrison Boulevard; public open space at the corner of Morrison Boulevard and Barclay Downs Drive; a pedestrian-friendly environment; public parks; and a transit facility. In the package submitted to the City, SouthPark Defendants also included the permitted uses and proposed restrictions on the property.
The Commission reviewed Petition No.2000-52 and according to Crampton, the rezoning would have a "major positive effect" on the land use policies of the City as a whole. With respect to the surrounding neighborhoods, the Commission received reports stating there would be "no significant effect" on traffic and storm water management "would be handled within the standards set by the City for storm water management." After reviewing Petition No.2000-52, the Commission concluded the petition was "consistent with the recommendation of the SouthPark Small Area Plan for the redevelopment of SouthPark Mall to take the form of a `town center.'"
On 30 August 2000, more than seventy people attended a community meeting held to discuss Petition No.2000-52. Prior to this meeting, representatives of SouthPark Defendants had participated in approximately twenty community meetings in connection with Petition No.2000-52. At the 30 August meeting, a representative of SouthPark Defendants provided an overview of the SouthPark Mall rezoning plan by explaining the details of the plan and its consistency with the Small Area Plan. The representative also provided details on the traffic study performed in connection with Petition No.2000-52. A question and answer session followed in which the meeting attendants were able to ask questions and present their concerns about the rezoning plan.
On 18 September 2000, a public hearing was held before the Council on Petition Nos. 2000-51 and 2000-52. Prior to the hearing, proponents and opponents of both petitions submitted various written materials regarding the two petitions. With respect to Petition No.2000-51, approximately thirteen people commented at the hearing expressing their opinions on whether the petition should be approved. There was extensive...
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