Templeton v. Town of Boone

• Citation: 701 S.E.2d 709
• Decision Date: 16 November 2010
• Docket Number: No. COA09-1332.,COA09-1332.
• Parties: Jeffrey Brooks TEMPLETON and Elizabeth A. Colonna Bird; Trustee of the Elizabeth A. Colonna Bird Revocable Trust, dated August 31, 2000, Plaintiffs, v. TOWN OF BOONE, Defendant.
• Court: North Carolina Court of Appeals

701 S.E.2d 709

Jeffrey Brooks TEMPLETON and Elizabeth A. Colonna Bird; Trustee of the Elizabeth A. Colonna Bird Revocable Trust, dated August 31, 2000, Plaintiffs,

v.TOWN OF BOONE, Defendant.

No. COA09-1332.

Court of Appeals of North Carolina.

Nov. 16, 2010.

Appeal by plaintiffs from order entered 10 June 2009 by Judge Joseph N. Crosswhite in Superior Court, Watauga County. Heard in the Court of Appeals 25 February 2010.

Clement Law Office, Boone, by Charles E. Clement, for plaintiffs-appellants.

Cranfill Sumner & Hartzog LLP, Raleigh, by Susan K. Burkhart, for defendant-appellee.

STROUD, Judge.

Jeffrey Brooks Templeton and Elizabeth A. Colonna Bird, trustee of the Elizabeth A. Colonna Bird Revocable Trust, (referred to collectively as "plaintiffs") appeal from a trial court's order in favor of the Town of Boone ("defendant") dismissing their complaint with prejudice "for failure to state a claim uponwhich relief can be granted[.]" For the following reasons, we affirm the trial court's dismissal of plaintiffs' claims.

I. Background

Plaintiffs' complaint alleged the following: On 21 April 2005, the Boone Town Council adopted a resolution to form a task force to "Study Issues Relating to Development of Steep Slopes and Multi-Family Housing" in order "to work with town staff to develop a recommended strategy relating to the future development of steep slopes and large multi-family housing projects." The task force prepared a recommended "zoning map and text amendments" to the town's Unified Development Ordinance. These recommendations resulted in a proposal for the Steep Slope Ordinance and the Viewshed Protection Ordinance amendments ("the subject zoning ordinance amendments"), which the Boone Town Council adopted on 2 October 2006.

Plaintiffs allege they are owners of real property "located in, and subject to, the zoning and extraterritorial zoning jurisdiction of the Town of Boone [,]" and are "directly and adversely affected" "by the zoning ordinances adopted by the Town of Boone." Plaintiff Bird was notified by letter from the Town of Boone that property owned by the Elizabeth A. Colonna Bird Revocable Trust was located within that area that would be affected by the proposed ordinance amendments. However, upon inspection of the Viewshed Protection Map, she determined that the trust property was not within the Viewshed area. Plaintiffs allege that without notice to plaintiff Bird or a change in the Viewshed Protection Map, the town improperly subjected the trust property to the Viewshed Protection Ordinance.

On 31 November 2006, plaintiff Templeton commenced this action against defendant by filing an "Application and Order extending time to file Complaint." On 21 December 2006, plaintiff Templeton and nine other plaintiffs, not including plaintiff Bird, filed a complaint in Superior Court, Watauga County against defendant alleging that the adoption of the subject ordinance amendments was a violation of plaintiffs' Constitutional substantive due process rights; a violation of plaintiffs' civil rights pursuant to 42 U.S.C. § 1983; an unlawful rezoning and limitation of the use of property; an inverse condemnation/unlawful taking; arbitrary and capricious; and an unlawful preemption of state building code. Plaintiffs sought a declaratory judgment and injunctive relief. This complaint was removed to the United States District Court for the Western District of North Carolina by defendants. Plaintiffs then amended their complaint and it was remanded to Superior Court, Watauga County; defendant filed a motion to dismiss; and on 8 October 2007, plaintiff Templeton and the other nine plaintiffs filed a "Notice of Voluntary Dismissal" without prejudice.

On 7 October 2008, plaintiffs Templeton and Bird filed the complaint which is the subject of this appeal in Superior Court, Watauga County. In plaintiffs' first two claims they request a declaratory judgment that the subject zoning ordinance amendments be declared "facially defective, vague and unenforceable[;]" because (1) the ordinances give "[u]nbridled, unqualified authority and discretion" to the Town's staff "in excess of the Town's legislative authority[;]" (2) the ordinances amount to a violation of plaintiffs' procedural due process rights as (a) the ordinances fail to give notice as to which properties are affected by them, and (b) the procedures used by defendant to enact the ordinances failed to give proper notice to plaintiffs in violation of town ordinances and state law; (3) the ordinances amount to a violation of plaintiffs' substantive due process rights as (a) they are vague and unenforceable, (b) arbitrary and capricious, (c) unreasonable, (d) overreaching, and (e) were enacted in bad faith; (4) the Viewshed Protection Ordinance amounts to an unconstitutional taking; and (5) the Steep Slope Ordinance unlawfully preempts state building codes. In plaintiffs' additional claims they allege that defendant's "unlawful adoption" of the subject zoning ordinance amendments "changed the zoning and use of Plaintiffs' land, and the lands of all persons who own property in the Town of Boone or its ETJ area [,]" and the subject zoning ordinance amendments are a violation of plaintiffs' rights underArticle I, § 19 of the North Carolina Constitution as they amount to a "deprivation of their rights and privileges as property owners [.]" On 18 May 2009, defendant filed a motion to dismiss plaintiffs' suit pursuant to N.C. Gen.Stat. § 1A-1, Rule 12(b)(6), Rule 12(b)(1), and Rule 12(c). On 10 June 2009, the trial court granted defendant's motion to dismiss "for failure to state a claim upon which relief can be granted [.]" Plaintiffs appealed.

On appeal plaintiffs bring forth substantive arguments as to the statute of limitations, substantive due process, procedural due process, statutory claims, and arguments addressing standing. As "[s]tanding is a necessary prerequisite to a court's proper exercise of subject matter jurisdiction[,]" Perdue v. Fuqua, 195 N.C.App. 583, 585, 673 S.E.2d 145, 147 (2009), we first review plaintiffs' standing to bring this suit.

II. Standing

A. Standard of Review

This Court has held that "[a] ruling on a motion to dismiss for want of standing is reviewed de novo." Metcalf v. Black Dog Realty, LLC, ---N.C.App. ----, ----, 684 S.E.2d 709, 714 (2009) (citation 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). The party invoking jurisdiction has the burden of establishing standing. Neuse River Found. v. Smithfield Foods, 155 N.C.App. 110, 113, 574 S.E.2d 48, 51 (2002) (citation omitted), disc. review denied, 356 N.C. 675, 577 S.E.2d 628 (2003). The elements of standing are:

(1) 'injury in fact'-an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;

(2) the injury is fairly traceable to the challenged action of the defendant;

(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Marriott v. Chatham County, 187 N.C.App. 491, 494, 654 S.E.2d 13, 16 (2007) (citation and quotation marks omitted). "If a party does not have standing to bring a claim, a court has no subject matter jurisdiction to hear the claim." Id. at 496, 654 S.E.2d at 17 (citation and quotation marks omitted). "If a court finds at any stage of the proceedings that it lacks jurisdiction over the subject matter of a case, it must dismiss the case for want of jurisdiction." State v. Linemann, 135 N.C.App. 734, 739, 522 S.E.2d 781, 785 (1999) (citation omitted).

Plaintiffs first contend that "the trial court erred in granting defendants' motion to dismiss pursuant to Rule 12(b)(1) of the Rules of Civil Procedure on the grounds that plaintiffs pled sufficient facts demonstrating that they have standing and the trial court has subject-matter jurisdiction." However, it appears that the trial court based its order dismissing plaintiffs' claims on N.C. Gen.Stat. § 1A-1, Rule 12(b)(6) (2005) ("Failure to state a claim upon which relief can be granted"), not N.C. Gen.Stat. § 1A-1, Rule 12(b)(1) ("Lack of jurisdiction over the subject matter"). This Court has held that even if dismissal was for the wrong reason,

a trial court's 'ruling must be upheld if it is correct upon any theory of law[,]' and thus it should 'not be set aside merely because the court gives a wrong or insufficient reason for [it].' Manpower, Inc. v. Hedgecock, 42 N.C.App. 515, 519, 257 S.E.2d 109, 113 (1979). See also Sanitary District v. Lenoir, 249 N.C. 96, 99, 105 S.E.2d 411, 413 (1958) (if correct result reached, judgment should not be disturbed even though court may not have assigned the correct reasons for the judgment entered); Payne v. Buffalo Reinsurance Co., 69 N.C.App. 551, 555, 317 S.E.2d 408, 411 (1984) (it is common learning that a correct judgment must be upheld even if entered for the wrong reason).

Opsahl v. Pinehurst Inc., 81 N.C.App. 56, 63, 344 S.E.2d 68, 73, cert. granted, 318 N.C. 284, 347 S.E.2d 465 (1986), disc. review improvidently allowed, 319 N.C. 222, 353 S.E.2d 400 (1987). Therefore, we must determine whether the trial court's dismissal of plaintiffs' claims was "correct upon any theory of law[.]" See

id. First, we address whether the trial court could have dismissed plaintiffs'complaint for lack of standing. Plaintiffs brought constitutional claims and statutory challenges to the subject zoning ordinance amendments. We will first address the issue of standing as to plaintiffs' constitutional claims.

B. Standing for Plaintiffs' Constitutional Challenges

Plaintiffs argue that they have standing to bring constitutional challenges to the subject zoning ordinance amendments as they have sufficiently alleged an "imminent danger" from the...