VILLAGE CREEK v. Town of Edenton
| Decision Date | 02 November 1999 |
| Docket Number | No. COA98-1634.,COA98-1634. |
| Citation | 135 NC App. 482,520 S.E.2d 793 |
| Court | North Carolina Court of Appeals |
| Parties | VILLAGE CREEK PROPERTY OWNERS' ASSOCIATION, INC., John Gilliam Wood, Thurman D. Reynolds, Jacqueline Reynolds, William Gardner, Rodney Harrell, Joyce Harrell, Ron Heiniger, Nancy Heiniger, Richard Whiting, Isabel Whiting, Suzanne Burnside, James Smith, Nancy Smith, Robert Rossman, Wanda Rossman, Brian Berry, Maureen Berry and Elizabeth Andrew, Plaintiffs, v. The TOWN OF EDENTON, a Municipal Corporation; Roland Vaughan, Mayor; Jimmy Alligood, Willis Privott, Jerry Parks, Steve Biggs, Jerald Perry, Don Latham and Samuel B. Dixon, Commissioners; Town of Edenton Planning Board; Preston Sisk, Chairman, Ross Inglis, Phyllis Britton, David Twiddy, Samuel Cox, Members; Anne-Marie Knighton, Town Manager; Chris Brabble, Zoning Administrator Town of Edenton; G.P. Copeland (also apparently known as Garry P. Copeland) and Colonial Village, and Colonial Village Group, Inc., Defendants. |
The Brough Law Firm, by Michael B. Brough and William C. Morgan, Jr., Chapel Hill; Robin M. Hammond, Raleigh; and Edward & Edwards, by Walter G. Edwards, Jr., Hertford, for plaintiff-appellants.
Poyner & Spruill, L.L.P., by Robin Tatum Morris; and by Town of Edenton Attorney W. Hackney High, Jr., Raleigh, for defendant-appellees The Town of Edenton; Roland Vaughan, Jimmy Alligood, Willis Privott, Jerry Parks, Steve Biggs, Jerald Perry, Don Latham and Samuel B. Dixon, Town of Edenton Planning Board; Preston Sisk, Ross Inglis, Phyllis Britton, David Twiddy, Samuel Cox, Anne-Marie Knighton, and Chris Brabble.
Herbert T. Mullen, Jr., Elizabeth City, for defendant-appellee Colonial Village.
Village Creek Property Owners' Association, Inc., John Gilliam Wood, Thurman D. Reynolds, Jacqueline Reynolds, William Gardner, Rodney Harrell, Joyce Harrell, Ron Heiniger, Nancy Heiniger, Richard Whiting, Isabel Whiting, Suzanne Burnside, James Smith, Nancy Smith, Robert Rossman, Wanda Rossman, Brian Berry, Maureen Berry, and Elizabeth Andrew (collectively, Plaintiffs) appeal two orders filed 6 August 1998 granting motions by G.P. Copeland (Copeland), Colonial Village, Colonial Village Group, Inc., The Town of Edenton (Edenton), Ronald Vaughn, Jimmy Alligood, Willis Privott, Jerry Parks, Steve Biggs, Jerald Perry, Don Latham, Samuel B. Dixon, Town of Edenton Planning Board, Preston Sisk, Ross Inglis, Phyllis Britton, David Twiddy, Samuel Cox, Anne-Marie Knighton, and Chris Brabble (collectively, Defendants) to dismiss plaintiffs' complaint and for attorneys' fees; and an 8 September 1998 order denying Plaintiffs' Rule 59 motion.
On 20 August 1997, Copeland submitted to Edenton an application for a conditional use permit for property located on Coke Avenue in Edenton (the property), and on 21 August 1997 submitted an application for a conditional use rezoning of the property. On 14 October 1997, Edenton Town Council (the Council) held a public hearing on Copeland's applications and, on 11 November 1997, the Council voted to approve rezoning of the property and grant Copeland a conditional use permit.
On 7 January 1998, Plaintiffs filed a complaint for declaratory judgment in superior court, seeking, in pertinent part, a declaration that the adoption of Copeland's rezoning request was invalid, and a mandatory injunction compelling the Council to disapprove the rezoning request. Plaintiffs alleged in their complaint they are "residents and/or property owners of [Edenton] and are interested parties pursuant to N.C.G.S. 1-254 whose rights, status or other legal relations are affected by a municipal ordinance enacted by the Defendant [Edenton] on 11 November 1989."
On 6 May 1998, Defendants filed a motion to dismiss Plaintiffs' complaint on the grounds Plaintiffs did not have standing to file the complaint and the superior court lacked subject matter jurisdiction. On 30 June 1998, Defendants requested an award of attorneys' fees pursuant to N.C. Gen.Stat. § 6-21.5.
On 6 August 1998, an order granting Defendants' motion to dismiss Plaintiffs' complaint was filed on the ground the court lacked subject matter jurisdiction. The trial court further granted Defendants' motions for attorneys' fees on the ground there existed no justiciable issue of law.
_______________
The issues are whether: (I) a party seeking to challenge a zoning ordinance by way of a declaratory judgment action is required to allege special damages; (II) a conditional use rezoning ordinance may be challenged by an action for declaratory judgment; and (III) Plaintiffs' claim contains justiciable issues of law.
Defendants argue Plaintiffs' complaint was properly dismissed for lack of standing because Plaintiffs failed to allege special damages in their complaint.1 We disagree.
A party has standing to challenge a zoning ordinance in an action for declaratory judgment only when it "has a specific personal and legal interest in the subject matter affected by the zoning ordinance and ... is directly and adversely affected thereby." Taylor v. City of Raleigh, 290 N.C. 608, 620, 227 S.E.2d 576, 583 (1976) (citations omitted). The standing requirement for a declaratory judgment action is therefore similar to the requirement that a party seeking review of a municipal decision by writ of certiorari suffer damages "distinct from the rest of the community." Heery v. Zoning Board of Adjustment, 61 N.C.App. 612, 614, 300 S.E.2d 869, 870 (1983). When a party seeks review by writ of certiorari, however, our courts have imposed an additional requirement that the party allege special damages in its complaint. Id. This requirement arises from N.C. Gen. Stat. § 160A-388(b) and N.C. Gen.Stat. § 160A-388(e), which allow only "aggrieved" persons to seek review by writ of certiorari.2Heery, 61 N.C.App. at 613,300 S.E.2d at 870.
In contrast, the Declaratory Judgment Act; authorizing the filing of declaratory judgment actions, does not require a party seeking relief be an "aggrieved" person or to otherwise allege special damages. N.C.G.S. ch. 1, art. 26 (1996). Furthermore, our courts have not previously held that special damages must be alleged in a declaratory judgment action. E.g., Godfrey v. Zoning Bd. of Adjustment, 317 N.C. 51, 66, 344 S.E.2d 272, 281 (1986) (). Indeed our Supreme Court has specifically declined to decide whether special damages must be alleged in a declaratory judgment action. County of Lancaster v. Mecklenburg County, 334 N.C. 496, 503-04 n. 4, 434 S.E.2d 604, 610 n. 4 (1993).3
Because the zoning statute (the source of the requirement that special damages be alleged in the context of writ of certiorari petitions) does not require parties to be "aggrieved" in order to file a declaratory judgment action and because the Declaratory Judgment Act does not require a pleading of special damages, we hold it is not required. Plaintiffs' complaint should therefore not be dismissed for lack of standing based on Plaintiffs' failure to allege special damages.
Plaintiffs argue a conditional use rezoning ordinance may be properly challenged by an action for declaratory judgment. We agree.
Conditional use rezoning occurs "when a landowner requests that some property be placed in a new zoning district that has no permitted uses, only special or conditional uses." David W. Owens, Legislative Zoning Decisions, Legal Aspects 93 (2d ed.1999) [hereinafter Legislative Zoning Decision ]. This practice, approved by the North Carolina Supreme Court in Chrismon v. Guilford County, 322 N.C. 611, 617, 370 S.E.2d 579, 583 (1988), requires "two separate decisions, with the rezoning decision meeting all of the statutory requirements for legislative decisions and the permit decision meeting all of the constitutional requirements for quasi-judicial decisions." Legislative Zoning Decisions, at 94. While, as a practical matter, a decision granting or denying a conditional use rezoning application may be made concurrently with a decision granting or denying a conditional use permit, the municipality is required to make separate decisions regarding a rezoning application and a permit application. Id.
Because conditional use rezoning involves a rezoning decision and a permit decision, it follows it is necessary to consider separately how permit and zoning decisions are generally reviewed. A decision to grant or deny a special use or conditional use permit is subject to review by an action before the superior court in the nature of certiorari. N.C.G.S. § 160A-381(c) (Supp.1998). The municipality is the trier of fact, and proceedings in the superior court are limited to reviewing the record for errors of law and determining whether the municipality's decision is "supported by competent, material, and substantial evidence" in the whole record. Ghidorzi Construction, Inc. v. Town of Chapel Hill, 80 N.C.App. 438, 440, 342 S.E.2d 545, 547 (citation omitted), disc. review denied, 317 N.C. 703, 347 S.E.2d 41 (1986).
In contrast, there is no statutory authority or case law addressing the proper method for the review of a conditional use rezoning ordinance.4 Zoning and rezoning ordinances in general, however, are properly challenged by an action for declaratory judgment, Taylor, 290 N.C. at 620, 227 S.E.2d at 583; Blades, 280 N.C. at 544, 187 S.E.2d at 42, and the trial court is the finder of fact. N.C.G.S. § 1-261 (1996).
Because conditional use rezoning requires a municipality to make a rezoning decision, which is made separate from the municipality's decision to grant or deny a permit, the conditional use rezoning ordinance is properly challenged in the same manner used to challenge zoning or rezoning ordinances in general, which is by a declaratory...
To continue reading
Request your trial
-
Town of Rhine v. Bizzell
...93 (2d ed.1999). For an example of a reference to conditional-use zoning, see Village Creek Property Owners' Association, Inc., v. The Town of Edenton, 135 N.C.App. 482, 520 S.E.2d 793, 796 (1999). 13. Wisconsin is one of a minority of states that asserts a beyond a reasonable doubt standar......
-
Templeton v. Town of Boone
...affected by the zoning ordinance and ... is directly and adversely affected thereby.' ' Village Creek Prop. Owners' Ass'n v. Town of Edenton, 135 N.C.App. 482, 485, 520 S.E.2d 793, 795 (1999) (quotation omitted).Id. at 731, 673 S.E.2d at 692. In applying this rule to determine if the plaint......
-
Creek Pointe Homeowner's Ass'n v. Happ, COA00-556.
...permitted such associations, when appropriate, to pursue their claims in court. See, e.g., Village Creek Prop. Owners' Ass'n, Inc. v. Town of Edenton, 135 N.C.App. 482, 520 S.E.2d 793 (1999) (property owners' association held to have standing to challenge rezoning of neighboring property); ......
- In re Jones