Pinehurst Area Realty v. Pinehurst , 99 N.C. App. 77 ( 1990 )

394 S.E.2d 251 (1990) 99 N.C. App. 77

PINEHURST AREA REALTY, INC., Plaintiff,
v.
The VILLAGE OF PINEHURST, Defendant.

No. 8920SC1101.

Court of Appeals of North Carolina.

August 7, 1990.

Allen & Pinnix by Noel L. Allen and Paul C. Ridgeway, Raleigh, for plaintiff-appellant.

Petree Stockton & Robinson by Penni P. Bradshaw and Robin E. Shea, Winston-Salem, for defendant-appellee.

LEWIS, Judge.

Plaintiff challenges two zoning actions by defendant, the 1985 zoning of plaintiff's property, and a 1987 rezoning.

I: The 1985 Zoning.

Plaintiff states that a threshold question is the determination of whether a zoning ordinance was indeed enacted. The allegation is based on the purported failure by defendant to file and index properly the map which demonstrated the zoning boundaries in accordance with the G.S. § 160A-77. Since this question was not raised during the trial and no information regarding this issue is included in the record, it is not properly before this Court.

Plaintiff also asserts that its claim is sufficient to raise a constitutional cause of action so as to invoke a three year statute of limitations instead of the nine-month statute of limitations as provided by G.S. § 160A-364.1 for challenging zoning ordinances. G.S. 160A-364.1 provides:

A cause of action as to the validity of any zoning ordinance ... adopted under this Article or other applicable law shall accrue upon adoption of the ordinance... and shall be brought within nine months as provided in G.S. 1-54.1.

Plaintiff challenges the validity of the zoning on state constitutional grounds, arguing that the defendant failed to properly notify it of the impending zoning action affecting its property in violation of N.C.G.S. § 160A-364. In fact, defendant's published notice of the zoning action stated that the Village would consider extending its extraterritorial zoning jurisdiction, and the metes and bounds description included the land owned by appellant. That description put plaintiff on notice that changes would be made affecting its property. See Stutts v. Swaim, 30 N.C.App. 611, 228 S.E.2d 750, disc. rev. denied, 291 N.C. 178, 229 S.E.2d 692 (1976). Moreover, North Carolina case law indicates that the statute quoted above has been strictly construed. Petitioner in In re Appeal of CAMA Permit also alleged that the respondent town had failed to follow proper procedural rules. This Court concluded, however, that "even if the record disclosed that the Town of Bath had violated procedural rules ..., petitioner is barred from attacking the validity of the amendment based on procedural grounds by the statute of limitations provided in G.S. 160A-364.1...." 82 N.C. App. 32, 41-42, 345 S.E.2d 699, 705 (1986).

Plaintiff characterizes this action as "a cause of action for deprivation of constitutional rights" and states that the United States Supreme Court in Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985), has directed that such actions "be subject to the relevant state's personal injury statute of limitations" which in North Carolina is three years. The Wilson court was addressing federal civil rights actions under 42 U.S.C.S. § 1983 when it chose to apply the personal injury statute of limitations. We do not find Wilson controlling.

Zoning claims raise important public policy considerations. There is a strong need for finality with respect to zoning matters so that landowners may use their property without fear of a challenge years after zoning has apparently been determined. North Carolina courts have not held that violations of federal constitutional claims in zoning actions extend the usual nine-month statute of limitations. In Sherrill v. Town of Wrightsville Beach, 81 N.C.App. 369, 344 S.E.2d 357, disc. rev. denied, 318 N.C. 417, 349 S.E.2d 600 (1986), this Court held that plaintiff's claims for federal due process violations were barred by the ninemonth statute of limitations. It is noteworthy that Sherrill was decided after Wilson, supra.

We hold plaintiff's challenge to the 1985 zoning law based on alleged state and federal constitutional violations is barred by the nine-month statute of limitations. The trial court properly dismissed plaintiff's complaint for failure to state a claim for which relief could be granted.

II: The 1987 Rezoning

Plaintiff contends that its rights were violated by defendant when plaintiff was given a more restrictive zoning than what it requested for its office tract. The rezoning was, however, less restrictive than the original zoning. The rezoning not only allowed the current use to continue but it also permitted even broader uses of plaintiff's property. Plaintiff made a vague allegation that it "has been damaged in an [sic] yet unascertained amount due to lost opportunities for sale, use and development of the properties." This is speculative and cannot stand. Plaintiff has done nothing to acquire a vested right to a less restrictive zoning and cannot recover speculative damages in an "unascertained amount" due to lost potential opportunities for development of the property. Defendant rezoned the property to allow for the then-current uses and plaintiff has suffered no measurable damages. Plaintiff's allegations are insufficient as a matter of law to state any claim as to the 1987 rezoning and thus were properly dismissed pursuant to Rule 12(b)(6).

Affirmed.

ARNOLD and DUNCAN, JJ., concur.