Etheridge v. County of Currituck , 235 N.C. App. 469 ( 2014 )


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  •                             NO. COA13-834
    NORTH CAROLINA COURT OF APPEALS
    Filed:   5 August 2014
    E. RAY ETHERIDGE, FRED G.
    ETHERIDGE, and MARY KATHERINE R.
    ETHERIDGE,
    Plaintiffs
    v.                               Currituck County
    No. 12 CVS 38
    COUNTY OF CURRITUCK; THE CURRITUCK
    COUNTY BOARD OF COMMISSIONERS; and
    JOHN D. RORER, MARION GILBERT, O.
    VANCE AYDLETT, JR., H.M. PETREY,
    J. OWEN ETHERIDGE, PAUL MARTIN,
    and S. PAUL O’NEAL as members of
    the CURRITUCK COUNTY BOARD OF
    COMMISSIONERS,
    Defendants
    Appeal by plaintiffs and defendants from order entered 25
    April 2013 by Judge Walter H. Godwin, Jr. in Currituck County
    Superior Court.   Heard in the Court of Appeals 22 January 2014.
    Currin & Currin, by Robin T. Currin and George B. Currin,
    for plaintiffs.
    Currituck County     Attorney    Donald   I.   McRee,   Jr.,   for
    defendants.
    CALABRIA, Judge.
    Currituck County (“the County”) and the Currituck County
    Board of Commissioners (“the Board”) (collectively “defendants”)
    appeal from the portion of the trial court’s order granting
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    summary     judgment       in     favor    of     E.     Ray      Etheridge,     Fred    G.
    Etheridge,        and    Mary     Katherine        R.      Etheridge        (collectively
    “plaintiffs”) as to plaintiffs’ claim of illegal spot zoning.
    Plaintiffs appeal the portion of the trial court’s order denying
    their request for attorney’s fees and costs pursuant to 
    N.C. Gen. Stat. § 6-21.7
     (2013).               We affirm.
    I. Background
    This appeal concerns a dispute over a 1.1 acre parcel of
    land (“the property”) owned by Currituck Grain, Inc. (“Currituck
    Grain”)    in     the    town   of    Shawboro      in     Currituck      County,      North
    Carolina.        Prior to 5 December 2011, the property was zoned
    agricultural        under       Currituck       County’s          Unified     Development
    Ordinance (“the UDO”).               The adjoining parcels of land on three
    sides of the property              were also zoned agricultural, and the
    parcel on the remaining side of the property was zoned general
    business.
    Currituck Grain entered into a contract with Daniel Clay
    Cartwright (“Cartwright”) by which Cartwright would purchase the
    property    to     establish      what     he     called      a    “recycling     center,”
    which     would    handle,        stockpile,       and     sell      scrap     metal    and
    materials,       rock,    mulch,       concrete,        and       dirt.      Cartwright’s
    proposed     use    was     not      permitted      in     an      agricultural     zoning
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    district, but it was permitted in a heavy manufacturing zoning
    district with a special use permit.
    On 23 September 2011, Cartwright submitted an application
    to have the property rezoned to Conditional District – Heavy
    Manufacturing.      The County Planning Board (“the Planning Board”)
    reviewed Cartwright’s rezoning application (“the application”)
    and recommended that it should be denied because, inter alia,
    the proposed use was inconsistent with the current rural zoning
    classification      and   was    inconsistent     with     the    County’s
    comprehensive land use plan.       The Board then conducted a hearing
    regarding the application on 5 December 2011.           At the conclusion
    of the meeting, the Board voted 6-1 to approve the application.
    On 25 January 2012, plaintiffs filed a complaint against
    defendants in Currituck County Superior Court seeking to have
    the rezoning of the property invalidated.        Plaintiffs’ complaint
    included claims of illegal spot zoning, arbitrary and capricious
    rezoning, and violation of due process.            Plaintiffs sought a
    preliminary   and    permanent   injunction   against    the   rezoning   as
    well as attorney’s fees and costs pursuant to 
    N.C. Gen. Stat. § 6-21.7
    .   On 23 March 2012, plaintiffs filed an amended complaint
    which added an additional claim for violation of N.C. Gen. Stat.
    § 153A-341 and the UDO.          Plaintiffs then filed a motion for
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    summary judgment as to all claims other than their claim for a
    preliminary and permanent injunction. After a hearing, the trial
    court entered an order granting summary judgment in favor of
    plaintiffs as to their claim for illegal spot zoning and denying
    plaintiffs’ request for attorney’s fees.                    The trial court also
    denied      plaintiffs’     motion    for    summary       judgment    as     to    their
    remaining claims. Plaintiffs and defendants each appeal.
    II.    Jurisdiction
    As    an   initial    matter,        we   note      that     this    appeal     is
    interlocutory because the trial court’s order did not resolve
    all    of    plaintiffs’     claims    since     it     explicitly         denied    both
    parties summary judgment as to those remaining claims and there
    is    no    subsequent    final   disposition         of    those    claims     in    the
    record.      Appeal from an interlocutory order is proper if
    (1) the order is final as to some claims or
    parties, and the trial court certifies
    pursuant to N.C.G.S. § 1A-1, Rule 54(b) that
    there is no just reason to delay the appeal,
    or (2) the order deprives the appellant of a
    substantial right that would be lost unless
    immediately reviewed.
    Myers v. Mutton, 
    155 N.C. App. 213
    , 215, 
    574 S.E.2d 73
    , 75
    (2002).       In the instant case, the trial court’s order entered
    final judgments as to plaintiffs’ claims for illegal spot zoning
    and attorney’s fees and certified pursuant to Rule 54(b) that
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    there   was    no   just    reason    to    delay    appeal   of   those    claims.
    Accordingly, this appeal is properly before us.                    See Sharpe v.
    Worland, 
    351 N.C. 159
    , 162, 
    522 S.E.2d 577
    , 579 (1999) (“When
    the trial court [properly] certifies its order for immediate
    appeal under Rule 54(b), appellate review is mandatory.”).
    III.      Defendants’ Appeal – Spot Zoning
    Defendants’ sole argument on appeal is that the trial court
    erred by granting summary judgment in favor of plaintiffs as to
    plaintiffs’ claim for illegal spot zoning.                 We disagree.
    “Our standard of review of an appeal from summary judgment
    is de novo; such judgment is appropriate only when the record
    shows that ‘there is no genuine issue as to any material fact
    and that any party is entitled to a judgment as a matter of
    law.’” In re Will of Jones, 
    362 N.C. 569
    , 573, 
    669 S.E.2d 572
    ,
    576   (2008)    (quoting     Forbis   v.     Neal,   
    361 N.C. 519
    ,    524,   
    649 S.E.2d 382
    , 385 (2007)).
    Spot zoning is defined, in pertinent part,
    as a zoning ordinance or amendment that
    “singles out and reclassifies a relatively
    small tract owned by a single person and
    surrounded by a much larger area uniformly
    zoned, so as to . . . relieve the small
    tract from restrictions to which the rest of
    the area is subjected.” Blades v. City of
    Raleigh, 
    280 N.C. 531
    , 549, 
    187 S.E.2d 35
    ,
    45 (1972), quoted in Chrismon [v. Guilford
    Cty.], 322 N.C. [611,] 627, 370 S.E.2d
    [579,] 588-89 [(1988)] The practice [of spot
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    zoning] may be valid or invalid, depending
    on the facts of the specific case. Chrismon,
    322 N.C. at 626, 370 S.E.2d at 588.        In
    order to establish the validity of such a
    zoning ordinance, the finder of fact must
    answer two questions in the affirmative: (1)
    did the zoning activity constitute spot
    zoning as our courts have defined that term;
    and (2) if so, did the zoning authority make
    a clear showing of a reasonable basis for
    the zoning. Id. at 627, 370 S.E.2d at 589.
    Good Neighbors of S. Davidson v. Town of Denton, 
    355 N.C. 254
    ,
    257-58, 
    559 S.E.2d 768
    , 771 (2002) (footnotes omitted).
    In the instant case, defendants conceded at oral arguments
    that the rezoning at issue constituted spot zoning as defined by
    our Supreme Court.      However, they still contend that summary
    judgment in favor of plaintiffs was inappropriate because the
    undisputed evidence is that there was a reasonable basis for the
    rezoning.    Defendants are mistaken.
    In order to determine whether there was a reasonable basis
    for a spot zoning, this Court considers the following factors:
    (1) “the size of the tract in question”; (2)
    “the compatibility of the disputed zoning
    action with an existing comprehensive zoning
    plan”; (3) “the benefits and detriments
    resulting from the zoning action for the
    owner of the newly zoned property, his
    neighbors, and the surrounding community;
    and” (4) “the relationship between the uses
    envisioned under the new zoning and the uses
    currently   present  in   adjacent  tracts.”
    Chrismon, 322 N.C. at 628, 370 S.E.2d at
    589. With these factors in mind, “the
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    criteria are flexible, and the specific
    analysis used depends on the facts and
    circumstances of a particular case.” Id.
    Childress v. Yadkin Cty., 
    186 N.C. App. 30
    , 37, 
    650 S.E.2d 55
    ,
    61 (2007).
    In the instant case, the first two factors, the size of the
    tract and the compatibility of the rezoning with the County’s
    comprehensive plan, clearly weigh against the reasonableness of
    the rezoning.            The rezoned property is only 1.1 acres in size
    and,    as      noted      by    the     Planning     Board,       the     rezoning       is
    inconsistent with the County’s comprehensive plan.                              In their
    brief, defendants do not dispute that these factors should weigh
    against       the    rezoning’s        reasonableness.          Instead,      defendants
    argue       that,   consistent      with    Chrismon,       the    third      and   fourth
    factors      support      a    determination      that     there   was    a   reasonable
    basis for the spot zoning.                 See Chrismon, 322 N.C. at 633-34,
    370    S.E.2d       at   592    (“[W]e    find     that,    because      of   the    quite
    substantial benefits created for the surrounding community by
    the rezoning and because of the close relationship between the
    likely uses of the rezoned property and the uses already present
    in    the    surrounding        tracts,    there    was     a   clear    showing     of   a
    reasonable basis for the spot zoning in this instance.”).
    A. Benefits vs. detriments
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    Defendants   first    contend      that   the   rezoning      would    create
    substantial benefits for the community.                    Our Supreme Court has
    stated that the analysis of this factor “is expressly limited to
    examining the ordinance’s beneficial and detrimental effects on
    the       property     owner,    his        neighbors,    and     the    surrounding
    community.” Good Neighbors, 355 N.C. at 259, 
    559 S.E.2d at 772
    .
    One example of a qualifying benefit is a
    showing that neighboring property values
    would increase as a result of the rezoning.
    Other benefits previously recognized by the
    Court, as illustrated in Chrismon, include:
    (1) a showing of broad-based support for the
    proposed use of the property, and (2) a
    showing   that   many  of   the  surrounding
    landowners were likely to use the expanded
    services offered by the property owner
    seeking the zoning change.
    Id. at 259-60, 
    559 S.E.2d at 772
    .
    In the instant case, defendants argue that the rezoning
    will be beneficial because the proposed recycling center would
    (1)    create    three    to    four    jobs;       (2)   allow   for    dilapidated
    structures on the property to be rehabilitated; (3) allow county
    citizens to dispose of their unwanted metals; and (4) make use
    of    a    railroad    siding.         In    addition,     defendants     note    that
    Commissioner J. Owen Etheridge (“Commissioner Etheridge”) stated
    that he witnessed support for the rezoning from twenty-eight of
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    thirty-three        attendees    at    a     preliminary        community     meeting
    regarding Cartwright’s application.
    Many    of    the    benefits       from   the    rezoning        proposed    by
    defendants are not supported by any evidence presented at the
    public hearing.        For instance, there was no evidence presented
    that the surrounding community would be particularly likely to
    use the recycling center or that there was a specific need for a
    recycling center in the property’s location.                       In Mahaffey v.
    Forsyth County, this Court held that a spot zoning to facilitate
    the establishment of an automobile parts store could not be said
    to benefit the community because “auto parts are a common and
    easily obtainable product and, if such a retail establishment
    were    said   to    be     ‘beneficial      to   a     rural    community,’        then
    virtually any type of business could be similarly classified.”
    
    99 N.C. App. 676
    , 683, 
    394 S.E.2d 203
    , 208 (1990), aff’d per
    curiam, 
    328 N.C. 323
    , 
    401 S.E.2d 365
     (1991).                        The recycling
    center in the instant case likewise provides only a generalized
    benefit that has no specific connection to the surrounding rural
    community.
    Commissioner        Etheridge’s      statement      that     he     personally
    witnessed significant support for the rezoning at a preliminary
    public hearing is also not supported by any evidence in the
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    record.     Moreover, even assuming, arguendo, that the statement
    was   accurate,     it     still   fails     to    establish      that       there    was
    substantial community support for the rezoning.                         Commissioner
    Etheridge’s       statement    acknowledges        that    multiple      individuals
    were opposed to the rezoning at the meeting he attended, and at
    the actual public meeting where the rezoning was considered, the
    vast majority of individuals who addressed the rezoning spoke in
    opposition to it.          Thus, there was not the type of overwhelming
    public    support    for    the    rezoning      that    would    be    necessary      to
    establish that the rezoning was beneficial to the surrounding
    community.        Cf. Chrismon, 322 N.C. at 630, 370 S.E.2d at 590
    (benefit    of    spot   zoning    demonstrated         when    eighty-eight         local
    residents signed a petition supporting the rezoning, multiple
    members of the community spoke in favor of the rezoning, and
    only one property owner spoke in opposition to it).
    In addition, two real estate professionals who spoke at the
    hearing stated that they believed that the proposed recycling
    center    would    decrease    property      values      both    in    the    immediate
    vicinity of the property and in the Shawboro community as a
    whole.     There was no evidence to the contrary presented during
    the   meeting.       Finally,      both    Currituck      County       Sheriff   Susan
    Johnson (“Sheriff Johnson”) and a representative from the North
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    Carolina Department of Cultural Resources (“the DCR”) submitted
    letters     to   the    Board     expressing          their   concerns    with    the
    rezoning.        Sheriff      Johnson    was    concerned     because     businesses
    similar     to   the     proposed       recycling       center    had    experienced
    increases in crime and other suspicious activity, and the DCR
    was concerned that the proposed recycling center would adversely
    affect two nearby historic properties.
    In light of this evidence, defendants have failed to make a
    clear showing that the benefits of the rezoning outweighed its
    detriments.       Consequently, this factor also weighs against the
    reasonableness of the rezoning.
    B.    Relationship of Uses
    Defendants         next   argue     that    the    proposed   uses    under   the
    rezoning would be consistent with the uses allowed or occurring
    on adjacent properties.          The Chrismon Court stated the following
    regarding this factor:
    In determining whether a zoning
    amendment constitutes spot zoning,
    the   courts    will   consider    the
    character    of    the   area    which
    surrounds the parcel reclassified
    by the amendment. Most likely to
    be found invalid is an amendment
    which   reclassifies    land    in   a
    manner    inconsistent     with    the
    surrounding neighborhood.
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    1 R. Anderson, American Law of Zoning § 5.16
    at 383 (3d ed. 1986) (emphasis added). One
    court has described the evil to be avoided
    as “an attempt to wrench a single small lot
    from its environment and give it a new
    rating which disturbs the tenor of the
    neighborhood.” Magnin v. Zoning Commission,
    
    145 Conn. 26
    , 28, 
    138 A. 2d 522
    , 523 (1958)
    (emphasis added).
    Chrismon, 322 N.C. at 631, 370 S.E.2d at 591.               The Court went on
    to note that “significant disturbances such as the rezoning of a
    parcel in an old and well-established residential district to a
    commercial        or      industrial     district     would       clearly       be
    objectionable” under this factor. Id.              In Budd v. Davie County,
    this    Court     cited     this   language   in   concluding    that    a    spot
    rezoning from residential-agricultural to industrial to permit
    the installation of a sand dredging operation “would destroy the
    tenor of the quiet residential and agricultural neighborhood.”
    
    116 N.C. App. 168
    , 178, 
    447 S.E.2d 449
    , 455 (1994).                    Similarly,
    in Good Neighbors, our Supreme Court held that a spot rezoning
    to permit chemical storage in an area “specifically zoned for
    farms and residences” was unreasonable under this factor.                      355
    N.C. App. at 262, 
    559 S.E.2d at 773
    .
    In   the    instant     case,   the    property     was   rezoned      from
    agricultural, which is the least intense residential district
    under   the     UDO,   to    heavy   manufacturing,      which   was    the   most
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    intense industrial district.         Thus, like the spot zonings found
    to be unreasonable in Budd and Good Neighbors, the rezoning in
    this case impermissibly “wrench[es] a single small lot from its
    environment and give[s] it a new rating which disturbs the tenor
    of the neighborhood.” Chrismon, 322 N.C. at 631, 370 S.E.2d at
    591 (emphasis omitted).
    However, defendants contend that the rezoning should still
    be considered reasonable pursuant to this factor because (1) the
    previous use of the property, a granary, was in greater conflict
    with   the    surrounding   properties      than   the   proposed    recycling
    center; and (2) the County may still place limitations upon the
    property that would bring it into harmony with the surrounding
    properties when Cartwright seeks a required special use permit.
    Defendants’     first   contention    is    immaterial,    because    previous
    uses of the rezoned property are not considered as part of this
    factor.      See Good Neighbors, 355 N.C. at 261, 
    559 S.E.2d at 773
    (This factor consists of “evaluating the relationship between
    the uses envisioned under the new zoning and the uses currently
    present in adjacent tracts . . . .” (emphasis added)).
    In support of its second contention, defendants cite Purser
    v. Mecklenburg County, 
    127 N.C. App. 63
    , 
    488 S.E.2d 277
     (1997).
    In Purser, the property at issue was rezoned from residential to
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    a   conditional-use          district        to     allow      for    a        “Neighborhood
    Convenience Center,” which would provide retail establishments
    that    were    consistent        with       the    daily     needs       of     the     nearby
    residents. 
    Id. at 65
    , 488 S.E.2d at 278.                       This Court found that
    under   those     circumstances,         the       “relationship      of       uses”     factor
    weighed    in   favor     of      the    reasonableness         of    the       spot     zoning
    because    “the    development          of    the     Center    was       governed        by    a
    conditional use site plan that was designed to integrate the
    Center into the neighborhood and insure that it would be in
    harmony with the existing and proposed residential uses on the
    surrounding property.”            Id. at 70-71, 488 S.E.2d at 282.
    Purser is distinguishable from the instant case.                              Unlike in
    Purser,    defendants        in    the       instant    case     have          presented       no
    evidence   that     the      recycling       center     has    been    designed          to    be
    integrated into the surrounding area.                   The only condition on the
    rezoning cited by defendants in their brief is an eight-foot
    fence which is to be installed around the property.                                    However,
    defendants      fail    to     adequately          explain     how    this       fence     will
    significantly diminish the impact of the recycling center on
    surrounding       properties.             Consequently,          we       conclude         that
    defendants      have    failed      to       clearly    show     that          the     proposed
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    recycling center would be consistent with the uses of adjoining
    properties.
    Ultimately, defendants have failed to meet their burden to
    make a clear showing pursuant to any of the Chrismon factors
    that the rezoning was a reasonable spot zoning.                         Accordingly,
    the trial court properly granted summary judgment in favor of
    plaintiffs because the rezoning constituted illegal spot zoning.
    Defendants’ argument is overruled.
    IV.    Plaintiffs’ Appeal – Attorney’s Fees
    Plaintiffs’ sole argument on appeal is that the trial court
    erred     by     denying       their     request        for      attorney’s         fees.
    Specifically, plaintiffs contend that defendant’s illegal spot
    zoning constituted an abuse of discretion and that, as a result,
    
    N.C. Gen. Stat. § 6-21.7
        required       the   trial    court   to     award
    attorney’s fees as a matter of law.               We disagree.
    Ordinarily,     the    “recovery    of     attorney’s        fees,    even    when
    authorized by statute is within the trial court’s discretion and
    will only be reviewed for an abuse of that discretion.” Martin
    Architectural Prods., Inc. v. Meridian Constr. Co., 
    155 N.C. App. 176
    ,   182,    
    574 S.E.2d 189
    ,     193    (2002).       However,       “[w]e
    review    a    trial   court’s    decision       whether       to   award    mandatory
    attorney’s      fees    de    novo.”    Willow     Bend       Homeowners     Ass'n     v.
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    Robinson, 
    192 N.C. App. 405
    , 418, 
    665 S.E.2d 570
    , 578 (2008)
    (emphasis added).
    In    the   instant       case,     plaintiffs    sought   to     recover
    attorney’s fees     pursuant to 
    N.C. Gen. Stat. § 6-21.7
    , which
    states:
    In any action in which a city or county is a
    party, upon a finding by the court that the
    city or county acted outside the scope of
    its legal authority, the court may award
    reasonable attorneys’ fees and costs to the
    party who successfully challenged the city’s
    or county’s action, provided that if the
    court also finds that the city’s or county’s
    action was an abuse of its discretion, the
    court shall award attorneys’ fees and costs.
    
    N.C. Gen. Stat. § 6-21.7
    .              This statute permits a party that
    successfully challenges an action by a city or county to recover
    attorney’s fees if the trial court makes certain findings of
    fact.     When the court finds only that the city or county acted
    outside    the   scope    of    its     legal   authority,    the    award   of
    attorney’s fees is discretionary. See Brock and Scott Holdings,
    Inc. v. Stone, 
    203 N.C. App. 135
    , 137, 
    691 S.E.2d 37
    , 38 (2010)
    (“[T]he use of [the word] ‘may’ generally connotes permissive or
    discretionary action and does not mandate or compel a particular
    act.”).     However,     if    the    court   additionally   finds   that    the
    city’s or county’s action constituted an abuse of discretion,
    then the award of attorney’s fees is mandatory. See Internet E.,
    -17-
    Inc. v. Duro Communications, Inc., 
    146 N.C. App. 401
    , 405-06,
    
    553 S.E.2d 84
    , 87 (2001) (“The word ‘shall’ is defined as ‘must’
    or ‘used in laws, regulations, or directives to express what is
    mandatory.’”).
    In the instant case, the trial court properly determined
    that the rezoning constituted illegal spot zoning and thus that
    the County acted outside the scope of its legal authority.                                See
    Alderman v. Chatham County, 
    89 N.C. App. 610
    , 616, 
    366 S.E.2d 885
    ,   889        (1988)    (“[U]nless      there     is    a   clear     showing    of    a
    reasonable basis, spot zoning is beyond the authority                               of the
    county      or     municipality.”         (internal        quotations     and     citation
    omitted)).           However, the court did not find that the County’s
    action      was    an     abuse     of   discretion    and      instead    ordered       both
    parties to be “responsible for their own attorney’s fees and
    costs.”          Plaintiffs        argue that the      trial court’s failure to
    award them attorney’s fees was error because (1) the County’s
    action was necessarily an abuse of discretion as a matter of
    law;   or    (2)     in    the     alternative,     that     the   record    supports      a
    determination that the County abused its discretion.                            Plaintiffs
    are mistaken.
    Plaintiffs          first    contend    that    “illegal      spot       zoning    is
    always outside the scope of the County’s legal authority and
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    always    an    abuse     of    discretion         and,     therefore,         once     it    is
    determined that illegal spot zoning occurred, the Trial Court is
    required       to    award     attorney’s         fees.”         In     support    of        this
    argument, plaintiffs rely on the principle noted in this Court’s
    opinion    in       Summers    v.   City     of    Charlotte,          which    states,        in
    relevant part:
    Local governments have been delegated the
    power to zone their territories and restrict
    them to specified purposes by the General
    Assembly. Zopfi v. City of Wilmington, 
    273 N.C. 430
    , 434, 
    160 S.E.2d 325
    , 330 (1968).
    This authority “is subject both to the . . .
    limitations imposed by the Constitution and
    to the limitations of the enabling statute.”
    
    Id.
     Within those limitations, the enactment
    of zoning legislation “is a matter within
    the discretion of the legislative body of
    the city or town.” 
    Id.
    149 N.C. App. 509
    , 517, 
    562 S.E.2d 18
    , 24 (2002).                                 Plaintiffs
    contend that since local governments only have discretion to
    enact     zoning      legislation         when     they    are        acting    within       the
    limitations         imposed    by   the    Constitution          and    by     statute,      any
    action    which      exceeds    those      limitations       must       also    exceed       the
    discretionary authority of the local government such that the
    action constitutes an abuse of discretion as a matter of law,
    which in turn requires an automatic award of attorney’s fees.
    Plaintiffs’ contention cannot be reconciled with the plain
    language of 
    N.C. Gen. Stat. § 6-21.7
    .                      Pursuant to that statute,
    -19-
    a “finding by the court that the city or county acted outside
    the scope of its legal authority,” such as a finding that a
    local government engaged in illegal spot zoning, does not, in
    and of itself, trigger the mandatory award of attorney’s fees.
    
    N.C. Gen. Stat. § 6-21.7
    .                Instead, the trial court must also
    explicitly      consider        and   “find[]        that       the   city’s     or   county’s
    action was an abuse of its discretion” in order to trigger the
    mandatory        award     of         fees.        
    Id.
                Plaintiffs’         proposed
    interpretation of the statute would collapse these two distinct
    required inquiries into one, essentially deleting a portion of
    the statute.           Such an interpretation is impermissible because
    our    Courts    “have     no    power       to    add     to    or    subtract       from   the
    language of the statute.” Zaldana v. Smith, ___ N.C. App. ___,
    ___, 
    749 S.E.2d 461
    , 463 (2013) (internal quotation and citation
    omitted),       disc.    rev.     denied,         ___    N.C.     ___,    ___    S.E.2d      ___
    (2014).
    “[A]n abuse of discretion occurs when a determination ‘is
    so    arbitrary    that     it    could       not       have    been     the    result    of   a
    reasoned decision.’” Bishop v. Ingles Mkts., Inc., ___ N.C. App.
    ___,    ___,     
    756 S.E.2d 115
    ,     121       (2014)       (quoting    Porter       v.
    Fieldcrest Cannon, Inc., 
    133 N.C. App. 23
    , 26, 
    514 S.E.2d 517
    ,
    520 (1999)).       Contrary to plaintiffs’ argument, the language of
    -20-
    
    N.C. Gen. Stat. § 6-21.7
     clearly indicates that the General
    Assembly believed that a local government could erroneously act
    outside the scope of its legal authority but yet not be acting
    in a manner “so arbitrary that it could not have been the result
    of a reasoned decision.” 
    Id.
                    Thus, we conclude that under the
    plain    language        of     the    statute,   the        trial        court       is    always
    required        to     separately       determine       both        (1)     that       a     local
    government acted outside the scope of its legal authority; and
    (2) that the act in question constituted an abuse of discretion
    before     the        court     is    required    to     award        attorney’s             fees.
    Plaintiffs’          proposed    interpretation         to    the     contrary             must   be
    rejected.
    Nonetheless,           plaintiffs still argue that “the undisputed
    facts of the case              sub judice are particularly egregious and
    further     demonstrate          the     County’s       abuse        of     discretion             in
    approving       the    rezoning.”         Specifically,        plaintiffs             note       that
    during     the       hearing     which    considered          the     rezoning             request,
    concerns    with       the     proposed    rezoning      were       raised        by       (1)    the
    Planning Board, because the rezoning was inconsistent with the
    comprehensive plan; (2) Sheriff Johnson, because the proposed
    use     would        potentially       require    the        hiring        of     a    new        law
    enforcement officer; (3) the DCR, which was concerned that the
    -21-
    proposed use would have negative effects on two nearby historic
    properties; and (4) nearby landowners.                      Plaintiffs also contend
    that    the     record      reflects    that      the     Board     failed      to    properly
    consider      and    analyze      the   relevant        spot   zoning       reasonableness
    factors after being informed about those factors by the County
    Attorney.           Plaintiffs argue that the Board’s approval of the
    rezoning      in    these     circumstances          irrefutably          demonstrates         an
    abuse of discretion.
    However, the evidence cited by plaintiffs was not the only
    information before the Board.                 Cartwright explained the benefits
    that    the     recycling      center       would   bring      to    the    community         and
    informed the Board how he expected the center would operate,
    including the steps he would take to limit the center’s impact
    on     nearby      landowners.          In     addition        to     Cartwright,        three
    individuals         spoke    in     favor    of     the    rezoning        at   the     public
    hearing.       Two of these individuals specifically referenced prior
    uses of the property and suggested that the recycling center
    would    not       impact     the    area     surrounding           the    property      in    a
    materially different manner than these prior uses.                                   The third
    individual supported the rezoning because he felt there was a
    need for industry in Currituck County.
    -22-
    Based upon the information presented during the hearing,
    Commissioner Etheridge made the following motion in favor of the
    rezoning:
    Mr. Chairman, since I live in the Shawboro
    community and I will be affected by this one
    way or the other, I am going to make a
    motion to recommend approval of this. And I
    do so citing that it is consistent with the
    land use plan, and the request is reasonable
    and in the public interest. It also promotes
    orderly   growth  and  development   in  our
    community, and it follows the long history
    of industrial uses that have been in this
    area.
    One, it’s a rail siding with three rail
    spurs, the largest one in Currituck County.
    It has had a cotton gin, an asphalt plant,
    two      different      fertilizer     plants,
    agricultural chemical storage, granaries, as
    I   said   to   [inaudible],   lime  off--they
    offloaded lime there. DOT has--NCDOT, DOT,
    has used this property to offload rail cars
    of highway maintenance materials. Various
    contracting firms have offloaded rail cars
    at this site. North Carolina Power has, on
    occasion,     offloaded    large    electrical
    equipment here. So it has a history of being
    an industrial area, or the railroad would
    have never put the siding there to begin
    with.
    So with that, and the fact that there was
    overwhelming   support  at   the   community
    meeting--I think the report was thirty-three
    people there, twenty-eight supported it.
    Here tonight it appears to be somewhat
    overwhelming   support  from   the   general
    community. And the general community we’re
    talking about is Currituck and Shawboro in
    particular. And I look out here and I see
    -23-
    people from Shawboro and throughout the
    county. And I think it is time that we take
    the foot of government off the throat of
    starting businesses in this county and we do
    what we can to make sure.
    Now, in this additional zoning permit, I
    would also add that we add opaque fencing to
    be determined height-wise, and a special use
    permit that every factor that the staff and
    Mr. Cartwright can work on to mitigate any
    possible negative impacts be looked at and
    then addressed at the special use permit.
    This statement is the only information on the record regarding
    the Board’s reasoning for the approval of the rezoning, which
    occurred shortly after Commissioner Etheridge’s motion was made.
    The motion demonstrates that the Board considered most of the
    Chrismon reasonableness factors prior to approving the rezoning.
    Commissioner Etheridge specifically cited his belief that the
    rezoning was consistent with the UDO,                 noted benefits to the
    community    such    as   economic   growth     and    significant      community
    support, and discussed how the newly zoned property would be
    consistent    with   surrounding     property    uses,     including     how   the
    recycling center’s impact would be mitigated through the special
    use permit process.        While we have determined that Commissioner
    Etheridge’s    reasoning     was   insufficient       to   meet   the   County’s
    legal burden of making “a clear showing of a reasonable basis
    for the zoning,” Good Neighbors, 355 N.C. at 258, 559 S.E.2d at
    -24-
    771,    we    cannot    conclude     that    the   Board’s   reliance      on    the
    information cited by Commissioner Etheridge was so unreasonable
    that the legislative act of the rezoning “could not have been
    the result of a reasoned decision.” Bishop, ___ N.C. App. at
    ___, 756 S.E.2d at 121.              Accordingly, the trial court did not
    err    by    determining     that    the    rezoning   was   not    an   abuse    of
    discretion by the County.1            Since there was sufficient evidence
    for the trial court to decide that the rezoning was not an abuse
    of discretion, there was also sufficient evidence for the court,
    in its discretion, to deny plaintiffs’ motion for attorney’s
    fees.        Thus, we conclude the trial court did not abuse its
    discretion by denying that motion.             This argument is overruled.
    V.     Conclusion
    The trial court properly awarded summary judgment in favor
    of plaintiffs for their illegal spot zoning claim because there
    was no genuine issue of material fact as to whether the rezoning
    constituted illegal spot zoning.               Pursuant to 
    N.C. Gen. Stat. § 6-21.7
    , if the trial court finds only that a local government
    acted       outside    the   scope    of    its    authority,      the   award   of
    attorney’s fees is discretionary. However, if the trial court
    1
    Although the trial court did not explicitly find that the
    County did not abuse its discretion by enacting the rezoning,
    such a finding is implicit in the court’s decision to have both
    parties bear their own costs and attorney’s fees.
    -25-
    additionally finds that the local government’s action was an
    abuse   of   discretion,   the    award    of   attorney’s   fees   becomes
    mandatory.     Since the court properly determined that the County
    did not abuse its discretion when it approved the illegal spot
    zoning of the property, it was not required to award attorney’s
    fees    to   plaintiffs.    The    trial    court   did   not   abuse   its
    discretion by ordering the parties to pay their own attorney’s
    fees and costs.    The trial court’s order is affirmed.
    Affirmed.
    Judges HUNTER, Robert C. and GEER concur.