McDowell v. Randolph Cty.Â

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-401
Filed: 5 December 2017
Randolph County, No. 16 CVS 1539
MAXTON MCDOWELL and WANDA MCDOWELL, Plaintiffs,
v.
RANDOLPH COUNTY and THE RANDOLPH COUNTY BOARD OF COUNTY
COMMISSIONERS, Defendants.
Appeal by plaintiffs from order entered 26 January 2017 by Judge Edwin G.
Wilson in Randolph County Superior Court. Heard in the Court of Appeals 1
November 2017.
The Brough Law Firm, PLLC, by Robert E. Hornik, Jr. and Kevin R. Hornik,
for plaintiff-appellants.
Smith Moore Leatherwood LLP, by Kip David Nelson and Thomas E. Terrell,
Jr., for defendant-appellees.
TYSON, Judge.
Maxton McDowell and Wanda McDowell (“Plaintiffs”) appeal the trial court’s
entry of summary judgment in favor of Randolph County (“Defendant-County”) and
the Randolph County Board of County Commissioners (“Defendant-Board”)
(collectively, “Defendants”). This case involves the question of whether Randolph
County properly “re-zoned” certain real property bordering Plaintiffs’ property. We
affirm the superior court’s order.
MCDOWELL V. RANDOLPH CTY.
Opinion of the Court
I. Background
The record tends to show the following: Plaintiffs own and reside on certain
real property located at 5354 Old N.C. Highway 49 in Randolph County. Maxton
McDowell also owns a parcel of land on the south side of Old N.C. Highway 49
adjacent to certain real property owned by the McDowell Family Limited Partnership
(“MFLP”). A portion of MFLP’s property (the “Subject Property”) is used by the
McDowell Lumber Company (the “Lumber Company”) as a saw mill, planing
operation, and pallet-making operation.
Since about 1987, Defendant-County has maintained a zoning ordinance,
referred to as the Unified Development Ordinance (“UDO”) which governs and
regulates the uses of land in the county. Defendant-County also maintains a land
use plan called the “Randolph County Growth Management Plan” (the “Plan”).
In 2009, Randolph County amended the Plan to include the Rural Industrial
Overlay District zoning classification. The Rural Industrial Overlay District “is
intended to accommodate industrial activities and uses requiring proximity to rural
resources where the use of site specific development plans, natural buffers and
landscaping, would lessen adverse impact upon the general growth characteristics
anticipated by the Growth Management Plan.” Randolph County, Uniform
Development Ordinance Art. VII, § I (Apr. 6, 2009).
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Also included in the Plan is the Rural Industrial Overlay Conditional District
zoning classification. The Rural Industrial Overlay Conditional District is “identical
to the Rural Industrial Overlay District except site plans and individualized
development conditions are imposed only upon petition of all owners of the land.” Id.
The Subject Property was rezoned by Defendant-Board to the Rural Industrial
Overlay Conditional District classification (“CZ-RIO”) in 2010 at the request of
MFLP. The representative for the Lumber Company submitted a site plan for the
Subject Property with the 2010 rezoning request. Defendant-Board approved the
2010 rezoning request with the condition that the Lumber Company conform its use
of the property to the specifications set out in the site plan.
In April 2016, the Lumber Company filed and requested a rezoning application
to modify its site plan, by relocating a chemical vat. On 6 June 2016, Defendant-
Board approved the Lumber Company’s rezoning request. Defendant-Board made no
change in the Subject Property’s, nor any other adjoining property’s, zoning
classification, but approved only a modification to the Subject Property’s site plan.
The modification to the site plan permits the Lumber Company to relocate an existing
chemical-containing vat to a different location within the Subject Property and to
build a concrete pad and structure to partially enclose it.
Plaintiffs brought suit against Defendants on 3 August 2016. Plaintiffs alleged
that the rezoning was null and void because (1) Defendant-Board’s decision was
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Opinion of the Court
arbitrary and capricious, (2) Defendants had failed to adopt a proper consistency
statement, and (3) Defendants engaged in illegal spot zoning.
Defendants moved for summary judgment pursuant to Rule 56 of the North
Carolina Rules of Civil Procedure on the grounds that the Board retained the
statutory authority to “change the zoning and zoning conditions of all properties
within the county, and the rezoning decision complied with all statutorily required
procedures and was not illegal spot zoning.” See N.C. Gen. Stat. § 1A-1, Rule 56
(2015). Plaintiffs filed a cross-motion for summary judgment pursuant to Rule 56.
Id.
On 26 January 2017, the trial court granted Defendants’ motion for summary
judgment and denied Plaintiffs’ motion for summary judgment. Plaintiffs timely
appealed the superior court’s judgment.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. §§ 1-277(a) and 7A-
27(b) (2015) as an appeal from a superior court’s order in a civil action disposing of
all the parties’ issues.
III. Standard of Review
Summary judgment is proper when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that any party is entitled to a
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Opinion of the Court
judgment as a matter of law.” N.C. Gen. Stat. § 1A–1, Rule 56(c). The moving party
bears the burden of demonstrating the lack of triable issues of fact. Koontz v. City of
Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). On appeal
from summary judgment, “[w]e review the record in the light most favorable to the
non-moving party.” Bradley v. Hidden Valley Transp., Inc., 148 N.C. App. 163, 165,
557 S.E.2d 610, 612 (2001) (citing Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d
379, 381 (1975)), aff’d, 355 N.C. 485, 562 S.E.2d 422 (2002). “We review a trial court’s
order granting summary judgment de novo[.]” Adkins v. Stanly Cty. Bd. of Educ., 203
N.C. App. 642, 644, 692 S.E.2d 470, 472 (2010).
IV. Analysis
Plaintiffs renew their arguments made before the superior court in opposition
to Defendants’ motion for summary judgment and in support of their own motion for
summary judgment. Plaintiffs assert Defendants’ rezoning amendment is null and
void because: (1) Defendant-Board’s decision was arbitrary and capricious, (2)
Defendants failed to adopt a proper consistency statement, and (3) Defendants
engaged in illegal spot zoning. We address each argument in turn.
A. Arbitrary and Capricious
Plaintiffs argue Defendant-Board acted arbitrarily and capriciously when it
rezoned the property to approve the modified site plan. We disagree.
The Constitution imposes limits on the legislative power to
zone by forbidding arbitrary, capricious, and unduly
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discriminatory interference with the rights of property
owners. This standard is a very difficult standard to meet.
A decision is arbitrary and capricious if it was patently in
bad faith, whimsical, or if it lacked fair and careful
consideration. In deciding whether a decision is arbitrary
and capricious, courts must apply the whole record test.
Summers v. City of Charlotte, 149 N.C. App. 509, 518, 562 S.E.2d 18, 25 (2002)
(internal quotations and citations omitted).
Under de novo review, on questions of law “[a] reviewing court is not free to
substitute [its] opinion for that of the legislative body so long as there is some
plausible basis for the conclusion reached by that body.” Ashby v. Town of Cary, 161
N.C. App. 499, 503, 588 S.E.2d 572, 574 (2003) (internal quotations and citation
omitted). A rezoning decision can only be deemed improper if “the record
demonstrates that it had no foundation in reason and bears no substantial relation
to the public health, the public morals, the public safety or the public welfare in its
proper sense.” Id. (quotation marks and citation omitted).
Under the deferential review of the Board’s factual findings, “[t]he whole
record test requires the reviewing court to examine all the competent evidence . . .
which comprises the whole record to determine if there is substantial evidence in the
record to support the [Board’s] findings and conclusions.” Northwest Prop. Grp., LLC
v. Town of Carrboro, 201 N.C. App. 449, 456, 687 S.E.2d 1, 6 (2009) (internal
quotations and citations omitted). “The ‘whole record’ test does not allow the
reviewing court to replace the [Board’s] judgment as between two reasonably
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conflicting views, even though the court could justifiably have reached a different
result had the matter been before it de novo.” Id. (quoting Thompson v. Board of
Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977)).
Defendant-Board reached its decision to rezone the Subject Property by
granting the Lumber Company’s modified site plan. The modified site plan specifies
moving the existing chemical-containing vat at issue onto a concrete pad to divert
storm water runoff to an on-site retention pond, adding a cover over the vat, and the
addition of walls to block the view of the vat.
The minutes of the 6 June 2016 hearing of Defendant-Board on the decision to
review the Lumber Company’s petition show Defendant-Board received testimony
from the Lumber Company’s representative. The Lumber Company representative
asserted the relocation of the vat as shown on the proposed site plan would reduce
the dust, noise, and emissions on and from the Subject Property, and cut the driving
time of the Lumber Company’s vehicles in half.
Defendant-Board found the rezoning amendment to be in furtherance of the
2009 Randolph County Growth Management Policy by furthering the goal of
“[e]nsur[ing] the opportunity for landowners to achieve the highest and best uses of
their land that are consistent with growth management policies in order to protect
the economic viability of the County’s citizens and tax bases.”
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Opinion of the Court
Defendant-Board had several plausible bases to justify its decision to rezone
the Subject Property by granting the Lumber Company’s modification to the site plan.
No genuine issue of material fact exists to show Defendants’ conduct was whimsical
or exercised patently in bad faith. The proposed relocation of the chemical vat
arguably will make the Subject Property safer, reduce emissions and lower the
probability of runoff or spills onto adjoining properties. Plaintiffs’ arguments are
overruled.
B. Statement of Consistency
Plaintiffs argue Defendant-Board did not adopt a valid statement of
consistency contemporaneously with, or prior to, approving the rezoning of the
Subject Property. We disagree.
N.C. Gen. Stat. § 153A-341 (2015) requires:
Zoning regulations shall be made in accordance with a
comprehensive plan. Prior to adopting or rejecting any
zoning amendment, the governing board shall adopt a
statement describing whether its action is consistent with
an adopted comprehensive plan and explaining why the
board considers the action taken to be reasonable and in
the public interest. That statement is not subject to judicial
review.
Our Supreme Court in Wally v. City of Kannapolis, 365 N.C. 449, 453-54, 722
S.E.2d 481, 484 (2012), held a zoning amendment to be void, where the city council
had failed to approve a statement of reasonableness when adopting the amendment.
The Supreme Court in Wally stated:
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The statute requires that defendant take two actions in
this situation: first, adopt or reject the zoning amendment,
and second, approve a proper statement. The approved
statement must describe whether the action is consistent
with any controlling comprehensive plan and explain why
the action is “reasonable and in the public interest.”
Id. at 452, 722 S.E.2d at 483 (emphasis in original) (citations omitted).
This Court, in Morgan v. Nash Cty., 224 N.C. App. 60, 69, 735 S.E.2d 615, 622
(2012), held “the statute at issue in Wally, N.C. Gen. Stat. § 160A-383, is substantially
similar to N.C. Gen. Stat. § 153A-341, but section 160A-383 applies to zoning
amendments adopted by cities and towns rather than by counties.”
This Court, in Atkinson v. City of Charlotte, 235 N.C. App. 1, 4, 760 S.E.2d 395,
397 (2014) held the following statement of consistency not to be in compliance with
N.C. Gen. Stat. § 160A-383: “STATEMENT OF CONSISTENCY This petition is
found to be consistent with adopted policies and to be reasonable and in the public
interest . . . .” The Court concluded the statement merely contained summary
language that tracked the statute, and did not actually contain both a description of
whether the zoning amendment is consistent with any controlling land use plan and
an explanation as to why the amendment is reasonable and in the public interest. Id.
Although N.C. Gen. Stat. § 160A-383 [applicable to cities] and N.C. Gen. Stat.
§ 153A-341 [applicable to counties] both plainly state that a statement of consistency
“is not subject to judicial review,” the Court in Atkinson, following Wally, held that
while the content of a statement of consistency is not subject to judicial review,
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Opinion of the Court
whether the statement includes the required description and explanation is subject
to judicial review. Id. at 5, 760 S.E.2d at 398. The Court reversed the trial court’s
order granting summary judgment in favor of the defendants and remanded for the
entry of summary judgment in favor of the plaintiffs on the basis the amendment was
void for lack of a valid consistency statement. Id. at 6, 760 S.E.2d at 398.
Here, the minutes of the Board hearing, during which the Board voted to
approve the zoning amendment at issue, contains the following statement of
consistency:
On motion of Kemp, seconded by Lanier, the Board voted
3-2, with Commissioners Frye and Allen opposing, to
approve the request of McDowell Family Limited
Partnership, as determined consistent with the standards
and policies contained within the Growth Management
Plan; and having further found from information and
testimony provided at public hearing, that the following
Growth Management policies support the Determination of
Consistency and find the decision reasonable and in the
public interest.
Policy 3.9[:] Individual rezoning decisions within Rural
Growth Areas will depend upon the scale of the
development, and the specific nature of the site and its
location.
Resolution Adopting the 2009 Randolph County Growth
Management Plan, Policy #2[:] Recognize that growth
management policies should afford flexibility to County
boards and agencies that will enable them to adapt to the
practical requirements often necessary for rural
development.
Resolution Adopting the 2009 Randolph County Growth
Management Policy #3[:] Ensure the opportunity for
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Opinion of the Court
landowners to achieve the highest and best uses of their
land that are consistent with growth management policies
in order to protect the economic viability of the County’s
citizens and tax bases. [Emphasis supplied.]
Plaintiffs argue the Board’s statement of consistency fails to comply with N.C.
Gen. Stat. § 153A-341, because it does not include an explanation to show the
amendment is reasonable and in the public interest. We disagree.
Defendant-Board’s statement of consistency shows Defendant-Board, based
upon the “information and testimony produced at public hearing” found the rezoning
to be consistent with the Growth Management Plan, and to be reasonable and in the
public interest because it was consistent with the three listed plan policies. Unlike
the city council in Wally, Defendant-Board clearly found and adopted a sufficient
statement of consistency. Unlike the statement of consistency at issue in Atkinson,
Defendant-Board found and adopted a statement which goes beyond merely reciting
the language of N.C. Gen. Stat. § 153A-341. Defendant-Board’s statement of
consistency lists the bases of its finding and “describe[s] whether the action is
consistent with any controlling comprehensive plan and explain[s] why the action is
‘reasonable and in the public interest.’” Wally, 365 N.C. at 452, 722 S.E.2d at 483
(emphasis omitted). Plaintiffs’ argument is overruled.
C. “Spot Zoning”
Plaintiffs argue Defendants engaged in illegal spot zoning by rezoning the
Subject Property to accepting the modified site plan. We disagree.
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Opinion of the Court
Our Supreme Court has defined “spot zoning” to be:
A zoning ordinance, or amendment, which 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 impose upon the small tract greater
restrictions than those imposed upon the larger area, or 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) (emphasis
supplied). North Carolina appellate courts have repeatedly followed this definition
of spot zoning. See Musi v. Town of Shallotte, 200 N.C. App. 379, 382, 684 S.E.2d 892,
895 (2009) (applying the Blades definition of spot zoning), Friends of Mt. Vernon
Springs, Inc. v. Town of Siler City, 190 N.C. App. 633, 638, 660 S.E.2d 657, 661 (2008)
(applying the Blades definition of spot zoning), Childress v. Yadkin Cty. 186 N.C. App.
30, 34, 650 S.E.2d 55, 59 (2007) (applying the Blades definition of spot zoning). “Spot
zoning is not invalid per se in North Carolina so long as the zoning authority made a
clear showing of a reasonable basis for such distinction.” Childress, 186 N.C. App. at
35, 650 S.E.2d at 59 (citation and internal quotation marks omitted).
No genuine issue of material fact exists of Defendant-Board’s approval of the
modified site plan of the Subject Property in 2016. Defendants rezoned the Subject
Property to Rural Industrial Overlay Conditional District zoning classification in
2010. In the 2016 rezoning action Plaintiffs challenge here, Defendant-Board did not
change the classification of the subject property from Rural Industrial Overlay
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Opinion of the Court
Conditional District to another zoning district, or reclassify any other tract of
property to this zoning district.
Defendant-Board merely approved the relocation of the existing chemical vat
to another location on the Subject Property, by approving the modification to the
Subject Property’s site plan.
Within two months an action contesting the validity of any
ordinance adopting or amending a zoning map or
approving a special use, conditional use, or conditional
zoning district rezoning request under Part 3 of Article 18
of Chapter 153A of the General Statutes or Part 3 of Article
19 of Chapter 160A of the General Statutes or other
applicable law. Such an action accrues upon adoption of
such ordinance or amendment.
N.C. Gen. Stat. § 1-54.1 (2015). Under N.C. Gen. Stat. § 1-54.1, 2010 would have
been the appropriate time to have brought a spot zoning challenge to Defendants’
classifying the subject property as Rural Industrial Overlay Conditional District.
Plaintiffs cannot challenge this classification now, which is not a reclassification of
zoning, but is merely a review and approval of the modification to the previously
approved site plan.
No genuine issue of material fact exists to show Defendants’ 2016 rezoning
action constitutes illegal spot zoning. Plaintiffs’ argument is overruled.
V. Conclusion
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Opinion of the Court
The superior court’s judgment granting Defendants’ motion for summary
judgment, and denying Plaintiffs’ motion for summary judgment, is affirmed. It is
so ordered.
AFFIRMED.
Judges STROUD and HUNTER concur.
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