Good Neighbors Or. Hill Protecting Prop. Rights v. Cnty. of Rockingham

774 S.E.2d 902, 242 N.C. App. 280, 2015 N.C. App. LEXIS 628, 2015 WL 4449994
CourtCourt of Appeals of North Carolina
DecidedJuly 21, 2015
DocketNo. COA15–121.
StatusPublished
Cited by2 cases

This text of 774 S.E.2d 902 (Good Neighbors Or. Hill Protecting Prop. Rights v. Cnty. of Rockingham) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Good Neighbors Or. Hill Protecting Prop. Rights v. Cnty. of Rockingham, 774 S.E.2d 902, 242 N.C. App. 280, 2015 N.C. App. LEXIS 628, 2015 WL 4449994 (N.C. Ct. App. 2015).

Opinions

ELMORE, Judge.

*281The County of Rockingham (defendant) appeals the denial of its summary judgment motion and the entry of summary judgment in favor of Good Neighbors of Oregon Hill *904Protecting Property Rights and Ashley M. Wyatt (plaintiffs). After careful consideration, we reverse and remand for further proceedings.

I. Background

The facts relevant to this appeal are as follows: On 10 August 2012, Philip M. Behe (aka "Matt Behe") and his father, Philip L. Behe1 , purchased through North Carolina Special Warranty Deed the property located at 403 Live Oak Road in Reidsville. The property consisted of a 101.76 acre tract, and Matt Behe wished to subdivide approximately two acres out of the parent tract for a kennel to be used as a bird-dog training facility. Matt Behe owns Rocky River Gun Dogs, LLC, which has trained world and national championship bird dogs. On 5 September 2012, Matt Behe and his wife, Megan Behe, filed an application with Rockingham County to rezone the two-acre tract from Residential Agricultural to Highway Commercial-Conditional District.

The Rockingham County Planning Staff issued a report, Case # 2012-016, recommending a request for rezoning from Residential Agricultural to Highway Commercial-Conditional District, with the following nine conditions:

1. All development shall proceed in accordance with the site plan, including applicant submitted materials, and any changes may require a Site Plan Amendment.
2. The applicant is responsible for obtaining and complying with all required permits and approvals.
3. The Applicant shall use Best Management Practices for any additional grading and erosion control as shown in either the (USDA-Natural Resources Conservation Service Field Office Technical Guide ) or the (NC Erosion and Sediment Control Planning and Design Manual ).
4. A Type I landscape buffer, either planted or existing, must be maintained in a healthy manner along all property *282lines adjoining residentially zoned properties. A chain link fence with slats providing 90% coverage is acceptable as a type I visual buffer. The landscaping or buffer must be installed within one year of the date of the Certificate of Occupancy for the building.
5. Lighting fixtures shall be full cut-off or shoebox type fixtures and shall be aimed and shielded in a manner that would not direct illumination on adjacent properties.
6. The required Parking shall be calculated at one (1) space per 400 sq. ft. of gross floor area.
7. Prior to operation of the business, the applicant shall contact the North Carolina Department of Transportation to determine if a commercial driveway permit is needed. The applicant shall provide the Planning Department with a copy of the commercial driveway permit or a letter from the North Carolina Department of Transportation stating a permit is not needed.
8. Applicant must dispose of all wastes in accordance with the applicable federal, state, and local regulations.
9. Within 60 days of approval of the rezoning request, a minimum 30,000 square feet lot shall be subdivided from the parent tracts according to the site plan provided by the applicant.

On 8 July 2013, the Rockingham County Planning Board (Planning Board) voted 6-4 in favor to rezone approximately 1.9 acres of the 101.76 tract from Residential Agricultural to Highway Commercial-Conditional District for a kennel dog training facility. On 5 August 2013, the Rockingham County Board of Commissioners (BOC) approved the zoning amendment, with a 4-1 vote. In the BOC's rezoning order, it included the nine conditions listed above that were recommended by the Planning Staff.

On 24 October 2013, plaintiffs sought a preliminary injunction and a declaratory judgment in superior court that the rezoning ordinance adopted by the BOC was void and of no legal effect. Plaintiffs alleged four claims: (1) the rezoning constituted illegal spot zoning; (2) defendant failed to comply with statutory requirements; (3) defendant failed to comply with requirements of the *905zoning ordinance; and (4) defendant's decision to rezone the property was arbitrary and capricious and is therefore void and of no effect. *283On 26 November 2013, defendant denied each allegation outlined in plaintiffs' four claims. The parties filed cross-motions for summary judgment. While the case was pending, Matt Behe, Megan Behe, Philip L. Behe, and his wife, Cheryl Behe, transferred ownership of the 403 Live Oak Road property to Rocky River Gun Dogs, LLC through a North Carolina General Warranty Deed in April 2014.

On 14 November 2014, the trial court granted plaintiffs' motion for summary judgment. In its order, the trial court listed thirteen points to justify its holding, none of which were identified as findings of fact or conclusions of law. The final point in the order stated:

13. The re-zoning decision was not shown to be in compliance with the local zoning ordinance and the state enabling statutes in the following respects:
a) Among the Commercial Rezoning Site Plan Requirements is III, which requires the Applicant to make a good faith effort to meet with the owners of neighboring properties to discuss the application by requiring him to arrange a date for the meeting and mailing written notice to all properties within 250 feet of the property proposed to be rezoned. The record does not reveal where the Applicant complied with this requirement.
b) The Report, pages 8 and 9, summarizes the testimony of several so described owners of parcels of land abutting that parcel of land for which re-zoning was being sought did not receive notification as provided by Chapter 153A343.
c) The record reveals that the Applicant began excavation and installation of the structure intended for use under the rezoning before securing the zoning permit from the defendant as specifically prohibited under the Zoning Ordinance at Section 15-2(a).

Defendant timely appealed to this Court on 25 November 2014.

II. Analysis

a.) Illegal Spot Zoning

We must determine whether the trial court erred in granting plaintiffs' motion for summary judgment and denying defendant's motion for summary judgment. As a threshold matter, defendant argues *284for the first time on appeal that, as a matter of law, the rezoning of the two-acre tract does not involve spot zoning. We agree.

"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,

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Bluebook (online)
774 S.E.2d 902, 242 N.C. App. 280, 2015 N.C. App. LEXIS 628, 2015 WL 4449994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/good-neighbors-or-hill-protecting-prop-rights-v-cnty-of-rockingham-ncctapp-2015.