Mahaffey v. Forsyth County

394 S.E.2d 203, 99 N.C. App. 676, 1990 N.C. App. LEXIS 834
CourtCourt of Appeals of North Carolina
DecidedAugust 7, 1990
Docket8921SC1215
StatusPublished
Cited by9 cases

This text of 394 S.E.2d 203 (Mahaffey v. Forsyth County) 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
Mahaffey v. Forsyth County, 394 S.E.2d 203, 99 N.C. App. 676, 1990 N.C. App. LEXIS 834 (N.C. Ct. App. 1990).

Opinions

LEWIS, Judge.

This appeal addresses two separate zoning amendments. The assignments of error for each of those rezonings are discussed separately below.

I: 1979 Rezoning.

Plaintiffs submit a cross-appeal which addresses the 1979 zoning amendment only. They contend that “this amendment constitutes an illegal spot zoning and therefore is invalid and void ab initio.” Defendants allege that plaintiffs are barred from challenging the 1979 rezoning by the Statute of Limitations. We affirm the holding of the trial court “[t]hat the Plaintiffs are barred by the Statute of Limitations from challenging the rezoning of the property contained in [the 1979] Petition. . . .”

Section 1-54.1 of the North Carolina General Statutes which states the time “limitations” for commencing civil actions includes the following provision for zoning ordinances:

Within nine months an action contesting the validity of any zoning ordinance or amendment thereto adopted by a county....

Plaintiffs concede that this claim is brought after the nine-month period has lapsed, but they assert four equitable arguments in favor of their position that their action is not barred by the Statute of Limitations.

(1) Forsyth County and the members of the Board of Commissioners of Forsyth County pled the Statute of Limitations as an affirmative defense in their answer to plaintiffs’ complaint. However, the other defendants in the case at bar failed to include this affirmative defense in their answers to plaintiffs’ complaint. The trial court imputed the county defendants’ assertion of the defense to [679]*679the other defendants. Plaintiffs state that the trial court erred since this defense must be “timely pleaded or it is deemed waived.” Gragg v. W.M. Harris & Son, 54 N.C. App. 607, 610, 284 S.E.2d 183, 185 (1981). We affirm the holding of the trial court that allows this affirmative defense to be pled by some of the defendants on behalf of all of the defendants. The same result is obtained whether the statute is asserted by only one or all of these defendants.

(2) Plaintiffs contend that the 1979 rezoning “is a present and ongoing violation of Plaintiffs’ due process and equal protection rights” under the Constitutions of the United States and of North Carolina. They allege that “[t]he passing of a statute of limitations should not have the legal effect of . . . [making] legal the illegal acts of a zoning authority.” The United States Supreme Court has rejected this argument in Block v. North Dakota, ex rel. Board of University and School Lands: “A constitutional claim can become time-barred just as any other claim can.... Nothing in the Constitution requires otherwise.” 461 U.S. 273, 292, 75 L.Ed. 2d 840, 857 (1983). (Citations omitted.) The North Carolina Supreme Court has held that plaintiffs may be barred by their own inaction from asserting violations of constitutional rights. Taylor v. City of Raleigh, 290 N.C. 608, 227 S.E.2d 576 (1976). In that case, plaintiff was barred by his inaction from pursuing his constitutional claim regarding a zoning ordinance. Plaintiffs in the case at bar must live with the consequences of their inaction arising from their failure to challenge the 1979 zoning amendment during the requisite time period.

(3) Plaintiffs allege that defendants abandoned the specific use of the property which was set forth in the rezoning petition since the property was used for approximately six months as an automobile sales lot and has been vacant since that time. However, abandonment of a permitted use within a zoning classification does not invalidate the classification and the property owner may elect to later resume the permitted use of that land. The zoning classification has remained in effect regardless of its non-use by the property owners.

(4) The trial court invalidated the 1988 rezoning which, according to plaintiffs’ allegations, constituted a change in the zoning classification for the part of that property which had been rezoned in 1979, thereby creating a new cause of action for plaintiffs. In fact, that invalidation merely leaves the zoning ordinance as it [680]*680would have been prior to that ordinance. Courts have no authority to rezone property from one classification to another but, instead, may rule on the validity of an existing zoning ordinance. When such a decision is made by the courts to invalidate an ordinance, that action “does not remove the designated area from the effect of the comprehensive zoning ordinance previously enacted.” Zopfi v. City of Wilmington, 273 N.C. 430, 437, 160 S.E.2d 325, 333 (1968). Thus, the invalidation of the 1988 zoning amendment does not create a new cause of action with respect to the 1979 rezoning.

We find that the trial court correctly applied the Statute of Limitations with respect to the 1979 rezoning.

II: 1988 Rezoning.

Defendants contend that the trial court erred in its determination that the 1988 rezoning is invalid. The trial court ruled that “the rezoning of the property contained in Petition F-888 by Forsyth County Board of Commissioners on July 11, 1988 constituted an illegal spot zoning and is invalid.” A recent North Carolina Supreme Court decision set forth the standard for determining whether or not a rezoning constitutes an illegal spot zoning.

[I]n any spot zoning case in North Carolina Courts, two questions must be addressed by the finder of fact: (1) did the zoning activity in the case constitute spot zoning as our Courts have defined the term; and (2) if so, did the zoning authority make a clear showing of a reasonable basis for the zoning.

Chrismon v. Guilford County, 322 N.C. 611, 627, 370 S.E.2d 579, 589 (1988). This discussion will follow these questions presented by Chrismon.

A. Was the rezoning a “spot zoning”?

Spot zoning is “an attempt to wrench a single small lot from its environment and give it a new rating which disturbs the tenor of the neighborhood.”Id. at 631, 370 S.E.2d at 591 (1988). (Emphasis original.) “Spot zoning” was defined specifically in Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972).

In North Carolina

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 [681]*681as 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, is called “spot zoning.”

Id. at 549, 187 S.E.2d at 45.

Defendants contend that the 1988 rezoning is not a spot zoning for two reasons.

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Mahaffey v. Forsyth County
394 S.E.2d 203 (Court of Appeals of North Carolina, 1990)

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Bluebook (online)
394 S.E.2d 203, 99 N.C. App. 676, 1990 N.C. App. LEXIS 834, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mahaffey-v-forsyth-county-ncctapp-1990.