Northeast Concerned Citizens, Inc. v. City of Hickory

545 S.E.2d 768, 143 N.C. App. 272, 2001 N.C. App. LEXIS 264

• Court: Court of Appeals of North Carolina
• Decided: May 1, 2001
• Docket: COA00-35
• Status: Published

Opinions

GREENE, Judge.

Northeast Concerned Citizens, Inc. (Plaintiff) appeals an order filed 7 September 1999 granting summary judgment in favor of City of Hickory (the City) and Tricor Development Corporation (Tricor) (collectively, Defendants) and denying Plaintiffs motion for summary judgment.

Section 14.1 of the Hickory Zoning Ordinance (the Ordinance) provides for the establishment of Planned Development (PD) Districts. Zoning Ordinance, City of Hickory, N.C. § 14.1 (1993). PD Districts are zoning districts “established for specialized purposes where tracts, suitable in location, area[,] and character for the uses and structures proposed, are to be planned and developed on a unified basis.” Id. The PD Districts permitted by Article 14 include PD Shopping Center Districts for community shopping centers. Id. § 14.8. The establishment of a PD District requires both the rezoning of the property at issue as a PD District and the approval of a Preliminary Development Concept Plan. The Preliminary Development Concept Plan consists of a plan for the specific use to be made of the property if the property is rezoned, and the plan must “include all data reasonably necessary for determining whether the proposed development meets the specific requirements and limitations, and the intent concerning a particular type of PD District.” Id. § 14.5.1. To apply for the establishment of a PD District, a party must submit a rezoning request as well as a Preliminary Development Concept Plan to the Hickory Regional Planning Commission (Planning Commission). Id.

The record shows that in Spring 1998, Tricor filed an application with the Planning Commission to rezone approximately 29.5 acres of land located at the intersection of Springs Road and Kool Park Road in Hickory (the property). At the time the application was submitted, a portion of the property was zoned residential, a portion of the property was zoned commercial, and a portion of the property was zoned PD Mobile Home Park. Tricor sought to have the property rezoned as a PD Shopping Center District for community shopping centers. Tricor’s Preliminary Development Concept Plan stated its intent to construct a Wal-Mart on the property.

On 24 June 1998, the Planning Commission held a public hearing on Tricor’s request to rezone the property. At the hearing, members of the public spoke both in opposition to and in favor of the rezoning request. At the conclusion of the hearing, the Planning Commission voted to recommend that the City Council for the City of Hickory (the City Council) deny Tricor’s request to rezone the property.

On 21 July 1998, the City Council held a public hearing on the proposed rezoning of the property. At the conclusion of the hearing, the City Council approved Tricor’s rezoning request by a 4-3 vote. On 18 August 1998, the rezoning ordinance was read for a second time, as required by the Hickory City Code. Subsequent to the reading, the rezoning ordinance was approved for a second time by a 4-3 vote and adopted by the City Council.

On 16 October 1998, Plaintiff filed a complaint in the Superior Court of Catawba County, alleging a cause of action against the City. Plaintiff’s complaint stated, in pertinent part:

1. . . . Plaintiff ... is a nonprofit corporation organized and existing under the laws of the State of North Carolina. The purpose for which the corporation was formed is to promote, preserve and protect the quality of living and land use in the City of Hickory... among said corporation[’]s members and all residents of the City of Hickory .... In carrying out the purposes of the corporation this action has been instituted for the purpose of preserving the residential character of the neighborhood],] the subject of this litigation. Many of the supporters and the people whose interest it represents are people who own property in the immediate vicinity of the proposed shopping center that is the subject of this litigation. Accordingly, the use and enjoyment of the properties owned by such people would be diminished and their property values would be lowered if the proposed shopping center were to be constructed, and therefore, such persons would suffer special damages that are different in degree and kind from any adverse affects [sic] that may be suffered generally by other residents of the City of Hickory or Catawba County.

Plaintiffs complaint alleged that the City lacked authority to exercise zoning powers under N.C. Gen. Stat. § 160A-364 when it rezoned the property, the City Council acted with bias when it approved the rezoning of the property, the rezoning of the property was “unreasonable, arbitrary!,] and capricious,” the City’s actions were invalid because of Tricor’s failure to “provide notice to all adjoining landowners of the [property],” and the rezoning of the property violated N.C. .Gen. Stat. § 160A-382 (uniformity requirement throughout each district). Plaintiff requested the trial court “declare the zoning amendment adopted by the . . . City Council on August 18, 1998 to be invalid and of no effect.”

In an order filed 1 February 1999, the trial court granted a motion by Trieor to intervene. The City and Tricor filed answers to Plaintiff’s complaint, stating as a defense that Plaintiff lacked standing to bring an action to challenge the rezoning ordinance. Defendants then filed a motion for summary judgment dated 18 May 1999, stating “there is no genuine issue as to any material fact. . . and [Defendants] are entitled to judgment as a matter of law.”

In an affidavit dated 24 June 1999, Walter D. Scharer (Scharer) stated that he “was one of the original founding members of [Plaintiff].” Scharer stated in his affidavit several ways in which the area surrounding the property would be affected if a Wal-Mart or any other shopping center were built on the property, including: there would be increases in traffic, crime, noise, and light, and “[t]he property values of the neighborhood and surrounding vicinity would decrease as a result of the increased commercialization of the neighborhood.” Attached to Scharer’s affidavit was an exhibit listing the names of 114 individuals who were present at the first meeting held by Plaintiff, and Scharer stated in his affidavit all of these individuals were accepted as members of Plaintiff at the meeting. In addition to Scharer’s affidavit, Plaintiff submitted to the trial court affidavits of eleven other members of Plaintiff. These affidavits stated the same concerns as stated in Scharer’s affidavit and included statements that if a Wal-Mart or a similar shopping center were built on the property, “[t]he property values of the neighborhood and surrounding vicinity would decrease as a result of the increased commercialization of the neighborhood.” All of the parties who submitted affidavits stated they lived at addresses which are located in the neighborhood surrounding the property.

Tricor’s First Set of Interrogatories to Plaintiff contained the following pertinent question: “Identify all persons who are members of [Plaintiff] and whom you contend own properties in such relationship to the property rezoned in this case that such persons would have standing as individuals to challenge this rezoning.” In its response, Plaintiff listed the names of thirteen members.

Plaintiff filed a motion for summary judgment dated 1 July 1999. In an order dated 7 September 1999, the trial court denied Plaintiffs motion for summary judgment and granted summary judgment in favor of Defendants.

The dispositive issue is whether a corporation which does not have any legal interest in property affected by a zoning ordinance nevertheless has standing to challenge that zoning ordinance when the members/shareholders of the corporation have standing as individuals to challenge the zoning ordinance.

A zoning ordinance may be challenged by an action for declaratory judgment, Taylor v. City of Raleigh, 290 N.C. 608, 620, 227 S.E.2d 576, 583 (1976), or by writ of certiorari, N.C.G.S. § 160A-388(e) (1999). A party seeking to challenge a zoning ordinance, however, must have standing to bring such a challenge. Standing exists to challenge a zoning ordinance by a declaratory judgment action when the plaintiff “has a specific personal and legal interest in the subject matter affected by the zoning ordinance and ... is directly and adversely affected thereby.” Taylor, 290 N.C. at 620, 227 S.E.2d at 583. Similarly, standing exists to challenge a zoning ordinance by writ of certiorari when the plaintiff is an “aggrieved party,” N.C.G.S. § 160A-388(e), i.e., the plaintiff will suffer damages “distinct from the rest of the community” as a result of the zoning ordinance, Heery v. Zoning Board of Adjustment, 61 N.C. App. 612, 614, 300 S.E.2d 869, 870 (1983). Further, when a plaintiff seeks to challenge a zoning ordinance by a writ of certiorari, the plaintiff must allege special damages in its complaint. Id.; Village Creek Prop. Owners’ Ass’n, Inc. v. Town of Edenton, 135 N.C. App. 482, 485-86, 520 S.E.2d 793, 795-96 (1999). It thus follows a corporation has standing to challenge a zoning ordinance in a declaratory judgment action if the corporation has a specific legal interest directly and adversely affected by the zoning ordinance; and a corporation has standing to challenge a zoning ordinance by writ of certiorari if the corporation is an “aggrieved party” under section 160A-388(e). Additionally, a corporation has standing to challenge a zoning ordinance in a declaratory judgment action if all of the members/shareholders of the corporation have a specific legal interest directly and adversely affected by the zoning ordinance; and a corporation has standing to challenge a zoning ordinance by writ of certiorari if all of the members/shareholders of the corporation are “aggrieved parties” under section lbOA-SSSCe).¹ See Piney Mt. Neighborhood Assoc. v. Town of Chapel Hill, 63 N.C. App. 244, 247, 304 S.E.2d 251, 253 (1983) (property association has standing to challenge city council’s approval of special use permit by writ of certio-rari when individual members of property association would “clearly have an interest in the property affected”).

In this case, Plaintiff brought a declaratory judgment action against the City, in which it requested that the trial court “declare the zoning amendment adopted by the ... City Council on August 18,1998 to be invalid and of no effect.”² Defendants raised as a defense to this action that Plaintiff lacked standing to challenge the rezoning ordinance, and Defendants filed a motion for summary judgment on the ground no genuine issue of material fact existed. The record does not contain any evidence Plaintiff has a specific legal interest directly and adversely affected by the rezoning ordinance; therefore, Plaintiff has standing to challenge the rezoning ordinance only if all of its members/shareholders have a specific legal interest directly and adversely affected by the rezoning ordinance. The record shows, at best, only twelve of Plaintiffs 114 members have such an interest. Accordingly, the trial court properly granted summary judgment in favor of Defendants on the ground Plaintiff did not have standing to challenge the rezoning ordinance.

Because Defendants were entitled to summary judgment on the ground Plaintiff lacked standing, we need not address Plaintiffs additional assignments of error.

Affirmed.

Judge McCULLOUGH concurs. Judge HUDSON concurs in the result with separate opinion.

1 . The concurrence cites River Birch Associates v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990), for the proposition that all individual members of an association do not have to have individual standing for the association to have standing to bring an action on behalf of the members when the association itself does not have standing. River Birch, however, is distinguishable from the case sub judice because at issue in River Birch was an association’s standing to bring an action for unfair or deceptive trade practices and not an action to challenge a zoning ordinance. Id. at 129-31, 388 S.E.2d at 355-56. As North Carolina has created a specific test for standing that is applicable to actions challenging zoning ordinances, see Taylor, 290 N.C. at 620, 227 S.E.2d at 583; N.C.G.S. § 160A-388(e), the more general standing requirement for associations stated in River Birch is not applicable to the case sub judice.

2 . Plaintiff’s complaint does not state whether it seeks review under the Declaratory Judgment Act, N.C.G.S. ch. 1, art. 26 (1999), or by petition for writ of cer-tiorari under section 160A-388(e). Because Plaintiff’s complaint seeks to have the rezoning ordinance declared “invalid and of no effect,” we treat Plaintiff’s action as an action for declaratory judgment. See Ferguson v. Kittens, 129 N.C. App. 131, 138, 497 S.E.2d 722, 726 (type of action brought by plaintiff is determined based on nature of relief requested), disc. review denied and appeal dismissed, 348 N.C. 496, 510 S.E.2d 382 (1998).