Robins v. Town of Hillsborough

625 S.E.2d 813, 176 N.C. App. 1, 2006 N.C. App. LEXIS 415

• Court: Court of Appeals of North Carolina
• Decided: February 21, 2006
• Docket: COA05-165
• Status: Published

Opinions

TYSON, Judge.

Douglas M. Robins (“plaintiff’) appeals from the trial court’s order granting summary judgment in favor of the Town of Hillsborough (“defendant”). We reverse and remand.

I. Background

On 21 January 2003, plaintiff filed an application for site plan approval with defendant to construct an asphalt plant within the town limits of Hillsborough. Georgia-Pacific Corporation owned the property on which the facility was to be constructed. Plaintiff had entered into a contract to purchase the property prior to submitting his application for site plan review, and subsequently purchased the property. At the time plaintiff filed his application, an asphalt plant was a permitted use in a general industrial (GI) district subject to a site plan review. The property on which the asphalt plant was to be constructed was zoned GI. In reliance on the zoning ordinance in effect at the time of his application, plaintiff spent approximately $100,000.00 to engineer and submit a site plan to comply with the conditional use requirements set forth in the ordinance and to prepare for the required public hearings.

The Board of Adjustment held public hearings on 12 February 2003, 12 March 2003, and 9 April 2003 to review plaintiffs application. The Board received evidence in favor of and in opposition to plaintiffs site plan submission, but reached no decision. At the close of the 9 April 2003 hearing, the Board of Adjustment again continued and scheduled a fourth hearing on 30 April 2003.

On 22 April 2003, the Town of Hillsborough Board of Commissioners adopted “An Ordinance Amending the Town of Hillsborough Zoning Ordinance to Temporarily Suspend the Review, Consideration and Issuance of Permits and Applications for Manufacturing and Processing Operations Involving Petroleum Products” (“the moratorium”). The moratorium provides:

Notwithstanding any provision in this Zoning Ordinance to the contrary, no manufacturing and processing facility involving petroleum products as one of the materials being manufactured and/or processed (including, but not limited to, refineries for gasoline and other fuels, liquefied gas refineries, asphalt plants, finished petroleum products plants, plants which manufacture asphalt paving mixtures and blocks, asphalt shingles and/or coating materials, and plants manufacturing or processing petroleum lubricating oils and greases) shall be permitted, and no application for any permit or approval to operate such facility shall be accepted, processed, reviewed or considered by the Town. This section shall apply to all applications for a permit or approval, including any application which is pending as of the effective date hereof

(Emphasis supplied). The “moratorium” further provides it shall be effective immediately upon adoption and shall remain in effect until 31 December 2003 unless sooner terminated by the Board of Commissioners or extended by the Board for a period of not longer than six months. Defendant issued a notice cancelling the 30 April 2003 Board of Adjustment’s scheduled and continued hearing to further review plaintiffs site plan application.

On 24 November 2003, the Board of Commissioners amended Section 3.3 of the zoning ordinance to totally prohibit “manufacturing and processing facilities involving the use of petroleum products, such as . . . asphalt plants ... in the Town of Hillsborough and its extraterritorial zoning jurisdiction.” The ordinance stated, “This section shall apply to all applications for a permit or approval, including any application which is pending as of the effective date hereof.” The ordinance’s amendment became effective 1 March 2004. The Board of Commissioners also extended the “moratorium” in effect until the effective date of the permanent ban.

Plaintiff filed a complaint and petition for judicial review and writ of certiorari in Orange County Superior Court on 22 January 2004. Defendant filed a motion for summary judgment, which the trial court granted on 28 October 2004. Plaintiff appeals.

II. Issues

Plaintiff argues the trial court erred in granting defendant’s motion for summary judgment because: (1) plaintiff is entitled to rely upon the language of the zoning ordinance in effect at the time he applied for the permit; (2) defendant violated N.C. Gen. Stat. § 160A-364 (2003) by failing to give notice of a public hearing or hold a public hearing prior to its decision to extend the moratorium; and (3) defendant’s decision to permanently prohibit asphalt plants was arbitrary and capricious.

III. Standard of Review

A. Review of a Board of Adjustment Decision

When reviewing decisions of town boards or local municipalities, the superior court’s task is to:

(1) review the record for errors of law; (2) ensure that procedures specified by law in both statute and ordinance are followed; (3) ensure that appropriate due process rights of the petitioner are protected, including the right to offer evidence, cross-examine witnesses, and inspect documents; (4) ensure that the decision is supported by competent, material, and substantial evidence in the whole record; and (5) ensure that the decision is not arbitrary and capricious.

Whiteco Outdoor Adver. v. Johnston County Bd. of Adjust., 132 N.C. App. 465, 468, 513 S.E.2d 70, 73 (1999) (citing Coastal Ready-Mix Concrete Co., Inc. v. Board of Commissioners, 299 N.C. 620, 626, 265 S.E.2d 379, 383, reh’g denied, 300 N.C. 562, 270 S.E.2d 106 (1980)) (emphasis supplied). This Court’s “task, in reviewing a superior court order entered after a review of a board decision is two-fold: (1) to determine whether the trial court exercised the proper scope of review, and (2) to review whether the trial court correctly applied this scope of review.” Id. (citing Appeal of Willis, 129 N.C. App. 499, 502, 500 S.E.2d 723, 726 (1998)). We review questions of law de novo. Harris v. Ray Johnson Constr. Co., 139 N.C. App. 827, 829, 534 S.E.2d 653, 654 (2000).

B. Summary Judgment

Summary judgment is proper if 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 judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003). The evidence must be considered in a light most favorable to the non-moving party. Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003). When reviewing a lower court’s grant of summary judgment, our standard of review is de novo. Id.

IV. Plaintiff’s Application for Site Plan Approval

Plaintiff argues the trial court erred in granting summary judgment in favor of defendant because plaintiff is entitled to rely upon the language of the zoning ordinance in effect at the time he applied for the permit. We agree.

This Court addressed this issue in Lambeth v. Town of Kure Beach, 157 N.C. App. 349, 578 S.E.2d 688 (2003). In Lambeth, the petitioner applied to the Town of Kure Beach for a permit to widen his driveway to his comer lot residence from 19 feet to 24 feet on 15 March 2001. Id. at 350, 578 S.E.2d at 689. The zoning ordinance in effect at the time of the petitioner’s application provided driveways across the town right-of-way were limited to 24 feet wide. Id. at 351, 578 S.E.2d at 689-90. Petitioner’s permit was denied by the town’s building inspector because the expansion would violate the ordinance as it had been applied to other landowners. Id. at 351, 578 S.E.2d at 690. An existing five foot wide concrete sidewalk extended from petition’s house to the other street. Id. at 350, 578 S.E.2d at 689. On 19 June 2001, the town amended the ordinance to limit landowners to twenty-four feet of “impervious surface” across any town right-of-way. Id. at 351, 578 S.E.2d at 690. The trial court dismissed the petitioner’s action and entered judgment in favor of the Town of Kure Beach. Id. at 351, 578 S.E.2d at 690.

This Court stated, “The amendment to the ordinance further restricts petitioner’s use of his property. Petitioner was entitled to rely upon the language of the ordinance in effect at the time he applied for the permit.” Id. at 352, 578 S.E.2d at 690 (citing Northwestern Financial Group v. County of Gaston, 329 N.C. 180, 405 S.E.2d 138 (1991)).

Similarly, in Northwestern Financial Group our Supreme Court considered:

whether the plaintiff-developer which applied for a construction permit under a county ordinance that prescribed the procedures for obtaining a construction and operating permit of a mobile home park has a right to have its application reviewed under the terms of the ordinance in effect at the time the application for the permit was made.

329 N.C. at 181-82, 405 S.E.2d at 139. Gaston County adopted a mobile home park ordinance on 1 July 1986 and amended the ordinance in September 1987. Id. at 182, 405 S.E.2d at 139. The amended ordinance contained the following language: “ ‘[t]he provisions of the Gaston County Mobile Home Park Ordinance Dated July 1, 1986, shall apply to those . . . plans . . . submitted to the Gaston County Division of Planning after July 1, 1986 and prior to the effective date of this ordinance.’ ” Id. The plaintiff submitted a plan for a mobile home park in June 1987 prior to the effective date of the amended ordinance. Id. Plaintiff submitted a revised plan shortly before the ordinance was amended. Id. at 183, 405 S.E.2d at 140. In response to repeated requests and demands from Gaston County, the plaintiff further revised and resubmitted plans several times after the 1987 amendment became effective. Id. at 183-86, 405 S.E.2d at 140-41. Gaston County refused to accept the fifth set of revised plans under the 1986 ordinance prior to the amendment. 329 N.C. at 185, 405 S.E.2d at 141. Our Supreme Court held, “Clearly, Northwestern established a right of review under the 1986 ordinance with the submission of plans both on 5 June 1987 (the first plan) and on 21 September 1987 (the second plan) unless that right was waived subsequent to those filings.” Id. at 188, 405 S.E.2d at 143. The Court held Northwestern did not waive its right of review under the ordinance in effect when its plans were filed through either an abandonment of the first plans or a failure to act. Id. at 190, 405 S.E.2d at 144.

“The design and construction of a [land development] project is specifically tailored to comply with the regulations in effect at the time of application for permits.” Woodlief v. Mecklenburg County, 176 N.C. App. 205, 212, 625 S.E.2d 904, 909 (2006). Under our Supreme Court’s decision in Northwestern Financial Group and this Court’s decisions in Lambeth and Woodlief, plaintiff “was entitled to rely upon the language of the ordinance in effect at the time he applied for the permit.” Lambeth, 157 N.C. App. at 352, 578 S.E.2d at 690. “To hold otherwise would allow compliance with regulations and permitting to become a moving target to ever changing revisions or amendments.” Woodlief, 176 N.C. App. at 212, 625 S.E.2d at 909. Defendant’s motion for summary judgment should have been denied. The trial court erred in granting summary judgment in favor of defendant because plaintiff was entitled to rely upon the language of, and have his application considered under, the zoning ordinance in effect at the time he applied for his permit.

V. Plaintiff’s Constitutional Rights

Plaintiff also argues defendant’s decision to permanently prohibit “manufacturing and processing facilities involving the use of petroleum products” was arbitrary and capricious and violated his state and federal constitutional rights. In addition to repeatedly failing to act on plaintiff’s application, defendant issued a moratorium and later a permanent ban on asphalt plants within the Town of Hillsborough and its extraterritorial zoning jurisdiction. The ordinance states:

[M]anufacturing and processing facilities involving the use of petroleum products, such as, but not limited to refineries for gasoline or other fuels, liquefied gas refineries, asphalt plants, finished petroleum product plants, plants which manufacture asphalt paving mixtures and blocks, asphalt shingles, and/or coating materials, and plants manufacturing or processing petroleum lubricating oils and greases are expressly prohibited in the Town of Hillsborough and its extraterritorial zoning jurisdiction.

(Emphasis supplied).

Section 19 of article I of the Constitution of North Carolina contains the “Law of the Land Clause” and provides: “No person shall be . . . deprived of his life, liberty, or property, but by the law of the land.”'N.C. Const, art. I, § 19. This clause is synonymous with the Fourteenth Amendment due process clause of the federal Constitution. Woods v. City of Wilmington, 125 N.C. App. 226, 230, 480 S.E.2d 429, 432 (1997); U.S. Const. amend. XIV., § 1 ( “... nor shall any State deprive any person of life, liberty, or property, without due process of law . . . [.]”); see also U.S. Const. amend. V (“No person shall be . . . deprived of life, liberty, or property, without due process of law.”).

In County of Sacramento v. Lewis, 523 U.S. 833, 845-46, 140 L. Ed. 2d, 1043, 1057 (1998), the United States Supreme Court stated:

We have emphasized time and again that the touchstone of due process is protection of the individual against arbitrary action of government, . . . whether the fault lies in a denial of fundamental procedural fairness, ... or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective...[.]

(Internal citations and quotation marks omitted) (Emphasis supplied). “ ‘A State cannot under the guise of protecting the public arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions on them.’ ” Indemnity Co. v. Ingram, Comr. of Insurance, 290 N.C. 457, 471, 226 S.E.2d 498, 507 (1976) (quoting Roller v. Allen, 245 N.C. 516, 525, 965 S.E.2d 851 (1957).

Zoning regulations promulgated under the police power of the sovereign restrict the use of private property to promote the public health, the public safety, the public morals or the public welfare. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387, 71 L. Ed. 303, 310 (1926); Zopfi v. City of Wilmington, 273 N.C. 430, 433, 160 S.E.2d 325, 330 (1968). Zoning authority under the police power “is subject to the limitations imposed by the Constitution upon the legislative power forbidding arbitrary and unduly discriminatory interference with the rights of property owners.” Zopfi, 273 N.C. at 434, 160 S.E.2d at 330 (emphasis supplied).

The courts will not invalidate zoning ordinances duly adopted by a municipality unless it clearly appears that in the adoption of such ordinances the action of the city officials ‘has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense.’

Armstrong v. McInnis, 264 N.C. 616, 626-27, 142 S.E.2d 670, 677 (1965) (quoting In re Appeal of Parker, 214 N.C. 51, 55, 197 S.E. 706, 709 (1938)).

Defendant held three hearings to review plaintiff’s site plan application under a permitted use in the ordinance. Rather than making a decision on plaintiff’s application, defendant repeatedly delayed a decision and while the hearing was pending totally prohibited “manufacturing processing facilities involving the use of petroleum products” within the town limits of Hillsborough and its extraterritorial zoning jurisdiction.

Courts in other jurisdictions require a municipality to demonstrate a much greater substantial relátionship between the ordinance and the public welfare where a total prohibition of a lawful activity is involved rather than an ordinance which merely confines a use to a particular district. Applicable analysis is set forth by the Pennsylvania Supreme Court in Exton Quarries, Inc. v. Zoning Board of Adjustment, 425 Pa. 43, 59, 228 A.2d 169, 179 (Penn., 1967) (citations omitted), and is particularly persuasive:

The constitutionality of zoning ordinances which totally prohibit legitimate businesses such as quarrying from an entire community should be regarded with particular circumspection; for unlike the constitutionality of most restrictions on property rights imposed by other ordinances, the constitutionality of total prohibitions of legitimate businesses cannot be premised on the fundamental reasonableness of allocating to each type of activity a particular location in the community. We believe this is true despite the possible existence outside the municipality of sites on which the prohibited activity may be conducted, since it is more probable than not that, as the operator of the prohibited business is forced to move further from the property he owns, his economic disadvantage will increase to the point of deprivation.

The Michigan Supreme Court similarly held, “On its face, an ordinance which totally excludes from a municipality a use recognized by the Constitution or other laws of this state as legitimate also carries with it a strong taint of unlawful discrimination and a denial of equal protection of the law as to the excluded use.” Kropf v. City of Sterling Heights, 391 Mich. 139, 155-56, 215 N.W.2d 179, 185 (Mich., 1974).

In Beaver Gasoline Co. v. Zoning Hearing Board, 445 Pa. 571, 577, 285 A.2d 501, 504-05 (Penn., 1971), the Pennsylvania Supreme Court also held an applicant meets his burden of overcoming the presumption of the constitutionality of the ordinance by showing a total ban of a legitimate use. The court shifted the burden to the municipality to show the validity of the ordinance. Id. (“Thereafter, if the municipality is to sustain the validity of the ban, it must present evidence to establish the public purpose served by the regulation.”).

Plaintiff demonstrated defendant enacted a total prohibition on manufacturing and processing facilities involving the use of petroleum products within the municipality and adjoining areas after he had submitted an application for a use permitted by the zoning ordinance .subject to site plan review. The burden shifted to defendant to show the public purpose of the ordinance. Id. A genuine issue of material fact exists whether the public purpose defendant sought to accomplish by a total and permanent ban on asphalt plants is legitimate and whether defendant’s decision to place a permanent ban on asphalt plants was not arbitrary and capricious. Id.; Armstrong, 264 N.C. at 626-27, 142 S.E.2d at 677-78. The burden of proof rests upon defendant. Beaver Gasoline Co., 445 Pa. at 577, 285 A.2d at 504-05.

VI. Conclusion

The trial court erred in granting summary judgment in favor of defendant. Plaintiff is entitled to a decision on his application based upon the ordinance in effect at the time the application was filed. Northwestern Financial Group, 329 N.C. at 185, 405 S.E.2d at 141; Woodlief, 176 N.C. at 212, 625 S.E.2d at 909; Lambeth, 157 N.C. App: at 352, 578 S.E.2d at 690.

A genuine issue of material fact also exists whether the public purpose defendant sought to accomplish by a total ban on asphalt plants is legitimate, and whether defendant’s decision to place a total permanent ban on manufacturing and processing facilities involving petroleum products within all areas located in the city limits and its extraterritorial zoning jurisdiction denied equal protection and was arbitrary and capricious. In light of our decision it is unnecessary to address plaintiff’s second assignment of error regarding notice. The trial court’s order is reversed and this cause is remanded for further proceedings.

Reversed and Remanded.

Judge JOHN concurs. Judge JACKSON dissents in a separate opinion.