Etheridge v. County of Currituck

NO. COA13-834

NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2014

E. RAY ETHERIDGE, FRED G.
ETHERIDGE, and MARY KATHERINE R.
ETHERIDGE,
Plaintiffs

v. Currituck County
No. 12 CVS 38
COUNTY OF CURRITUCK; THE CURRITUCK
COUNTY BOARD OF COMMISSIONERS; and
JOHN D. RORER, MARION GILBERT, O.
VANCE AYDLETT, JR., H.M. PETREY,
J. OWEN ETHERIDGE, PAUL MARTIN,
and S. PAUL O’NEAL as members of
the CURRITUCK COUNTY BOARD OF
COMMISSIONERS,
Defendants

Appeal by plaintiffs and defendants from order entered 25

April 2013 by Judge Walter H. Godwin, Jr. in Currituck County

Superior Court. Heard in the Court of Appeals 22 January 2014.

Currin & Currin, by Robin T. Currin and George B. Currin,
for plaintiffs.

Currituck County Attorney Donald I. McRee, Jr., for
defendants.

CALABRIA, Judge.

Currituck County (“the County”) and the Currituck County

Board of Commissioners (“the Board”) (collectively “defendants”)

appeal from the portion of the trial court’s order granting
 -2-
summary judgment in favor of E. Ray Etheridge, Fred G.

Etheridge, and Mary Katherine R. Etheridge (collectively

“plaintiffs”) as to plaintiffs’ claim of illegal spot zoning.

Plaintiffs appeal the portion of the trial court’s order denying

their request for attorney’s fees and costs pursuant to N.C.

Gen. Stat. § 6-21.7 (2013). We affirm.

I. Background

This appeal concerns a dispute over a 1.1 acre parcel of

land (“the property”) owned by Currituck Grain, Inc. (“Currituck

Grain”) in the town of Shawboro in Currituck County, North

Carolina. Prior to 5 December 2011, the property was zoned

agricultural under Currituck County’s Unified Development

Ordinance (“the UDO”). The adjoining parcels of land on three

sides of the property were also zoned agricultural, and the

parcel on the remaining side of the property was zoned general

business.

Currituck Grain entered into a contract with Daniel Clay

Cartwright (“Cartwright”) by which Cartwright would purchase the

property to establish what he called a “recycling center,”

which would handle, stockpile, and sell scrap metal and

materials, rock, mulch, concrete, and dirt. Cartwright’s

proposed use was not permitted in an agricultural zoning
 -3-
district, but it was permitted in a heavy manufacturing zoning

district with a special use permit.

On 23 September 2011, Cartwright submitted an application

to have the property rezoned to Conditional District – Heavy

Manufacturing. The County Planning Board (“the Planning Board”)

reviewed Cartwright’s rezoning application (“the application”)

and recommended that it should be denied because, inter alia,

the proposed use was inconsistent with the current rural zoning

classification and was inconsistent with the County’s

comprehensive land use plan. The Board then conducted a hearing

regarding the application on 5 December 2011. At the conclusion

of the meeting, the Board voted 6-1 to approve the application.

On 25 January 2012, plaintiffs filed a complaint against

defendants in Currituck County Superior Court seeking to have

the rezoning of the property invalidated. Plaintiffs’ complaint

included claims of illegal spot zoning, arbitrary and capricious

rezoning, and violation of due process. Plaintiffs sought a

preliminary and permanent injunction against the rezoning as

well as attorney’s fees and costs pursuant to N.C. Gen. Stat. §

6-21.7. On 23 March 2012, plaintiffs filed an amended complaint

which added an additional claim for violation of N.C. Gen. Stat.

§ 153A-341 and the UDO. Plaintiffs then filed a motion for
 -4-
summary judgment as to all claims other than their claim for a

preliminary and permanent injunction. After a hearing, the trial

court entered an order granting summary judgment in favor of

plaintiffs as to their claim for illegal spot zoning and denying

plaintiffs’ request for attorney’s fees. The trial court also

denied plaintiffs’ motion for summary judgment as to their

remaining claims. Plaintiffs and defendants each appeal.

II. Jurisdiction

As an initial matter, we note that this appeal is

interlocutory because the trial court’s order did not resolve

all of plaintiffs’ claims since it explicitly denied both

parties summary judgment as to those remaining claims and there

is no subsequent final disposition of those claims in the

record. Appeal from an interlocutory order is proper if

(1) the order is final as to some claims or
parties, and the trial court certifies
pursuant to N.C.G.S. § 1A-1, Rule 54(b) that
there is no just reason to delay the appeal,
or (2) the order deprives the appellant of a
substantial right that would be lost unless
immediately reviewed.

Myers v. Mutton, 155 N.C. App. 213, 215, 574 S.E.2d 73, 75

(2002). In the instant case, the trial court’s order entered

final judgments as to plaintiffs’ claims for illegal spot zoning

and attorney’s fees and certified pursuant to Rule 54(b) that
 -5-
there was no just reason to delay appeal of those claims.

Accordingly, this appeal is properly before us. See Sharpe v.

Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (“When

the trial court [properly] certifies its order for immediate

appeal under Rule 54(b), appellate review is mandatory.”).

III. Defendants’ Appeal – Spot Zoning

Defendants’ sole argument on appeal is that the trial court

erred by granting summary judgment in favor of plaintiffs as to

plaintiffs’ claim for illegal spot zoning. We disagree.

“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, 362 N.C. 569, 573, 669 S.E.2d 572,

576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649

S.E.2d 382, 385 (2007)).

Spot zoning is defined, in pertinent part,
as a zoning ordinance or amendment that
“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 . . . 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), quoted in Chrismon [v. Guilford
Cty.], 322 N.C. [611,] 627, 370 S.E.2d
[579,] 588-89 [(1988)] The practice [of spot
 -6-
zoning] may be valid or invalid, depending
on the facts of the specific case. Chrismon,
322 N.C. at 626, 370 S.E.2d at 588. In
order to establish the validity of such a
zoning ordinance, the finder of fact must
answer two questions in the affirmative: (1)
did the zoning activity constitute spot
zoning as our courts have defined that term;
and (2) if so, did the zoning authority make
a clear showing of a reasonable basis for
the zoning. Id. at 627, 370 S.E.2d at 589.

Good Neighbors of S. Davidson v. Town of Denton, 355 N.C. 254,

257-58, 559 S.E.2d 768, 771 (2002) (footnotes omitted).

In the instant case, defendants conceded at oral arguments

that the rezoning at issue constituted spot zoning as defined by

our Supreme Court. However, they still contend that summary

judgment in favor of plaintiffs was inappropriate because the

undisputed evidence is that there was a reasonable basis for the

rezoning. Defendants are mistaken.

In order to determine whether there was a reasonable basis

for a spot zoning, this Court considers the following factors:

(1) “the size of the tract in question”; (2)
“the compatibility of the disputed zoning
action with an existing comprehensive zoning
plan”; (3) “the benefits and detriments
resulting from the zoning action for the
owner of the newly zoned property, his
neighbors, and the surrounding community;
and” (4) “the relationship between the uses
envisioned under the new zoning and the uses
currently present in adjacent tracts.”
Chrismon, 322 N.C. at 628, 370 S.E.2d at
589. With these factors in mind, “the
 -7-
criteria are flexible, and the specific
analysis used depends on the facts and
circumstances of a particular case.” Id.

Childress v. Yadkin Cty., 186 N.C. App. 30, 37, 650 S.E.2d 55,

61 (2007).

In the instant case, the first two factors, the size of the

tract and the compatibility of the rezoning with the County’s

comprehensive plan, clearly weigh against the reasonableness of

the rezoning. The rezoned property is only 1.1 acres in size

and, as noted by the Planning Board, the rezoning is

inconsistent with the County’s comprehensive plan. In their

brief, defendants do not dispute that these factors should weigh

against the rezoning’s reasonableness. Instead, defendants

argue that, consistent with Chrismon, the third and fourth

factors support a determination that there was a reasonable

basis for the spot zoning. See Chrismon, 322 N.C. at 633-34,

370 S.E.2d at 592 (“[W]e find that, because of the quite

substantial benefits created for the surrounding community by

the rezoning and because of the close relationship between the

likely uses of the rezoned property and the uses already present

in the surrounding tracts, there was a clear showing of a

reasonable basis for the spot zoning in this instance.”).

A. Benefits vs. detriments
 -8-
Defendants first contend that the rezoning would create

substantial benefits for the community. Our Supreme Court has

stated that the analysis of this factor “is expressly limited to

examining the ordinance’s beneficial and detrimental effects on

the property owner, his neighbors, and the surrounding

community.” Good Neighbors, 355 N.C. at 259, 559 S.E.2d at 772.

One example of a qualifying benefit is a
showing that neighboring property values
would increase as a result of the rezoning.
Other benefits previously recognized by the
Court, as illustrated in Chrismon, include:
(1) a showing of broad-based support for the
proposed use of the property, and (2) a
showing that many of the surrounding
landowners were likely to use the expanded
services offered by the property owner
seeking the zoning change.

Id. at 259-60, 559 S.E.2d at 772.

In the instant case, defendants argue that the rezoning

will be beneficial because the proposed recycling center would

(1) create three to four jobs; (2) allow for dilapidated

structures on the property to be rehabilitated; (3) allow county

citizens to dispose of their unwanted metals; and (4) make use

of a railroad siding. In addition, defendants note that

Commissioner J. Owen Etheridge (“Commissioner Etheridge”) stated

that he witnessed support for the rezoning from twenty-eight of
 -9-
thirty-three attendees at a preliminary community meeting

regarding Cartwright’s application.

Many of the benefits from the rezoning proposed by

defendants are not supported by any evidence presented at the

public hearing. For instance, there was no evidence presented

that the surrounding community would be particularly likely to

use the recycling center or that there was a specific need for a

recycling center in the property’s location. In Mahaffey v.

Forsyth County, this Court held that a spot zoning to facilitate

the establishment of an automobile parts store could not be said

to benefit the community because “auto parts are a common and

easily obtainable product and, if such a retail establishment

were said to be ‘beneficial to a rural community,’ then

virtually any type of business could be similarly classified.”

99 N.C. App. 676, 683, 394 S.E.2d 203, 208 (1990), aff’d per

curiam, 328 N.C. 323, 401 S.E.2d 365 (1991). The recycling

center in the instant case likewise provides only a generalized

benefit that has no specific connection to the surrounding rural

community.

Commissioner Etheridge’s statement that he personally

witnessed significant support for the rezoning at a preliminary

public hearing is also not supported by any evidence in the
 -10-
record. Moreover, even assuming, arguendo, that the statement

was accurate, it still fails to establish that there was

substantial community support for the rezoning. Commissioner

Etheridge’s statement acknowledges that multiple individuals

were opposed to the rezoning at the meeting he attended, and at

the actual public meeting where the rezoning was considered, the

vast majority of individuals who addressed the rezoning spoke in

opposition to it. Thus, there was not the type of overwhelming

public support for the rezoning that would be necessary to

establish that the rezoning was beneficial to the surrounding

community. Cf. Chrismon, 322 N.C. at 630, 370 S.E.2d at 590

(benefit of spot zoning demonstrated when eighty-eight local

residents signed a petition supporting the rezoning, multiple

members of the community spoke in favor of the rezoning, and

only one property owner spoke in opposition to it).

In addition, two real estate professionals who spoke at the

hearing stated that they believed that the proposed recycling

center would decrease property values both in the immediate

vicinity of the property and in the Shawboro community as a

whole. There was no evidence to the contrary presented during

the meeting. Finally, both Currituck County Sheriff Susan

Johnson (“Sheriff Johnson”) and a representative from the North
 -11-
Carolina Department of Cultural Resources (“the DCR”) submitted

letters to the Board expressing their concerns with the

rezoning. Sheriff Johnson was concerned because businesses

similar to the proposed recycling center had experienced

increases in crime and other suspicious activity, and the DCR

was concerned that the proposed recycling center would adversely

affect two nearby historic properties.

In light of this evidence, defendants have failed to make a

clear showing that the benefits of the rezoning outweighed its

detriments. Consequently, this factor also weighs against the

reasonableness of the rezoning.

B. Relationship of Uses

Defendants next argue that the proposed uses under the

rezoning would be consistent with the uses allowed or occurring

on adjacent properties. The Chrismon Court stated the following

regarding this factor:

In determining whether a zoning
amendment constitutes spot zoning,
the courts will consider the
character of the area which
surrounds the parcel reclassified
by the amendment. Most likely to
be found invalid is an amendment
which reclassifies land in a
manner inconsistent with the
surrounding neighborhood.
 -12-
1 R. Anderson, American Law of Zoning § 5.16
at 383 (3d ed. 1986) (emphasis added). One
court has described the evil to be avoided
as “an attempt to wrench a single small lot
from its environment and give it a new
rating which disturbs the tenor of the
neighborhood.” Magnin v. Zoning Commission,
145 Conn. 26, 28, 138 A. 2d 522, 523 (1958)
(emphasis added).

Chrismon, 322 N.C. at 631, 370 S.E.2d at 591. The Court went on

to note that “significant disturbances such as the rezoning of a

parcel in an old and well-established residential district to a

commercial or industrial district would clearly be

objectionable” under this factor. Id. In Budd v. Davie County,

this Court cited this language in concluding that a spot

rezoning from residential-agricultural to industrial to permit

the installation of a sand dredging operation “would destroy the

tenor of the quiet residential and agricultural neighborhood.”

116 N.C. App. 168, 178, 447 S.E.2d 449, 455 (1994). Similarly,

in Good Neighbors, our Supreme Court held that a spot rezoning

to permit chemical storage in an area “specifically zoned for

farms and residences” was unreasonable under this factor. 355

N.C. App. at 262, 559 S.E.2d at 773.

In the instant case, the property was rezoned from

agricultural, which is the least intense residential district

under the UDO, to heavy manufacturing, which was the most
 -13-
intense industrial district. Thus, like the spot zonings found

to be unreasonable in Budd and Good Neighbors, the rezoning in

this case impermissibly “wrench[es] a single small lot from its

environment and give[s] it a new rating which disturbs the tenor

of the neighborhood.” Chrismon, 322 N.C. at 631, 370 S.E.2d at

591 (emphasis omitted).

However, defendants contend that the rezoning should still

be considered reasonable pursuant to this factor because (1) the

previous use of the property, a granary, was in greater conflict

with the surrounding properties than the proposed recycling

center; and (2) the County may still place limitations upon the

property that would bring it into harmony with the surrounding

properties when Cartwright seeks a required special use permit.

Defendants’ first contention is immaterial, because previous

uses of the rezoned property are not considered as part of this

factor. See Good Neighbors, 355 N.C. at 261, 559 S.E.2d at 773

(This factor consists of “evaluating the relationship between

the uses envisioned under the new zoning and the uses currently

present in adjacent tracts . . . .” (emphasis added)).

In support of its second contention, defendants cite Purser

v. Mecklenburg County, 127 N.C. App. 63, 488 S.E.2d 277 (1997).

In Purser, the property at issue was rezoned from residential to
 -14-
a conditional-use district to allow for a “Neighborhood

Convenience Center,” which would provide retail establishments

that were consistent with the daily needs of the nearby

residents. Id. at 65, 488 S.E.2d at 278. This Court found that

under those circumstances, the “relationship of uses” factor

weighed in favor of the reasonableness of the spot zoning

because “the development of the Center was governed by a

conditional use site plan that was designed to integrate the

Center into the neighborhood and insure that it would be in

harmony with the existing and proposed residential uses on the

surrounding property.” Id. at 70-71, 488 S.E.2d at 282.

Purser is distinguishable from the instant case. Unlike in

Purser, defendants in the instant case have presented no

evidence that the recycling center has been designed to be

integrated into the surrounding area. The only condition on the

rezoning cited by defendants in their brief is an eight-foot

fence which is to be installed around the property. However,

defendants fail to adequately explain how this fence will

significantly diminish the impact of the recycling center on

surrounding properties. Consequently, we conclude that

defendants have failed to clearly show that the proposed
 -15-
recycling center would be consistent with the uses of adjoining

properties.

Ultimately, defendants have failed to meet their burden to

make a clear showing pursuant to any of the Chrismon factors

that the rezoning was a reasonable spot zoning. Accordingly,

the trial court properly granted summary judgment in favor of

plaintiffs because the rezoning constituted illegal spot zoning.

Defendants’ argument is overruled.

IV. Plaintiffs’ Appeal – Attorney’s Fees

Plaintiffs’ sole argument on appeal is that the trial court

erred by denying their request for attorney’s fees.

Specifically, plaintiffs contend that defendant’s illegal spot

zoning constituted an abuse of discretion and that, as a result,

N.C. Gen. Stat. § 6-21.7 required the trial court to award

attorney’s fees as a matter of law. We disagree.

Ordinarily, the “recovery of attorney’s fees, even when

authorized by statute is within the trial court’s discretion and

will only be reviewed for an abuse of that discretion.” Martin

Architectural Prods., Inc. v. Meridian Constr. Co., 155 N.C.

App. 176, 182, 574 S.E.2d 189, 193 (2002). However, “[w]e

review a trial court’s decision whether to award mandatory

attorney’s fees de novo.” Willow Bend Homeowners Ass'n v.
 -16-
Robinson, 192 N.C. App. 405, 418, 665 S.E.2d 570, 578 (2008)

(emphasis added).

In the instant case, plaintiffs sought to recover

attorney’s fees pursuant to N.C. Gen. Stat. § 6-21.7, which

states:

In any action in which a city or county is a
party, upon a finding by the court that the
city or county acted outside the scope of
its legal authority, the court may award
reasonable attorneys’ fees and costs to the
party who successfully challenged the city’s
or county’s action, provided that if the
court also finds that the city’s or county’s
action was an abuse of its discretion, the
court shall award attorneys’ fees and costs.

N.C. Gen. Stat. § 6-21.7. This statute permits a party that

successfully challenges an action by a city or county to recover

attorney’s fees if the trial court makes certain findings of

fact. When the court finds only that the city or county acted

outside the scope of its legal authority, the award of

attorney’s fees is discretionary. See Brock and Scott Holdings,

Inc. v. Stone, 203 N.C. App. 135, 137, 691 S.E.2d 37, 38 (2010)

(“[T]he use of [the word] ‘may’ generally connotes permissive or

discretionary action and does not mandate or compel a particular

act.”). However, if the court additionally finds that the

city’s or county’s action constituted an abuse of discretion,

then the award of attorney’s fees is mandatory. See Internet E.,
 -17-
Inc. v. Duro Communications, Inc., 146 N.C. App. 401, 405-06,

553 S.E.2d 84, 87 (2001) (“The word ‘shall’ is defined as ‘must’

or ‘used in laws, regulations, or directives to express what is

mandatory.’”).

In the instant case, the trial court properly determined

that the rezoning constituted illegal spot zoning and thus that

the County acted outside the scope of its legal authority. See

Alderman v. Chatham County, 89 N.C. App. 610, 616, 366 S.E.2d

885, 889 (1988) (“[U]nless there is a clear showing of a

reasonable basis, spot zoning is beyond the authority of the

county or municipality.” (internal quotations and citation

omitted)). However, the court did not find that the County’s

action was an abuse of discretion and instead ordered both

parties to be “responsible for their own attorney’s fees and

costs.” Plaintiffs argue that the trial court’s failure to

award them attorney’s fees was error because (1) the County’s

action was necessarily an abuse of discretion as a matter of

law; or (2) in the alternative, that the record supports a

determination that the County abused its discretion. Plaintiffs

are mistaken.

Plaintiffs first contend that “illegal spot zoning is

always outside the scope of the County’s legal authority and
 -18-
always an abuse of discretion and, therefore, once it is

determined that illegal spot zoning occurred, the Trial Court is

required to award attorney’s fees.” In support of this

argument, plaintiffs rely on the principle noted in this Court’s

opinion in Summers v. City of Charlotte, which states, in

relevant part:

Local governments have been delegated the
power to zone their territories and restrict
them to specified purposes by the General
Assembly. Zopfi v. City of Wilmington, 273
N.C. 430, 434, 160 S.E.2d 325, 330 (1968).
This authority “is subject both to the . . .
limitations imposed by the Constitution and
to the limitations of the enabling statute.”
Id. Within those limitations, the enactment
of zoning legislation “is a matter within
the discretion of the legislative body of
the city or town.” Id.

149 N.C. App. 509, 517, 562 S.E.2d 18, 24 (2002). Plaintiffs

contend that since local governments only have discretion to

enact zoning legislation when they are acting within the

limitations imposed by the Constitution and by statute, any

action which exceeds those limitations must also exceed the

discretionary authority of the local government such that the

action constitutes an abuse of discretion as a matter of law,

which in turn requires an automatic award of attorney’s fees.

Plaintiffs’ contention cannot be reconciled with the plain

language of N.C. Gen. Stat. § 6-21.7. Pursuant to that statute,
 -19-
a “finding by the court that the city or county acted outside

the scope of its legal authority,” such as a finding that a

local government engaged in illegal spot zoning, does not, in

and of itself, trigger the mandatory award of attorney’s fees.

N.C. Gen. Stat. § 6-21.7. Instead, the trial court must also

explicitly consider and “find[] that the city’s or county’s

action was an abuse of its discretion” in order to trigger the

mandatory award of fees. Id. Plaintiffs’ proposed

interpretation of the statute would collapse these two distinct

required inquiries into one, essentially deleting a portion of

the statute. Such an interpretation is impermissible because

our Courts “have no power to add to or subtract from the

language of the statute.” Zaldana v. Smith, ___ N.C. App. ___,

___, 749 S.E.2d 461, 463 (2013) (internal quotation and citation

omitted), disc. rev. denied, ___ N.C. ___, ___ S.E.2d ___

(2014).

“[A]n abuse of discretion occurs when a determination ‘is

so arbitrary that it could not have been the result of a

reasoned decision.’” Bishop v. Ingles Mkts., Inc., ___ N.C. App.

___, ___, 756 S.E.2d 115, 121 (2014) (quoting Porter v.

Fieldcrest Cannon, Inc., 133 N.C. App. 23, 26, 514 S.E.2d 517,

520 (1999)). Contrary to plaintiffs’ argument, the language of
 -20-
N.C. Gen. Stat. § 6-21.7 clearly indicates that the General

Assembly believed that a local government could erroneously act

outside the scope of its legal authority but yet not be acting

in a manner “so arbitrary that it could not have been the result

of a reasoned decision.” Id. Thus, we conclude that under the

plain language of the statute, the trial court is always

required to separately determine both (1) that a local

government acted outside the scope of its legal authority; and

(2) that the act in question constituted an abuse of discretion

before the court is required to award attorney’s fees.

Plaintiffs’ proposed interpretation to the contrary must be

rejected.

Nonetheless, plaintiffs still argue that “the undisputed

facts of the case sub judice are particularly egregious and

further demonstrate the County’s abuse of discretion in

approving the rezoning.” Specifically, plaintiffs note that

during the hearing which considered the rezoning request,

concerns with the proposed rezoning were raised by (1) the

Planning Board, because the rezoning was inconsistent with the

comprehensive plan; (2) Sheriff Johnson, because the proposed

use would potentially require the hiring of a new law

enforcement officer; (3) the DCR, which was concerned that the
 -21-
proposed use would have negative effects on two nearby historic

properties; and (4) nearby landowners. Plaintiffs also contend

that the record reflects that the Board failed to properly

consider and analyze the relevant spot zoning reasonableness

factors after being informed about those factors by the County

Attorney. Plaintiffs argue that the Board’s approval of the

rezoning in these circumstances irrefutably demonstrates an

abuse of discretion.

However, the evidence cited by plaintiffs was not the only

information before the Board. Cartwright explained the benefits

that the recycling center would bring to the community and

informed the Board how he expected the center would operate,

including the steps he would take to limit the center’s impact

on nearby landowners. In addition to Cartwright, three

individuals spoke in favor of the rezoning at the public

hearing. Two of these individuals specifically referenced prior

uses of the property and suggested that the recycling center

would not impact the area surrounding the property in a

materially different manner than these prior uses. The third

individual supported the rezoning because he felt there was a

need for industry in Currituck County.
 -22-
Based upon the information presented during the hearing,

Commissioner Etheridge made the following motion in favor of the

rezoning:

Mr. Chairman, since I live in the Shawboro
community and I will be affected by this one
way or the other, I am going to make a
motion to recommend approval of this. And I
do so citing that it is consistent with the
land use plan, and the request is reasonable
and in the public interest. It also promotes
orderly growth and development in our
community, and it follows the long history
of industrial uses that have been in this
area.

One, it’s a rail siding with three rail
spurs, the largest one in Currituck County.
It has had a cotton gin, an asphalt plant,
two different fertilizer plants,
agricultural chemical storage, granaries, as
I said to [inaudible], lime off--they
offloaded lime there. DOT has--NCDOT, DOT,
has used this property to offload rail cars
of highway maintenance materials. Various
contracting firms have offloaded rail cars
at this site. North Carolina Power has, on
occasion, offloaded large electrical
equipment here. So it has a history of being
an industrial area, or the railroad would
have never put the siding there to begin
with.

So with that, and the fact that there was
overwhelming support at the community
meeting--I think the report was thirty-three
people there, twenty-eight supported it.
Here tonight it appears to be somewhat
overwhelming support from the general
community. And the general community we’re
talking about is Currituck and Shawboro in
particular. And I look out here and I see
 -23-
people from Shawboro and throughout the
county. And I think it is time that we take
the foot of government off the throat of
starting businesses in this county and we do
what we can to make sure.

Now, in this additional zoning permit, I
would also add that we add opaque fencing to
be determined height-wise, and a special use
permit that every factor that the staff and
Mr. Cartwright can work on to mitigate any
possible negative impacts be looked at and
then addressed at the special use permit.

This statement is the only information on the record regarding

the Board’s reasoning for the approval of the rezoning, which

occurred shortly after Commissioner Etheridge’s motion was made.

The motion demonstrates that the Board considered most of the

Chrismon reasonableness factors prior to approving the rezoning.

Commissioner Etheridge specifically cited his belief that the

rezoning was consistent with the UDO, noted benefits to the

community such as economic growth and significant community

support, and discussed how the newly zoned property would be

consistent with surrounding property uses, including how the

recycling center’s impact would be mitigated through the special

use permit process. While we have determined that Commissioner

Etheridge’s reasoning was insufficient to meet the County’s

legal burden of making “a clear showing of a reasonable basis

for the zoning,” Good Neighbors, 355 N.C. at 258, 559 S.E.2d at
 -24-
771, we cannot conclude that the Board’s reliance on the

information cited by Commissioner Etheridge was so unreasonable

that the legislative act of the rezoning “could not have been

the result of a reasoned decision.” Bishop, ___ N.C. App. at

___, 756 S.E.2d at 121. Accordingly, the trial court did not

err by determining that the rezoning was not an abuse of

discretion by the County.1 Since there was sufficient evidence

for the trial court to decide that the rezoning was not an abuse

of discretion, there was also sufficient evidence for the court,

in its discretion, to deny plaintiffs’ motion for attorney’s

fees. Thus, we conclude the trial court did not abuse its

discretion by denying that motion. This argument is overruled.

V. Conclusion

The trial court properly awarded summary judgment in favor

of plaintiffs for their illegal spot zoning claim because there

was no genuine issue of material fact as to whether the rezoning

constituted illegal spot zoning. Pursuant to N.C. Gen. Stat. §

6-21.7, if the trial court finds only that a local government

acted outside the scope of its authority, the award of

attorney’s fees is discretionary. However, if the trial court

1
Although the trial court did not explicitly find that the
County did not abuse its discretion by enacting the rezoning,
such a finding is implicit in the court’s decision to have both
parties bear their own costs and attorney’s fees.
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additionally finds that the local government’s action was an

abuse of discretion, the award of attorney’s fees becomes

mandatory. Since the court properly determined that the County

did not abuse its discretion when it approved the illegal spot

zoning of the property, it was not required to award attorney’s

fees to plaintiffs. The trial court did not abuse its

discretion by ordering the parties to pay their own attorney’s

fees and costs. The trial court’s order is affirmed.

Affirmed.

Judges HUNTER, Robert C. and GEER concur.