NO. COA13-1226
NORTH CAROLINA COURT OF APPEALS
Filed: 29 July 2014
BRIAN THOMAS ATKINSON and MYERS
PARK HOMEOWNERS ASSOCIATION, INC.,
a North Carolina Non-Profit
Corporation,
Plaintiffs
v. Mecklenburg County
No. 12 CVS 21209
CITY OF CHARLOTTE, a North
Carolina Body Politic and
Corporate,
Defendant
and
QUEENS UNIVERSITY OF CHARLOTTE and
JOHNSON C. SMITH UNIVERSITY, North
Carolina non-profit corporations,
Defendant-Intervenors
Appeal by plaintiffs from order entered 26 June 2013 by
Judge Robert T. Sumner in Mecklenburg County Superior Court.
Heard in the Court of Appeals 17 March 2014.
Currin & Currin, by Robin T. Currin and George B. Currin,
for plaintiff-appellants.
Senior Assistant City Attorney Terrie Hagler-Gray, for
defendant-appellee.
Robinson Bradshaw & Hinson, P.A., by Richard A. Vinroot and
John H. Carmichael, for defendant-intervenor-appellees.
CALABRIA, Judge.
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Brian Thomas Atkinson (“Atkinson”) and Myers Park
Homeowners Association, Inc. (“the Association”) (collectively
“plaintiffs”) appeal from the trial court’s order granting
summary judgment in favor of the City of Charlotte (“the City”)
and intervenors Queens University of Charlotte (“Queens”) and
Johnson C. Smith University (“Smith”) (collectively
“intervenors”). We reverse and remand.
In late 2009, representatives from Queens and other
Charlotte residents initiated an amendment (“the amendment”) to
the text of the City of Charlotte Zoning Ordinance (“the Zoning
Ordinance”). The purpose of the proposed amendment was to
exempt certain parking decks from floor area ratio requirements
imposed by the Zoning Ordinance.
The City’s Planning Commission (“the Planning Commission”)
reviewed the proposed amendment and Planning Commission staff
made a written recommendation to the Charlotte City Council
(“the City Council”) and to the seven members of the Planning
Commission serving on the Department’s Zoning Committee {“the
Zoning Committee”) that the amendment should be adopted. After
a public hearing, the Zoning Committee voted unanimously to
recommend the amendment’s approval to the City Council on 26 May
2010. As part of that recommendation, the Zoning Committee
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included a statement which found the proposed amendment was
consistent with the City’s adopted policies and was reasonable
and in the public interest.
On 21 June 2010, the City Council considered the proposed
amendment. Mayor Anthony Foxx informed the Council that the
Zoning Committee had found the amendment as proposed was
consistent with the City’s adopted policies, reasonable, and in
the public interest (“the Statement of Consistency”). The City
Council voted to approve the Statement of Consistency and the
amendment unanimously. Under the terms of the newly-passed
amendment, parking decks which were constructed as “an accessory
use to an institutional use” were now exempt for the floor area
ratio standards of the Zoning Ordinance when the decks were
located in single family and multifamily zoning districts.
Atkinson is a property owner in the Myers Park residential
area, which is located adjacent to Queens. On 10 December 2012,
Atkinson and the Association, on behalf of other Myers Park
residents, initiated a declaratory judgment action in
Mecklenburg County Superior Court seeking to have the amendment
invalidated. Plaintiffs alleged that the City Council failed to
comply with the requirements of N.C. Gen. Stat. § 160A-383 when
it adopted the amendment.
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After the City filed its answer to plaintiffs’ complaint,
Queens and Smith filed a motion to intervene pursuant to N.C.
Gen. Stat. § 1A-1, Rule 24 (2013). The trial court granted this
motion on 22 March 2013, and intervenors filed their responsive
pleading that same day. Subsequently, all parties filed motions
for summary judgment. The motions were heard on 24 June 2013.
On 26 June 2013, the trial court entered an order granting
summary judgment in favor of the City and intervenors.
Plaintiffs appeal.
“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)).
Plaintiffs argue that the trial court erred by granting
summary judgment in favor of the City and intervenors because
the undisputed facts establish that the City Council failed to
comply with N.C. Gen. Stat. § 160A-383 when it adopted the
amendment. Specifically, plaintiffs contend (1) that the
“Statement of Consistency” adopted by the City Council did not
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meet the requirements of a “statement” pursuant to that statute;
and (2) that the Zoning Committee did not include the entire
Planning Commission and thus the Zoning Committee’s approval of
the amendment also did not meet all statutory requirements. We
agree with plaintiffs’ first contention and find it to be
dispositive. Consequently, we do not address plaintiffs’ second
contention.
When adopting or rejecting any zoning
amendment, the governing board shall also
approve a statement describing whether its
action is consistent with an adopted
comprehensive plan and any other officially
adopted plan that is applicable, and briefly
explaining why the board considers the
action taken to be reasonable and in the
public interest. That statement is not
subject to judicial review.
N.C. Gen. Stat. § 160A-383 (2013). Thus,
the statute requires that defendant take two
actions in this situation: first, adopt or
reject the zoning amendment, and second,
approve a proper statement. Id. The approved
statement must describe whether the
action is consistent with any controlling
comprehensive plan and explain why the
action is “reasonable and in the public
interest.”
Wally v. City of Kannapolis, 365 N.C. 449, 452, 722 S.E.2d 481,
483 (2012).
In Wally, the plaintiffs were property owners who
challenged the rezoning of a nearby property because, inter
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alia, the City of Kannapolis had failed to expressly approve the
consistency statement required by N.C. Gen. Stat. § 160A-383.
Id. at 451, 722 S.E.2d at 482. The Court agreed with the
plaintiffs’ argument and held that the challenged zoning
amendment was void for failure to comply with the statute’s
procedures. Id.
In reaching its holding, the Wally Court rejected three
arguments made by the defendant-city in favor of upholding the
amendment. First, the Court rejected the defendant-city’s
argument that any judicial review regarding a consistency
statement was barred by N.C. Gen. Stat. § 160A-383, explaining
that “the statute refers to an approved statement. While an
approved statement is not subject to judicial review, the
statute does not prohibit review of whether the City Council
approved a statement, which is the issue here.” Id. at 453, 722
S.E.2d at 483. Next, the Court rejected the defendant-city’s
argument that it had impliedly approved a consistency statement
by virtue of having a staff report which included a consistency
statement in its possession at the time the amendment was
adopted because “[t]he language of section 160A-383 does not
authorize an implied approval.” Id. Finally, the Court rejected
the defendant-city’s argument that its adoption of a statement
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“announcing that it acted within the guidelines of its zoning
authority” satisfied N.C. Gen. Stat. § 160A-383 because “to meet
the statutory requirements, an approved statement must describe
whether the zoning amendment is consistent with any controlling
land use plan and explain why it is reasonable and in the public
interest. The statement adopted by the City Council provides no
such explanation or description.” Id. at 453-54, 722 S.E.2d at
484.
In the instant case, it is undisputed that the City Council
formally adopted and approved the following statement proposed
by the Zoning Commission:
STATEMENT OF CONSISTENCY This petition is
found to be consistent with adopted policies
and to be reasonable and in the public
interest . . . .
Defendant and intervenors contend that, under Wally, since only
the issue “of whether the City Council approved a [consistency]
statement” is subject to judicial review, the trial court
properly determined that it could not review this statement for
compliance with N.C. Gen. Stat. § 160A-383. Id. at 453, 722
S.E.2d at 483. Defendant and intervenors are mistaken.
As the Wally Court’s discussion of the defendant-city’s
third argument in that case makes clear, judicial review of
compliance with N.C. Gen. Stat. § 160A-383 requires more than a
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cursory review of the record for a statement that could
plausibly be considered a consistency statement:
Compliance with section 160A-383 requires
more than a general declaration that the
action comports with relevant law. Section
160A-383 explains that to meet the statutory
requirements, an approved statement must
describe whether the zoning amendment is
consistent with any controlling land use
plan and explain why it is reasonable and in
the public interest. The statement adopted
by the City Council provides no such
explanation or description. Rather, it
consists of a general declaration that in
adopting the zoning amendment, the City
Council acted within the guidelines of its
zoning authority.
Id. at 453-54, 722 S.E.2d at 484 (emphasis added). Therefore,
under Wally, judicial review of whether a city has adequately
adopted a consistency statement as defined by N.C. Gen. Stat. §
160A-383 is limited to a court’s determination of whether a city
adopted a consistency statement which contains, at a minimum,
both a description of whether the zoning amendment is consistent
with any controlling land use plan and an explanation as to why
the amendment is reasonable and in the public interest. Once it
is determined that a proper statement, which includes a
description and explanation, has been adopted, the content of
the statement “is not subject to judicial review.” N.C. Gen.
Stat. § 160A-383.
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The Statement of Consistency adopted by the City Council in
the instant case cannot reasonably be said to include an
“explanation” as to why the amendment is reasonable and in the
public interest under the plain meaning of that term. Instead,
the statement merely tracks the language of N.C. Gen. Stat. §
160A-383. While this statement attempts to more specifically
address the requirements of N.C. Gen. Stat. § 160A-383 than the
more generalized statement that the Court rejected in Wally, it
still suffers from the same fatal flaw: “The statement adopted
by the City Council provides no . . . explanation,” as required
by the statute. Id. at 454, 722 S.E.2d at 484. As a result, the
City did not comply with N.C. Gen. Stat. § 160A-383 when it
failed to adopt a proper “statement” as that term is defined by
the statute and interpreted by Wally, and its purported
“Consistency Statement” does not fall within that statute’s
protections against judicial review. Accordingly, we reverse
the trial court’s order granting summary judgment in favor of
defendant and intervenors and remand for the entry of summary
judgment in favor of plaintiffs which declares the amendment to
be void.
Reversed and remanded.
Chief Judge MARTIN and Judge McGEE concur.