IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-318
Filed: 20 March 2018
Mecklenburg County, No. 16-CVS-1265
WILLIAM M. BYRON and DANA T. BYRON, Plaintiffs,
v.
SYNCO PROPERTIES, INC., a North Carolina corporation, and CITY OF
CHARLOTTE, a North Carolina body politic and corporate, Defendants.
Appeal by Plaintiffs from Order entered 23 November 2016 by Judge Yvonne
Mims-Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals
5 September 2017.
Scarbrough & Scarbrough, PLLC, by Madeline J. Trilling, and The Law Office
of Kenneth T. Davies, P.C., by Kenneth T. Davies, for Plaintiffs.
K&L Gates LLP, by Roy H. Michaux, Jr., for Defendant SYNCO Properties, Inc.
Office of the Charlotte City Attorney, by Assistant City Attorney Thomas E.
Powers, III, and Senior Assistant City Attorney Terrie Hagler-Gray, for
Defendant City of Charlotte.
INMAN, Judge.
Landowners whose property is not directly and adversely affected by a zoning
statute do not have standing to bring a declaratory judgment action to challenge the
constitutionality of the statute or a municipality’s interpretation of the statute.
Plaintiffs William M. Byron and Dana T. Byron (“Plaintiffs”), husband and
wife, appeal from a summary judgment order dismissing their declaratory judgment
BYRON V. SYNCO PROPERTIES, INC.
Opinion of the Court
action against defendant SYNCO Properties, Inc. (“SYNCO”) and the City of
Charlotte (the “City,” collectively “Defendants”) challenging the rezoning of real
property in Charlotte, North Carolina. Plaintiffs contend that, because their
complaint alleged facial constitutional challenges to a statute and session laws, the
trial court was required to transfer those claims to a three-judge panel in Wake
County pursuant to N.C. Gen. Stat. §§ 1-81.1, 1-267.1, and 1A-1, Rule 42(b)(4) (2015).
Plaintiffs further challenge the trial court’s dismissal of their claims challenging N.C.
Gen. Stat. § 160A-385 (2015) and Session Law 2015-160 as moot, as well as its
determination that the prior version of N.C. Gen. Stat. § 160A-385 (2013) did not
apply to the rezoning based on its interpretation of that session law. Defendants
contend that Plaintiffs lacked standing to bring their suit. After careful review, we
agree with Defendants that Plaintiffs lacked standing to assert the claims they seek
to revive on appeal. As a result, we affirm the order of the trial court.
I. FACTUAL AND PROCEDURAL HISTORY
In late 2014, SYNCO filed an application with the City to rezone a tract located
in the SouthPark area of Charlotte. On 11 March 2015, several local property owners
(the “Petitioners”) filed a protest petition (the “Protest Petition”) with the City
opposing the proposed rezoning pursuant to N.C. Gen. Stat. § 160A-385 (2013) (the
“Protest Petition Statute”). Plaintiffs were not among the Petitioners that filed the
Protest Petition.
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In July 2015, the North Carolina General Assembly passed Session Law 2015-
160, which replaced the protest petition procedure in the Protest Petition Statute
with a “Citizen Comment” procedure. 2015 N.C. Sess. Laws ch. 160, § 1 (2015)
(codified as amended at N.C. Gen. Stat. § 160A-385 (2017)). Per the session law, the
amended procedure “bec[ame] effective August 1, 2015, and applies to zoning
ordinance changes initiated on or after that date.” Id., § 6.
On 24 September 2015, SYNCO withdrew its initial rezoning application.
SYNCO filed a new rezoning application the following day. The new application
sought approval for the same uses as those proposed in the initial rezoning
application, along with revised building sizes and transportation improvements.
On 19 January 2016, the Charlotte City Council voted unanimously to approve
the second rezoning application. The City and SYNCO treated the second application
as one not subject to the Protest Petition Statute. Nothing in the record indicates
that the Petitioners sought injunctive or other relief requiring the City to recognize
the applicability of the Protest Petition to the second rezoning application or to follow
the procedures set forth in the Protest Petition Statute. Rather, one of the Petitioners
stated in an affidavit that “a change in the state law had invalidated the Protest
Petition” and declined to take action to revive the Petition or require its application.
On 25 January 2016, Plaintiffs filed a declaratory judgment action seeking to
invalidate the City Council’s approval of the rezoning application. After two
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Opinion of the Court
amendments to the original complaint and the voluntary dismissal of one claim,
Plaintiffs’ final amended complaint alleged that: (1) Defendants violated N.C. Gen.
Stat. § 160A-364 (2015);1 (2) Defendants made certain misrepresentations and
omissions in the rezoning process; (3) Defendants violated the Protest Petition
Statute, which they were required to follow per Plaintiffs’ interpretation of Session
Law 2015-160; (4) the City’s actions were ultra vires; (5) Session Law 2000-84 was
unconstitutional;2 (6) the City’s actions violated Plaintiffs’ due process rights; (7) N.C.
Gen. Stat. § 160A-383 (2015), which employs the citizen comment procedures rather
than protest petition procedures, unconstitutionally deprives the judiciary of judicial
power; and (8) N.C. Gen. Stat. § 160A-383 (2015) and Session Law 2015-160’s
replacement of protest petition procedures with citizen comment procedures deprives
Plaintiffs of their constitutional right to petition the government for the redress of
grievances.3
The parties filed competing motions for summary judgment, and the trial court
granted summary judgment against Plaintiffs on 23 November 2016. In the
summary judgment order, the trial court held that Plaintiffs had standing to bring
1 This statute establishes the procedures applicable to the adoption, amendment, or repeal of
ordinances by cities and towns, and is unrelated to the issues raised on appeal. N.C. Gen. Stat. §
160A-364.
2 This session law permitted the City to engage in conditional zoning. 2000 N.C. Sess. Laws
ch. 84 (2000).
3 These claims are identified in Plaintiffs’ final amended complaint as their first, second, third,
fourth, fifth, sixth, eighth, and ninth causes of action, respectively.
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Opinion of the Court
their claims, but nonetheless dismissed all claims against Defendants, including
Plaintiffs’ facial constitutional challenges. The Plaintiffs timely appealed.
II. ANALYSIS
A. Standard of Review
The standard of review on an appeal from summary judgment is de novo, and
“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.” Atkinson v. City of Charlotte, 235 N.C. App. 1, 3, 760 S.E.2d 395, 397 (2014)
(internal citation and quotation marks omitted). Because standing is a question of
law, it, too, is subject to de novo review by this Court. Cherry v. Wiesner, ___ N.C.
App. ___, ___, 781 S.E.2d 871, 876 (2016).
B. The Standing Requirements Relevant to Plaintiffs’ Appeal
Resolution of this appeal requires distinguishing the different standing
doctrines applicable to: (1) zoning ordinance challenges; (2) statutory construction
and validity claims; and (3) constitutional challenges to zoning ordinances. “In
passing on the validity of an annexation or zoning ordinance, one of the court’s first
concerns is whether the plaintiff has standing to bring the action.” Town of Ayden v.
Town of Winterville, 143 N.C. App. 136, 138, 544 S.E.2d 821, 823 (2001) (citation
omitted). The question of standing “is a threshold issue that must be addressed, and
found to exist, before the merits of the case are judicially resolved.” In re Baby Boy,
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238 N.C. App. 316, 321-22, 767 S.E.2d 628, 631 (2014) (citation and quotation marks
omitted).
A rezoning ordinance may be challenged in a declaratory judgment action
“only . . . by a person who has a specific personal and legal interest in the subject
matter affected by the zoning ordinance and who is directly and adversely affected
thereby.” Taylor v. City of Raleigh, 290 N.C. 608, 620, 227 S.E.2d 576, 583 (1976)
(emphasis added) (citations omitted). Standing to challenge a statute requires that
the statute directly and adversely affect the plaintiff. Wake Cares, Inc. v. Wake Cty.
Bd. of Educ., 190 N.C. App. 1, 11, 660 S.E.2d 217, 223 (2008) (“A declaratory judgment
may be used to determine the construction and validity of a statute, but the plaintiff
must be directly and adversely affected by the statute[.]” (emphasis added) (internal
citation and quotation marks omitted)). Finally, standing to challenge the
constitutionality of a zoning ordinance or statute requires that the plaintiff
demonstrate injury or immediate danger of injury to a constitutionally protected
interest in the property subject to that ordinance or statute. See, e.g., Coventry Woods
Neighborhood Ass’n, Inc. v. City of Charlotte, 202 N.C. App. 247, 257, 688 S.E.2d 538,
545 (2010) (holding that neighboring property owners could not challenge a rezoning
decision on facial or as-applied constitutional and procedural due process grounds
because “a change in the treatment of an adjoining tract of property under local land
use ordinances that affects the use and enjoyment of [the plaintiffs’] property [does
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not] implicate[] a constitutionally-protected property interest”); Templeton v. Town of
Boone, 208 N.C. App. 50, 56, 701 S.E.2d 709, 713-14 (2010) (holding plaintiffs lacked
standing to challenge a zoning ordinance on constitutional grounds where the
ordinance was not enforced against plaintiffs’ properties but only “affected” them
(emphasis in original)).
The trial court’s summary judgment order dismissed all of Plaintiffs’ claims;
however, Plaintiffs argue on appeal only that the trial court: (1) incorrectly concluded
that the City was not required to apply the Protest Petition Statute to the rezoning
due to its misinterpretation of the effective date of Session Law 2015-160; (2)
wrongfully concluded their challenges to certain zoning statutes and session laws
were moot; and (3) impermissibly dismissed their constitutional challenges to those
zoning statutes and session laws. In effect, then, Plaintiffs seek to revive their
declaratory judgment action only as to: (1) the interpretation of Session Law 2015-
160 (and by extension the applicability of the Protest Petition Statute); and (2) the
constitutionality of the zoning statutes and session laws governing the procedure
employed by the City in rezoning.4 In short, Plaintiffs’ appeal challenges the
interpretation and constitutionality of the statutes and session laws governing the
City’s rezoning decision, rather than the inherent validity of the rezoning decision
itself. As a result, the question before this Court is not whether Plaintiffs had
4 Plaintiffs confirmed at oral argument that their only claims on appeal related to their
constitutional challenges and the interpretation of Session Law 2015-160.
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standing to challenge the rezoning decision, as they sought to do in the claims not at
issue on appeal,5 but whether they had standing to seek a declaratory judgment
determining the construction and constitutionality of the session laws and statutes
governing that rezoning. Compare Taylor, 290 N.C. at 620, 227 S.E.2d at 583 (“[T]he
validity of a municipal zoning ordinance . . . may be determined . . . under our
Declaratory Judgment Act . . . by a person who has a specific personal and legal
interest in the subject matter affected by the zoning ordinance and who is directly
and adversely affected thereby.” (emphasis added) (citations omitted)) with Wake
Cares, Inc., 190 N.C. App. at 11, 660 S.E.2d at 223 (“A declaratory judgment may be
used to determine the construction and validity of a statute, but the plaintiff must be
directly and adversely affected by the statute[.]” (emphasis added) (internal citations
and quotation marks omitted)).
C. Plaintiffs Lack Standing to Challenge the City’s Interpretation of Session Law
2015-160 and the Applicability of the Protest Petition Statute
5 For example, Plaintiffs challenged the rezoning on the grounds that the City’s decision
constituted an ultra vires action that was “not in accordance with . . . adopted land use plans[,]” as
well as “arbitrary and without reasonable basis[.]” This claim, in contrast to Plaintiffs’ statutory
construction and constitutional validity claims, would be subject to the standing analysis employed in
a declaratory judgment action challenging a zoning decision as inherently unlawful. See, e.g., Taylor
290 N.C. at 620, 227 S.E.2d at 583 (holding that standing exists in a declaratory judgment action
challenging a rezoning as contrary to the established land use plan and as arbitrary and capricious
where “challenged by a person who has a specific personal and legal interest in the subject matter
affected by the zoning ordinance and who is directly and adversely affected thereby” (citations
omitted)); cf. Templeton, 208 N.C. App. at 54-62, 701 S.E.2d at 713-17 (applying, in a declaratory
judgment action, one set of standing requirements to claims challenging the constitutionality of a
zoning ordinance itself and a different set of standing requirements to claims alleging violation of a
procedural statute governing the zoning decision).
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Plaintiffs contend that the City and trial court misinterpreted the words
“zoning ordinance changes initiated on or after [1 August 2015]” in Session Law 2015-
160. 2015 N.C. Sess. Laws ch. 160, § 6. Specifically, Plaintiffs argue that, because
SYNCO filed its first rezoning petition prior to that date, we should hold the rezoning
under its second petition was a “zoning ordinance change[ ] initiated” prior to the
session law’s effective date. Id., § 6. Such a reading would require the City to have
followed the Protest Petition Statute in the consideration of SYNCO’s rezoning
petition and, as a result, render the City’s rezoning decision invalid.
As noted supra, “[a] declaratory judgment may be used to determine the
construction and validity of a statute, but the plaintiff must be directly and adversely
affected by the statute[.]” Wake Cares, Inc., 190 N.C. App. at 11, 660 S.E.2d at 223
(emphasis added) (internal citations and quotation marks omitted). Thus, the
Plaintiffs can only seek a declaratory judgment proclaiming their preferred
interpretation of the statute if they are “directly and adversely affected” by its
enactment and replacement of protest petition procedures with citizen comments. Id.
at 11, 660 S.E.2d at 223. Plaintiffs, however, were never entitled to oppose the
rezoning by protest petition, as they did not meet the statutory requirements for such
a filing under the Protest Petition Statute. The Protest Petition Statute specifically
delineated those who had access to such a remedy: “owners of either (i) twenty percent
(20%) or more of the area included in the proposed change or (ii) five percent (5%) of
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a 100-foot-wide buffer . . . .” N.C. Gen. Stat. § 160A-385 (2013). As conceded by
Plaintiffs in oral argument before this Court, their property is neither subject to the
proposed change in SYNCO’s petition, nor is it within 100 feet of the area subject to
rezoning. Thus, Plaintiffs, as parties not subject to or able to avail themselves of the
Protest Petition Statute, are not “directly and adversely affected” by the
unavailability of a statutory procedure they were never entitled to enjoy in the first
instance. Nor are they permitted to bring a claim interpreting the language “initiated
on” in Session Law 2015-160, as its application concerns only whether qualifying
persons able to avail themselves of the Protest Petition Statute could continue to
pursue their rights thereunder.
While Plaintiffs argue in their brief that the Protest Petition filed by the
Petitioners resulted in “heightened procedural requirements,”6 they also
acknowledge that those requirements are “imposed for the benefit and protection of
the protest petition filer(s).” (emphasis added). In other words, any perceived
procedural or due process benefits were bestowed on Plaintiffs not by the Protest
Petition Statute itself, but instead by the Petitioners’ filing of a valid Protest Petition.
6 Plaintiffs claim in their briefs that certain ordinances enacted by the City impose these
requirements. Specifically, Plaintiffs claim these ordinances impose “additional requirements for
notice and public hearing to the protest petition filer(s).” (emphasis added). Ignoring the fact that
Plaintiffs were not and could not be protest petition filers in this case, several ordinances cited by the
Plaintiffs are not included in the record on appeal, and we are prohibited by precedent from taking
judicial notice of municipal ordinances. State v. Pallet, 283 N.C. 705, 712, 198 S.E.2d 433, 437 (1973).
We therefore do not consider those ordinances not present in the record in our resolution of this appeal.
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It was, therefore, Petitioners’ failure to revive or otherwise pursue the reinstatement
of their Protest Petition—not Session Law 2015-160—that injured Plaintiffs.
“Every claim must be prosecuted in the name of the real party in interest[,]”
Goodrich v. Rice, 75 N.C. App. 530, 536, 331 S.E.2d 195, 199 (1985) (citation omitted),
and, by extension, “[a] party has standing to initiate a lawsuit if he is a ‘real party in
interest[,]’ ” Slaughter v. Swicegood, 162 N.C. App. 457, 463, 591 S.E.2d 577, 582
(2004) (citations omitted). When it comes to the interpretation of Session Law 2015-
160 and the loss of the protections afforded by the Protest Petition and the Protest
Petition Statute, it is the Petitioners, not Plaintiffs, who are the real parties in
interest “directly and adversely affected by the statute” and the City’s and trial court’s
interpretations thereof. Wake Cares, Inc., 190 N.C. App. at 11, 660 S.E.2d at 223.
Because “[a] declaratory judgment may be used to determine the construction and
validity of a statute, but the plaintiff must be directly and adversely affected by the
statute,” id. at 11, 660 S.E.2d at 223 (emphasis added) (internal citations and
quotation marks omitted), and Plaintiffs are not so affected, we hold they are without
standing to pursue their claims requiring the interpretation of Session Law 2015-160.
The prior decisions by this Court relied upon by Plaintiffs are distinguishable
and therefore not binding or persuasive. See Thrash Ltd. Partnership v. Cty. of
Buncombe, 195 N.C. App. 727, 673 S.E.2d 689 (2009); Frizzelle v. Harnett Cty., 106
N.C. App. 234, 416 S.E.2d 421 (1992); Lee v. Simpson, 44 N.C. App. 611, 261 S.E.2d
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295 (1980). In Thrash, we held that the landowner had standing to sue because its
land fell within the ambit of the zoning ordinance in question, and “plaintiff’s use of
its land was limited by the zoning regulations.” 195 N.C. App. at 731, 673 S.E.2d at
692. Similarly, in Frizzelle, the plaintiff landowners alleged that Harnett County
commissioners failed to follow required notice and hearing procedures in enacting a
zoning ordinance applicable to the plaintiffs’ lands. 106 N.C. App. at 242-43, 416
S.E.2d at 425-26. Finally, in Lee, Union County’s ordinances required its Board of
Commissioners to provide notice and hearing to owners of real property adjoining
land subject to a rezoning application; the plaintiffs, who were such owners subject
to receive that notice, did not, and challenged the rezoning on procedural grounds.
44 N.C. App. at 612, 261 S.E.2d at 295-96.
Plaintiffs were not entitled to avail themselves of the Protest Petition Statute,
the procedural process that Plaintiffs contend they were wrongfully denied. Thus,
Thrash, Frizzelle, and Lee are inapposite. See also Ring v. Moore Cty., ___ N.C. App.
___, ___, 809 S.E.2d 11, 14 (2017) (distinguishing Thrash where “in this case Plaintiffs
have not alleged that the zoning ordinance directly limits the use of their land”).
D. Plaintiffs Lack Standing to Bring Their Constitutional Claims
Just as a declaratory judgment action concerning statutory interpretation
cannot be maintained by a party without legal standing, “this Court will not
determine the constitutionality of a legislative provision in a proceeding in which
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there is no actual antagonistic interest in the parties.” Nicholson v. State Ed.
Assistance Auth., 275 N.C. 439, 447, 168 S.E.2d 401, 406 (1969) (internal citation and
quotation marks omitted). As a result, “[o]nly one who is in immediate danger of
sustaining a direct injury from legislative action may assail the validity of such
action. It is not sufficient that he has merely a general interest common to all
members of the public.” Charles Stores Co., Inc. v. Tucker, 263 N.C. 710, 717, 140
S.E.2d 370, 375 (1965). Further, when the constitutionality of an ordinance itself is
challenged, “a litigant must produce evidence that he has sustained an injury or is in
immediate danger of sustaining an injury as a result of enforcement of the challenged
ordinance.” Grace Baptist Church v. City of Oxford, 320 N.C. 439, 444, 358 S.E.2d
372, 375 (1987) (citation omitted).
Here, several of the facial challenges by Plaintiffs concern generalized
grievances claiming the City and State governments have acted to: (1) violate the
constitutionally mandated separation of powers; or (2) unlawfully restrict judicial
power. Plaintiffs also specifically allege that: (1) the rezoning proceeding was quasi-
judicial, requiring due process standards which the City and State governments
violated; and (2) Session Law 2015-160, N.C. Gen. Stat. § 160A-385 (2015), and the
City’s actions thereunder deprived the Plaintiffs of a right to petition and access to
open courts to seek redress.
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Plaintiffs assert their separation of powers and unlawful restriction claims
solely as persons with a “general interest as . . . citizen[s] in good government in
accordance with the provisions of the Constitution[,]” Nicholson, 275 N.C. at 448, 168
S.E.2d at 406 (citations omitted), rather than as those “who [are] in immediate danger
of sustaining a direct injury[,]” Charles Stores, 263 N.C. at 717, 140 S.E.2d at 375.
This is also true of Plaintiffs’ specific facial challenges, as: (1) Plaintiffs had no legal
right to file a protest petition in this case, and therefore were not deprived of any
right to petition or access to open courts by the enactment of Session Law 2015-160
and the application of N.C. Gen. Stat. § 160A-385 (2015); and (2) the property rezoned
was not the Plaintiffs’. See, e.g., Coventry Woods, 202 N.C. App. at 256, 688 S.E.2d at
544 (holding that neighbors to a property undergoing rezoning could not bring a facial
or as-applied constitutional challenge to the rezoning on procedural due process
grounds, as there is no “authority in support of the proposition that they are entitled
to constitutional protection against changes in the treatment of adjoining tracts of
property under properly-adopted zoning or subdivision ordinances”); Templeton, 208
N.C. App. at 56, 701 S.E.2d at 713-14 (2010) (“Without an allegation that the subject
zoning ordinance amendments will be or have been enforced against property owned
by plaintiffs, plaintiffs have failed to demonstrate that they have ‘sustained an injury
or [are] in immediate danger of sustaining an injury’ from enforcement of the
ordinance amendments against them. Therefore, plaintiffs failed to carry their
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burden to make sufficient allegations to establish standing to bring their
constitutional claims against defendant.” (alteration in original) (quoting Grace
Baptist Church, 320 N.C. at 444, 358 S.E.2d at 375)). Because Plaintiffs do not have
a constitutionally protected interest in the rezoning of an adjoining landowner’s
property, and because their remaining constitutional challenges assert only
generalized grievances, we hold these claims were properly dismissed.
E. The Trial Court Was Not Required to Transfer Plaintiffs’ Constitutional Claims
Due to Their Lack of Standing
Per the language of N.C. Gen. Stat. § 1-267.1, all facial constitutional
challenges to acts of the General Assembly must be heard by a three-judge panel in
Wake County. N.C. Gen. Stat. § 1-267.1(a1). Where a lawsuit asserting such
challenges not before the three-judge panel involves other claims unrelated thereto,
the court with jurisdiction and venue over the action:
shall, on its own motion, transfer that portion of the action
challenging the validity of the act of the General Assembly
to the . . . three-judge panel if, after all other matters in the
action have been resolved, a determination as to the facial
validity of an act . . . must be made in order to completely
resolve any matters in the case.
N.C. Gen. Stat. § 1A-1, Rule 42(b)(4) (emphasis added); see also N.C. Gen. Stat. § 1-
81.1(a1) (establishing venue for such claims with the three-judge panel and requiring
such actions be transferred consistent with Rule 42(b)(4)). In other words, facial
constitutional challenges must be transferred to the three-judge panel only if the
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constitutionality of the statute in question must be resolved in order to conclude the
action.
Because we hold that Plaintiffs did not have standing to bring their
constitutional challenges as set forth supra Part II.D., the transfer of Plaintiffs’
constitutional claims to a three-judge panel was not necessary, as “a determination
as to the facial validity of [the] act[s]” in question was not required to “completely
resolve any matters in the case.” N.C. Gen. Stat. § 1A-1, Rule 42(b)(4); see also N.C.
Gen. Stat. § 1-81.1(a1) (requiring the transfer of claims only if a determination of
facial validity is necessary “after all other questions of law in the action have been
resolved”). Further, because we hold that Plaintiffs lacked standing, we need not
address the merits of their mootness and statutory interpretation arguments.
III. CONCLUSION
Plaintiffs brought multiple claims in their declaratory judgment action, some
challenging the propriety of the rezoning itself and others challenging the
construction and constitutional validity of certain statutes and session laws.
Plaintiffs’ appeal challenges only the trial court’s dismissal of their constitutional and
statutory construction claims. We hold that Plaintiffs lack standing to bring those
claims and we affirm their dismissal. Plaintiffs did not argue error in the dismissal
of their remaining causes of action; as a result, we affirm the order of the trial court.
AFFIRMED.
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Judges BRYANT and DAVIS concur.
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