Cary Creek Ltd. Partnership v. Town of Cary

JACKSON, Judge,

concurring in a separate opinion.

I agree with the majority that we are bound to affirm the trial court’s grant of summary judgment based upon the arguments presented to us. However, I write separately to note that the Town’s ordinance is not in compliance with this Court’s precedent that clearly requires a zoning ordinance to include an independent map controlled by the municipality.

This Court previously has explained that

[a] suit to determine the validity of a zoning ordinance is a proper case for a declaratory judgment. In such an action, summary judgment is properly granted where 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 *108material fact and that any party is entitled to a judgment as a matter of law.

Laurel Valley Watch, Inc., 192 N.C. App. at 396, 665 S.E.2d at 565 (citations and internal quotation marks omitted). “A municipality has no inherent power to zone its territory and possesses only such power to zone as is delegated to it by the enabling statutes.” Nash-Rocky Mount Bd. of Educ. v. Rocky Mount Bd. of Adjustment, 169 N.C. App. 587, 589, 610 S.E.2d 255, 258 (2005) (quoting Heaton v. City of Charlotte, 277 N.C. 506, 513, 178 S.E.2d 352, 356 (1971)). Accordingly, a municipality’s power to zone “ ‘is subject to the limitations of the enabling act.’ ” Id. (quoting Allred v. Raleigh, 277 N.C. 530, 540, 178 S.E.2d 432, 437-38 (1971)).

Here, the “enabling act” is North Carolina General Statutes, section 160A-387, which provides, in relevant part, that in order to exercise its zoning authority, a city

shall create or designate a planning board under the provisions of this Article or of a special act of the General Assembly. The planning board shall prepare or shall review and comment upon a proposed zoning ordinance, including both the full text of such ordinance and maps showing proposed district boundaries.

N.C. Gen. Stat. § 160A-387 (2005) (emphasis added). This statute, therefore, requires both the written ordinance and an accompanying map:

“[A] zoning ordinance must contain a map as well as detailed textual instructions. First, the text of the ordinance describes what land uses are permitted in each district, what development standards have to be met in that district, and the like. . . . Second, a map places the land in the jurisdiction into various zoning districts. This map is an official part of the zoning ordinance.”

Town of Green Level v. Alamance County, 184 N.C. App. 665, 670, 646 S.E.2d 851, 855 (2007) (quoting David W. Owens, Introduction to Zoning 23-24 (2d ed. 2001)).

In a case that addressed the parallel statute for counties, we held that “U.S.G.S. [United States Geological Survey] maps could not supply the required map” because “the U.S.G.S. maps were not part of the . . . ordinance, and in fact, were not maintained or controlled by the [municipality].” Id. at 672, 646 S.E.2d at 856. Additional statutes that refer to a city’s zoning power acknowledge “the zoning map” as *109an integral piece of a zoning ordinance — a piece adopted, controlled, and amended by the city in the same manner as its other legislative enactments. See, e.g., N.C. Gen. Stat. § 160A-364 (2005); N.C. Gen. Stat. § 160A-384 (2005).

Here, the Town’s ordinance requires a riparian buffer for “all perennial and intermittent streams ... as indicated on the most recent version of the 1:20,000 scale (7.5 minutes) quadrangle topographic maps prepared by the United States Geological Survey (USGS) . . . .” The record neither includes nor suggests the existence of a zoning map created by the Town as part of the challenged ordinance. Instead, the ordinance relies upon a moving target: “the most recent version” of a map prepared by an entity over which it exerts no control.

Furthermore, the ordinance’s reference to a map outside its control significantly reduces the Town’s responsibility to provide notice and an opportunity to be heard to those affected by its legislative decisions. Effectively, the ordinance, its requirements, and its prohibitions change any time the U.S.G.S. map changes, but the Town does not give its residents notice of such change or any opportunity to respond, because the wording of its ordinance has remained unchanged. Again, these issues were not raised on appeal, but I believe that the problems associated with an indefinite ordinance warrant attention and discussion.

Based upon the explicit holding of Green Level and the mandates of the North Carolina General Statutes, the Town’s ordinance is invalid because it does not include an accompanying zoning map, which is controlled and maintained by the Town itself. Nonetheless, it is not the province of this Court to construct arguments for the parties. Hyatt v. Town of Lake Lure, 191 N.C. App. 386, 389, 663 S.E.2d 320, 322 (2008) (“It is not the role of this Court to create an avenue of appeal not properly asserted in plaintiff’s brief.”) (citing Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994)). Accordingly, I am bound to affirm the trial court’s grant of summary judgment to the Town.