Last week the N.C. Court of Appeals issued a new zoning decision in Musi v. Town of Shallotte.  Musi brought to light two problems that have plagued land use jurisprudence for decades and only get worse: 1) the evolution of land use law has taken so many odd twists and turns that on some issues nobody knows how we got to the place we are, and 2) our appellate courts have tended for too long to apply the aphorisms and standards of past cases with shallow analysis that is completely divorced from theories of land use planning.

The facts in Musi are easy to summarize:  Plaintiffs challenged the town’s decision to rezone certain properties from a lower to a higher density residential category.


The town challenged the plaintiffs’ standing to file the lawsuit.  Standing is the legal determination that a party has a stake in the controversy suffiicient to give them the right to seek judicial review. Only then does the court have jurisdiction over the subject matter.

In zoning cases, a local government’s legislative decisions may be challenged by anyone with “sufficient personal and legal interest in an action.”  A “legal” interest is determinable.  A “personal” interest is a vague as it sounds.

However, a local goverment’s quasi-judicial decisions may only be challenged by someone whose alleged damages are “distinct from the rest of the community,” a standard which many courts have reduced to damages to property value.

The problem with this capriciously evolved dual standard is that two different people in separate counties identically affected by the exact same type of proposed use don’t necessarily have equal chances to seek judicial review.  If John Smith lives adjacent to a proposed 250,000 sq. ft. shopping center in County A where the decision is quasi-judicial, he must show that he would be damaged differently than others in the community, enumerate those damages in his complaint and have evidence of those damages in the record being reviewed.  If Sam Smith in County B lives adjacent to a proposed 250,000 sq. ft. shopping center where the decision to allow the use is legislative, his standing threshhold is much lower. 

My point is this: the thought processes required of the elected decision-makers should not control who has standing to challenge those decisions.

Spot Zoning

Spot zoning refers to the rezoning of a small tract of land in a sea of uniformly zoned property.  A court must first determine if it is spot zoning, and, if so, decide whether there is no rational basis, which would make it illegal spot zoning.

Somewhere in our judicial history spot zoning was described by one court as “a small tract of land owned by a single person and surrounded by a much larger area uniformly zoned.”  Every later spot zoning court decision seems to have adopted the “single person ownership” standard without an ounce of thought deeper than “that’s the way previous courts did it.”

Zoning is not about title.  Zoning is about use.  According to the single owner standard, if a 3 acre tract surrounded by miles of low density residential zoning is converted to heavy industrial zoning for a foundry, it is spot zoning if the tract is owned solely by Sally Smith.  However, if the tract is owned by Sally and her brother Sam as tenants in common, it is not spot zoning. This type of rote judicial repetition does little to advance land use jurisprudence.