Boring title, I know, but in land use this is big stuff, especially considering that both topics came out of a recent N.C. Supreme Court case. Let’s look at both topics, discuss their relevancy and review how the opinion was written.
Two weeks ago the N.C. Supreme Court published one of its rare land use opinions in Wally v. City of Kannapolis.
Wally involved nothing more than a rezoning challenge. There you go. That’s really the only background fact you need. A developer wanted it, and neighbors didn’t. The neighbors sued.
However, in a lawsuit you must have a cause of action – a legal theory upon which you can obtain redress. The Wally plaintiffs alleged two things: one, the decision involved “spot zoning;” and two, the city failed to adopt a “consistency statement.” I’ll provide the subcategory facts below.
As you can see from the topics in the right hand column I have a category dedicated to “spot zoning.” As I said in a previous blog post:
“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 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.’”
And then, in exasperation with the Court’s “single owner” standard, I said this: “Zoning is not about title. Zoning is about use.”
I was ecstatic that the state Supreme Court accepted this spot zoning case, but disappointed that it punted before carrying the ball all the way into the end zone. But, to continue the football analogy, I’m happy for the yardage we got.
In fact, Justice Timmons-Goodson, who wrote the Wally opinion, said this: “Zoning ordinances regulate land use, not ownership.”
Attorneys can’t say this in court, but in this blog I can say “See? I told you.”
So where has our law been? 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.
Side bar: I write this blog to provide case commentary rather than case descriptions. It’s a problem that Court of Appeals panels are obligated to follow precedent established by an earlier and errant N.C. Supreme Court decision, even when the earlier decision facially displays jurisprudential stupidity. End side bar.
Unfortunately, the Wally court concluded that because plaintiffs prevailed on their other cause of action (e.g. the consistency statement) it was not necessary to reach a decision on spot zoning. But even without providing a decision per se, it discussed spot zoning anyway, giving an attorney in a future case the opportunity to persuade the Court of Appeals that it must follow Wally and get away from this focus on title rather than land use relationships.
In 2005 the legislature amended the zoning statutes to require cities and counties to adopt what are called “consistency statements” when adopting a rezoning ordinance. The consistency statement requires the elected body to adopt a statement explaining how the rezoning is consistent with the comprehensive plan and reasonable and in the public interest.
What I didn’t know until Wally came out – which coincidently was while I was writing a Court of Appeals brief in a case involving a county’s adoption of a consistency statement – is that the consistency requirements for cities and counties are different.
Wondering why? It’s because every time a law is written there are WAY too many cooks in the legislative kitchen. And precisely because the kitchen is so crowded and noisy, what sometimes starts as a noble and logical idea becomes an illogical or inexplicable statute.
The consistency statement requirement for cities (NCGS 160A-383) reads as follows:
“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.”
But the county requirement (NCGS 153A-341) starts off by saying “Prior to adopting or rejecting . . .” and it does not contain the language “and any other officially adopted plan.” (“When” versus “prior to” might seem like an innocuous distinction, but the interpretation of a statute turns on such points).
The Defense that Didn’t Work
Kannapolis argued, essentially, that its staff report contained some consistency language and that, implicitly, because the staff’s report was before the board the staff’s opinion was therefore implicitly contained within the ordinance. Kannapolis also argued that the court had no authority to look over its shoulder because the statement “is not subject to judicial review.”
The Supreme Court was not impressed. It is the content of the statement that is not subject to review. However, whether the city adopted a statement in the first place is subject to judicial review, and the Court found that having a statement written by staff somewhere in the same room didn’t count as adopting a statement. The statute requires an elected body to adopt a statement each time it adopts a rezoning ordinance.
Back to the appellate brief I mentioned a few paragraphs back. I’m in litigation now representing a county in the eastern part of North Carolina that has been sued by the City of Wilson. Wilson alleges, among other things, that the county failed to adopt a zoning consistency statement in the proper form (i.e. “prior to”). Wilson, however, never adopts consistency statements, a point my client pointed out to the Court at the trial level.
Wilson thought it could outsmart the legislature by adopting a single ordinance in 2006 that proclaimed all future rezonings will be deemed by law to be reasonable and in the public interest and consistent with whatever plans exist at the time.
After Wally, every rezoning adopted by the City of Wilson can be overturned on that point alone. When the legislature says you must do something, it means that you really do have to do it.
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