The opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA21-600-2
Filed 19 February 2025
Richmond County, No. 20 CVS 1127
CHAD GARDNER, LISA GARDNER, LONNIE NORTON, HOPE NORTON, THE
TOWN OF DOBBINS HEIGHTS and THE CITY OF HAMLET, Plaintiffs,
v.
RICHMOND COUNTY, Defendant.
Appeal by plaintiff Town of Dobbins Heights from order entered 14 June 2021
by Judge Dawn M. Layton in Superior Court, Richmond County. Heard in the Court
of Appeals 5 April 2022 and opinion filed 2 May 2023. Remanded to this Court by
order of the North Carolina Supreme Court 18 October 2024.
The Brough Law Firm, PLLC, by T.C. Morphis, Jr. and Brady N. Herman, for
plaintiff-appellant.
McGuireWoods LLP, by Henry L. Kitchin, Jr. and Caroline E. Keen, for
defendant-appellee.
STROUD, Judge.
Plaintiff-Appellant Town of Dobbins Heights (“Plaintiff”) appeals from the part
of the trial court’s order granting Defendant-Appellee Richmond County’s 12(b)(1)
motion to dismiss due to Plaintiff’s lack of standing. Because Plaintiff made sufficient
allegations to establish standing to bring a declaratory judgment action and did not
need to further plead special damages, we reverse the trial court’s order as is applied
GARDNER V. RICHMOND CNTY.
Opinion of the Court
to Plaintiff.
I. Background
On 3 December 2020, four individual plaintiffs and two municipal plaintiffs
filed a verified complaint in Superior Court, Richmond County “seeking a declaratory
judgment that the rezoning” of certain property “by the Richmond County Board of
Commissioners on [8 October 2020] is void and of no effect[.]” The municipal plaintiffs
included the City of Hamlet and Plaintiff Town of Dobbins Heights.
Plaintiffs allege that in August 2020, the Seaboard Coastline Railroad
Company (“CSX”) submitted a rezoning application to the Richmond County Board of
Commissioners seeking to rezone about 167 acres of property (“the Property”) owned
by CSX in southeastern Richmond County from “Rural-Residential” and
“Agricultural Residential” to “Heavy Industrial.” These residential zoning districts
were established in about 2003 under a “Zoning Ordinance” adopted by Defendant
that “govern[ed] and regulate[d] the use of land in Richmond County located outside
municipal corporate limits.” The complaint alleged “[t]he Property is [located]
approximately one and a half miles from Hamlet’s extraterritorial jurisdiction, and
approximately two and [a] half miles from both Hamlet’s and Dobbins Heights[’s]
corporate limits.” Located “less than 2,500 feet” from the Property is the “Marks
Creek Property,” a parcel that holds “a body of water that both the Town of Dobbins
Heights and the City of Hamlet use as their primary source of drinking water.”
CSX sought to rezone the Property to allow an Ohio-based corporation,
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International Tie Disposal, LLC, to construct and operate a biochar production
facility. This facility, as stated in the “Air Quality Construction Permit Application”
submitted by International Tie to the North Carolina Department of Environmental
Quality, would “‘cook[]’ untreated lumber and creosote-treated railroad ties through
a pyrolysis process” to produce charcoal. The complaint alleges “creosote is a known
carcinogen, and the burning of carcinogens can create harmful toxins and air
pollution that are detrimental to the health of humans and animals.” The “pyrolysis
process” would also allegedly emit air pollutants such as “nitrogen oxide, carbon
monoxide, volatile organic compounds (including methanol), . . . particulate matter[,]
. . . benzene, methylene chloride, chloroform, tetrachloroethylene (‘PCE’), and
trichloroethylene (‘TCE’).”
On 8 September 2020, the Richmond County Planning Board met to consider
CSX’s rezoning application and “unanimously voted to recommend approval to the
County” Board of Commissioners, the entity responsible for granting or denying
zoning amendments. On 6 October 2020, the Board of Commissioners met and held
a public hearing to consider the rezoning application. At this hearing, Board of
Commissioners’ staff presented emails and letters submitted by local residents
expressing their concerns about the application and proposed biochar facility. These
residents expressed concerns about “decreasing property values, financial declines in
nearby businesses, increasing air and water pollution, increasing traffic and noise,
and . . . significant environmental impacts to wildlife and the surrounding area.” The
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Nortons, individual plaintiffs in this action, expressed concerns about the quality of
community drinking water because of the close proximity of the proposed site to the
Marks Creek Property.
The Board of Commissioners reconvened on 8 October 2020 to vote on CSX’s
rezoning application. Board of Commissioners’ staff presented additional emails and
letters submitted within 24 hours after the close of the 6 October 2020 public hearing.
After hearing and considering the final rounds of public comments, the Board of
Commissioners voted to approve CSX’s rezoning application; the Property was
rezoned to Heavy Industrial.
The municipal plaintiffs alleged they have standing to challenge the rezoning
“because International Tie’s proposed biochar production facility plant will have a
significant negative impact” on the water supply and “general quality of life for the
residents[.]” Specifically, they contend: they have “a specific personal and legal
interest in the subject matter affected by the Rezoning and are directly and adversely
affected thereby”; International Tie’s use of the Property would be “an invasion of a
legally protected interest that is concrete, particularized, actual and imminent”; and
that an infringement on this interest would be “fairly traceable to the Rezoning, and
it is likely as opposed to merely speculative that these injuries will be redressed by a
decision in this case that is favorable to the Municipal Plaintiffs.”
Plaintiffs first claim Defendant failed to comply with the statutory
requirements for consistency statements under North Carolina General Statute
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Section 153A-341(b) (repealed and recodified in North Carolina General Statute
Section 160D-605 (2023)).1 Second, Plaintiffs claim Defendant failed to consider all
permissible uses allowed in the Heavy Industrial zoning district, and thus “the
[r]ezoning is void and of no effect under the doctrine established in Allred v. City of
Raleigh, 277 N.C. 530, 178 S.E.2d 432 (1971)[,] and more recently articulated in Hall
v. City of Durham, 323 N.C. 293, 372 S.E.2d 564 (1988).” Plaintiffs requested the
trial court to declare the zoning amendment “void and of no effect,” among other
relief.
On 5 February 2021, Defendant served upon Plaintiffs a motion to dismiss
under Rules of Civil Procedure 12(b)(1) and 12(b)(6), contending a lack of standing
and that Plaintiffs failed to assert any claims upon which relief could be granted.
Defendant’s motion asserted the municipal plaintiffs lacked standing to bring a
declaratory judgment action because a declaratory judgment action could only be
challenged “by a person who has a specific personal and legal interest in the subject
1 Chapters 153A and 160A of the General Statutes were repealed, rewritten, and reenacted in Chapter
160D by North Carolina Session Laws 2019-111 and 2020-25 (amending Session Law 2019-111) in
June 2020. See 2019 N.C. Sess. Law 111, § 2.2; 2020 N.C. Sess. Law 25. North Carolina General
Statute Section 160D-605, governing statements of consistency, became effective 19 June 2020, shortly
before the complaint was filed in this case. See N.C. Gen. Stat. § 160D-605 (2020). However, the
Session Law enacting North Carolina General Statute Section 160D-605 stated “[v]alid local
government development regulations” in effect when the amendments became effective “remain in
effect but local governments shall amend those regulations to conform to the provisions of” the
amendments “on or before July 1, 2021[;]” in other words, local governments had approximately one
year to comply with the amendments. See 2020 N.C. Sess. Laws 25, § 51(b). Here, both parties and
the trial court relied on North Carolina General Statute Section 153A-341(b) in the proceeding below,
and no party addresses whether Defendant’s zoning ordinance is compliant with North Carolina
General Statute Section 160D-605.
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matter affected by the zoning ordinance and who is directly and adversely affected
thereby.” Defendant also argued the municipal plaintiffs must show special damages
“distinct from the rest of the community.”
On 24 May 2021, the trial court held a hearing on Defendant’s motion to
dismiss. As to the first claim regarding North Carolina General Statute Section
153A-341(b), the trial court allowed Defendant’s motion and dismissed the claim as
to all parties, stating “[t]he [c]ourt finds that the consistency statement adopted by
the Richmond County Board of Commissioners is sufficient under N.C. Gen. Stat.
§ 153A-341(b) and is, therefore, not subject to further review by the [c]ourt.” As to
the second claim that the Board of Commissioners “failed to consider all permissible
uses in the Heavy Industrial zoning district[,]” the trial court denied the motion to
dismiss. Further, the trial court denied Defendant’s motion to dismiss for lack of
standing under Rule 12(b)(1) as to the City of Hamlet, but granted the motion as to
lack of standing as applied to Plaintiff.
On 6 July 2021, Plaintiff timely appealed “the portion of the [trial court’s]
Order granting the Motion to Dismiss as to the Town of Dobbins Heights for lack of
standing pursuant to N.C. R. Civ. P. 12(b)(1).”
Originally, this Court dismissed Plaintiff’s appeal as interlocutory, holding
Plaintiff “failed to demonstrate a substantial right that would be impacted by this
Court’s failure to immediately hear its appeal[.]” See Gardner v. Richmond Cnty.,
No. COA21-600, 288 N.C. App. 637, 885 S.E.2d 862, slip op. at 3 (2023) (unpublished).
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On discretionary review, our Supreme Court held Plaintiff “did more than baldly
assert a right of immediate appeal under Creek Pointe[,]” and “adequately explained
why the particular facts of this case satisfy the substantial rights test based on the
holding in Creek Pointe.” Gardner v. Richmond Cnty., 386 N.C. 594, 595, 906 S.E.2d
464 (2024) (citation omitted). Our Supreme Court reversed and remanded to this
Court to “address the parties’ competing arguments regarding the issue of standing.”
Id.
II. Standing
Plaintiff argues it has standing to challenge Defendant’s rezoning amendment
under the North Carolina Declaratory Judgment Act (“DJA”), N.C. Gen Stat. § 1-253
(2023), as well as the standard established by our Supreme Court’s holding in
Committee to Elect Dan Forest v. Employees Political Action Committee (EMPAC),
376 N.C. 558, 853 S.E.2d 698 (2021). Defendant argues, however, Plaintiff
“mischaracterizes the standing analysis in Committee to Elect Dan Forest” and has
not “satisf[ied] the DJA’s requirements to bring a claim under the Act.” Further,
Defendant also argues Plaintiff was required to allege special damages that were
separate and distinct from the rest of the community to have standing. We reverse
the trial court’s order granting Defendant’s motion to dismiss as Plaintiff’s allegations
assert standing to challenge Defendant’s rezoning decision and it was not required to
plead special damages.
“Standing is properly challenged by a 12(b)(1) motion to dismiss, or 12(b)(6)
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motion to dismiss for a failure to state a claim upon which relief may be granted.”
Fairfield Harbour Prop. Owners Ass’n, Inc. v. Midsouth Golf, LLC, 215 N.C. App. 66,
72, 715 S.E.2d 273, 280 (2011) (citation omitted). This Court reviews a trial court’s
granting of a motion to dismiss for lack of standing de novo:
A ruling on a motion to dismiss for want of standing is
reviewed de novo. In our de novo review of a motion to
dismiss for lack of standing, we view the allegations as true
and the supporting record in the light most favorable to the
non-moving party. In our analysis of standing, we also
consider that North Carolina is a notice pleading
jurisdiction, and as a general rule, there is no particular
formulation that must be included in a complaint or filing
in order to invoke jurisdiction or provide notice of the
subject of the suit to the opposing party.
Metcalf v. Black Dog Realty, LLC, 200 N.C. App. 619, 625, 684 S.E.2d 709, 714 (2009)
(citations and quotation marks omitted).
In Taylor v. City of Raleigh, our Supreme Court determined a party has
standing to challenge a rezoning ordinance when they have “a specific personal and
legal interest in the subject matter affected by the zoning ordinance and . . . is directly
and adversely affected thereby.” 290 N.C. 608, 620, 227 S.E.2d 576, 583 (1976)
(citations omitted). Following Taylor, in light of the Supreme Court of the United
States’ decision in Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed.2d 351
(1992), this Court applied a three-part test in determining whether a party had
standing to challenge legislative rezoning decisions:
The three elements of standing are:
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(1) “injury in fact”—an invasion of a legally protected
interest that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.
Morgan v. Nash Cnty., 224 N.C. App. 60, 65, 735 S.E.2d 615, 619 (2012) (citations
and quotation marks omitted). The North Carolina Supreme Court further discussed
statutorily conferred standing in Committee to Elect Dan Forest:
In summary, our courts have recognized the broad
authority of the legislature to create causes of action, such
as “citizen-suits” and “private attorney general actions,”
even where personal, factual injury did not previously
exist, in order to vindicate the public interest. In such
cases, the relevant questions are only whether the plaintiff
has shown a relevant statute confers a cause of action and
whether the plaintiff satisfies the requirements to bring a
claim under the statute. There is no further constitutional
requirement because the issue does not implicate the
concerns that motivate our standing doctrine. The
existence of the legal right is enough.
Comm. to Elect Dan Forest, 376 N.C. at 599, 853 S.E.2d at 727-28 (emphasis added)
(citation omitted). Our Supreme Court held the North Carolina Constitution does
not impose a requirement to allege an “injury in fact” when challenging the validity
of a statute, but instead that limit is imposed as “a rule of prudential self-restraint”
in cases challenging the constitutionality of government action to ensure our courts
only address actual controversies. Id. at 608, 853 S.E.2d at 733. As to establishing a
specific claim under a statute:
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When a person alleges the infringement of a legal right
arising under a cause of action at common law, a statute,
or the North Carolina Constitution, however, the legal
injury itself gives rise to standing. The North Carolina
Constitution confers standing to sue in our courts on those
who suffer the infringement of a legal right, because “every
person for an injury done him in his lands, goods, person,
or reputation shall have remedy by due course of law.” N.C.
Const. art. I, § 18, cl. 2. Thus, when the legislature
exercises its power to create a cause of action under a
statute, even where a plaintiff has no factual injury and the
action is solely in the public interest, the plaintiff has
standing to vindicate the legal right so long as he is in the
class of persons on whom the statute confers a cause of
action.
Id. (emphasis added) (citation, quotation marks, and footnote omitted). As to showing
a plaintiff was among “the class of persons on whom the statute confers a cause of
action[,]” see id., the Court further explained via a footnote:
Showing a party falls within the class of persons on whom
the statute confers a cause of action may require a showing
of some special injury depending on the statutory terms.
For instance, our zoning statutes confer standing to
maintain a cause of action in the nature of certiorari
appealing a quasi-judicial zoning action on certain classes
of persons, including persons who will suffer special
damages as the result of the decision being appealed. In
certain cases, a cause of action may be implied from the
statutory scheme. For example, to be entitled to
administrative hearing under the NCAPA, a petitioner
must show they are a “party aggrieved” by agency action,
but where the underlying organic statute does not
expressly create a right to a hearing, we have nevertheless
held that those who alleged sufficient injury in fact to
interests within the zone of those to be protected and
regulated by the underlying statute, would have a right to
an administrative hearing under the NCAPA as a “person
aggrieved.”
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Id. at 608 n. 51, 853 S.E.2d at 733 n. 51 (citations, quotation marks, and brackets
omitted).
Under our Supreme Court’s decision in Committee to Elect Dan Forest, a two-
step analysis determines whether a plaintiff has standing to challenge a legislative
zoning amendment. First, it must be determined whether an alleged statute confers
a cause of action to a plaintiff. See id. at 599, 853 S.E.2d at 727. If a statutory cause
of action is conferred, it must then be determined whether the plaintiff has satisfied
and sufficiently alleged the statutory requirements in bringing a claim. See id.
Defendant does not challenge the first step in the analysis, conceding the DJA
does confer a legal right and cause of action on a Plaintiff. As for the second step in
the analysis, whether Plaintiff has “satisfie[d] the requirements to bring a claim
under the statute[,]” id., the DJA provides:
Any person . . . whose rights, status or other legal relations
are affected by a statute, municipal ordinance, contract or
franchise, may have determined any question of
construction or validity arising under the instrument,
statute, ordinance, contract, or franchise, and obtain a
declaration of rights, status, or other legal relations
thereunder.
N.C. Gen. Stat. § 1-254 (2023) (emphasis added). Under the DJA, so long as Plaintiff
sufficiently alleged it was “affected by” Defendant’s decision to rezone the Property,
Plaintiff is within the class of persons upon whom the DJA confers a cause of action,
and Plaintiff is “guarantee[d] standing to sue” and seek a declaratory judgment to
clarify its legal rights and relations. See Comm. to Elect Dan Forest, 376 N.C. at 607,
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853 S.E.2d at 733. Defendant contends Plaintiff is not among the class of persons
sufficiently “affected by” the rezoning ordinance and does not have standing to
challenge the ordinance.
As to whether Plaintiff has sufficiently alleged it was “affected by” the rezoning
decision, Plaintiff refers this Court to the allegations of the complaint and argues the
allegations sufficiently allege the infringement of a legal right. Defendant, however,
argues the holding in Taylor is still the sole test to determine whether a plaintiff is
sufficiently “affected by” a zoning decision and that Committee to Elect Dan Forest
does not abrogate Taylor. Defendant contends, under Taylor, Plaintiff has not met
the standard in alleging it was “directly and adversely affected” by the zoning
decision. See Taylor, 290 N.C. at 620, 227 S.E.2d at 583.
To an extent, we agree with Defendant’s argument that Committee to Elect
Dan Forest does not abrogate Taylor; instead, it lays out a broader framework within
which Taylor fits. In Taylor, our Supreme Court determined municipal zoning
ordinances may only be challenged through the DJA “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.” Id.
In Taylor, the plaintiff landowners challenged a rezoning ordinance that would
allow the defendant to construct new apartment buildings and townhomes. Our
Supreme Court held “[t]he undisputed evidence discloses that the impact of the
rezoning ordinance on any of the plaintiffs was minimal.” Id. In support of this
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holding, the Court noted “[t]he property of [the] plaintiffs Dunn on Boxwood Drive is
one-half mile or more from the northern (closest) boundary of the rezoned 39.89 acres
and the property of the other plaintiffs is farther from said northern boundary.” Id.
Additionally, “[p]rior to the bringing of this action neither [the] plaintiffs nor any of
those who protested the rezoning of the entire 85-acre tract had attacked, by protest
or by lawsuit, the rezoning of the 39.89 acres farthest from them.” Id. The rezoning
amendment at issue also “did not, for the first time, authorize multi-family dwellings
in the area; it merely increased the permissible types and units of dwellings.” Id. at
621, 227 S.E.2d at 583-84. The Taylor Court concluded:
On this record we would be unwilling to hold that plaintiffs
have established that they are persons aggrieved by the
rezoning ordinance. However, in the circumstances here
involved, we do not base decision solely on the ground [the]
plaintiffs are not sufficiently directly and adversely
affected by the rezoning ordinance to entitle them to attack
it. Rather, we treat [the] plaintiffs’ tenuous standing as a
circumstance in considering whether [the] plaintiffs’
belated attack on the rezoning ordinance is barred by
laches.
Id. at 621, 227 S.E.2d at 584 (citation omitted).
We believe the facts presented here, and the allegations in Plaintiff’s
complaint, taken as true and in the light most favorable to Plaintiff are
distinguishable from those present in Taylor. Here, unlike Taylor, the proposed
rezoning ordinance would completely change the permitted uses of the Property at
issue from primarily residential to wholly Heavy Industrial. See id. This rezoning
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would explicitly allow for the erection of International Tie’s biochar production
facility, an operation entirely different from residential land use.
In the complaint, Plaintiff clearly alleges how the erection of this biochar
facility would directly and negatively impact the community, such as the burning of
carcinogens, releasing a number of “toxic and harmful air pollutants,” potential
contamination to local water supply, and “traffic from industry” that “would
disproportionally affect the road network of” Plaintiff. We note the only differences
between the allegations of the municipal plaintiffs are that the City of Hamlet owns
the public water supply system installed in Marks Creek, even though this system
“serves over 10,000 people, including the residents of the City of Hamlet” and
Plaintiff, and that there is a small difference between the proximity of each
municipality’s borders to the Property.
Plaintiff has satisfied the requirements to bring a claim under the DJA in
sufficiently alleging it was “affected by” Defendant’s rezoning ordinance. The DJA
establishes a “legal right” for Plaintiff to challenge Defendant’s rezoning ordinance,
and the assertion of an “injury in fact” was not required for Plaintiff to have standing
to challenge the ordinance. See Comm. to Elect Dan Forest, 376 N.C. at 608, 853
S.E.2d at 733. Further, even in applying the standard in Taylor, Plaintiff has
sufficiently alleged a direct and adverse effect from the rezoning amendment.
As for Defendant’s second argument asserting Plaintiff was required to allege
special damages, separate and distinct from the rest of the community, we do not
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agree. In Village Creek Property Owners’ Association Inc. v. Town of Edenton, this
Court considered whether “a party seeking to challenge a zoning ordinance by way of
a declaratory judgment action is required to allege special damages[.]” 135 N.C. App.
482, 485, 520 S.E.2d 793, 795 (1999). In Village Creek, the “[d]efendants argue[d]
[the p]laintiffs’ complaint was properly dismissed for lack of standing because [the
p]laintiffs failed to allege special damages in their complaint.” Id. (footnote omitted).
This Court disagreed, concluding:
A party has standing to challenge a zoning ordinance in an
action for declaratory judgment only when it has a specific
personal and legal interest in the subject matter affected
by the zoning ordinance and is directly and adversely
affected thereby. The standing requirement for a
declaratory judgment action is therefore similar to the
requirement that a party seeking review of a municipal
decision by writ of certiorari suffer damages distinct from
the rest of the community. When a party seeks review by
writ of certiorari, however, our courts have imposed an
additional requirement that the party allege special
damages in its complaint. This requirement arises from
N.C. Gen. Stat. § 160A-388(b) and N.C. Gen. Stat. § 160A-
388(e), which allow only “aggrieved” persons to seek review
by writ of certiorari.
In contrast, the Declaratory Judgment Act, authorizing the
filing of declaratory judgment actions, does not require a
party seeking relief be an “aggrieved” person or to
otherwise allege special damages. Furthermore, our courts
have not previously held that special damages must be
alleged in a declaratory judgment action.
....
Because the zoning statute (the source of the requirement
that special damages be alleged in the context of writ of
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certiorari petitions) does not require parties to be
“aggrieved” in order to file a declaratory judgment action
and because the Declaratory Judgment Act does not
require a pleading of special damages, we hold it is not
required. [The p]laintiffs’ complaint should therefore not be
dismissed for lack of standing based on [the p]laintiffs’
failure to allege special damages.
Id. at 485-86, 520 S.E.2d at 795-96 (citations, quotation marks, ellipses, emphasis,
and footnote omitted).
Further, this Court in Village Creek noted:
We are aware of this Court’s opinion in Davis v. City of
Archdale, 81 N.C. App. 505, 508, 344 S.E.2d 369, 371
(1986), which states a party challenging a rezoning
ordinance via a declaratory judgment action “must allege
and show damages distinct from the rest of the
community.” Id. (citing Heery, 61 N.C. App. at 612, 300
S.E.2d at 869). The North Carolina Supreme Court
addressed the Davis opinion in County of Lancaster v.
Mecklenburg County, 334 N.C. 496, 503–04 n. 4, 434 S.E.2d
604, 610 n. 4 (1993), and, without deciding the issue, noted
that Davis “alludes to a requirement for ‘special damages’
distinct from those of the rest of the community to confer
standing to challenge a rezoning.” Id. The Lancaster court
also noted, however, that the test for standing provided in
Davis was taken from cases challenging standing in quasi-
judicial, rather than legislative, actions. Id. We therefore
do not read Davis as requiring a party challenging a
legislative zoning decision in a declaratory judgment action
to allege special damages in its complaint.
Id. at 486 n. 4, 520 S.E.2d at 796 n. 4. Therefore, challenges to quasi-judicial zoning
decisions require a pleading of special damages, but challenges to legislative zoning
decisions do not. See id. In distinguishing quasi-judicial zoning decisions from
legislative zoning decisions, this Court in Kerik v. Davidson County explained:
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[W]e recognize that zoning decisions regarding conditional
use and special use permits are quasi-judicial in nature,
and thus require judicial review[.]
....
However, in the case sub judice, we are dealing with a
Board of Commissioners’ rezoning decision.
....
Accordingly, adoption, amendment, or repeal of a zoning
ordinance is a legislative decision that must be made by the
elected governing board—the city council or the county
board of commissioners[.] In other words, rezoning is a
legislative act[.]
145 N.C. App. 222, 227-28, 551 S.E.2d 186, 190 (2001) (citations, quotations marks,
original brackets, and emphasis omitted).
Here, Defendant’s rezoning amendment was a legislative act decided by the
Board of Commissioners. Because this amendment was legislative, not quasi-
judicial, Plaintiff was not required to allege special damages within its complaint,
separate and distinct from the general community.
For the foregoing reasons, Plaintiff sufficiently alleged it was “affected by”
Defendant’s rezoning ordinance. Plaintiff is within the “class of persons” upon which
the DJA has conferred a legal right and cause of action to challenge the ordinance.
This alleged “infringement of a legal right” was sufficient for Plaintiff to obtain
standing, and Plaintiff was not further required to allege an “injury in fact,” nor
special damages.
III. Conclusion
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Plaintiff’s complaint sufficiently alleged it was “affected by” Defendant’s
rezoning ordinance, allowing it standing under the DJA to bring its declaratory
judgment action. Because Plaintiff has sufficiently asserted standing, the trial court
erred in granting Defendant’s 12(b)(1) motion to dismiss. We reverse the trial court’s
order granting Defendant’s motion to dismiss as applied to Plaintiff and remand.
REVERSED AND REMANDED.
Judges TYSON and ZACHARY concur.
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