The opinion
NO. COA13-834
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
E. RAY ETHERIDGE, FRED G.
ETHERIDGE, and MARY KATHERINE R.
ETHERIDGE,
Plaintiffs
v. Currituck County
No. 12 CVS 38
COUNTY OF CURRITUCK; THE CURRITUCK
COUNTY BOARD OF COMMISSIONERS; and
JOHN D. RORER, MARION GILBERT, O.
VANCE AYDLETT, JR., H.M. PETREY,
J. OWEN ETHERIDGE, PAUL MARTIN,
and S. PAUL O’NEAL as members of
the CURRITUCK COUNTY BOARD OF
COMMISSIONERS,
Defendants
Appeal by plaintiffs and defendants from order entered 25
April 2013 by Judge Walter H. Godwin, Jr. in Currituck County
Superior Court. Heard in the Court of Appeals 22 January 2014.
Currin & Currin, by Robin T. Currin and George B. Currin,
for plaintiffs.
Currituck County Attorney Donald I. McRee, Jr., for
defendants.
CALABRIA, Judge.
Currituck County (“the County”) and the Currituck County
Board of Commissioners (“the Board”) (collectively “defendants”)
appeal from the portion of the trial court’s order granting
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summary judgment in favor of E. Ray Etheridge, Fred G.
Etheridge, and Mary Katherine R. Etheridge (collectively
“plaintiffs”) as to plaintiffs’ claim of illegal spot zoning.
Plaintiffs appeal the portion of the trial court’s order denying
their request for attorney’s fees and costs pursuant to N.C.
Gen. Stat. § 6-21.7 (2013). We affirm.
I. Background
This appeal concerns a dispute over a 1.1 acre parcel of
land (“the property”) owned by Currituck Grain, Inc. (“Currituck
Grain”) in the town of Shawboro in Currituck County, North
Carolina. Prior to 5 December 2011, the property was zoned
agricultural under Currituck County’s Unified Development
Ordinance (“the UDO”). The adjoining parcels of land on three
sides of the property were also zoned agricultural, and the
parcel on the remaining side of the property was zoned general
business.
Currituck Grain entered into a contract with Daniel Clay
Cartwright (“Cartwright”) by which Cartwright would purchase the
property to establish what he called a “recycling center,”
which would handle, stockpile, and sell scrap metal and
materials, rock, mulch, concrete, and dirt. Cartwright’s
proposed use was not permitted in an agricultural zoning
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district, but it was permitted in a heavy manufacturing zoning
district with a special use permit.
On 23 September 2011, Cartwright submitted an application
to have the property rezoned to Conditional District – Heavy
Manufacturing. The County Planning Board (“the Planning Board”)
reviewed Cartwright’s rezoning application (“the application”)
and recommended that it should be denied because, inter alia,
the proposed use was inconsistent with the current rural zoning
classification and was inconsistent with the County’s
comprehensive land use plan. The Board then conducted a hearing
regarding the application on 5 December 2011. At the conclusion
of the meeting, the Board voted 6-1 to approve the application.
On 25 January 2012, plaintiffs filed a complaint against
defendants in Currituck County Superior Court seeking to have
the rezoning of the property invalidated. Plaintiffs’ complaint
included claims of illegal spot zoning, arbitrary and capricious
rezoning, and violation of due process. Plaintiffs sought a
preliminary and permanent injunction against the rezoning as
well as attorney’s fees and costs pursuant to N.C. Gen. Stat. §
6-21.7. On 23 March 2012, plaintiffs filed an amended complaint
which added an additional claim for violation of N.C. Gen. Stat.
§ 153A-341 and the UDO. Plaintiffs then filed a motion for
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summary judgment as to all claims other than their claim for a
preliminary and permanent injunction. After a hearing, the trial
court entered an order granting summary judgment in favor of
plaintiffs as to their claim for illegal spot zoning and denying
plaintiffs’ request for attorney’s fees. The trial court also
denied plaintiffs’ motion for summary judgment as to their
remaining claims. Plaintiffs and defendants each appeal.
II. Jurisdiction
As an initial matter, we note that this appeal is
interlocutory because the trial court’s order did not resolve
all of plaintiffs’ claims since it explicitly denied both
parties summary judgment as to those remaining claims and there
is no subsequent final disposition of those claims in the
record. Appeal from an interlocutory order is proper if
(1) the order is final as to some claims or
parties, and the trial court certifies
pursuant to N.C.G.S. § 1A-1, Rule 54(b) that
there is no just reason to delay the appeal,
or (2) the order deprives the appellant of a
substantial right that would be lost unless
immediately reviewed.
Myers v. Mutton, 155 N.C. App. 213, 215, 574 S.E.2d 73, 75
(2002). In the instant case, the trial court’s order entered
final judgments as to plaintiffs’ claims for illegal spot zoning
and attorney’s fees and certified pursuant to Rule 54(b) that
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there was no just reason to delay appeal of those claims.
Accordingly, this appeal is properly before us. See Sharpe v.
Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (“When
the trial court [properly] certifies its order for immediate
appeal under Rule 54(b), appellate review is mandatory.”).
III. Defendants’ Appeal – Spot Zoning
Defendants’ sole argument on appeal is that the trial court
erred by granting summary judgment in favor of plaintiffs as to
plaintiffs’ claim for illegal spot zoning. We disagree.
“Our standard of review of an appeal from summary judgment
is de novo; 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.’” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572,
576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649
S.E.2d 382, 385 (2007)).
Spot zoning is defined, in pertinent part,
as a zoning ordinance or amendment that
“singles out and reclassifies a relatively
small tract owned by a single person and
surrounded by a much larger area uniformly
zoned, so as to . . . relieve the small
tract from restrictions to which the rest of
the area is subjected.” Blades v. City of
Raleigh, 280 N.C. 531, 549, 187 S.E.2d 35,
45 (1972), quoted in Chrismon [v. Guilford
Cty.], 322 N.C. [611,] 627, 370 S.E.2d
[579,] 588-89 [(1988)] The practice [of spot
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zoning] may be valid or invalid, depending
on the facts of the specific case. Chrismon,
322 N.C. at 626, 370 S.E.2d at 588. In
order to establish the validity of such a
zoning ordinance, the finder of fact must
answer two questions in the affirmative: (1)
did the zoning activity constitute spot
zoning as our courts have defined that term;
and (2) if so, did the zoning authority make
a clear showing of a reasonable basis for
the zoning. Id. at 627, 370 S.E.2d at 589.
Good Neighbors of S. Davidson v. Town of Denton, 355 N.C. 254,
257-58, 559 S.E.2d 768, 771 (2002) (footnotes omitted).
In the instant case, defendants conceded at oral arguments
that the rezoning at issue constituted spot zoning as defined by
our Supreme Court. However, they still contend that summary
judgment in favor of plaintiffs was inappropriate because the
undisputed evidence is that there was a reasonable basis for the
rezoning. Defendants are mistaken.
In order to determine whether there was a reasonable basis
for a spot zoning, this Court considers the following factors:
(1) “the size of the tract in question”; (2)
“the compatibility of the disputed zoning
action with an existing comprehensive zoning
plan”; (3) “the benefits and detriments
resulting from the zoning action for the
owner of the newly zoned property, his
neighbors, and the surrounding community;
and” (4) “the relationship between the uses
envisioned under the new zoning and the uses
currently present in adjacent tracts.”
Chrismon, 322 N.C. at 628, 370 S.E.2d at
589. With these factors in mind, “the
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criteria are flexible, and the specific
analysis used depends on the facts and
circumstances of a particular case.” Id.
Childress v. Yadkin Cty., 186 N.C. App. 30, 37, 650 S.E.2d 55,
61 (2007).
In the instant case, the first two factors, the size of the
tract and the compatibility of the rezoning with the County’s
comprehensive plan, clearly weigh against the reasonableness of
the rezoning. The rezoned property is only 1.1 acres in size
and, as noted by the Planning Board, the rezoning is
inconsistent with the County’s comprehensive plan. In their
brief, defendants do not dispute that these factors should weigh
against the rezoning’s reasonableness. Instead, defendants
argue that, consistent with Chrismon, the third and fourth
factors support a determination that there was a reasonable
basis for the spot zoning. See Chrismon, 322 N.C. at 633-34,
370 S.E.2d at 592 (“[W]e find that, because of the quite
substantial benefits created for the surrounding community by
the rezoning and because of the close relationship between the
likely uses of the rezoned property and the uses already present
in the surrounding tracts, there was a clear showing of a
reasonable basis for the spot zoning in this instance.”).
A. Benefits vs. detriments
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Defendants first contend that the rezoning would create
substantial benefits for the community. Our Supreme Court has
stated that the analysis of this factor “is expressly limited to
examining the ordinance’s beneficial and detrimental effects on
the property owner, his neighbors, and the surrounding
community.” Good Neighbors, 355 N.C. at 259, 559 S.E.2d at 772.
One example of a qualifying benefit is a
showing that neighboring property values
would increase as a result of the rezoning.
Other benefits previously recognized by the
Court, as illustrated in Chrismon, include:
(1) a showing of broad-based support for the
proposed use of the property, and (2) a
showing that many of the surrounding
landowners were likely to use the expanded
services offered by the property owner
seeking the zoning change.
Id. at 259-60, 559 S.E.2d at 772.
In the instant case, defendants argue that the rezoning
will be beneficial because the proposed recycling center would
(1) create three to four jobs; (2) allow for dilapidated
structures on the property to be rehabilitated; (3) allow county
citizens to dispose of their unwanted metals; and (4) make use
of a railroad siding. In addition, defendants note that
Commissioner J. Owen Etheridge (“Commissioner Etheridge”) stated
that he witnessed support for the rezoning from twenty-eight of
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thirty-three attendees at a preliminary community meeting
regarding Cartwright’s application.
Many of the benefits from the rezoning proposed by
defendants are not supported by any evidence presented at the
public hearing. For instance, there was no evidence presented
that the surrounding community would be particularly likely to
use the recycling center or that there was a specific need for a
recycling center in the property’s location. In Mahaffey v.
Forsyth County, this Court held that a spot zoning to facilitate
the establishment of an automobile parts store could not be said
to benefit the community because “auto parts are a common and
easily obtainable product and, if such a retail establishment
were said to be ‘beneficial to a rural community,’ then
virtually any type of business could be similarly classified.”
99 N.C. App. 676, 683, 394 S.E.2d 203, 208 (1990), aff’d per
curiam, 328 N.C. 323, 401 S.E.2d 365 (1991). The recycling
center in the instant case likewise provides only a generalized
benefit that has no specific connection to the surrounding rural
community.
Commissioner Etheridge’s statement that he personally
witnessed significant support for the rezoning at a preliminary
public hearing is also not supported by any evidence in the
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record. Moreover, even assuming, arguendo, that the statement
was accurate, it still fails to establish that there was
substantial community support for the rezoning. Commissioner
Etheridge’s statement acknowledges that multiple individuals
were opposed to the rezoning at the meeting he attended, and at
the actual public meeting where the rezoning was considered, the
vast majority of individuals who addressed the rezoning spoke in
opposition to it. Thus, there was not the type of overwhelming
public support for the rezoning that would be necessary to
establish that the rezoning was beneficial to the surrounding
community. Cf. Chrismon, 322 N.C. at 630, 370 S.E.2d at 590
(benefit of spot zoning demonstrated when eighty-eight local
residents signed a petition supporting the rezoning, multiple
members of the community spoke in favor of the rezoning, and
only one property owner spoke in opposition to it).
In addition, two real estate professionals who spoke at the
hearing stated that they believed that the proposed recycling
center would decrease property values both in the immediate
vicinity of the property and in the Shawboro community as a
whole. There was no evidence to the contrary presented during
the meeting. Finally, both Currituck County Sheriff Susan
Johnson (“Sheriff Johnson”) and a representative from the North
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Carolina Department of Cultural Resources (“the DCR”) submitted
letters to the Board expressing their concerns with the
rezoning. Sheriff Johnson was concerned because businesses
similar to the proposed recycling center had experienced
increases in crime and other suspicious activity, and the DCR
was concerned that the proposed recycling center would adversely
affect two nearby historic properties.
In light of this evidence, defendants have failed to make a
clear showing that the benefits of the rezoning outweighed its
detriments. Consequently, this factor also weighs against the
reasonableness of the rezoning.
B. Relationship of Uses
Defendants next argue that the proposed uses under the
rezoning would be consistent with the uses allowed or occurring
on adjacent properties. The Chrismon Court stated the following
regarding this factor:
In determining whether a zoning
amendment constitutes spot zoning,
the courts will consider the
character of the area which
surrounds the parcel reclassified
by the amendment. Most likely to
be found invalid is an amendment
which reclassifies land in a
manner inconsistent with the
surrounding neighborhood.
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1 R. Anderson, American Law of Zoning § 5.16
at 383 (3d ed. 1986) (emphasis added). One
court has described the evil to be avoided
as “an attempt to wrench a single small lot
from its environment and give it a new
rating which disturbs the tenor of the
neighborhood.” Magnin v. Zoning Commission,
145 Conn. 26, 28, 138 A. 2d 522, 523 (1958)
(emphasis added).
Chrismon, 322 N.C. at 631, 370 S.E.2d at 591. The Court went on
to note that “significant disturbances such as the rezoning of a
parcel in an old and well-established residential district to a
commercial or industrial district would clearly be
objectionable” under this factor. Id. In Budd v. Davie County,
this Court cited this language in concluding that a spot
rezoning from residential-agricultural to industrial to permit
the installation of a sand dredging operation “would destroy the
tenor of the quiet residential and agricultural neighborhood.”
116 N.C. App. 168, 178, 447 S.E.2d 449, 455 (1994). Similarly,
in Good Neighbors, our Supreme Court held that a spot rezoning
to permit chemical storage in an area “specifically zoned for
farms and residences” was unreasonable under this factor. 355
N.C. App. at 262, 559 S.E.2d at 773.
In the instant case, the property was rezoned from
agricultural, which is the least intense residential district
under the UDO, to heavy manufacturing, which was the most
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intense industrial district. Thus, like the spot zonings found
to be unreasonable in Budd and Good Neighbors, the rezoning in
this case impermissibly “wrench[es] a single small lot from its
environment and give[s] it a new rating which disturbs the tenor
of the neighborhood.” Chrismon, 322 N.C. at 631, 370 S.E.2d at
591 (emphasis omitted).
However, defendants contend that the rezoning should still
be considered reasonable pursuant to this factor because (1) the
previous use of the property, a granary, was in greater conflict
with the surrounding properties than the proposed recycling
center; and (2) the County may still place limitations upon the
property that would bring it into harmony with the surrounding
properties when Cartwright seeks a required special use permit.
Defendants’ first contention is immaterial, because previous
uses of the rezoned property are not considered as part of this
factor. See Good Neighbors, 355 N.C. at 261, 559 S.E.2d at 773
(This factor consists of “evaluating the relationship between
the uses envisioned under the new zoning and the uses currently
present in adjacent tracts . . . .” (emphasis added)).
In support of its second contention, defendants cite Purser
v. Mecklenburg County, 127 N.C. App. 63, 488 S.E.2d 277 (1997).
In Purser, the property at issue was rezoned from residential to
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a conditional-use district to allow for a “Neighborhood
Convenience Center,” which would provide retail establishments
that were consistent with the daily needs of the nearby
residents. Id. at 65, 488 S.E.2d at 278. This Court found that
under those circumstances, the “relationship of uses” factor
weighed in favor of the reasonableness of the spot zoning
because “the development of the Center was governed by a
conditional use site plan that was designed to integrate the
Center into the neighborhood and insure that it would be in
harmony with the existing and proposed residential uses on the
surrounding property.” Id. at 70-71, 488 S.E.2d at 282.
Purser is distinguishable from the instant case. Unlike in
Purser, defendants in the instant case have presented no
evidence that the recycling center has been designed to be
integrated into the surrounding area. The only condition on the
rezoning cited by defendants in their brief is an eight-foot
fence which is to be installed around the property. However,
defendants fail to adequately explain how this fence will
significantly diminish the impact of the recycling center on
surrounding properties. Consequently, we conclude that
defendants have failed to clearly show that the proposed
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recycling center would be consistent with the uses of adjoining
properties.
Ultimately, defendants have failed to meet their burden to
make a clear showing pursuant to any of the Chrismon factors
that the rezoning was a reasonable spot zoning. Accordingly,
the trial court properly granted summary judgment in favor of
plaintiffs because the rezoning constituted illegal spot zoning.
Defendants’ argument is overruled.
IV. Plaintiffs’ Appeal – Attorney’s Fees
Plaintiffs’ sole argument on appeal is that the trial court
erred by denying their request for attorney’s fees.
Specifically, plaintiffs contend that defendant’s illegal spot
zoning constituted an abuse of discretion and that, as a result,
N.C. Gen. Stat. § 6-21.7 required the trial court to award
attorney’s fees as a matter of law. We disagree.
Ordinarily, the “recovery of attorney’s fees, even when
authorized by statute is within the trial court’s discretion and
will only be reviewed for an abuse of that discretion.” Martin
Architectural Prods., Inc. v. Meridian Constr. Co., 155 N.C.
App. 176, 182, 574 S.E.2d 189, 193 (2002). However, “[w]e
review a trial court’s decision whether to award mandatory
attorney’s fees de novo.” Willow Bend Homeowners Ass'n v.
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Robinson, 192 N.C. App. 405, 418, 665 S.E.2d 570, 578 (2008)
(emphasis added).
In the instant case, plaintiffs sought to recover
attorney’s fees pursuant to N.C. Gen. Stat. § 6-21.7, which
states:
In any action in which a city or county is a
party, upon a finding by the court that the
city or county acted outside the scope of
its legal authority, the court may award
reasonable attorneys’ fees and costs to the
party who successfully challenged the city’s
or county’s action, provided that if the
court also finds that the city’s or county’s
action was an abuse of its discretion, the
court shall award attorneys’ fees and costs.
N.C. Gen. Stat. § 6-21.7. This statute permits a party that
successfully challenges an action by a city or county to recover
attorney’s fees if the trial court makes certain findings of
fact. When the court finds only that the city or county acted
outside the scope of its legal authority, the award of
attorney’s fees is discretionary. See Brock and Scott Holdings,
Inc. v. Stone, 203 N.C. App. 135, 137, 691 S.E.2d 37, 38 (2010)
(“[T]he use of [the word] ‘may’ generally connotes permissive or
discretionary action and does not mandate or compel a particular
act.”). However, if the court additionally finds that the
city’s or county’s action constituted an abuse of discretion,
then the award of attorney’s fees is mandatory. See Internet E.,
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Inc. v. Duro Communications, Inc., 146 N.C. App. 401, 405-06,
553 S.E.2d 84, 87 (2001) (“The word ‘shall’ is defined as ‘must’
or ‘used in laws, regulations, or directives to express what is
mandatory.’”).
In the instant case, the trial court properly determined
that the rezoning constituted illegal spot zoning and thus that
the County acted outside the scope of its legal authority. See
Alderman v. Chatham County, 89 N.C. App. 610, 616, 366 S.E.2d
885, 889 (1988) (“[U]nless there is a clear showing of a
reasonable basis, spot zoning is beyond the authority of the
county or municipality.” (internal quotations and citation
omitted)). However, the court did not find that the County’s
action was an abuse of discretion and instead ordered both
parties to be “responsible for their own attorney’s fees and
costs.” Plaintiffs argue that the trial court’s failure to
award them attorney’s fees was error because (1) the County’s
action was necessarily an abuse of discretion as a matter of
law; or (2) in the alternative, that the record supports a
determination that the County abused its discretion. Plaintiffs
are mistaken.
Plaintiffs first contend that “illegal spot zoning is
always outside the scope of the County’s legal authority and
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always an abuse of discretion and, therefore, once it is
determined that illegal spot zoning occurred, the Trial Court is
required to award attorney’s fees.” In support of this
argument, plaintiffs rely on the principle noted in this Court’s
opinion in Summers v. City of Charlotte, which states, in
relevant part:
Local governments have been delegated the
power to zone their territories and restrict
them to specified purposes by the General
Assembly. Zopfi v. City of Wilmington, 273
N.C. 430, 434, 160 S.E.2d 325, 330 (1968).
This authority “is subject both to the . . .
limitations imposed by the Constitution and
to the limitations of the enabling statute.”
Id. Within those limitations, the enactment
of zoning legislation “is a matter within
the discretion of the legislative body of
the city or town.” Id.
149 N.C. App. 509, 517, 562 S.E.2d 18, 24 (2002). Plaintiffs
contend that since local governments only have discretion to
enact zoning legislation when they are acting within the
limitations imposed by the Constitution and by statute, any
action which exceeds those limitations must also exceed the
discretionary authority of the local government such that the
action constitutes an abuse of discretion as a matter of law,
which in turn requires an automatic award of attorney’s fees.
Plaintiffs’ contention cannot be reconciled with the plain
language of N.C. Gen. Stat. § 6-21.7. Pursuant to that statute,
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a “finding by the court that the city or county acted outside
the scope of its legal authority,” such as a finding that a
local government engaged in illegal spot zoning, does not, in
and of itself, trigger the mandatory award of attorney’s fees.
N.C. Gen. Stat. § 6-21.7. Instead, the trial court must also
explicitly consider and “find[] that the city’s or county’s
action was an abuse of its discretion” in order to trigger the
mandatory award of fees. Id. Plaintiffs’ proposed
interpretation of the statute would collapse these two distinct
required inquiries into one, essentially deleting a portion of
the statute. Such an interpretation is impermissible because
our Courts “have no power to add to or subtract from the
language of the statute.” Zaldana v. Smith, ___ N.C. App. ___,
___, 749 S.E.2d 461, 463 (2013) (internal quotation and citation
omitted), disc. rev. denied, ___ N.C. ___, ___ S.E.2d ___
(2014).
“[A]n abuse of discretion occurs when a determination ‘is
so arbitrary that it could not have been the result of a
reasoned decision.’” Bishop v. Ingles Mkts., Inc., ___ N.C. App.
___, ___, 756 S.E.2d 115, 121 (2014) (quoting Porter v.
Fieldcrest Cannon, Inc., 133 N.C. App. 23, 26, 514 S.E.2d 517,
520 (1999)). Contrary to plaintiffs’ argument, the language of
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N.C. Gen. Stat. § 6-21.7 clearly indicates that the General
Assembly believed that a local government could erroneously act
outside the scope of its legal authority but yet not be acting
in a manner “so arbitrary that it could not have been the result
of a reasoned decision.” Id. Thus, we conclude that under the
plain language of the statute, the trial court is always
required to separately determine both (1) that a local
government acted outside the scope of its legal authority; and
(2) that the act in question constituted an abuse of discretion
before the court is required to award attorney’s fees.
Plaintiffs’ proposed interpretation to the contrary must be
rejected.
Nonetheless, plaintiffs still argue that “the undisputed
facts of the case sub judice are particularly egregious and
further demonstrate the County’s abuse of discretion in
approving the rezoning.” Specifically, plaintiffs note that
during the hearing which considered the rezoning request,
concerns with the proposed rezoning were raised by (1) the
Planning Board, because the rezoning was inconsistent with the
comprehensive plan; (2) Sheriff Johnson, because the proposed
use would potentially require the hiring of a new law
enforcement officer; (3) the DCR, which was concerned that the
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proposed use would have negative effects on two nearby historic
properties; and (4) nearby landowners. Plaintiffs also contend
that the record reflects that the Board failed to properly
consider and analyze the relevant spot zoning reasonableness
factors after being informed about those factors by the County
Attorney. Plaintiffs argue that the Board’s approval of the
rezoning in these circumstances irrefutably demonstrates an
abuse of discretion.
However, the evidence cited by plaintiffs was not the only
information before the Board. Cartwright explained the benefits
that the recycling center would bring to the community and
informed the Board how he expected the center would operate,
including the steps he would take to limit the center’s impact
on nearby landowners. In addition to Cartwright, three
individuals spoke in favor of the rezoning at the public
hearing. Two of these individuals specifically referenced prior
uses of the property and suggested that the recycling center
would not impact the area surrounding the property in a
materially different manner than these prior uses. The third
individual supported the rezoning because he felt there was a
need for industry in Currituck County.
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Based upon the information presented during the hearing,
Commissioner Etheridge made the following motion in favor of the
rezoning:
Mr. Chairman, since I live in the Shawboro
community and I will be affected by this one
way or the other, I am going to make a
motion to recommend approval of this. And I
do so citing that it is consistent with the
land use plan, and the request is reasonable
and in the public interest. It also promotes
orderly growth and development in our
community, and it follows the long history
of industrial uses that have been in this
area.
One, it’s a rail siding with three rail
spurs, the largest one in Currituck County.
It has had a cotton gin, an asphalt plant,
two different fertilizer plants,
agricultural chemical storage, granaries, as
I said to [inaudible], lime off--they
offloaded lime there. DOT has--NCDOT, DOT,
has used this property to offload rail cars
of highway maintenance materials. Various
contracting firms have offloaded rail cars
at this site. North Carolina Power has, on
occasion, offloaded large electrical
equipment here. So it has a history of being
an industrial area, or the railroad would
have never put the siding there to begin
with.
So with that, and the fact that there was
overwhelming support at the community
meeting--I think the report was thirty-three
people there, twenty-eight supported it.
Here tonight it appears to be somewhat
overwhelming support from the general
community. And the general community we’re
talking about is Currituck and Shawboro in
particular. And I look out here and I see
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people from Shawboro and throughout the
county. And I think it is time that we take
the foot of government off the throat of
starting businesses in this county and we do
what we can to make sure.
Now, in this additional zoning permit, I
would also add that we add opaque fencing to
be determined height-wise, and a special use
permit that every factor that the staff and
Mr. Cartwright can work on to mitigate any
possible negative impacts be looked at and
then addressed at the special use permit.
This statement is the only information on the record regarding
the Board’s reasoning for the approval of the rezoning, which
occurred shortly after Commissioner Etheridge’s motion was made.
The motion demonstrates that the Board considered most of the
Chrismon reasonableness factors prior to approving the rezoning.
Commissioner Etheridge specifically cited his belief that the
rezoning was consistent with the UDO, noted benefits to the
community such as economic growth and significant community
support, and discussed how the newly zoned property would be
consistent with surrounding property uses, including how the
recycling center’s impact would be mitigated through the special
use permit process. While we have determined that Commissioner
Etheridge’s reasoning was insufficient to meet the County’s
legal burden of making “a clear showing of a reasonable basis
for the zoning,” Good Neighbors, 355 N.C. at 258, 559 S.E.2d at
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771, we cannot conclude that the Board’s reliance on the
information cited by Commissioner Etheridge was so unreasonable
that the legislative act of the rezoning “could not have been
the result of a reasoned decision.” Bishop, ___ N.C. App. at
___, 756 S.E.2d at 121. Accordingly, the trial court did not
err by determining that the rezoning was not an abuse of
discretion by the County.1 Since there was sufficient evidence
for the trial court to decide that the rezoning was not an abuse
of discretion, there was also sufficient evidence for the court,
in its discretion, to deny plaintiffs’ motion for attorney’s
fees. Thus, we conclude the trial court did not abuse its
discretion by denying that motion. This argument is overruled.
V. Conclusion
The trial court properly awarded summary judgment in favor
of plaintiffs for their illegal spot zoning claim because there
was no genuine issue of material fact as to whether the rezoning
constituted illegal spot zoning. Pursuant to N.C. Gen. Stat. §
6-21.7, if the trial court finds only that a local government
acted outside the scope of its authority, the award of
attorney’s fees is discretionary. However, if the trial court
1
Although the trial court did not explicitly find that the
County did not abuse its discretion by enacting the rezoning,
such a finding is implicit in the court’s decision to have both
parties bear their own costs and attorney’s fees.
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additionally finds that the local government’s action was an
abuse of discretion, the award of attorney’s fees becomes
mandatory. Since the court properly determined that the County
did not abuse its discretion when it approved the illegal spot
zoning of the property, it was not required to award attorney’s
fees to plaintiffs. The trial court did not abuse its
discretion by ordering the parties to pay their own attorney’s
fees and costs. The trial court’s order is affirmed.
Affirmed.
Judges HUNTER, Robert C. and GEER concur.