concluding the board of commissioners approval of a rezoning application was not an illegal contract zoning despite the rezoning applicant’s promises to the board of commissioners where the board did not obligate itself to the applicant
How later courts described this case
- concluding the board of commissioners approval of a rezoning application was not an illegal contract zoning despite the rezoning applicant’s promises to the board of commissioners where the board did not obligate itself to the applicant
- defining “contract zoning” only as agreement involving reciprocal promises between municipality and landowner
- remedy that “rests in the sound discretion of the trial court... is conclusive on appeal absent a showing of a palpable abuse of discretion”
- “[A]doption, amendment, or repeal of a zoning ordinance is a legislative decision that must be made by the elected governing board[.]”
Written by the judges who cited it.
The opinion
WALKER, Judge,
concurring in the result.
I agree with the majorib decision that the Board of Commissioners’ (Board) re-zoning the subject property was a valid exercise of its legislative authority and that the Board did not engage in illegal contract zoning. However, I conclude the trial court did not err in receiving additional evidence from plaintiffs in support of their allegation that the Board’s decision resulted in illegal contract zoning. After a careful review of the record, including evidence received by the trial court, I find there is insufficient evidence to support the allegations of illegal contract zoning.
Plaintiffs’ action is brought under the Declaratory Judgment Act (Act) found in N.C. Gen. Stat. § 1-254 et. sea. Our case law clearly establishes that a declaratory action is a proper vehicle to be utilized to review decisions of a local government. See Godfrey v. Zoning Bd. of Adjustment, 317 N.C. 51 , 344 S.E.2d 272 (1986); Stutts v. Swaim, *236 30 N.C. App. 611 , 228 S.E.2d 750 , disc. review denied, 291 N.C. 178 , 229 S.E.2d 692 (1976); Taylor v. City of Raleigh, 22 N.C. App. 259 , 206 S.E.2d 401 (1974), aff’d, 290 N.C. 608 , 227 S.E.2d 576 (1976); Blades v. City of Raleigh, 280 N.C. 531 , 187 S.E.2d 35 (1972). However, I find nothing in this Act or applicable case law which confines a trial court’s review of those decisions to the record made at the re-zoning hearing.
In Hall v. City of Durham, 88 N.C. App. 53 , 362 S.E.2d 791 (1987), aff’d, 323 N.C. 293 , 372 S.E.2d 564 (1988), plaintiffs filed a declaratory judgment action alleging the re-zoning was the product of illegal contract zoning. The trial court received into evidence edited minutes from the city council meeting and an affidavit concerning statements some council members had made at the hearing. Id. at 57, 362 S.E.2d at 793-94 . The trial court granted summary judgment for plaintiffs, ruling the re-zoning action by the City amounted to prohibited contract zoning. Id. at 55 , 362 S.E.2d at 792 . In affirming the trial court, we concluded “[i]n our opinion, the portions of the minutes and the affidavit to which defendants object were properly received by the trial court to show the Council’s consideration of the facts before it.” Id. at 58 , 362 S.E.2d at 794 .
Likewise in Allgood v. Town of Tarboro, 281 N.C. 430 , 189 S.E.2d 255 (1972), plaintiffs brought an action challenging a re-zoning by the town of Tarboro. Our Supreme Court noted with approval that “[a]fter hearing the evidence and arguments of counsel,” the trial court made findings upholding the decision of the town and the Supreme Court affirmed. Id. at 434 , 189 S.E.2d at 258 .
Further, in Armstrong v. McInnis, 264 N.C. 616 , 142 S.E.2d 670 (1965), cited by the majority, as well as Sherill v. Town of Wrightsville Beach, 81 N.C. App. 369 , 344 S.E.2d 357 , disc. review denied, 318 N.C. 417 , 349 S.E.2d 600 (1986), the trial court received evidence at trial in addition to the record from local government regarding re-zoning decisions with approval by our appellate courts. I find no authority which would limit the trial court’s review in a declaratory action to the record made at the re-zoning hearing. Here, the majority apparently applies for the first time the “whole record” test and would limit review of the Board’s decision to the record made at the hearing on the re-zoning of the subject property.
In a situation where evidence may be forthcoming after the rezoning hearing, which may give rise to allegations of illegal contract zoning, the declaratory action enables the trial court to receive evi *237 dence in support of those allegations, while nevertheless being mindful that deference is accorded the legislative decision of local government. See In re Parker, 214 N.C. 51 , 55, 197 S.E. 706, 709 (1938) (holding .. the court will not substitute its judgment for that of the legislative body charged with the primary duty and responsibility of determining whether its action is in the interest of the public health, safety, morals, or general welfare”).
Therefore, I conclude that in a declaratory action challenging a re-zoning decision of a local government, the trial court, upon review, may receive evidence in addition to the record made at the hearing.