# Messer v. Town of Chapel Hill

> Court of Appeals of North Carolina · January 7, 1997 · 125 N.C. App. 57

URL: https://www.frixlaw.com/law-library/cases/9856623

## Case

- **Full name:** Roger D. Messer and William L. Hunt v. Town of Chapel Hill
- **Court:** Court of Appeals of North Carolina
- **Decided:** January 7, 1997
- **Citations:** 125 N.C. App. 57; 479 S.E.2d 221; 1997 N.C. App. LEXIS 1
- **Precedential status:** Published
- **Opinion:** Dissent by Greene
- **Judges:** McGee, Wynn, Greene
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated by Messer v. Town of Chapel Hill, 346 N.C. 259 (1997).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9856623

## How later opinions describe it (automated extraction)

- stating that "land-use challenges are not ripe for review until there has been a final decision about what uses of the property will be permitted"

## Opinion text

Judge Greene
dissenting.
I do not agree that the complaint must be dismissed on the grounds that the claims are premature or “not ripe” for consideration. The plaintiffs challenge the ordinance on the grounds that it is an arbitrary and capricious act by the government and is therefore unconstitutional. In other words, the plaintiffs contend that any application of the ordinance is unconstitutional because their property rights were violated the very moment the government enacted the ordinance, without regard to how it may be applied. This constitutes a “facial challenge” as opposed to an “as applied challenge,” see Eide v. Sarasota County, 908 F.2d 716 , 724 n.14 (11th Cir. 1990), cert. denied, 498 U.S. 1120 , 112 L. Ed. 2d 1179 (1991), and as such there is no requirement that the plaintiff, prior to filing the complaint, first seek a variance from the zoning requirement. See id.; Pennell v. San Jose, 485 U.S. 1, 11 , 99 L. Ed. 2d 1, 14 (1988) (addressing facial challenge). Furthermore, because any action challenging the validity of the ordinance must be filed within nine months of its enactment, N.C.G.S. § 160A-364.1 (1994), requiring the plaintiffs to seek a final ruling on a variance request prior to filing this action would seriously jeopardize the right to file the action, as it is likely that a final decision would not be entered within nine months of the enactment of the ordinance. I would reverse the order of the trial court and remand.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9856623. Public record. Not legal advice.