Opposition Brief — Pinehurst Area Realty, Inc. v. Village of Pinehurst

j Suoreme Court, US \

PILES @ i

4) | MAY 9 1991 |

No. 90-1619

Sr icaniamets cueRK |

____———————

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

PINEHURST AREA REALTY CO., INC.,

Petitioner,

V.

THE VILLAGE OF PINEHURST,

Respondent.

Petition for a Writ of Certiorari

to the Supreme Court of North Carolina

BRIEF IN OPPOSITION TO PETITION FOR A WRIT

OF CERTIORARI

PENNI P. BRADSHAW* W. LAMONT BROWN

LOUIS W. DOHERTY Brown, Robbins, May, Pate,

Petree Stockton & Robinson Rich, Scarborough & Burke

1001 West Fourth Street Post Office Box 370

Winston-Salem, NC 27101 Pinehurst, NC 28374

(919) 725-2351 (919) 692-4900

Attomeys for Respondent

*Counsel of Record

May 9, 1991

No. 90-1619

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

PINEHURST AREA REALTY CO., INC.,

Petitioner,

V.

THE VILLAGE OF PINEHURST,

Respondent.

Petition for a Writ of Certiorari

to the Supreme Court of North Carolina

BRIEF IN OPPOSITION TO PETITION FOR A WRIT

OF CERTIORARI

Respondent, The Village of Pinehurst, respectfully submits

that a writ of certiorari to review the judgment of the North

Carolina Supreme Court and the opinion of the North

Carolina Court of Appeals in this matter is unnecessary and

should not issue.

il

TABLE OF CONTENTS

Page

EP ETTORE ETE Cee ili

oe cc Seen c anes eee eceseees 1

Summary of Respondent’s Argument .............. 7

a eee re eee REECE Tee 10

Ee eee eee ee ee eee ee 27

Appendix A - An Act Relating to the Exercise of

Extraterritorial Planning Powers by the Town of Aberdeen,

the Village of Pinehurst and the Town of Southern Pines in

ee ee App. p. 1

Appendix B - An Ordinance Providing for the

Extraterritorial Limits of the Village of Pinehurst for

Purposes of Planning and Zoning, Building Inspections and

Subdivision Regulations ...........ccceeee App. p. 3

Appendix C - Notice of Public Hearing ...... App. p. 5

Appendix D - An Act to Require that Zoning Procedures

Include a Notice Requirement ............. App. p. 7

Appendix E - Minutes of the Pinehurst Village

Tee REG ARA RAR GRR e eee se seas App. p. 9

iii

TABLE OF AUTHORITIES

Cases:

Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432

Perper reer ee 18

i- Vv Vv izati

239 U.S. 441, 36 S. Ct. 141, 60 L. Ed. 372 (1950) .... 19

Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33

i nn Si cds Geadecessnaeeuseke as 17

Vv 650 F. Supp. 544

(S.D.N.Y.), aff'd, 826 F.2d 210 (2d Cir. 1987) .... 18, 22

Vv v, Ci WwW 39

N.Y.2d 587, 350 N.E.2d 381 (1976) ...........005. 23

Vv , 369 U.S. 590, 82 S. Ct.

BP, BE. TOA BO TID CIID oon sic ccc nescscacccss 24

Heaton v. City of Charlotte, 277 N.C. 506, 178 S.E.2d 352

SE kaa kActRaR RASS Aecduseseecdekenaxuwe 21

In_re Application of Raynor, 94 N.C. App. 91, 379 S.E.2d

880, disc. rev. denied, 325 N.C. 707, 388 S.E.2d 448

NE cca G tole hi ak winnie ancakuoktnieiaes 21

i . ”

665 F. Supp. 1235, 1243 (E.D. La. 1987) ..... 17, 18, 22

Johansen v, City of Bartlesville, 862 F.2d 423 (10th Cir.

ERR eerie HO Ar 10

iv

Keiger v. Board of Adjustment, 281 N.C. 715, 190 S.E.2d

Ps Are pe eas 17

Vv , 458 US.

419, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982) ....... 24

Penn Central Trans, Co, v. New York City, 438 U.S. 104, 98

S. Ct. 2646, 57 L. Ed. 2d 631 (1978) ......... 0000. 24

Pennsylvania Coal Co, v. Mahon, 260 U.S. 393, 43 S. Ct.

“FSM ey aR ae 24

Pineburst Area Realty, Inc. v. Village of Pinehurst, 100 N.C.

App. 77, 394 S.E.2d 251 (1990), appeal dismissed and disc.

tev, denied, 328 N.C. 92, 402 S.E.2d 417 (1991) ...... 5

Pinehurst Area Realty, Inc. v, Village of Pinehurst, 328 N.C.

—e fb 8 meee eae 6

Q.C. Const, Co. v, Gallo, 649 F. Supp. 1331 (D.R.L.

Ss oes anh iat etuvietan ee eee 18

Shelton v. City of College Station, 780 F.2d 475 (Sth Cir.),

ceri. denied, 477 U.S. 905, 106 S. Ct. 3276, 91 L. Ed. 2d 566

GU og nxn <n 0navn bid cowaee eee 18

Sherrill v. Town of Wrightsville Beach, 81 N.C. App. 369,

344 S.E.2d 357, disc. rev. denied, 318 N.C. 417, 349 S.E.2d

CUED o6bn 6 b0we bet uenweneseeuee 6a he ees 18

Smith v, City of Picayune, 794 F.2d 482 (Sth Cir. 1986) 18

Stutts v. Swaim, 30 N.C. App. 611, 228 S.E.2d 750, disc, rev,

denied, 291 N.C. 178, 229 S.E.2d 692 (1976) ........ 20

Tulsa Professional Collection Services, Inc, v. Pope, 485 U.S.

SOE CEUTD ove hiccendviss Celiscaceessaceteeec 26

Walker _v. Town of Elkin, 254 N.C. 85, 118 S.E.2d 1

es ane ky OK SAA KUN OO RROD OOS 20

Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325

eed hee is seas s OaWA as beaa KG Awee 18

Statutes:

N.C. Gen. Stat. § 160A-364 (1987) ...... 0.000000. 22

N.C. Gen. Stat. § 160A-381 (1987) ..........0005. 17

N.C. Gen. Stat. § 160A-384 (1987) ............ 14, 22

Session Laws:

1985 N.C. Sess. Laws Ch. 595 2.0.0... eee 14

1985 N.C. Sess. Laws Ch. 308 ... 2... 0. 0.0000000. 15

Supreme Court Rules:

Rules of the Supreme Court of the United States Rule

ee res 645 00444 046050006404640060040% 28

Ee SA5 4 hak 4 6440446 000060040 04a bee OM 1

STATEMENT OF THE CASE!

Petitioner, Pinehurst Area Realty, is the developer of

Midland Country Club, which in addition to privately-owned

residential units includes a golf course and club house

owned by Petitioner (the "golf course tract"). Petitioner also

owns an adjoining tract upon which both its real estate

office and a former filling station are situated (the “office

tract"). Petitioner instituted this action challenging certain

zoning actions by Respondent, Village of Pinehurst (“the

Village"), on state and federal constitutional grounds. Peti-

tioner seeks a Writ of Certiorari based on what it alleges to

be federal constitutional questions.

‘At the outset, Respondent notes that Petitioner has not complied

with Rule 29.4(c) of the Rules of the Supreme Court of the United States

requiring Petitioner to notify the North Carolina Attorney General that

Petitioner is challenging the constitutionality of a statute of the state of

North Carolina, which notice is to be accompanied with service of a copy

of its Petition on the North Carolina Attorney General. Further,

Petitioner has not recited in its Petition that 28 U.S.C. § 2403(b) may be

applicable.

1985 Zoning

Both the golf course tract and the office tract are

located in Moore County and were originally under the

zoning jurisdiction of the County. The County had zoned

the country club tract in a zoning district designated RD

(Residential). The front 500 feet of the office tract was

zoned B-1 (Business) by the County, while the remainder of

the office tract w.s part of the area zoned RD. In June

1985, the North Carolina General Assembly enacted

legislation to allow the Village of Pinehurst, the Town of

Southern Pines and the Town of Aberdeen to extend their

extraterritorial zoning jurisdiction up to two miles beyond

their respective corporate limits.

Later that month, pursuant to that delegated author-

ity, the Village of Pinehurst published notice of a public

hearing to be held July 8, 1985 to consider a “proposed area

for addition to the extraterritorial zoning jurisdiction of the

Village." This published notice described the proposed

areas by metes and bounds and made reference to the avail-

ability of the map showing the proposed zoning. This area

proposed to be added to the extraterritorial zoning juris-

diction of the Village included Petitioner’s golf course tract

3

and office tract. After holding the public hearing, the

Village extended its extraterritorial zoning jurisdiction and

initially placed the office tract in a district designated OP

("Office Professional") while placing the golf course tract in

a district designated PCR ("Public Conservation and Recrea-

tion"). As Petitioner admits, Petitioner and its representa-

tives “did not attend this public hearing; it was already

aware of the area to be included in the extraterritorial

jurisdiction of the Village, and knew that its property was to

be included.” Petition for a Writ of Certiorari at 8.

Petitioner makes much of the fact that the PCR zon-

ing designation “permits only golf courses, riding trails,

nature preserves, sewer lift stations, and other non-

developed uses.” Id. at 10. Petition also laments that the

“OP zoning classification permits only limited commercial

development such as small professional offices." Id. What

Petitioner neglects to point out is that both of these

designations permitted the existing use of the tracts at the

time of the extension of the extraterritorial zoning jurisdiction

of the Village. The PCR tract was already a golf course.

The OP tract was already a small professional office.

Therefore, although the zoning designations may have been

4

more restrictive than the Petitioner would have liked, they

reflected the existing use of the property.

Petitioner alleges in its Complaint that it did not

learn of the zoning classification until June 1986, but

Petitioner has admitted that it knew that the property was

to be included in the extraterritorial zoning jurisdiction of

the Village pursuant to the legislation of the North Carolina

General Assembly and subsequent to the public hearing

which Petitioner chose not to attend.

The 1987 Rezoning

In January 1987, Petitioner officially requested that its

office tract be rezoned from OP to NC ("Neighborhood

Commercial"). After several meetings with representatives

of Petitioner and after published notice and a public

hearing, the Village amended its zoning ordinance to break

its former NC classification into two new classifications, NC-

1 and NC-2. The Village then rezoned the office tract into

a NC-2 district. The NC-2 designation was even less

restrictive than OP, and as before, it continued to permit

the existing use of the office tract.

Procedural History

In March 1988, Petitioner filed suit, challenging both

the initial 1985 zoning and the 1987 rezoning of its office

tract on state and federal due process grounds.

The Village moved to dismiss the complaint for

failure to state a claim for which relief could be granted.

Before the hearing date for this Motion to Dismiss, Peti-

tioner filed a Motion for Summary Judgment. The triai

court orally granted Respondent’s motion and denied Peti-

tioner’s motion. Before the trial court issued a written

order, Petitioner filed a Motion for Reconsideration. The

trial court denied this motion, and Petitioner filed an appeal

which was heard in the North Carolina Court of Appeals.

See Pinehurst Area Realty, Inc, v. Village of Pinehurst, 100

N.C. App. 77, 394 S.E.2d 251 (1990).

The North Carolina Court of Appeals affirmed the

grant of the motion to dismiss for failure to state a claim

upon which relief could be granted and the denial of

Petition’s Motion for Summary Judgment. The Petitioner

then sought review in the North Carolina Supreme Court,

but that court denied Petitioner’s Petition for Discretionary

6

Review and dismissed Petitioner’s purported appeal as of

right upon finding that Petitioner did not have any claim

based on a constitutional question. See Pinehurst Area

Realty, Inc. v. Village of Pinehurst, 328 N.C. 92, 402 S.E.2d

417 (1991).

Petitioner now seeks review of this 1985 legislative

decision by the Village Council of the Village of Pinehurst

in this honorable Court. Respondent respectfully submits

that this Court should deny Petitioner’s Petition for a Writ

of Certiorari.

SUMMARY OF RESPONDENTS ARGUMENT

This dispute involving legislative decisions of the

Village Council of Respondent does not present the type of

question or questions worthy of the resources of this

honorable Court for several reasons.

Petitioner’s claims as to the office tract have been

rendered moot by subsequent legislative decisions of the

Village Council.

The arguments raised by Petitioner’s questions

presented to this Court in its Petition for a Writ of

Certiorari involve attempts to turn alleged state procedural

deficiencies into federal constitutional questions.

Even if Petitioner’s legal gymnastics do present

federal constitutional questions, review by this Court would

be unwarranted because there are independent state grounds

which support the trial court’s decision to grant a motion to

dismiss regardless of the resolution of the purported federal

8

constitutional questions which Petitioner seeks to have

reviewed in this Court.

Further, review by this Court would be futile in that

Petitioner seeks to undo a legislative decision which could

properly be remade through another zoning ordinance by

the Village Council; if Petitioner would like a different

zoning classification for its property, Petitioner may proceed

through the appropriate legislative channels to seek to have

the property rezoned, so Petitioner is not without recourse.

Furthermore, this case is not appropriate for Supreme

Court review because Petitioner has no property interest in

the zoning designation which would entitle it to federal due

process. Petitioner could not have any realistic expectation

that its property would never have been rezoned as it is

clear that the state legislature has delegated to cities the

authority to zone and rezone property.

It is also clear that even if Petitioner were entitled to

due process, Petitioner received all of the notice that it was

due because the notice which is given need only be

sufficient to put a property owner on notice that changes

will be made effecting his property.

9

Finally, Petitioner does not have a viable taking claim

because the zoning regulation has not precluded Petitioner

from all economic opportunities with respect to the

property, nor has the zoning resulted in a permanent

physical occupation of the property.

10

ARGUMENT

Mootness

The claim brought by Petitioner with regard to the

initial 1985 zoning of the office tract was appropriately

dismissed because Petitioner’s dispute in connection with

that rezoning is moot. The Village properly rezoned that

tract NC-2 in 1987 as it had authority to do so under state

zoning statutes, and thus Petitioner as a matter of law no

longer has any cognizable claim based on the 1985 zoning

of the office tract. In Johansen v. City of Bartlesville, 862

F.2d 423 (10th Cir. 1988), defendant city rezoned property

allegedly in violation of state notice requirements. Plain-

tiffs’ suit was dismissed. Pending appeal, the city resched-

uled the zoning matter for hearing and gave proper notice

to all parties. After the hearing, the city voted to adopt the

disputed zoning. The court held that the second hearing,

which corrected the procedural defects allegedly presented

in the first hearing, rendered plaintiffs’ claims moot.

11

Respondent submits that the 1985 zoning amendment

was free of procedural defects; however, even if this Court

were to hold otherwise, the subsequent rezoning of the

office tract into an NC-2 district rendered moot any claims

as to defects which might have been present in the 1985

zoning. Thus, on these grounds, Petitioner’s challenge to

the 1985 zoning of the office tract was properly dismissed.

In its complaint, Petitioner purported to challenge the

1987 rezoning as well. Petitioner's Complaint was filed

within nine months of the adoption of the 1987 zoning

amendment affecting Petitioner’s land. The trial court’s

grant of Respondent’s motion to dismiss and the opinion of

the North Carolina Court of Appeals make clear that this

portion of Petitioner’s claim was dismissed for the failure to

State a claim for which relief could be granted, not based on

any statute of limitations. Further, Petitioner’s questions

presented to this Court concern the 1985 zoning and not the

1987 rezoning. Thus, the only remaining challenge would

appear to be in regards to the country club tract zoning of

1985.

In its second question presented, Petitioner appears

to argue that its property interest in a cause of action was

denied without due process of law by the application of a

nine-month statute of limitations to its claims. The North

Carolina Court of Appeals, however, in its opinion clearly

stated that the notice was sufficient, so Petitioner’s claims

were considered and resolved on grounds other than the

application of the statute of limitations. As the North

Carolina Court of Appeals stated:

Plaintiff challenges the validity of the

zoning on state constitutional grounds, arguing

that the defendant failed to properly notify it

of the impending zoning action affecting its

property in violation of N.C.G.S. § 160A-364.

In fact, defendant’s published notice of the

zoning action stated that the Village would

consider extending its extraterritorial zoning

jurisdiction, and the metes and bounds de-

scription included the land owned by appellant.

That description put plaintiff on notice that

changes would be made affecting its property.

100 N.C. App. at 80, 394 S.E.2d at 253.

13

Petitioner Had Ad Noti

In fact, in its petition to this Court, Petitioner admits

that it had notice of the July 8, 1985 public hearing

concerning the extraterritorial zoning jurisdiction of the

Village -- "PAR did not attend this public hearing; it was

already aware of the area to be included in the extra-

territorial jurisdiction of the Village, and it knew that its

property was to be included." Petition for Writ of Certiorari

at 8.

Consideration of the questions allegedly presented by

this case by this honorable Court is also unwarranted in that

such consideration would be futile. Even though Respon-

dent asserts that Petitioner received adequate notice of the

zoning hearing, Petitioner challenges the procedure by

which this legislative decision was made. Even if Petitioner

should ultimately prevail in this action, Respondent could

initiate rezoning proceedings and rezone the property

pursuant to legislative authority delegated to it. In fact,

were Respondent to pursue rezoning the country club tract

at this time, Respondent would send notice to Petitioner by

14

first-class mail not only because such a practice would be

prudent after such protracted litigation, but also because the

North Carolina General Assembly amended the statutes

regarding zoning procedures for all such zoning amendments

after October 1, 1985. See 1985 N.C. Sess. Laws Ch. 595

(App. p. 7). The statutes, thus, now require that notice be

mailed to landowners such as Petitioner. See N.C. Gen.

Stat. § 160A-384. Furthermore, Petitioner is not without

recourse aside from this litigation because Petitioner may

seek to have its property rezoned at any time by pursuing

rezoning procedures in the legislative branch of government.

Full Authority To Zone

Petitioner asserts that the Village “had no authority

to enact the ordinance it claims to have enacted [because]

the County and General Assembly of North Carolina did

not delegate power to the Village of Pinehurst to zone that

territory until seven days after the ordinance was allegedly

adopted.” Petition for Writ of Certiorari at 19-20. This

argument misconstrues both the legislation passed by the

General Assembly and the ordinance passed by the Village

Council.

15

The Act Relating to Extraterritorial Zoning Juris-

diction of the Village of Pinehurst passed by the General

Assembly provides that "the Village of Pinehurst . . . may

exercise the powers granted by this Article for a distance of

not more than two miles beyond [its] corporate limits, with-

out regard to the population limitations of this subsection."

1985 N.C. Sess. Laws Ch. 308, s.1 (App. p. 1) (emphasis

added). There are no conditions to this authority.

The reference to approval by the Moore County

Board of Commissioners in Section 2 of this Act relates to

the assertion of extraterritorial zoning authority into areas

previously zoned by Moore County after annexation

proceedings by the Village of Pinehurst. Such approval was

not required before exercising extraterritorial zoning

authority in the two miles beyond the corporate limits of

Pinehurst as they existed at the time of enactment of the

legisiation. Thus, the approval granted by the Moore

County Board of Commissioners on July 22, 1985 was not

necessary for the office tract or the country club tract.

At any rate, the Ordinance Providing for the Extra-

territorial Limits of the Village of Pinehurst attached as

Exhibit D to Petitioner's Complaint, the applicable

16

ordinance passed by the Village Council, provided that

"[t]his ordinance shall be deemed to be in full force and

effect from and after the 15th day of July, 1985 and

approval by the Moore County Board of Commissioners for

those areas where such approval is required.” (App. p. 3)

(emphasis added). Thus, even if such approval was

required, the ordinance provided on its face that it would

not be effective until after that approval was granted.

No Federal Constitutional Clai

While Respondent suggests that this Court should not

grant Petitioner’s Petition for a Writ of Certiorari because

of the mootness, futility, and the lack of a significant federal

question, Respondent further asserts that this Court would

not even have to address the issue of the proper statute of

limitations in a zoning case involving a federal constitutional

question because Petitioner has failed to state a claim under

federal constitutional law. The North Carolina Supreme

Court determined that Petitioner’s claims involved no

substantial question arising under either the state or federal

constitutions when it granted Respondent’s motion to

dismiss Petitioner’s appeal asserted to be an appeal as of

17

right based on a constitutional question. See 328 N.C. 92,

402 S.E.2d 417 (1991) (reprinted as Appendix A, App. pp.

1-2, of Petitioner’s Petition for Writ of Certiorari).

To have a property interest protected by the federal

Constitution, a person must have more than an ownership

interest in the property; he must have a legitimate claim of

entitlement. See Board of Regents v. Roth, 408 U.S. 564,

92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). This entitlement

must arise from an independent source, either by contract

or by state law. Under North Carolina law, Petitioner had

no entitlement to keep the zoning designation established by

Moore County before the Village’s exercise of its extra-

territorial zoning jurisdiction. See N.C. Gen. Stat. § 160A-

381 (1987) (granting cities the authority to regulate usage,

density and location through zoning). Petitioner’s Com-

plaint alleges no facts that would give it a constitutionally

protected property interest in the zoning designation that it

had under Moore County’s zoning authority. See Jackson

Court Condominiums, Inc, v, City of New Orleans, 665 F.

Supp. 1235, 1243 (E.D. La. 1987); Keiger v, Board of

Adjustment, 281 N.C. 715, 190 S.E.2d 175 (1972) (a property

owner has no right to a particular type of zoning designation

until it (1) acquires building permits and (2) makes

18

substantial expenditures in good faith reliance on the

existing zoning ordinance).

Not Subject To Feder rocess Requir

Moreover, zoning decisions as a matter of law are not

subject to federal due process requirements. North Carolina

courts have repeatedly characterized zoning as a legislative

action, rather than a judicial action. See, e.g., Allred v. City

of Raleigh, 277 N.C. 530, 178 S.E.2d 432 (1971); Zopfi v.

City of Wilmington, 273 N.C. 430, 160 S.E.2d 325 (1968);

Sherrill v. Town of Wrightsville Beach, 81 N.C. App. 369,

344 S.E.2d 357, disc, rev. denied, 318 N.C. 417, 349 S.E.2d

600 (1986); see also Shelton v. City of Coliege Station, 780

F.2d 475 (Sth Cir.), cert. denied, 477 U.S. 905, 106 S. Ct.

3276, 91 L. Ed. 2d 566 (1986) (local zoning actions are

considered legislative actions for purposes of due process

under the federal constitution); O.C, Const. Co. v. Gallo,

649 F. Supp. 1331 (D.R.I. 1986) (lack of notice and hearing;

no due process claim because zoning is a legislative act). A

violation of state law is not necessarily a constitutional

violation. See, ¢.g., Smith v, City of Picayune, 794 F.2d 482

(Sth Cir. 1986); Jackson Court Condominiums, Inc, v, City

of New Orleans, 665 F. Supp. 1235 (E.D. La. 1987); Dean

19

Tarry Corp. v. Friedlander, 650 F. Supp. 544 (S.D.N.Y.),

aff'd, 826 F.2d 210 (2d Cir. 1987).

Even if Petitioner did have a protected property

interest in the Moore County zoning designation, which

Respondent firmly denies, local zoning decisions are not

subject to federal procedural due process requirements. The

United States Supreme Court made it clear in Bi-Metallic

Investment Co. v. State Board of Equalization, 239 U.S. 441,

36 S. Ct. 141, 60 L. Ed. 372 (1950), that a deprivation of

property that is a result of a legislative enactment is not

subject to federal procedural requirements of due process:

Where a rule of conduct applies to more than

a few people, it is impracticable that everyone

should have a direct voice in its adoption. The

constitution does not require all public acts to

be done in town meeting or an assembly of the

whole. General statutes within the state power

are passed that affect the person or property of

individuals, sometimes to the point of ruin,

without giving them a chance to be heard.

Their rights are protected the only way that

they can be in complex society by their power,

immediate or remote, over those who make

the rule. ... There must be a limit to

individual government in such matters if the

government is to go on.

20

Id. at 445, 35 S. Ct. at 142, 60 L. Ed. at 375. Such is the

case here. This was a legislative decision involving a large

expanse of land, not just Petitioner’s tract. Notice was given

to the whole community, and many people attended the

public hearing. This legislative decision affected a large

number of people. It was not a decision targeted at

Petitioner. -

Proper Notice W. Vv

Further, Respondent asserts that even if Petitioner

was entitled to due process under the federal Constitution

with respect to the 1985 zoning by the Village, Petitioner

received the required notice and an opportunity to be heard.

The published notice stated that the Village would meet to

extend its extraterritorial zoning jurisdiction, and the metes

and bounds description included the land owned by

Petitioner. To be adequate, notice of a zoning action need

not describe precisely what will take place at the hearing; it

is enough that the description would put a property owner

tage ia oli itl hie |

See, e.g., Walker v, Town of Elkin, 254 N.C. 85, 118 S.E.2d

1 (1961); Stutts v. Swaim, 30 N.C. App. 611, 228 S.E.2d 750,

disc. rev. denied, 291 N.C. 178, 229 S.E.2d 692 (1976). The

21

North Carolina Supreme Court has explained what notice is

sufficient in zoning cases:

Ordinarily, if the ordinance or amendment as

finally adopted contains alterations sub-

stantially different (amounting to a new

proposal) from those originally advertised and

heard, there must be additional notice and

opportunity for additional hearing. However,

no further notice or hearing is required after a

properly advertised and properly conducted

public hearing when the alteration of the initial

proposal is insubstantial. ... Moreover, addi-

tional notice and public hearing ordinarily will

not be required when the initial notice is broad

enough to indicate the possibility of substantial

change and substantial changes are made of

the same fundamental character as contained

in the notice, such changes resulting from

objections, debate and discussion at the

properly noticed initial hearing.

Heaton v, City of Charlotte, 277 N.C. 506, 518, 178 S.E.2d

352, 359-60 (1971), quoted in In re Application of Raynor,

94 N.C. App. 91, 97, 379 S.E.2d 880, disc, rev, denied, 325

N.C. 707, 388 S.E.2d 448 (1989).

Under this standard, the notice provided by

Respondent was adequate. Petitioner admits knowing about

this public hearing. Further, the minutes of this public

22

hearing make clear that other property owners similarly

situated to Petitioner understood that new zoning

designations would be discussed along with the extension of

the extraterritorial zoning jurisdiction of Respondent

because various citizens rendered their opinion on the

various zoning designations. (App. p. 9; portions of these

minutes were attached as an exhibit to Plaintiff's

Complaint).

Even if this notice was insufficient, it is North

Carolina state statutes that impose a notice requirement.

See N.C. Gen. Stat. §§ 160A-364 & -384 (1987). It is well-

established-that "the mere failure to follow state law

procedures will not support a claim under the United States

Constitution." Jackson Court Condominiums, Inc, v, City of

New Orleans, 665 F. Supp. 1235, 1248 (E.D. La. 1987). It

is axiomatic that not every violation of the state’s statute

amounts to an infringement of a constitutional right . . . and

courts have repeatedly rejected similar attempts to create a

constitutional question out of a state law violation in the

land use area. Dean Tarry Corp. v. Friedlander, 650 F.

Supp. 551, 554 (S.D.N.Y.), aff'd, 826 F.2d 210 (2d Cir.

1987).

No Taking Clai

Petitioner also seeks to turn this case into a taking

question. See Petition for Writ of Certiorari at 22-26.

However, the zoning decision in this case clearly does not

rise to the level of a taking. In its Petition for a Writ of

Certiorari, Petitioner admits that the PCR District, the

zoning designation given to the golf course tract, permits

"golf courses, riding trails, nature preserves, sewer lift

Stations, and other non-developed uses." Petition at 10. As

such, it permits the exact use established by Petitioner.

Although North Carolina has an established doctrine of

nonconforming uses, Petitioner need not even take

advantage of that doctrine because its use from 1985

through the present continues to be that of a golf course, a

permitted use under both the Moore County and Village of

Pinehurst zoning classifications. Petitioner has not been

denied the opportunity to make economically viable use of

the property.

Petitioner relies on what it deems to be an

"analogous" case -- Fred F, French Investment Co. v. City of

New York, 39 N.Y.2d 587, 350 N.E.2d 381 (1976), cited in

24

Petition for Writ of Certiorari at 26. However, that case

was decided before the United States Supreme Court’s deci-

sion in Penn Central Tr i Ww

438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978), in

which this Court held that a zoning regulation does not give

rise to a taking when the landowner still has legally

permissible uses which provide an opportunity for the

landowner to obtain a "reasonable return" on its investment.

Id. at 136, 98 S. Ct. at 2665, 57 L. Ed. 2d at 656; see also

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414-15, 43

S. Ct. 158, 67 L. Ed. 322 (1922).

Further, Petitioner has not alleged a permanent

physical occupation of the property which would amount to

a taking. See Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868

(1982). "It is insufficient for plaintiff to show only that the

regulation deprives him of the best use of his property or

that the regulation has caused a severe decrease in the value

of his property." Goldblatt v. Town of Hempstead, 369 U.S.

590, 592, 82 S. Ct. 987, 8 L. Ed. 2d 130 (1962).

In the final analysis, Petitioner seeks to have a three-

year Statute of limitations apply to all zoning decisions.

Policy reasons mitigate against such a statute of limitations.

In the usual tort situation, there is not the same need for

finality that is present in a zoning situation. A three-year

Statute of limitations, although inconvenient, does not

prevent potential defendants in tort actions from going

forward with their plans. In contrast, a three-year statute of

limitations for zoning challenges would effectively paralyze

not only the defendant municipality, but also homeowners,

businesses, developers, and other interested persons. It

would be foolish to take any action with respect to a newly-

zoned piece of property until three years had elapsed and

the party could be sure that the zoning decision was safe

from challenge.

The strong need for finality with respect to zoning

matters supports a policy of limiting the time period in

which challenges to zoning may be brought. Moreover, if

the three-year statute of limitations were applied to "federal"

challenges to zoning ordinances, the nine-month period

provided by North Carolina statute would become a nullity.

26

Every plaintiff who sought to challenge an ordinance could

merely add some allegation that his "federal constitutional

rights" had been violated and thereby be given an additional

two years and three months within which to file his

complaint.

It should be pointed out that the statute of limitations

for zoning decisions never really runs out in that a land-

owner may always seek to have his property rezoned by the

county or municipality through the regular legislative

process. Zoning decisions are thus not similar to termina-

tion of creditors rights in probate proceedings analyzed in

Tulsa Professional Collection Services, Inc, v. Pope, 485 U.S.

478 (1987), on which Petitioner seeks to rely. A creditor in

the Oklahoma probate court, unlike a North Carolina land-

owner, was forever barred from bringing a claim against the

estate of a decedent if not brought within two months after

publication of notice to creditors. The Oklahoma executor

sought to rely on published notice to begin the two-month

period, and it was the sufficiency of that notice which was at

issue. In this case, any statute of limitations which does

begin to run commences with the zoning decision and not

with the issuance of notice. And, at no time is a North

27

Carolina landowner barred from seeking rezoning of his

property.

CONCLUSION

State procedural matters and legislative decisions such

as zoning matters do not lend themselves to questions

worthy of the resources of this Court for review of

significant federal constitutional questions. Although

Petitioner asserts that various Fifth and Fourteenth

Amendment rights have been deprived without due process

of law, it is clear that much of the dispute has been

rendered moot by subsequent rezoning decisions and that

consideration of the remaining questions would be futile

because of their legislative nature.

Petitioner has not presented a colorable taking claim

because Petitioner still has substantial economic

opportunities; indeed, Petitioner still may legally make use

of the property in the original manner in which it chose to

develop the property under the Moore County zoning

a

28

designation which is substantially similar to the current

Pinehurst zoning designation.

Although there are multiple reasons which support

the trial court’s decision to grant Respondent’s motion to

dismiss the complaint for failure to state a claim, Petitioner

basically argues that his cause of action has been

unconstitutionally deprived by a statute of limitations which

bars his claim. However, Petitioner is not without recourse

as the original decision complained of was a legislative

decision which may be reversed through the regular

channels of the legislative branch of government at any

time.

Finally, as is clear from a review of the questions

presented, this petition for writ of certiorari does not raise

the sort of "important question of federal law which has not

been, but should be, settled by this Court," nor has

Petitioner shown that this decision of the North Carolina

Court of Appeals "has decided a federal question in a way

that conflicts with the decision of another state court of last

resort." Rules of the Supreme Court of the United States

Rule 10.1.

For the foregoing reasons, Respondent urges this

Court to deny Petitioner’s petition for a writ of certiorari.

Respectfully submitted, this the 9th day of May, 1991.

Low J buat lo.

Penni P. Bradshaw

Counsel of Record

hug be) LUE

pm W. Doherty

OF COUNSEL:

PETREE STOCKTON & ROBINSON

1001 West Fourth Street

Winston-Salem, North Carolina 27101

(919) 725-2351

L) tt [oer

W. Lamont Brown

OF COUNSEL:

Brown, Robbins, May, Pate,

Rich, Scarborough & Burke

Post Office Box 370

Pinehurst, NC 28374

(919) 692-4900

Attorneys for Respondent

App. p. 1

APPENDIX A

CHAPTER 308 Session Laws 1985

CHAPTER 308

S.B. 343

AN ACT RELATING TO THE EXERCISE OF

EXTRATERRITORIAL PLANNING POWERS BY THE

TOWN OF ABERDEEN, THE VILLAGE OF

PINEHURST AND THE TOWN OF SOUTHERN PINES

IN MOORE COUNTY.

The General Assembly of North Carolina enacts:

Section 1. G.S. 160A-360(a) is amended by adding a

new sentence at the end to read:

"The Town of Aberdeen, the village of Pinehurst and

the Town of Southern Pines may exercise the powers

granted by this Article for a distance of not more than two

miles beyond their corporate limits, without regard to the

population limitations of this subsection."

Sec. 2. G.S. 160A-360(f) is amended by adding a new

sentence at the end of the first paragraph to read:

App. p. 2

"When either the Town of Aberdeen, the Village of

Pinehurst, or the Town of Southern Pines annexes any area

Outside its corporate limits thus extending the area over

which it would be allowed under subsection (a) of this

section to exercise the powers granted by this Article, upon

presenting proper evidence to the County Board of

Commissioners that such annexation has been accomplished,

the County Board of Commissioners shall adopt a resolution

authorizing said municipality to exercise these powers within

the extended area thus described."

Sec. 3. This act is effective upon ratification.

In the General Assembly read three times and

ratified, this the 3rd day of June, 1985.

App. p. 3

APPENDIX B

AN ORDINANCE PROVIDING FOR THE

EXTRATERRITORIAL LIMITS OF THE VILLAGE

OF PINEHURST FOR PURPOSES OF PLANNING

AND ZONING, BUILDING INSPECTIONS AND

SUBDIVISION REGULATIONS

BE IT ORDAINED AND ESTABLISHED by the

Village Council of the Village of Pinehurst, Moore County,

North Carolina, in regular session assembled on July 15,

1985, pursuant to General Statutes 160A-360 as follows:

SECTION 1. That the area of extraterritoriai limits

of the Village of Pinehurst shall be amended and extended

as shown and delineated on the map prepared by C. H. Blue

and Associates, which map is attached hereto, and

correspondingly described in Exhibit "A" attached hereto

and dated July 15, 1985.

SECTION 2. That the jurisdiction and authority of

the Pinehurst Village Council for all purposes including

adopting and enforcing zoning regulations, subdivision

control regulations, and the enforcement of the North

Carolina State Building Code, be extended to include the

extraterritorial area defined in Section 1 hereof.

App. p. 4

SECTION 3. This Ordinance shall be deemed to be

in full force and effect from and after the 15th day of July,

1985 and approval by the Moore County Board of

Commissioners for those areas where such approval is

required.

Adopted this 15th day of July, 1985.

VILLAGE OF PINEHURST

(Municipal Seal) VILLAGE COUNCIL

ATTEST:

By:/s/Edgar J, Roberts

Edgar J. Roberts, Mayor

/s/Melodie F, Frye

Melodie F. Frye, Village Clerk

Approved as to form:

/s/W. Lamont Brown ___

W. Lamont Brown, Village Attorney

App. p. 5

APPENDIX C

LEGAL NOTICE

NOTICE OF PUBLIC HEARING.

VILLAGE OF PINEHURST.

NOTICE IS HEREBY GIVEN that a Public Hearing

will be held by the Village Council of the Village of

Pinehurst, North Carolina on Monday, July 8, 1985 at 4:00

p.m. in the World Golf Hall of Fame Auditorium, Pinehurst,

North Carolina for the purpose of considering a proposed

area for addition to the extraterritorial zoning jurisdiction of

the Village of Pinehurst, North Carolina.

The boundaries of such area are defined as follows:

Proposed area for addition to extraterritorial zoning

for the Village of Pinehurst, N.C.

Beginning at the intersection of .... [what follows is

the metes and bound description].

A map showing the proposed area to be added to the

extraterritorial zoning jurisdiction is on file and may be

App. p. 6

inspected in the Office of the Village Clerk on Chinquapin

Road, Pinehurst, North Carolina, between the hours of 8:30

a.m. and 5:00 p.m., Monday through Friday. All persons

interested and wishing to be heard should be present in

order that their opinions may be made a matter of record.

A citizen may be present in person or represented by his

authorized agent. If unable to be present, a citizen or his

authorized agent may record his views by letter or

memorandum delivered to the Village Clerk forty-eight (48)

hours prior to the scheduled hearing.

Signed Melody F. Frye

Village Clerk

6:26, 7:3

App. p. 7

APPENDIX D

CHAPTER 595 Session Laws - 1985

S.B. 469 CHAPTER 595

AN ACT TO REQUIRE THAT ZONING PROCEDURES

INCLUDE A NOTICE REQUIREMENT.

The General Assembly of North Carolina enacts:

Section 1. G.S. 153A-343 is amended by adding a

new sentence to read:

"The procedures adopted pursuant to this section shall

provide that whenever there is a zoning classification action

involving a parcel of land, the owner of that parcel of land

as shown on the county tax listing, and the owners of all

parcels of land abutting that parcel of land as shown on the

county tax listing, shall be mailed a notice of the proposed

classification by first class mail at the last addresses listed

for such owners on the county tax abstracts. The person or

persons mailing such notices shall certify to the Board of

Commissioners that fact, and such certificate shall be

deemed conclusive in the absence of fraud."

App. p. 8

Sec. 2. G.S. 160A-384 is amended by adding a new

sentence to read:

"The procedures adopted pursuant to this section shall

provide that whenever there is a zoning classification action

involving a parcel of land, the owners of all parcels of land

abutting that parcel of land as shown on the county tax

listing, shall be mailed a notice of the proposed

classification by first class mail at the last addresses listed

for such owners on the county tax abstracts. The person or

persons mailing such notices shall certify to the City Council

that fact, and such certificate shall be deemed conclusive in

the absence of fraud."

Sec. 3. This act shall become effective October 1,

1985 and shall apply only when tax maps are available for

the areas to be zoned.

In the General Assembly read three times and

ratified, this the 4th day of July, 1985.

App. p. 9

APPENDIX E

MINUTES OF THE

PINEHURST VILLAGE COUNCIL

PUBLIC HEARING

July 8, 1985

The Pinehurst Village Council held a Public Hearing

on Monday, July 8, 1985 at 4:00 p.m. in the World Golf Hall

of Fame Auditorium for the purpose of considering (1) an

amendment to the Zoning Ordinance to add to Section 4.1

R-SMF-4 and change R-SMF to R-SMF-6 and to change

heading in 5.6 to "R-SMF-4 - Residential Single and Multi-

Family District" and * * * ; (2) a request to rezone the

Mystic Cottage, Lots 901, Old Town, from R-10 to OP-

Office Professional; (3) a proposed area for addition to the

extraterritorial zoning jurisdiction of the Village of

Pinehurst, North Carolina. Those in attendance were:

Mr. Edgar J. Roberts, Mayor

Mr. Charles A. Grant, Mayor Protem

Mr. Ray E. Graichen, Treasurer

Mr. J. Ellis Fields, Jr.

Mrs. Marjorie S. Heller

Mr. George A. Wood, Village Manager

Mrs. Nancy Donahue, Planning and Zoning Board

App. p. 10

Mrs. Melodie S. Frye, Village Clerk

and 35 people in the audience.

Absent:

Mr. W. Lamont Brown, Village Attorney

Mayor Roberts called the Public Hearing to order

and advise that the Legal Notice had been published in The

Pilot on June 26, 1985 and July 3, 1985.

Mayor Roberts asked the Village Clerk if she had

received any written communication regarding any matter

for the Public Hearing.

Mrs. Melodie Frye, Village Clerk, stated she had

received only one letter, which she then read into the

record. The letter from Harris Blake, dated July 8, 1985 is

included as part of this record and is in the Minutes’ Files.

[Discussion of the zoning ordinance amendments R-

SMF-4 District and discussion of the rezoning of Mystic

Cottage from R-10 to OP.]

’

App. p. 11

Mayor Roberts opened the floor for discussion of the

proposed area to be included in the extraterritorial zoning

jurisdiction.

Counsel member Grant stated, "because there has been

some confusion of articles in the press I would like to go

through the zoning process. There has been a sense that

the Village imposes zoning on people, actually it comes the

other way. You are the ones that decide how you want

property zoned. What has happened to date is that our

Planning and Zoning Board has gone through and

established what most of the uses are in the area concerned.

We have not only covered the area that has recently been

annexed, but the other area which will be part of our

extraterritorial relief from the County. Part of this we have

included in the Public Hearing, but Mrs. Louis Meyer’s farm

will go to Southern Pines. We have agreed with them that

this line will come up along this point (he pointed on map).

We included this piece of property in the Public Hearing

Notice because you can go back from this line, but you

cannot go up from it. The other pieces of property are ones

Planning and Zoning Board have gone through and made

recommendations for zoning. Now we have a Public

Hearing and hear from you as to whether you agree with

App. p. 12

the Planning and Zoning Board or have some objection to

it. Following that we will try to weigh the balances of the

various opinions about these pieces of property and proceed

to establish the zoning from the Village which can be

appealed either to the Board Adjustment or beyond to the

Village Council. It is not anything that is imposed upon

you. Everybody has a voice in it and then we will have

opportunity to make some decision based on what we feel

the strongest public opinion is about the area in question."

Mr. George Davis, of Midland Road, speaking as Chairman

of Moore County Citizens for Better Zoning stated, "Back

in July 1983, we presented a petition with 149 signatures of

actual people who resided in this area we are talking about

now, including the #6 Golf Course. All of these people

favored to have zoning picked by Pinehurst for a distance of

1.3 miles which wouid go out to Dr. Neill Road and would

take in all of #6 Golf Course. At that time, the State Law

permitted only one mile extension by a municipality of less

than 10,000 people, so we were stopped there. As you

know, this process has been going for a whole year now.

We have had many ups and downs. I think today is a real

App. p. 13

joyful day because at last we have reached a point where it

looks like the dye is cast and a decision will be made. I

want you to know that the people in this area by a large

majority are in favor of what you are about to do. Duriig

this process, of course, we have had legislative approval to

go 2 miles which enables Aberdeen, Southern Pines and

Pinehurst to agree upon a line of demarcation where the 2

miles overlap. We feel like this is a good step forth which

will enable our area to zone the area in a manner

compatible with the character of Pinehurst. We are

opposed to high density developments. We realize that

some of this property has been zoned under the County,

prior to this point which makes it impossible for you to do

anything about changing property that has already been

platted. We feel like this will enable Pinehurst to protect us

and maintain a desirable low density area. I want to

compliment you and all the members of the Village Council

and Mr. Wood who have been very supportive and worked

closely with us and the Towns of Southern Pines and

Aberdeen. I want to congratulate you on behalf of the

organization."

App. p. 14

(Mr. Harris Blake presented his proposals for some multi-

family units and the zoning classification required for such

a development. ]

Mr. George Davis stated that what disturbs him is that there

are 241 units on the northeast side of the traffic circle,

Pinehurst Trace and 120 units on the southeast side of the

Circle, Pinehurst Manor and across Midiand Road from Mr.

Blake’s proposed project, Mr. Frank Maser proposes 38

units. He stated that from the standpoint of traffic

eventually there will be one bad situation around the circle.

He stated that these properties are already piatted and he

doesn’t know what Pinehurst can do about it but it concerns

him and a lot of people around the area.

Mrs. Stevie Edwards stated that she does not see how Mr.

Blake can feel comfortable with the proposal unless he has

the backing of the people surrounding the tract.

Mr. Blake stated that he respects his neighbors on this and

he doesn’t feel that when it is all over he will have enemies

based on the project.

App. p. 15

Mr. Larry Lyerly expressed concern over density if the

property is zoned for multi-family and also expressed

concern over the number of people and automobiles such a

development would bring.

Mr. Carl Moser stated that he is sure that whatever Mr.

Blake would do would enhance Pinehurst, but we do not

know that Mr. Blake is always going to own the property.

He stated that with the people sitting behind the property

being zoned R-30 he does not see how the zoning could go

below R-20. He stated that when multi-family housing goes

in next to single family dwellings, the single family homes’

value decreases.

There being no further discussion, the meeting adjourned at

4:58 p.m. upon motion of Council member Grant, duly

seconded by Council member Fields and carried.

Respectfully submitted,

/s/Melodie F. Frye __

Melodie F. Frye, Village Clerk

_