Court: Rezoning Changes More Than A Formality | Eastern North Carolina Now

    Publisher's note: The author of this post is Michael Lowrey, who is an associate editor for the Carolina Journal, John Hood Publisher.

'Statement Of Compliance' Must Outline Public Interest In Zoning Change

    RALEIGH     Rezoning petitions can become quite controversial, with losing parties often turning to the courts to challenge decisions made by local governments. A recent ruling by the state's second-highest court highlights a crucial detail that cities and towns must include in their rezoning decisions before they can withstand judicial review.

    Queens University is located in Charlotte's prestigious Myers Park neighborhood. Several years ago, the university announced plans for two new buildings building on its campus, a five-story parking deck topped by a two-story dormitory, and a new athletics facility, including a 2,500-seat basketball arena.

    Many of the school's neighbors opposed the new buildings, fearing the new construction would bring additional traffic and congestion to their neighborhood. In late 2011, several residents, along with the Myers Park Homeowners Association, challenged Queens' plans, contending they violated several aspects of the city's zoning code. The matter ultimately ended up in court, with the N.C. Court of Appeals ruling in favor of the university and city in August 2013.

    That did not end the matter, however, as the residents and HOA also had brought a second legal challenge to the university's plans, contending that the city used a flawed process to let part of the project proceed.

    The land on which Queens University sits is zoned for residential use, though Charlotte's zoning code allows certain institutional uses in residential areas. The allowable institutional uses still placed limits on the size of the floor area of the new parking deck. In June 2010, Charlotte City Council passed an amendment to its zoning ordinance exempting parking decks from those limits if they were built as "an accessory use to an institutional use" in single family and multifamily housing areas.

    The homeowners challenged this approval, contending it violated state law. N.C. General Statue § 160A-383 provides that:

    "When adopting or rejecting any zoning amendment, the governing board shall also approve a statement describing whether its action is consistent with an adopted comprehensive plan and any other officially adopted plan that is applicable, and briefly explaining why the board considers the action taken to be reasonable and in the public interest. That statement is not subject to judicial review."

    City council approved a statement of consistency, simply stating that, "this petition is found to be consistent with adopted policies and to be reasonable and in the public interest."

    The homeowners contended that the statement was inadequate and the zoning change should be rejected.

    "The Statement of Consistency adopted by the City Council in the instant case cannot reasonably be said to include an 'explanation' as to why the amendment is reasonable and in the public interest under the plain meaning of that term," wrote Judge Ann Marie Calabria for the appeals court.

    Calabria noted that the N.C. Supreme Court had addressed this provision of law in a 2012 case called Wally v. City of Kannapolis. In it, the Supreme Court struck down a zoning change in a municipality that had not approved a consistency statement. The high court in Wally held that:

    "The statute requires that defendant take two actions in this situation: first, adopt or reject the zoning amendment, and second, approve a proper statement. The approved statement must describe whether the action is consistent with any controlling comprehensive plan and explain why the action is 'reasonable and in the public interest.'"

    The appeals court held that Charlotte had failed to meet this standard. As a result, the court said, the city's argument that all that was subject to judicial review was whether the city had adopted a statement of compliance.

    "While this statement attempts to more specifically address the requirements of N.C. Gen. Stat. § 160A-383 than the more generalized statement that the court rejected in Wally, it still suffers from the same fatal flaw: 'The statement adopted by the City Council provides no ... explanation,' as required by the statute," Calabria wrote.

    The appeals court decision rendered the zoning change invalid, but since the parking structure was completed before the initial court ruling, The Charlotte Observer reports that the city may not be required to tear it down.

    Court of Appeals decisions are binding interpretations of state law unless overruled by the N.C. Supreme Court. Because the decision by the three-judge panel of the appeals court was unanimous, the high court is not required to hear the matter if Charlotte and/or Queens University challenges the appeals court determination.

    The case is Atkinson v. City of Charlotte, (13-1226).