This post appears here courtesy of the Carolina Journal
. The author of this post is CJ Staff
Charlotte is asking the N.C. Court of Appeals to "publish"
a recent opinion in a rezoning dispute. Publication would mean that the case could be used as a precedent in future court proceedings.
The Appeals Court released a unanimous unpublished opinion in Mozeley v. City of Charlotte on Aug. 16.
"The Mozeley opinion has significant value as legal precedent"
in multiple ways, according to a motion filed Thursday by Thomas Powers, Charlotte's senior assistant city attorney.
Plaintiff Steven Mozeley objected in 2020 to Charlotte's rezoning of an 80-acre plot next to his property, a single-family home on 15 acres of land. The rezoning would have changed the neighboring plot's maximum development from 240 single-family homes to 280 single-family, attached townhomes, according to court records.
Charlotte City Council approved the rezoning in an online WebEx meeting. When Mozeley challenged the decision in court, his complaint included an argument that the city had violated its procedures for online meetings.
A trial judge ruled against Mozeley in May 2021. The Appeals Court followed suit.
The request for a published opinion cites the Appeals Court's analysis of Charlotte's online rezoning vote.
"The COVID-19 pandemic led to an unprecedented response by the North Carolina General Assembly,"
Powers wrote. "It adopted Session Law 2020-3 and amended Chapter 166A of the North Carolina General Statutes to add 'remote meetings' authorization for all governmental agencies."
Charlotte "could not find another North Carolina opinion addressing the requirements of open meetings laws when a governmental agency uses a video-conferencing platform (i.e., WebEx, Zoom, Microsoft Teams) to conduct public business,"
he added. "This opinion provides exceptional guidance that the 'remote meetings' law does not require the governmental agency to be able to see or have information as to the number of person[s] viewing online or to be aware of the size, scope, and intensity."
Charlotte also highlights the Mozeley decision's approach to the plaintiff's "novel theory"
about illegal spot zoning. "This opinion, as precedent, will guide future interactions between local governments and complaining parties over a rezoning that includes an option-to-purchase,"
The case also helps Charlotte demonstrate that it did not make a zoning decision in an "arbitrary and capricious"
manner, Powers explained. The disputed rezoning included a "consistency statement"
explaining how the change complied with existing city plans.
"This opinion adds value as precedent ... that Charlotte's rezoning process is complying with the statutory requirements for consistency statements,"
Powers wrote. "Otherwise, future plaintiffs will continue to ... assert that Defendant-Appellee City has failed to comply with its procedures for adopting consistency statements whereas this case demonstrates that Defendant-Appellee City is now complying with those same procedures."
Charlotte believes the Mozeley case also offers value as a precedent for future cases in which a plaintiff might claim violations of the right to due process.
Appeals Court judges can decide whether to publish an opinion or leave it unpublished.
"In order to minimize the cost of publication and of providing storage space for the published reports, the Court of Appeals is not required to publish an opinion in every decided case,"
according to court Rule 30(e). "If the panel that hears the case determines that the appeal involves no new legal principles and that an opinion, if published, would have no value as a precedent, it may direct that no opinion be published."
"An unpublished decision of the North Carolina Court of Appeals does not constitute controlling legal authority,"
the rule states. "Accordingly, citation of unpublished opinions in briefs, memoranda, and oral arguments in the trial and appellate divisions is disfavored."
Judge Jefferson Griffin wrote the opinion in Mozeley v. City of Charlotte. Judges Richard Dietz and Lucy Inman also served on the three-judge panel. Dietz and Inman are running against each other this fall for an open seat on the N.C. Supreme Court.