Opinion
No. COA09-810
Filed 4 January 2011 This case not for publication
Appeal by plaintiffs from an order entered 30 January 2009 by Judge Carl R. Fox in Wake County Superior Court. Heard in the Court of Appeals 18 November 2009.
Smith Moore Leatherwood LLP, by Bradley M. Risinger, Elizabeth Brooks Scherer, and Matthew Nis Leerberg, for plaintiffs-appellants. Rose Rand Wallace Attorneys, P.A., by James P. Cauley, III and J. Brian Pridgen, for Town of Wendell, defendants-appellees. Shanahan Law Group, PLLC, by Kieran J. Shanahan, Steven K. McCallister, and John E. Branch, for Pepper Street, Inc., defendants-appellees.
Wake County No. 07 CVS 18055.
William Neal Conoley; Robert D. Edwards; John O. Lewis, Jr.; Robert E. Raybon; Kaaren K. Armstrong; Teresa D. Barber; Mary E. Bright; Nora J. Cambier; Hugh D. Cashion, Jr.; Mary Jo Cashion; Nancy Joyce Cobb; Robert Randolph Cobb; Idelle G. Conoley; Linda B. Conoley; Judith M. Denton; Judy Todd Edwards; Robert Todd Edwards; Laura A. Evans; James Bruce Gray; Virginia R. Gray; Gaynelle B. Grimes; T. Robert Grimes; Ann M. Harris; Glenn P. Harris; David Faison Holifield; Daniel R. Hux; Whitney M. Hux; Brenda C. Johnson; Kathryn W. Kannon; Claudette H. King; Wilbur E. Kin; Jeanette K. Knuckley; Lewis George Knuckley, III; Charles W. Kramer; Katherine Kramer; Joe L. Ledford; Julia S. Ledford; Jane F. Lewis; Robert Pryor Machlen; Suzanne P. Macklen; Jennifer B. Melton; Michael D. Moody; Sue B. Moody; Gary S. Peck; Mary-Kathryn Phillips; M. Mickey Phillips; Patricia Gayle Pickard; Carol C. Ramsey; Frances T. Ramsey; Faye S. Raynom; Judy Studt Raybon; Shelton Whitley Raybon; Susan Robbins; Sadie Elizabeth Rountree; Donna Susan Spivey; Anna C. Stewart; Charles Raymond Stott; Grady Darnell Tant; Jodi A. Tarnaski; Philip Tarnaski; Clarence Edward Todd; Kristen Moore Todd; Mary Wynne Vaughan; Roy S. Williams, Jr. (collectively, "plaintiffs") appeal from an order granting summary judgment in favor of the Town of Wendell (the "Town") and Pepper Street, Inc. ("Pepper Street") (collectively, "defendants"). For the reasons set forth below, we affirm.
We note that several variations of individual plaintiffs' names appear throughout the record on appeal, e.g., "Kaaren" or "Karen" K. Armstrong, Daniel "T." or Daniel "R." Hux, Wilbur E. "Kin" or "King," Robert Pryor "Machlen" or "Macklen," and Faye S. "Raynom" or "Raybon." We adopt individual plaintiffs' names as they appear in the caption of the order from which plaintiffs appeal.
The instant appeal concerns the propriety of the Town's consideration of a second rezoning petition filed approximately four months after the first petition was filed, and approximately one and one-half months after its failure to obtain the required number of votes to pass. Plaintiffs contend that consideration of the second petition violated a re-submission waiting period established by the Town's ordinances.
On 22 January 2007, Pepper Street, a real-estate developer, filed a rezoning petition (the "first petition") with the Town seeking to change the classification of a 57.87 acre parcel (the "parcel" or the "subject property") of undeveloped land lying near properties owned by plaintiffs. The parcel is within the Town's extra-jurisdictional territory, is subject to the Town's zoning authority, and was designated as being within an R-15/RA residential zone, which only allowed single family dwellings. Pepper Street sought to have the parcel rezoned to an "R-10 Conditional Use" residential zone designation, which would allow the development of approximately four dwelling units per acre, including duplexes upon approval as a special use. The first petition included six conditions at the time it was filed:
1. All single-family, two story homes shall have a minimum of 2,000 heated square feet.
2. All single-family ranch style homes shall have a minimum of 1,650 heated square feet.
3. All primary roofs shall have a minimum of 8/12 pitch.
4. All homes shall have a standard customized design mailbox, that is unique to this development or that matches Pepper Point Phase I.
5. All front yards of homes shall be landscaped with sod.
6. All driveways shall be concrete from road to garage/parking.
Prior to the Board of Commissioners's (the "Board") consideration of the first petition, a valid protest petition was submitted in opposition to the first petition. On 9 April 2007, after proper notice to adjacent landowners, and upon the recommendation of the Town's Planning Board (the "Planning Board"), the Board met to consider the first petition. Because a valid protest petition had been filed, three-fourths of all members of the Board were required to vote in favor of Pepper Street's first petition in order for it to pass.
During the hearing, Pepper Street offered three additional conditions to be included as part of the petition. These additional conditions provided that Pepper Street would develop the two rows of lots along the northern boundary so that they would measure 12,000 square feet each; the lots facing LuTom Road would measure at least 15,000 square feet each; and the average density of the subject property would remain within the limits of an R-15 zone.
At the conclusion of the hearing on the first petition, and upon appropriate motions by Board members, three members of the Board voted in favor of the first petition with its amended conditions, and two members voted in opposition. Without obtaining a favorable vote from three-fourths of the members of the Board, the first petition failed.
On 25 May 2007, Pepper Street filed a second rezoning petition with the Town, again seeking to rezone the subject property from R-15/RA to R-10/CUD (the "second petition"). Pepper Street attached nine proposed conditions to its second petition:
1. All single-family, two story homes shall have a minimum of 2,000 heated square feet.
2. All single-family ranch style homes shall have a minimum of 1,650 heated square feet.
3. All primary roofs shall have a minimum of 8/12 pitch.
4. All homes shall have a standard customized design mailbox, that is unique to this development or that matches Pepper Point Phase I.
5. All front yards of homes shall be landscaped with sod.
6. All driveways shall be concrete from road to garage/parking.
7. Lots adjoining parcel 1784-84-2330 (now or formerly the Edwards property) shall be a minimum of 12,000 sf.
8. Lots adjoining LuTom Road shall be a minimum of 20,000 sf.
9. Overall density shall remain at or below current R-15 density (2.9 du/ac).
The nine proposed conditions submitted with the second petition included the six proposed conditions submitted with the first petition as well as the three additional conditions that had been added during the Town's 9 April 2007 meeting.
On 4 June 2007, Pepper Street filed an amended set of proposed conditions with the Town. The amended proposed conditions contained the following additional conditions:
10. Stormwater attenuation shall be provided in compliance with the attenuation standards of the NCPDS Phase 2 regulations.
11. A petition for annexation into the Town of Wendell shall be filed upon final development approval from the Town.
12. Vinyl and/or aluminum siding shall be prohibited as exterior materials.
On 18 June 2007, the Planning Board reviewed the second petition, including its twelve proposed conditions, and voted five to four against recommending the approval of the rezoning request. On 10 September 2007, via hand delivery, Pepper Street submitted a letter to the Board withdrawing a "portion of the [second] rezoning request for the sixteen (16) acres on the East side of Old Wendell Road (approximately 40-45 lots)." Also on 10 September 2007, after proper notice to the adjacent landowners, the Board conducted a public hearing to consider the amended second petition, which included the twelve proposed conditions and the amendments sought by the letter submitted earlier that day reducing the rezoning request by sixteen acres. Because valid protest petitions again were filed, a three-fourths supermajority vote again was required for approval of Pepper Street's second petition. The Board voted four to one in favor of approving the second petition.
On 7 November 2007, plaintiffs filed suit in Wake County Superior Court seeking a declaratory judgment that the rezoning was invalid. Plaintiffs alleged that the Town did not have the authority to consider Pepper Street's second petition because it had been submitted within twelve months of the denial of the first petition in violation of section 154.151 of the Town's municipal ordinances.
On 27 January 2009, Pepper Street was permitted to intervene with the parties' consent. Between 15 December 2008 and 26 January 2009, each of the three parties moved for summary judgment. On 28 January 2009, the trial court conducted a hearing on all three motions, and on 30 January 2009, the trial court granted defendants' motions for summary judgment and denied plaintiffs'. From the trial court's order, plaintiffs appeal.
"We review a trial court's order for summary judgment de novo to determine whether there is a `genuine issue of material fact' and whether either party is `entitled to judgment as a matter of law.'" Robins v. Town of Hillsborough, 361 N.C. 193, 196, 639 S.E.2d 421, 423 (2007) (quoting Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003) (citing N.C. Gen. Stat. § 1A-1, Rule 56(c))).
In the case sub judice, the material facts are not in dispute. Rather, the question we must address concerns the interpretation of section 154.151 of the Town's municipal ordinances and the application of the undisputed facts to that section.
Here, the Town's Zoning Code, section 154.151 provides that, "[w]hen a petition for amendment is denied by the Town Board of Commissioners, a period of twelve (12) months must elapse before another petition for the same change previously involved may be submitted." Town of Wendell, N.C., Zoning Code § 154.151. It is well-established that
[t]he rules applicable to the construction of statutes are equally applicable to the construction of municipal ordinances. The basic rule of statutory construction is to ascertain and effectuate the intention of the municipal legislative body. The best indicia of that intent are the language of the statute or ordinance, the spirit of the act and what the act seeks to accomplish.
Knight v. Town of Knightdale, 164 N.C. App. 766, 769, 596 S.E.2d 881, 884 (2004) (internal citations and quotation marks omitted). Furthermore,
one of the functions of a Board of Adjustment is to interpret local zoning ordinances, and [defendant's] interpretation of its own ordinance is given deference. Therefore, our task on appeal is not to decide whether another interpretation of the ordinance might reasonably have been reached by the board, but to decide if the board acted arbitrarily, oppressively, manifestly abused its authority, or committed an error of law in interpreting the ordinance.
Whiteco Outdoor Adver. v. Johnston Co. Bd. of Adjustment, 132 N.C. App. 465, 470, 513 S.E.2d 70, 74 (1999) (internal citations and quotation marks omitted). Although Whiteco dealt with a board of adjustment, we believe that the same rationale employed in Whiteco is applicable to our review of a town board or commission's interpretation of its ordinance, especially as it is the legislative body charged with adopting the ordinances in the first place. See MacPherson v. City of Asheville, 283 N.C. 299, 307, 196 S.E.2d 200, 206 (1973) (explaining that, "[w]here an issue of statutory construction arises, the construction adopted by those who execute and administer the law in question is relevant and may be considered," and that, "[g]enerally, . . . the rules to be applied in construing municipal ordinances are the same as those applied in the construction of statutes enacted by the legislature") (citations and internal quotation marks omitted). See also Harry v. Mecklenburg County, 136 N.C. App. 200, 205, 523 S.E.2d 135, 138 (1999) (explaining "that the interpretation of the Ordinance by those who are charged with execution and administration of the zoning ordinance is entitled to consideration and some deference") (citing MacPherson, 283 N.C. at 307, 196 S.E.2d at 206).
The central dispute concerns the construction of the phrase "the same change previously involved" in the Town's Zoning Code, section 154.151.
Section 154.151 was adopted on or about 14 January 1980, eight years prior to the institution of conditional use zoning in North Carolina. See Chrismon v. Guilford County, 322 N.C. 611, 617, 370 S.E.2d 579, 583 (1988) ("[T]he practice of conditional use zoning is an approved practice in North Carolina, so long as the action of the local zoning authority in accomplishing the zoning is reasonable, neither arbitrary nor unduly discriminatory, and in the public interest."). See also N.C. Gen. Stat. §§ 160A-381, 160A-382 (2009). "[C]onditional use zoning occurs when a governmental body, without committing its own authority, secures a given property owner's agreement to limit the use of his property to a particular use or to subject his tract to certain restrictions as a precondition to any rezoning." Chrismon, 322 N.C. at 618, 370 S.E.2d at 583. "`[T]he only use which can be made of the land which is conditionally rezoned is that which is specified in the conditional use permit.'" Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjustment, 354 N.C. 298, 303, 554 S.E.2d 634, 638 (2001) (quoting Hall v. City of Durham, 323 N.C. 293, 300, 372 S.E.2d 564, 569, reh'g denied, 323 N.C. 629, 374 S.E.2d 586 (1988)).
In Chrismon, our Supreme Court explained that conditional use zoning is "exceedingly valuable" "because it permits a given local authority greater flexibility in balancing conflicting demands." Chrismon, 322 N.C. at 618, 370 S.E.2d at 584. The Court recognized that the "balancing [of] conflicting demands" would be achieved by the municipality's "authoriz[ing] the proposed change but [would] minimize its adverse effects by imposing conditions."
Id. (citation omitted).
Ambiguity results from the Town's use of section 154.151 in view of the procedural realities necessary to effective conditional use zoning. As such, we defer to the Town's interpretation of section 154.151 to aid our review. See Whiteco, 132 N.C. App. at 470, 513 S.E.2d at 74. Here, we agree with the Town's interpretation that the second petition was not "the same change previously involved" in the first petition because the face of the second petition set forth three additional conditions, which were not contained on the face of the first petition when filed intitally. Furthermore, the conditional use zone ultimately adopted contained a total of twelve enumerated restrictions and a decrease in the area of the land Pepper Street sought to rezone. Because conditional use zoning necessarily envisions modifications and the adoption of restrictions, it presents something of a "moving target" during the course of a proposal's consideration and tailoring as the municipality seeks to employ conditional use zones to balance conflicting demands. See Chrismon, 322 N.C. at 618, 370 S.E.2d at 584. Accordingly, it is our conclusion that the second petition sought a different change than the first petition, and the Town did not violate section 154.151 by considering it before twelve months had passed. Plaintiffs' first argument is overruled.
Next, plaintiffs argue that the trial court erred by granting summary judgment in defendants' favor after the Town failed to enforce timely filing requirements set forth in the Town's ordinances with respect to the second petition underlying ordinance O-23-07. We disagree.
Section 154.146(A) of the Wendell Zoning Code provides that "[t]he Zoning Administrator must receive petitions fourteen (14) days prior to the next regularly scheduled meeting of the Town Planning Board to be considered at that meeting." Town of Wendell, N.C., Zoning Code § 154.146(A).
In the case sub judice, the Board received Pepper Street's second rezoning petition on 1 June 2007, seventeen days prior to the Board's meeting scheduled for 18 June 2007. Pepper Street continued to amend its petition until 15 June 2007. The Board considered the petition as amended at its meeting on 18 June 2007. Plaintiffs contend that the consideration of the amended petition violated section 154.146(A). Notwithstanding, North Carolina General Statutes, section 160A-382(b) explicitly contemplates amendments to conditional use zoning petitions. section 160A-382(b) provides that "[s]pecific conditions applicable to these districts may be proposed by the petitioner or the city or its agencies, but only those conditions mutually approved by the city and the petitioner may be incorporated into the zoning regulations or permit requirements." N.C. Gen. Stat. § 160A-382(b) (2009). Therefore, the statutory requirement of consent would be obviated if amendments were not allowed. Accordingly, plaintiffs' argument is overruled.
For the foregoing reasons, we affirm the trial court's granting summary judgment in defendants' favor.
Affirmed.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
Judge JACKSON concurred prior to December 31, 2010.