Municipal – Zoning – Statement of Reasonableness – Failure to Adopt

Wally v. City of Kannapolis (Lawyers Weekly No. 12-06-0293, 8 pp.) (Patricia Timmons-Goodson, J.) Appealed from Cabarrus County Superior Court. (Michael E. Beale, J.) On discretionary review from the Court of Appeals. N.C. S. Ct. Full-text opinion.

Holding: Even though G.S. § 160A-383 prohibits judicial review of a municipality’s “statement of reasonableness”, a court can nevertheless review whether a municipality made such a statement at all.

We reverse our Court of Appeals’ decision to affirm summary judgment for the defendant-city. We remand for further proceedings.

The city rezoned rural land to promote commercial development. When adopting the zoning amendment, the city’s resolution failed to adopt a “statement of reasonableness” as required by G.S. § 160A-383.

A municipality’s exercise of zoning power must comport with certain procedural requirements, such as those provided in § 160A-383: “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.”

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.”

While an approved statement is not subject to judicial review, the statute does not prohibit review of whether the city council approved a statement.

The city argues that its council impliedly approved the zoning commission staff’s statement regarding consistency and reasonableness. We disagree.

First, the city council failed to “approve a statement” that addresses consistency, reasonableness, and the public interest. This failure is evidenced by the trial court’s uncontested finding of fact that “there was no per se written statement of reasonableness,” a fact that is binding on appeal.

Second, we are not persuaded by the city’s argument that it complied with the statute by impliedly approving the staff report by virtue of having the report in hand when adopting the zoning amendment. The city’s argument also fails because, while § 160A-383 requires the approved statement to explain why “the [city council] considers the action taken to be reasonable,” the staff report merely states that the staff considers the action reasonable.

Finally, we do not agree that the city council satisfied the statute by adopting a statement announcing that it acted within the guidelines of its zoning authority. Compliance with § 160A-383 requires more than a general declaration that the action comports with relevant law.

Section 160A-383 explains that to meet the statutory requirements, an approved statement must describe whether the zoning amendment is consistent with any controlling land use plan and explain why it is reasonable and in the public interest. The statement adopted by the city council provides no such explanation or description.

Reversed and remanded.