NC appeals court revives challenge to Rockingham rezoning amendments

SUMMARY

• NC Court of Appeals ruled residents had standing to challenge Rockingham County rezoning amendments
• Plaintiffs alleged rezoning would harm property use, safety, and value
• Court cited Gardner precedent, rejecting need for “special damages” in legislative zoning challenges
• Trial court dismissal reversed, case returns for further proceedings

A group of property owners made sufficient allegations to establish standing for a declaratory judgment action challenging amendments made to Rockingham County’s Unified Development Ordinance (UDO), the North Carolina Court of Appeals has ruled, reversing dismissal.

In June 2023, N.C. Development Holdings submitted an application seeking to rezone a 192.74-acre parcel in Stokesdale, Rockingham County, from residential agricultural to highway commercial.

The change would allow all uses licensed by the state as highway commercial to operate by right — including electronic gaming operations — removing the requirement that they be permitted only as a special use.

Additional uses permitted by right with the change include dry-cleaning facilities, crematories, fertilizer manufacturers, hotels, fairgrounds, hospitals, landfills for hazardous and industrial waste, and wastewater collection, treatment and disposal facilities.

Although the Planning Board voted to recommend the amendment be denied, the Board of Commissioners unanimously approved the amendment to rezone the UDO in August 2023 with a pair of amendments.

Eight residents and property owners with properties either abutting or near the property at issue filed a complaint challenging the adoption of the two amendments.

Rockingham County moved to dismiss, and the trial court granted the motion based on a lack of standing.

The plaintiffs appealed.

Details of ruling

In Camp Carefree, Inc. v. Rockingham County, No. COA24-666, authored by Judge Allegra Collins and joined by Judges Donna Stroud and Valerie Zachary, the court reversed.

A two-step analysis determines whether a plaintiff has standing to challenge a legislative zoning amendment, the court said. First, it must be determined whether an alleged statute confers a cause of action to a plaintiff. If yes, then the court must determine whether the plaintiffs have satisfied and sufficiently alleged the statutory requirements in bringing a claim.

The defendants did not contest that the Declaratory Judgment Act conferred a cause of action on the plaintiffs and a lawsuit to determine the validity of a zoning ordinance is a proper case for a declaratory judgment.

As for the second step, so long as a plaintiff sufficiently alleges it was “affected by” a defendant’s decision to rezone property, the plaintiff “is within the class of persons upon whom the [Act] confers a cause of action,” and the plaintiff is “guarantee[d] standing to use” and seek a declaratory judgment to clarify its legal rights and relations, the court said.

The Act does not require a plaintiff to allege an “injury in fact” to have standing to challenge a statute or ordinance, the court noted, nor must a plaintiff allege special damages in its complaint when challenging a legislative zoning decision in a declaratory judgment action.

“Here, Defendant Rockingham County’s rezoning amendments were a legislative act decided by its Board of Commissioners,” the court wrote. “Because these amendments were ‘legislative, not quasi-judicial, Plaintiff[s] w[ere] not required to allege special damages within [their] complaint, separate and distinct from the general community.’ Accordingly, so long as Plaintiffs in this case sufficiently alleged that they were ‘affected by’ Defendant Rockingham County’s decision to rezone the Property, Plaintiffs have standing to seek a declaratory judgment to clarify their legal rights and relations.”

The defendants’ argument that the plaintiffs lacked the special and distinct damages required for standing was precluded by the recent Court of Appeals decision in Gardner v. Richmond County.

In both cases, the rezoning legislation completely changed the permitted uses of the property, the court said, while in the case at issue, the rezoned property was even closer to the plaintiffs’ properties than in Gardner.

Negative effects

Further, each plaintiff clearly alleged how the amendments would directly and negatively affect them, ranging from higher intensity uses on neighboring properties and in the area which are incompatible with the current uses; water pollution from large scale development; increased traffic and safety issues around the property; decreased peace and quiet enjoyment — particularly for plaintiff Camp Carefree, whose campers suffer from neurological disorders that are significantly affected by loud noises, light and overstimulation; and decreased property values.

“As in Gardner, Plaintiffs in this case have satisfied the requirements to bring a claim under the Act by sufficiently alleging that they are ‘affected by’ Defendant Rockingham County’s Rezoning Legislation,” the court concluded.

Neither Asheville attorney Brian D. Gulden of Van Winkle, Buck, Wall, Starnes & Davis, who represented the plaintiffs, nor William L. Hill of Frazier Hill & Fury in Greensboro, who represented Rockingham County, responded to a request for comment.

EXTERNAL LINKS

• North Carolina Court of Appeals opinions
• Rockingham County Planning and Zoning
• North Carolina Declaratory Judgment Act