Opinion
No. COA09-683.
Filed April 6, 2010.
Union County No. 08 CVS 2567.
Appeal by petitioner and respondents from order entered 9 March 2009 by Judge Christopher M. Collier in Union County Superior Court. Heard in the Court of Appeals 4 November 2009.
Michael W. Taylor for petitioner appellant-appellee. Parker, Poe, Adams Bernstein, L.L.P., by Anthony Fox, Benjamin Sullivan, and Susan W. Matthews, for respondent appellants-appellees.
Background
Piedmont Area Mental Health Developmental Disabilities and Substance Abuse Authority ("petitioner") filed this action seeking a reasonable accommodation from the City of Monroe and its Zoning Board of Adjustment (collectively "respondents") regarding section 156.110 of the city's zoning ordinances. Zoning Ordinance § 156.110, enabled by N.C. Gen. Stat. § 168-22(a) (2007), provides that a group home is a permissible land use so long as the group home is not "located within a one-half mile radius from an existing group home." Petitioner's request for reasonable accommodation was denied by the zoning administrator and the Zoning Board of Adjustment, because petitioner's home was located within a half mile of three existing group homes. Petitioner thereafter filed a writ of certiorari to Union County Superior Court.
"A family care home shall be deemed a residential use of property for zoning purposes and shall be a permissible use in all residential districts of all political subdivisions. . . . [A] political subdivision may prohibit a family care home from being located within a one-half mile radius of an existing family care home." N.C.G.S. § 168-22(a).
On writ of certiorari to the superior court, petitioner alleged six causes of action: (1) Zoning Ordinance § 156.110 violates the Fair Housing Amendments Act of 1988 ("FHAA") as provided in 42 U.S.C. § 3604 (2007) by unlawfully discriminating against handicapped individuals; (2) N.C.G.S. § 168-22 violates the FHAA; (3) the zoning administrator and Zoning Board of Adjustment discriminated against petitioner by failing to make a reasonable accommodation for their house under the FHAA; (4) Zoning Ordinance § 156.110 and N.C.G.S. § 168-22 are pre-empted by the FHAA; (5) Zoning Ordinance § 156.110 and N.C.G.S. § 168-22 violate the Equal Protection clauses of the United States and North Carolina Constitutions; and (6) the denial of petitioner's request was arbitrary and capricious under the FHAA.
On 25 November 2008, Judge Christopher Collier entered an order (1) dismissing petitioner's causes of action one through five in their entirety and part of petitioner's sixth cause of action, and (2) dismissing all causes of action against the City of Monroe. Petitioner's claims were dismissed without prejudice.
On 9 March 2009, Judge Collier entered another order remanding the remaining part of petitioner's sixth cause of action. In the order, Judge Collier found that the Zoning Board of Adjustment's decision to deny petitioner's request was arbitrary and capricious. On remand, the order required the Zoning Board of Adjustment to reconsider petitioner's sixth claim in accordance with a host of factors mandated by the FHAA. Both parties thereafter filed notice of appeal to this Court.
Grounds for Appeal
In support of grounds for review in this Court, petitioner claims that even though this appeal is interlocutory, the orders from the superior court affect a substantial right. The substantial right alleged to be affected is the ability to raise, both facially and as applied, its federal and constitutional challenges to Zoning Ordinance § 156.110 and N.C.G.S. § 168-22. Respondents, to the contrary, contend that their appeal lies as a matter of right pursuant to N.C. Gen. Stat. § 7A-27(b) (2007), because the superior court order remanding the case to the Zoning Board of Adjustment constitutes a final judgment.
Given that petitioner's sixth cause of action is pending in the Zoning Board of Adjustment on remand, it is clear that the orders at issue in this case do not dispose of the parties' entire controversy. Thus, this appeal is interlocutory, and cannot be heard in this Court unless either: (1) the trial court has certified "in the judgment that there is no just reason to delay the appeal"; or (2) the parties demonstrate that the appealed orders deprive them of "`a substantial right which would be jeopardized absent a review prior to a final determination on the merits.'" Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994) (quoting Southern Uniform Rentals, Inc. v. Iowa Nat'l Mut. Ins. Co., 90 N.C. App. 738, 740, 370 S.E.2d 76, 78 (1988)); see Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950).
In this case, no certification appears in the judgment, and no substantial right has been shown necessitating immediate review. Petitioner's claims were dismissed without prejudice; and given that petitioner may still present his challenges to Zoning Ordinance § 156.110 and N.C.G.S. § 168-22 at another time, the trial court's dismissal of his first five claims as part of this reasonable accommodation action affects no right at all.
Furthermore, petitioner may succeed on its reasonable accommodation claim on remand at the Zoning Board of Adjustment, which would preclude the necessity to challenge these laws altogether. If petitioner is not successful on remand, he may again seek review in the superior court, and later in this Court after a final judgment on the merits has been reached as to all of petitioner's claims.
Even though respondents have not offered a substantial right argument for review, we note that respondents also will not be prejudiced by dismissal of this appeal. If respondents do not succeed on remand, they also may seek review in the superior court and later to this Court upon final disposition if a satisfactory result is not achieved. Based on the foregoing, this appeal is dismissed.
Dismissed.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).