Opinion
No. COA08-919.
Filed May 5, 2009.
New Hanover County No. 07-CVS-1099.
Appeal by plaintiff from order entered 14 April 2008 by Judge Phyllis M. Gorham in Superior Court, New Hanover County. Heard in the Court of Appeals 10 February 2009.
Parker Poe Adams Bernstein LLP, by R. Bruce Thompson II Brenton W. McConkey, for plaintiff. Poyner Spruill LLP, by Robin Tatum Currin Wessell Raney L.L.P., by John C. Wessell, III, for defendant.
"Ordinarily, the only limitation upon [a municipality's zoning] authority is that it may not be exercised arbitrarily or capriciously." Plaintiff Shore Acres Company argues that the trial court erred by granting summary judgment to Defendant Town of Wrightsville Beach because genuine issues of material fact existed regarding whether the denial of its zoning petition was arbitrary and capricious. Because Shore Acres Company has shown no genuine issue of material fact that would give the Superior Court a basis to declare Wrightsville Beach's denial of the rezoning petition arbitrary and capricious, we affirm the grant of summary judgment to Wrightsville Beach.
Allred v. City of Raleigh, 277 N.C. 530, 545, 178 S.E.2d 432, 440 (1971) (citations omitted).
Wrightsville Beach is an incorporated North Carolina coastal municipality. Shore Acres Company is a family-owned corporation that owns a 1.057 acre tract of land ("the Parcel") included in a larger tract, known as Harbor Island, which is within Wrightsville Beach's territorial limits. Shore Acres Company acquired the Parcel in the 1920's and, while it began developing parts of Harbor Island as early as 1929, the Parcel remains undeveloped.
For many years, the Parcel was zoned R-1, residential use. However, the property was given a recently-created "P-1 Conservation" designation, which only allowed commercial or private piers depending on the zoning designations of surrounding properties, on a 1977 zoning map. There is no record of hearings or other documentation in the record, aside from the 1977 zoning map, to show why the Parcel was shown as having a different zoning designation.
Shore Acres Company states that it discovered the Parcel had been rezoned in 2003, and contends that "it appears to be based on a simple map-making error whereby the Town mistakenly lumped the Parcel in with the vast wetlands adjoining the Parcel to the west." Thus, in 2006, Shore Acres Company petitioned Wrightsville Beach to rezone the Parcel from P-1 Conservation to R-1. Following a public hearing in October 2006, Wrightsville Beach's Planning Board found that the proposed rezoning was inconsistent with Wrightsville Beach's CAMA Core Land Use Plan 2005; voted unanimously against it; and forwarded an unfavorable recommendation to Wrightsville Beach's Board of Aldermen.
At a public hearing on the petition before the Board of Aldermen on 11 January 2007, the Planning Board set forth its concerns with the petition to rezone the Parcel, including inconsistency with the CAMA Core Land Use Plan; limited vehicular access to a residential area, especially by large trucks and emergency vehicles; and a need for larger water facilities. Shore Acres Company's witnesses made the case that the P-1 Conservation designation was generally applied to wetlands and beach dune property; therefore the Parcel, which witnesses characterized as "uplands" property, was not appropriately designated P-1. Shore Acres Company stressed, through an environmental scientist, that the Parcel's physical characteristics are identical to uplands property surrounding it to the north, east, and south. Shore Acres Company acknowledged that west of the Parcel are wetlands designated P-1 Conservation that are owned and conserved by Shore Acres Company clients. The record also shows that property immediately north of the Parcel is zoned R-1, and to the south the designation is G-1, where Wrightsville Beach School is located.
Four Wrightsville Beach property owners spoke in opposition to the proposed rezoning, several of them expressing the same concerns voiced by the Planning Board. Also, Wrightsville Beach School administrators submitted a resolution that opposed the proposed rezoning. Among the school administrators' concerns were the potential for increased flooding at the school because of storm runoff from residences, loss of bird and wildlife habitat, and potential impact on water quality. Following the public hearing, the Board of Aldermen voted unanimously to deny Shore Acres Company's petition.
Shore Acres Company filed a complaint for declaratory judgment on 9 March 2007 requesting the Superior Court to make three distinct declarations:
1. Declare that the Town's decision to deny Shore Acres' rezoning petition was arbitrary and capricious;
2. Declare that the Town's decision to deny Shore Acres' rezoning petition was invalid;
3. Declare that Shore Acres' zoning petition be approved and that the Parcel be rezoned back to its original R-1 Residential zoning designation. . . . On 14 April 2008, the Superior Court granted summary judgment in favor of Wrightsville Beach on the ground that it lacked "the authority to grant the relief requested by the Plaintiff in this action, specifically, an order directing the Wrightsville Beach Board of Alderman to take legislative action to rezone the Plaintiff's property. . . ."
From that order, Shore Acres Company appeals arguing that the Superior Court erred by granting summary judgment because: (I) genuine issues of material fact existed; and (II) it had subject matter jurisdiction to declare Wrightsville Beach's decision arbitrary and capricious.
I.
First, Shore Acres Company argues that summary judgment was improper because various genuine issues of material fact existed regarding whether Wrightsville Beach's decision to deny the rezoning petition was arbitrary and capricious. We disagree.
"Rezoning is a legislative act. . . ." Sherrill v. Town of Wrightsville Beach, 81 N.C. App. 369, 373, 344 S.E.2d 357, 360, disc. review denied, 318 N.C. 417, 349 S.E.2d 600 (1986). "Ordinarily, the only limitation upon [a municipality's] legislative authority is that it may not be exercised arbitrarily or capriciously." Allred, 277 N.C. at 545, 178 S.E.2d at 440. "It is well-established that the grant or denial of a rezoning request . . . will be deemed arbitrary and capricious if the record demonstrates that it had no foundation in reason and bears no substantial relation to the public health, the public morals, the public safety, or the public welfare in its proper sense." Ashby v. Town of Cary, 161 N.C. App. 499, 503, 588 S.E.2d 572, 574 (2003) (citation and quotation marks omitted).
When the most that can be said against such ordinances is that whether it was an unreasonable, arbitrary, or unequal exercise of power is fairly debatable, the courts will not interfere. In such instances, the settled rule seems to be that the court will not substitute its judgment for that of the legislative body charged with the primary duty and responsibility of determining whether its action is in the best interest of the public health, safety, morals, or general welfare.
Appeal of Parker, 214 N.C. 51, 55, 197 S.E. 706, 709, appeal dismissed, 305 U.S. 568, 83 L. Ed. 358 (1938).
In this case, the Superior Court granted summary judgment to Wrightsville Beach. Summary judgment is proper when there is no genuine issue as to any material fact and any party is entitled to judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (2007). The nonmoving party is entitled to the most favorable view of the affidavits, pleadings and other materials and all reasonable inferences to be drawn there from. See Hillman v. U.S. Liability Ins. Co., 59 N.C. App. 145, 148, 296 S.E.2d 302, 305 (1982), disc. review denied, 307 N.C. 468, 299 S.E.2d 221 (1983). "An issue is material if the alleged facts constitute a legal defense or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action. The issue is denominated `genuine' if it may be maintained by substantial evidence." Id.
First, Shore Acres Company alleges a genuine issue regarding whether Wrightsville Beach failed to consider the physical characteristics of the Parcel, contending that Wrightsville Beach was obligated to make such a consideration under N.C. Gen. Stat. § 160A-383 (2007). However, nothing in section 160A-383 obligates Wrightsville Beach to base its decision on the physical characteristics of the Parcel; rather the language Shore Acres Company cites mandates that regulations should be "made with reasonable consideration, among other things, as to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such city." N.C. Gen. Stat. § 160A-383 (emphasis added). Moreover, whether Wrightsville Beach considered the physical characteristics of the Parcel is not "material" within the meaning of Rule 56(c) because that fact alone would not require Wrightsville Beach to grant or deny the petition.
The second genuine issue Shore Acres Company alleges is whether Wrightsville Beach denied the petition based on the CAMA Core Land Use Plan policies. Shore Acres Company argues that it offered evidence on each of the relevant policies to show the rezoning was actually consistent with the Plan, and further, that if the petition was denied on the basis of inconsistency with the Plan, such denial was improper. This argument, however, would essentially require the Superior Court to review Wrightsville Beach's Statement of Consistency with the CAMA Core Land Use Plan, which the court cannot do. See N.C. Gen. Stat. § 160A-383 ("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 to be reasonable and in the public interest. That statement is not subject to judicial review."). Therefore, we reject this argument.
Shore Acres Company's third and fourth claimed genuine issues of material fact suffer from a similar inadequacy. Shore Acres Company argues that genuine issues exist as to whether Wrightsville Beach denied the petition based upon the access and traffic concerns cited by the Planning Board and members of the community, or upon the concerns for insufficient infrastructure and drainage. Shore Acres Company cites evidence it offered before the Board of Aldermen tending to show that the traffic issues could be abated by Wrightsville Beach's increased enforcement of its parking regulations, and that any drainage or infrastructure concerns are more appropriately addressed at a later site plan review.
Traffic and infrastructure issues are each appropriate considerations under section 160A-383. However, neither of those fact issues would independently entitle Shore Acres Company to relief, particularly in light of Wrightsville Beach's unreviewable determination that the proposed rezoning is inconsistent with the CAMA Core Land Use Plan. Accordingly, Shore Acres Company has shown no genuine issue of material fact regarding whether Wrightsville Beach's denial of the zoning petition was arbitrary and capricious. Therefore, we reject this assignment of error.
II.
Shore Acres Company also argues that the Superior Court erred in holding it did not have authority to direct the Board of Alderman to take legislative action to rezone the Parcel. We disagree.
In its brief, Shore Acres Company contends that "even if [the] Trial Court could not itself rezone the Parcel to its appropriate R-1 designation, it does have authority to declare the Town's decision arbitrary and capricious and invalid." The Superior Court correctly concluded that it lacked authority to order Wrightsville Beach to "take legislative action to rezone the Shore Acre Company's property" because the court was not empowered to substitute its judgment for Wrightsville Beach's. See County of Lancaster, S.C. v. County of Mecklenburg, N.C., 334 N.C. 496, 510, 434 S.E.2d 604, 614 n. 7 (1993); Parker, 214 N.C. at 55, 197 S.E. at 709. Moreover, as we concluded above, Shore Acres Company has shown no genuine issue of material fact that would give the Superior Court a basis to declare Wrightsville Beach's decision arbitrary and capricious. Accordingly, we reject this assignment of error.
Affirmed.
Judges ROBERT C. HUNTER and ERVIN concur.
Report per Rule 30(e).