Byron v. Synco Props., Inc.

258 N.C.App. 372

813 S.E.2d 455

William M. BYRON and Dana T. Byron, Plaintiffs,

v.SYNCO PROPERTIES, INC., a North Carolina Corporation, and City of Charlotte, a North Carolina Body Politic and Corporate, Defendants.

No. COA17-318

Court of Appeals of North Carolina.

Filed: March 20, 2018

Scarbrough & Scarbrough, PLLC, by Madeline J. Trilling, and The Law Office of Kenneth T. Davies, P.C., by Kenneth T. Davies, for Plaintiffs.

K&L Gates LLP, Charlotte, by Roy H. Michaux, Jr., for Defendant SYNCO Properties, Inc.

Office of the Charlotte City Attorney, by Assistant City Attorney Thomas E. Powers, III, and Senior Assistant City Attorney Terrie Hagler-Gray, for Defendant City of Charlotte.

INMAN, Judge.

Landowners whose property is not directly and adversely affected by a zoning statute do not have standing to bring a declaratory judgment action to challenge the constitutionality of the statute or a municipality's interpretation of the statute.

Plaintiffs William M. Byron and Dana T. Byron ("Plaintiffs"), husband and wife, appeal from a summary judgment order dismissing their declaratory judgment action against defendant SYNCO Properties, Inc. ("SYNCO") and the City of Charlotte (the "City," collectively "Defendants") challenging the rezoning of real property in Charlotte, North Carolina. Plaintiffs contend that, because their complaint alleged facial constitutional challenges to a statute and session laws, the trial court was required to transfer those claims to a three-judge panel in Wake County pursuant to N.C. Gen. Stat. §§ 1-81.1, 1-267.1, and 1A-1, Rule 42(b)(4) (2015). Plaintiffs further challenge the trial court's dismissal of their claims challenging N.C. Gen. Stat. § 160A-385 (2015) and Session Law 2015-160 as moot, as well as its determination that the prior version of N.C. Gen. Stat. § 160A-385 (2013) did not apply to the rezoning based on its interpretation of that session law. Defendants contend that Plaintiffs lacked standing to bring their suit. After careful review, we agree with Defendants that Plaintiffs lacked standing to assert the claims they seek to revive on appeal. As a result, we affirm the order of the trial court.

I. FACTUAL AND PROCEDURAL HISTORY

In late 2014, SYNCO filed an application with the City to rezone a tract located in the SouthPark area of Charlotte. On 11 March 2015, several local property owners (the "Petitioners") filed a protest petition (the "Protest Petition") with the City opposing the proposed rezoning pursuant to N.C. Gen. Stat. § 160A-385 (2013) (the "Protest Petition Statute"). Plaintiffs were not among the Petitioners that filed the Protest Petition.

In July 2015, the North Carolina General Assembly passed Session Law 2015-160, which replaced the protest petition procedure in the Protest Petition Statute with a "Citizen Comment" procedure. 2015 N.C. Sess. Laws ch. 160, § 1 (2015) (codified as amended at N.C. Gen. Stat. § 160A-385 (2017) ). Per the session law, the amended procedure "bec[ame] effective August 1, 2015, and applies to zoning ordinance changes initiated on or after that date." Id. , § 6.

On 24 September 2015, SYNCO withdrew its initial rezoning application. SYNCO filed a new rezoning application the following day. The new application sought approval for the same uses as those proposed in the initial rezoning application, along with revised building sizes and transportation improvements.

On 19 January 2016, the Charlotte City Council voted unanimously to approve the second rezoning application. The City and SYNCO treated the second application as one not subject to the Protest Petition Statute. Nothing in the record indicates that the Petitioners sought injunctive or other relief requiring the City to recognize the applicability of the Protest Petition to the second rezoning application or to follow the procedures set forth in the Protest Petition Statute. Rather, one of the Petitioners stated in an affidavit that "a change in the state law had invalidated the Protest Petition" and declined to take action to revive the Petition or require its application.

On 25 January 2016, Plaintiffs filed a declaratory judgment action seeking to invalidate the City Council's approval of the rezoning application. After two amendments to the original complaint and the voluntary dismissal of one claim, Plaintiffs' final amended complaint alleged that: (1) Defendants violated N.C. Gen. Stat. § 160A-364 (2015) ;¹ (2) Defendants made certain misrepresentations and omissions in the rezoning process; (3) Defendants violated the Protest Petition Statute, which they were required to follow per Plaintiffs' interpretation of Session Law 2015-160; (4) the City's actions were ultra vires ; (5) Session Law 2000-84 was unconstitutional;² (6) the City's actions violated Plaintiffs' due process rights; (7) N.C. Gen. Stat. § 160A-383 (2015), which employs the citizen comment procedures rather than protest petition procedures, unconstitutionally deprives the judiciary of judicial power; and (8) N.C. Gen. Stat. § 160A-383 (2015) and Session Law 2015-160's replacement of protest petition procedures with citizen comment procedures deprives Plaintiffs of their constitutional right to petition the government for the redress of grievances.³

The parties filed competing motions for summary judgment, and the trial court granted summary judgment against Plaintiffs on 23 November 2016. In the summary judgment order, the trial court held that Plaintiffs had standing to bring their claims, but nonetheless dismissed all claims against Defendants, including Plaintiffs' facial constitutional challenges. The Plaintiffs timely appealed.

II. ANALYSIS

A. Standard of Review

The standard of review on an appeal from summary judgment is de novo , and "such judgment is appropriate only when the record shows that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." Atkinson v. City of Charlotte , 235 N.C. App. 1, 3, 760 S.E.2d 395, 397 (2014) (internal citation and quotation marks omitted). Because standing is a question of law, it, too, is subject to de novo review by this Court. Cherry v. Wiesner , 245 N.C. App. 339, 345, 781 S.E.2d 871, 876 (2016).

B. The Standing Requirements Relevant to Plaintiffs' Appeal

Resolution of this appeal requires distinguishing the different standing doctrines applicable to: (1) zoning ordinance challenges; (2) statutory construction and validity claims; and (3) constitutional challenges to zoning ordinances. "In passing on the validity of an annexation or zoning ordinance, one of the court's first concerns is whether the plaintiff has standing to bring the action." Town of Ayden v. Town of Winterville , 143 N.C. App. 136, 138, 544 S.E.2d 821, 823 (2001) (citation omitted). The question of standing "is a threshold issue that must be addressed, and found to exist, before the merits of the case are judicially resolved." In re Baby Boy , 238 N.C. App. 316, 321-22, 767 S.E.2d 628, 631 (2014) (citation and quotation marks omitted).

A rezoning ordinance may be challenged in a declaratory judgment action "only ... by a person who has a specific personal and legal interest in the subject matter affected by the zoning ordinance and who is directly and adversely affected thereby." Taylor v. City of Raleigh , 290 N.C. 608, 620, 227 S.E.2d 576, 583 (1976) (emphasis added) (citations omitted). Standing to challenge a statute requires that the statute directly and adversely affect the plaintiff. Wake Cares, Inc. v. Wake Cty. Bd. of Educ. , 190 N.C. App. 1, 11, 660 S.E.2d 217, 223 (2008) ("A declaratory judgment may be used to determine the construction and validity of a statute, but the plaintiff must be directly and adversely affected by the statute [.]" (emphasis added) (internal citation and quotation marks omitted) ). Finally, standing to challenge the constitutionality of a zoning ordinance or statute requires that the plaintiff demonstrate injury or immediate danger of injury to a constitutionally protected interest in the property subject to that ordinance or statute. See, e.g., Coventry Woods Neighborhood Ass'n, Inc. v. City of Charlotte , 202 N.C. App. 247, 257, 688 S.E.2d 538, 545 (2010) (holding that neighboring property owners could not challenge a rezoning decision on facial or as-applied constitutional and procedural due process grounds because "a change in the treatment of an adjoining tract of property under local land use ordinances that affects the use and enjoyment of [the plaintiffs'] property [does not] implicate[ ] a constitutionally-protected property interest"); Templeton v. Town of Boone , 208 N.C. App. 50, 56, 701 S.E.2d 709, 713-14 (2010) (holding plaintiffs lacked standing to challenge a zoning ordinance on constitutional grounds where the ordinance was not enforced against plaintiffs' properties but only "affected " them (emphasis in original) ).

The trial court's summary judgment order dismissed all of Plaintiffs' claims; however, Plaintiffs argue on appeal only that the trial court: (1) incorrectly concluded that the City was not required to apply the Protest Petition Statute to the rezoning due to its misinterpretation of the effective date of Session Law 2015-160; (2) wrongfully concluded their challenges to certain zoning statutes and session laws were moot; and (3) impermissibly dismissed their constitutional challenges to those zoning statutes and session laws. In effect, then, Plaintiffs seek to revive their declaratory judgment action only as to: (1) the interpretation of Session Law 2015-160 (and by extension the applicability of the Protest Petition Statute); and (2) the constitutionality of the zoning statutes and session laws governing the procedure employed by the City in rezoning.⁴ In short, Plaintiffs' appeal challenges the interpretation and constitutionality of the statutes and session laws governing the City's rezoning decision, rather than the inherent validity of the rezoning decision...