Coventry Woods Neighborhood v. Charlotte

688 S.E.2d 538

The COVENTRY WOODS NEIGHBORHOOD ASSOCIATION, INC., a North Carolina non-profit corporation, John F. Bordsen and wife, Patricia Bresina, Martha L. McAulay, and Joan E. Provost, Eva Cole Matthews, Chris Johnson and wife, Shannon Jones, Rebecca S. Gardner, John White, Ronald Matthews and wife, Evelyn Matthews and Shirley Jones, and Thomas R. Myers, Plaintiffs, v. CITY OF CHARLOTTE, North Carolina, a municipal corporation, Charlotte-Mecklenburg Planning Commission, an agency of the City of Charlotte, and Independence Capital Realty, LLC, a North Carolina limited liability corporation, Defendants.

No. COA09-611.

Court of Appeals of North Carolina.

February 2, 2010.

Appeal by Plaintiffs from order entered 6 August 2008 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 7 October 2009.

Davies and Grist, LLP, by Kenneth T. Davies, Charlotte, for plaintiff-appellants.

Robert E. Hagemann, for defendant-appellees City of Charlotte and Charlotte-Mecklenburg Planning Commission.

Robinson, Bradshaw, & Hinson, P.A., by Richard A. Vinroot and Richard C. Worf, Jr., Charlotte, for defendant-appellee Independence Capital Realty, LLC.

ERVIN, Judge.

I. Factual Background

The individual Plaintiffs either own property located in or reside within the Coventry Woods or Cedars East subdivisions, both of which are located in Charlotte. Coventry Woods and Cedars East abut an approximately 16-acre tract of land owned by Independence Capital Realty, LLC.

On 10 July 2003, Independence Capital sought to have the 16-acre tract rezoned from R-4 to R-12MF. Plaintiff Coventry Woods Neighborhood Association (CWNA) opposed the proposed rezoning on behalf of the residents of Coventry Woods and Cedars East. On 23 August 2004, after conducting a public hearing, the Charlotte City Council denied Independence Capital's rezoning request.

On 14 February 2005, Independence Capital sought preliminary approval of a subdivision plan for a development to be located on the 16-acre tract known as "Independence Woods." The proposed subdivision plan included a request for a "density bonus" that allowed up to seventy-two single-family homes in the proposed subdivision as opposed to the fifty-eight residences typically allowed in areas zoned R-4. Plaintiffs were not notified of the submission of the proposed subdivision plan for Independence Woods to the Planning Commission.

The planning staff of the Planning Commission preliminarily approved the Independence Woods subdivision plan on 13 December 2006. Plaintiffs did not receive notice that the Independence Woods subdivision plan had been approved at that time. Under the relevant provisions of the Subdivision Ordinance, only the developer receives notice of planning staff decisions concerning preliminary plan approvals. On 5 January 2007, notice of the preliminary approval of the Independence Woods subdivision plan was posted on the Planning Commission website.

Representatives of Plaintiffs actually learned that a subdivision plan for the Independence Woods subdivision had been approved in July 2007. On 7 August 2007, CWNA's president, John F. Bordsen, and others met with the planning staff, at which point they learned that the ten-day window within which aggrieved parties could appeal the planning staff's decision had expired.

Plaintiffs challenged the Zoning Administrator's opinion that no pre-approval hearing was required for the Independence Woods subdivision before the Zoning Board of Adjustment on 28 September 2007. After a hearing held before the Zoning Board of Adjustment on 29 January 2008, Plaintiffs' challenge to the Zoning Administrator's opinion was rejected.

A number of the individual Plaintiffs and CWNA attempted to appeal the preliminary plan approval to the Planning Commission on 15 February 2008. The Planning Commission declined to accept or process this appeal on timeliness grounds on 21 February 2008.

On 18 February 2008, Plaintiffs obtained the issuance of an order extending the time within which they were entitled to file a complaint against Defendants until 10 March 2008 and the issuance of summonses directed to the City of Charlotte, the Planning Commission, and Independence Capital. On 10 March 2008, Plaintiffs filed a complaint against the City of Charlotte, the Planning Commission, and Independence Capital in which they alleged that the approval of the preliminary plan for Independence Woods violated their substantive and procedural due process rights and that the enactment of the Subdivision Ordinance exceeded the authority delegated to the City of Charlotte pursuant to N.C. Gen.Stat. § 160A-371 et seq. Based upon those allegations, Plaintiffs requested a declaration that Charlotte's Subdivision Ordinance "was unlawful, both facially and as applied;" that "the Independence Woods preliminary plan approval is invalid;" and that Independence Capital be preliminarily enjoined from engaging in further construction activities in Independence Woods. On 31 March 2008, Plaintiffs filed an amended complaint.

On 8 April 2008, the City of Charlotte and the Planning Commission filed an answer in which they denied the material allegations of Plaintiffs' complaint and asserted a number of affirmative defenses. On the same date, Independence Capital filed an Answer and Counterclaim in which it denied the material allegations of Plaintiffs' complaint, raised numerous affirmative defenses, and asserted a counterclaim for abuse of process. On 15 April 2008, Judge James W. Morgan entered an Order Denying Motion for Temporary Restraining Order and Scheduling [Hearing]. On 17 April 2008, Judge Karl Adkins entered an Order Denying Plaintiffs' Motion for Preliminary Injunction. On 9 June 2008, Plaintiffs filed a reply to Independence Capital's counterclaim.

On 11 July 2008, Independence Capital and the City and the Planning Commission filed motions seeking the entry of summary judgment in their favor. Defendants' summary judgment motions came on for hearing before the trial court at the 21 July 2008 civil session of the Mecklenburg County Superior Court. On 6 August 2008, the trial court entered an Order Granting Summary Judgment. Based upon the materials presented for its consideration, the trial court concluded that the record revealed the existence of the following undisputed facts:

1. On December 13, 2006, staff for [the City] granted preliminary subdivision plan approval for [Independence Capital's] development of [Independence Woods,] which is adjacent to the Coventry Woods neighborhood in Charlotte, represented by [CWNA]. Several of the individual plaintiffs live in the Coventry Woods neighborhood.

2. The staff approved Independence Capital's plans for Independence Woods pursuant to the City's Subdivision Ordinance. Under the terms of that Ordinance, appeals of decisions concerning plan approval must be filed within ten days of such decisions. The Ordinance did not require that the City give notice to CWNA or the individual plaintiffs of such decisions. However it appears that the plaintiffs became aware of the approval of the plans on or about July 1 or 2, 2007.

3. The plan approval for Independence Woods permitted Independence Capital to develop that property in accordance with the provisions of the City's Zoning Ordinance.

4. Prior to filing this action the plaintiffs first filed a petition with the Charlotte Zoning Board of Adjustment on September 28, 2007 challenging such plan approval (more than nine months after the plans were approved and more than two months after plaintiffs became aware of the approval), which was denied. Subsequently they also filed an appeal to [the Planning Commission] on February 15, 2008 (14 months after the plans were approved and more than seven months after plaintiffs became aware of the approval), which appeal was also denied.

5. The plaintiffs initiated this action when they filed a Summons Without Complaint on February 18, 2008, followed by a Complaint on March 16, 2008. The plaintiffs also have contested the approval of the subdivision plans in two other civil actions filed in the Superior Court of Mecklenburg County (see Civil Actions Nos. 08 CVS 7582 and 9821).

6. In this action the plaintiffs contend that the failure of the City's Subdivision Ordinance to require that they be given notice of the December 13, 2006 plan approval for Independence Woods rendered that Ordinance unconstitutional by denying their "due process rights."

....

9. In his April 22, 2008 deposition CWNA's president, John Bordsen, admitted that only 80% of CWNA's members actually lived in the Coventry Woods neighborhood, represented by CWNA.

Based upon these undisputed facts, the trial court made the following conclusions of law:

10. There was no requirement in the City's Subdivision Ordinance or in the laws of the State of North Carolina requiring that the plaintiffs be given notice of the City's December 13, 2006 approval of the Independence Woods Subdivision plans in behalf of Independence Capital. See Nazziola v. Landcraft Properties, Inc., 143 N.C.[App.] 564 [545 S.E.2d 801] (2001) and N.C. Gen.Stat. § 160A-373. The City was within its discretion to adopt the Ordinance without requiring such notice. The plaintiffs have not shown that the adoption of the Ordinance by the Charlotte City Council was an abuse of discretion or an arbitrary or unreasonable act. See Sudd[r]eth v. Charlotte, 223 N.C. 630 [27 S.E.2d 650] (1943), In re Appeal of Parker, 214 N.C. [51]55 [197 S.E. 706] (1938), Schloss v. Jamison, 262 N.C. 108 [136 S.E.2d 691] (1964) and 83 Am.Jur.2d Zoning and Planning, § 42.

11. There was no constitutional requirement that the City give notice to the plaintiffs of the December 13, 2006 approval of the Independence Woods subdivision plans. The City's failure to give notice to the plaintiffs did not violate any of the plaintiffs' rights under the Constitution of the United States or the Constitution of...