Opinion
No. COA09-537.
Filed February 2, 2010.
From Mecklenburg County No. 08-CVS-7582.
Appeal by petitioners 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, 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., for defendant-appellee Independence Capital Realty, LLC.
The individual Petitioners 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 real property 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. Petitioner 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 from the Charlotte-Mecklenburg Planning Commission for a subdivision plan relating to 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. Petitioners did not receive notice 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. Petitioners 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 applications. On 5 January 2007, notice of the preliminary approval of the Independence Woods subdivision plan was posted on the Planning Commission website.
Representatives of Petitioners 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 other property owners 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.
Petitioners 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, Petitioners' challenge to the Zoning Administrator's opinion was rejected.
A number of the individual Petitioners and CWNA attempted to appeal the preliminary plan approval to the Planning Commission on 15 February 2008. The planning staff declined to accept or process this appeal on 21 February 2008.
On 3 April 2008, Petitioners filed a Petition for Review in the Nature of Certiorari and Petition for Injunctive Relief in the Mecklenburg County Superior Court in which the Petitioners requested the trial court to issue a writ of certiorari so as to permit a review of the record and to enter an order remanding this matter for a full hearing before the Planning Commission. In their petition, Petitioners alleged that the approval of the preliminary plan for Independence Woods, without any notice to petitioners, violated Petitioners' right to equal protection of the laws and to procedural due process under the United States and North Carolina Constitutions. On 8 April 2008, Independence Capital filed an Answer and Counterclaim in which it denied the material allegations of the certiorari petition, raised numerous affirmative defenses, and asserted a counterclaim for abuse of process.
On 11 July 2008, Independence Capital filed a summary judgment motion and the City and Planning Commission filed a dismissal motion. Judge Richard D. Boner entered an order on 6 August 2008 dismissing Petitioners' claims on the grounds that the Petitioners' "actions were untimely." On 13 February 2009, Independence Capital dismissed its counterclaim for abuse of process. On the same day, Petitioners noted an appeal to this Court from the trial court's order.
On appeal, Petitioners argue that they are "aggrieved parties" entitled to challenge approval of the preliminary plan for Independence Woods, that they have a constitutionally protected property interest in the use and enjoyment of their properties that has been adversely affected by the approval of the preliminary plan for Independence Woods, and that the procedures set out in Charlotte's Subdivision Ordinance relating to preliminary plan approval did not adequately protect Petitioners' constitutional right to notice and an opportunity with respect to approval of the subdivision plan for Independence Woods. Based upon that set of contentions, Petitioners argue that we should vacate the trial court's order dismissing their certiorari petition and "set aside the summary dismissal of [their] appeal to the Planning Commission with further directions to afford [them] ten (10) days notice of their right to appeal the preliminary plan approval for Independence Woods." After careful consideration, however, we conclude that the trial court's decision to dismiss Petitioners' claims should be affirmed.
As a general proposition, a certiorari proceeding is the appropriate method for obtaining judicial review of a land use decision made by a local governmental body acting in a quasi-judicial capacity. Humble Oil Refining Co. V. Board of Aldermen of the Town of Chapel Hill, 284 N.C. 458, 470, 202 S.E.2d 129, 137, (1974) (stating that, "[a]t the time this proceeding was brought in the Superior Court, judicial review of orders of zoning boards of adjustment by proceedings in the nature of certiorari was authorized by [N.C. Gen. Stat. §] 160-178 (now [N.C. Gen. Stat. §] 160A-388])"). However, the scope of the issues that are properly considered by local governing bodies in zoning-related proceedings or by Superior Courts in conducting certiorari review of such proceedings is not unlimited. Instead, this Court has held that, in instances in which neither the administrative enforcement officer nor the local governmental reviewing agency has the authority to consider constitutional issues, "the superior court did not have the statutory authority to address petitioners' constitutional challenges to the validity of the Zoning Ordinance" and "the superior court did not err in concluding that petitioners [were] not entitled to raise constitutional objections to the Zoning Ordinance in this proceeding." Dobo v. Zoning Board of Adjustment of the City of Wilmington, 149 N.C. App. 701, 706-07, 562 S.E.2d 108, 112 (2002), rev'd in part on other grounds, 356 N.C. 656, 576 S.E.2d 324 (2003); see also 321 News Video, Inc. v. Zoning Board of Adjustment for the City of Gastonia, 174 N.C. App. 186, 190, 619 S.E.2d 885, 886 (2005) (stating that "[t]he superior court, sitting as an appellate court and acting pursuant to a writ of certiorari under N.C. Gen. Stat. § 160A-388(e), only had the power to consider whether the variance was properly granted or denied" and did not have the authority to consider "the constitutionality of the applicable zoning ordinance when determining whether to grant a variance"); Sherrill v. Town of Wrightsville Beach, 76 N.C. App. 646, 334 S.E.2d 103 (1985) (stating that "the superior court sat in the posture of an appellate court" and "was not in a position to address constitutional issues that were not before the board") (citation omitted). However, "such issues may be appropriately adjudicated by means of a separate civil action in superior court." Dobo, 149 N.C. App. at 706, 562 S.E.2d at 112 (citing Batch v. Town of Chapel Hill, 326 N.C. 1, 387 S.E.2d 655 (1990), cert. denied, 496 U.S. 931, 110 L. Ed. 2d 651 (1990). Although Petitioners claimed at oral argument that their procedural due process claim should be excepted from the general prohibition against the assertion of constitutional claims in certiorari proceedings, we rejected a similar attempt to distinguish between attacks upon the validity of a local land use ordinance and other uses of constitutional arguments in land use litigation in 321 News Video, where we stated that:
Petitioners filed a separate civil action seeking a declaration that the Subdivision Ordinance was invalid, both facially and as applied. Petitioners' appeal from the trial court's order granting summary judgment motions filed by the City, the Planning Commission, and Independence Capital is addressed in our opinion in Coventry Woods Neighborhood Ass'n, Inc., et al. v. City of Charlotte, et. al (No. COA09-611), which is handed down contemporaneously with our opinion in this case.
Petitioner asserts that although the issues raised in its appeal include constitutional considerations regarding the absence of secondary effects surrounding the area where the adult bookstore is located, its constitutional arguments are not being offered as a constitutional attack. Rather, petitioner contends that since adult uses are entitled to a variance from separation requirements contained in an adult zoning ordinance upon a showing that there are sufficient buffers that lessen the likelihood of adverse secondary effects, the Board's decision to deny it the variance was arbitrary and capricious because it failed to consider evidence of the lack of secondary effects associated with its adult bookstore. No matter the label petitioner places on its argument, the effect is the same; it challenges the constitutionality of the ordinance as applied to it. Therefore, it was not a proper consideration for the Board, the superior court, or this Court.
321 News Video, 174 N.C. App. at 190, 619 S.E.2d at 888. As a result, in the absence of a showing that the planning staff or Planning Commission had the authority to consider Petitioners' constitutional challenge to the Subdivision Ordinance, the trial court lacked the authority to consider Petitioners' procedural due process claim on appeal.
At no point in their brief or during oral argument have Petitioners contended that the planning staff or the Planning Commission had the authority under the Subdivision Ordinance to consider their procedural due process claims. In addition, our own review of the Subdivision Ordinance has not provided any indication that either body had such authority. Thus, given that the only substantive claims that Petitioners asserted before the trial court or before this Court on appeal from the trial court's order involve constitutional challenges to the Subdivision Ordinance, we conclude that the trial court had no authority to consider Petitioners' claims and that the trial court correctly dismissed Petitioners' certiorari petition.
In light of this determination, we need not reach the merits of Petitioners' constitutional claims and express no opinion about their validity or lack thereof in this opinion.
AFFIRMED.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).