208 N.C. App. 50
N.C. Ct. App.2010Background
- Plaintiffs Templeton and Bird challenge Boone's steep slope and viewshed zoning amendments adopted Oct 2, 2006.
- Bird's trust property was initially believed not to be in the Viewshed area, but the complaint asserts it was subjected to the Viewshed Ordinance.
- Plaintiffs filed multiple suits starting in 2005–2006; the 2006 case was removed to federal court and later remanded; a voluntary dismissal occurred in 2007.
- The 2009 Superior Court dismissal denied relief for failure to state a claim; the appeal concerns standing and statute of limitations.
- Court holds standing issues govern review; Bird and Templeton have differing standing for constitutional and statutory claims, and Bird’s claims are time-barred on limitations grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge constitutional claims | Templeton and Bird contend they have imminent injury from enforcement of ordinances. | Grace Baptist requires immediate danger of injury or enforcement against plaintiffs. | Templeton lacks standing for constitutional claims; Bird likewise lacks standing for Templeton’s constitutional claims. |
| Standing to challenge statutory procedures | Plaintiffs contend they are landowners within affected areas and thus have procedural standing. | Standing requires specific, direct, and adverse impact; Templeton lacks this for the Viewshed and Steep Slope Ordinances. | Bird has standing to challenge the Viewshed Protection Ordinance; Templeton lacks standing for statutory claims against the ordinances. |
| Statute of limitations for Bird's challenges | Bird's claims relate to amendments adopted in 2006 and should not be barred by timing. | Under N.C.G.S. 160A-364.1, actions must be brought within two months of adoption; Bird filed in 2008. | Bird's statutory claims are barred by the two-month statute of limitations. |
| Templeton's standing and timeliness | Templeton refiled claims within Rule 41 one-year window after voluntary dismissal. | Templeton still must show standing for facial challenges; lacks factual allegations of standing. | Templeton's claims are not barred by statute of limitations, but standing issues may bar them on constitutional/statutory grounds. |
| Disposition on appeal | Plaintiffs appeal trial court dismissal as error on standing and limitations. | Judgment correct in light of standing and limitations authorities. | Court affirms dismissal in full. |
Key Cases Cited
- Grace Baptist Church v. City of Oxford, 320 N.C.439 (1987) (standing requires imminent injury for facial constitutional challenges)
- Thrash Ltd. Partnership v. County of Buncombe (Thrash I), 195 N.C.App. 678 (2009) (landowners may challenge procedural enactment; standing contingent on area affected)
- Thrash Ltd. Partnership v. County of Buncombe (Thrash II), 195 N.C.App. 727 (2009) (standing for procedural challenges depends on direct/adverse effect; facial challenges distinguished)
- Pinehurst Area Realty, Inc. v. Village of Pinehurst, 100 N.C.App. 77 (1990) (two-month statute of limitations for ordinance validity challenges)
- Capital Outdoor Advertising v. City of Raleigh, 337 N.C. 150 (1994) (statute of limitations for facial constitutional challenges to ordinances; timing matters)
- Messer v. Town of Chapel Hill, 125 N.C.App. 57 (1997) (standing and variance-related considerations in zoning challenges)
- Village Creek Prop. Owners' Ass'n v. Town of Edenton, 135 N.C.App. 482 (1999) (standing requires specific personal and legal interest; directly and adversely affected)
- Fox v. Board of Comm'rs, 244 N.C.497 (1956) (taxpayer/citizen status does not confer standing; need property interest)
- Nags Head Construction & Dev., Inc. v. Town of Nags Head, 2006 WL 1147687 (2006) (unpublished; keep only official reporter citations)