NORTHEAST CONCERNED CITIZENS, INC. v. CITY OF HICKORY
No. COA00-35
IN THE COURT OF APPEALS
1 May 2001
[143 N.C. App. 272 (2001)]
Saums, 346 N.C. at 764-65, 487 S.E.2d at 750 (internal quotation marks and citations omitted) (emphasis added).
There is no meaningful distinction between the evidence presented here and the evidence presented in Peoples or Saums, and the Commission here correctly held that the modified job held by plaintiff until 7 June 1998 did not reflect any ability to earn wages. The defendant‘s argument that the “duties” performed by the plaintiff in her last modified job (in which her supervisor testified that at times plaintiff “stood around and did not do very much“) is nearly identical to the argument which was rejected by the Supreme Court in Saums.
We are required by Adams to view the evidence in the light most favorable to plaintiff and to give plaintiff the benefit of every reasonable inference that may be drawn from the evidence. Pursuant to this standard of review, I believe the evidence fully supports the Commission‘s findings and conclusions that plaintiff has no wage-earning capacity, that plaintiff was entitled to a presumption of ongoing disability, and that defendant failed to come forward with evidence to overcome the presumption of ongoing disability once it arose. Therefore, I vote to affirm.
NORTHEAST CONCERNED CITIZENS, INC., PLAINTIFF V. CITY OF HICKORY, TRICOR DEVELOPMENT CORPORATION, DEFENDANTS
No. COA00-35
(Filed 1 May 2001)
Zoning— community association—standing to challenge ordinance
The trial court properly granted summary judgment for defendants in an action by a nonprofit corporation challenging a rezoning ordinance where only 12 of plaintiff‘s 114 members/shareholders had a specific legal interest directly and adversely affected by the rezoning ordinance. The record did not contain any evidence that plaintiff has such an interest; therefore, plaintiff has standing only if all of its members/shareholders have the required interest.
Judge HUDSON concurring in the result.
Tate, Young, Morphis, Bach & Taylor, LLP, by Thomas C. Morphis, Paul E. Culpepper, and Valerie R. Adams, for plaintiff-appellant.
Gaither, Gorham & Crone, by John W. Crone, III, for defendant-appellee City of Hickory; and The Brough Law Firm, by Michael B. Brough and Robert E. Hornik, Jr., for defendant-appellee Tricor Development Corporation.
GREENE, Judge.
Northeast Concerned Citizens, Inc. (Plaintiff) appeals an order filed 7 September 1999 granting summary judgment in favor of City of Hickory (the City) and Tricor Development Corporation (Tricor) (collectively, Defendants) and denying Plaintiff‘s motion for summary judgment.
Section 14.1 of the Hickory Zoning Ordinance (the Ordinance) provides for the establishment of Planned Development (PD) Districts.
The record shows that in Spring 1998, Tricor filed an application with the Planning Commission to rezone approximately 29.5 acres of land located at the intersection of Springs Road and Kool Park Road
On 24 June 1998, the Planning Commission held a public hearing on Tricor‘s request to rezone the property. At the hearing, members of the public spoke both in opposition to and in favor of the rezoning request. At the conclusion of the hearing, the Planning Commission voted to recommend that the City Council for the City of Hickory (the City Council) deny Tricor‘s request to rezone the property.
On 21 July 1998, the City Council held a public hearing on the proposed rezoning of the property. At the conclusion of the hearing, the City Council approved Tricor‘s rezoning request by a 4-3 vote. On 18 August 1998, the rezoning ordinance was read for a second time, as required by the Hickory City Code. Subsequent to the reading, the rezoning ordinance was approved for a second time by a 4-3 vote and adopted by the City Council.
On 16 October 1998, Plaintiff filed a complaint in the Superior Court of Catawba County, alleging a cause of action against the City. Plaintiff‘s complaint stated, in pertinent part:
1. . . . Plaintiff . . . is a nonprofit corporation organized and existing under the laws of the State of North Carolina. The purpose for which the corporation was formed is to promote, preserve and protect the quality of living and land use in the City of Hickory . . . among said corporation[‘]s members and all residents of the City of Hickory . . . . In carrying out the purposes of the corporation this action has been instituted for the purpose of preserving the residential character of the neighborhood[,] the subject of this litigation. Many of the supporters and the people whose interest it represents are people who own property in the immediate vicinity of the proposed shopping center that is the subject of this litigation. Accordingly, the use and enjoyment of the properties owned by such people would be diminished and their property values would be lowered if the proposed shopping center were to be constructed, and therefore, such persons would suffer special damages that are different in degree and kind from
any adverse affects [sic] that may be suffered generally by other residents of the City of Hickory or Catawba County.
Plaintiff‘s complaint alleged that the City lacked authority to exercise zoning powers under
In an order filed 1 February 1999, the trial court granted a motion by Tricor to intervene. The City and Tricor filed answers to Plaintiff‘s complaint, stating as a defense that Plaintiff lacked standing to bring an action to challenge the rezoning ordinance. Defendants then filed a motion for summary judgment dated 18 May 1999, stating “there is no genuine issue as to any material fact . . . and [Defendants] are entitled to judgment as a matter of law.”
In an affidavit dated 24 June 1999, Walter D. Scharer (Scharer) stated that he “was one of the original founding members of [Plaintiff].” Scharer stated in his affidavit several ways in which the area surrounding the property would be affected if a Wal-Mart or any other shopping center were built on the property, including: there would be increases in traffic, crime, noise, and light, and “[t]he property values of the neighborhood and surrounding vicinity would decrease as a result of the increased commercialization of the neighborhood.” Attached to Scharer‘s affidavit was an exhibit listing the names of 114 individuals who were present at the first meeting held by Plaintiff, and Scharer stated in his affidavit all of these individuals were accepted as members of Plaintiff at the meeting. In addition to Scharer‘s affidavit, Plaintiff submitted to the trial court affidavits of eleven other members of Plaintiff. These affidavits stated the same concerns as stated in Scharer‘s affidavit and included statements that if a Wal-Mart or a similar shopping center were built on the property, “[t]he property values of the neighborhood and surrounding vicinity would decrease as a result of the increased commercialization of the neighborhood.” All of the parties who submitted affidavits stated they lived at addresses which are located in the neighborhood surrounding the property.
Tricor‘s First Set of Interrogatories to Plaintiff contained the following pertinent question: “Identify all persons who are members of [Plaintiff] and whom you contend own properties in such relationship to the property rezoned in this case that such persons would have standing as individuals to challenge this rezoning.” In its response, Plaintiff listed the names of thirteen members.
Plaintiff filed a motion for summary judgment dated 1 July 1999. In an order dated 7 September 1999, the trial court denied Plaintiff‘s motion for summary judgment and granted summary judgment in favor of Defendants.
The dispositive issue is whether a corporation which does not have any legal interest in property affected by a zoning ordinance nevertheless has standing to challenge that zoning ordinance when the members/shareholders of the corporation have standing as individuals to challenge the zoning ordinance.
A zoning ordinance may be challenged by an action for declaratory judgment, Taylor v. City of Raleigh, 290 N.C. 608, 620, 227 S.E.2d 576, 583 (1976), or by writ of certiorari,
In this case, Plaintiff brought a declaratory judgment action against the City, in which it requested that the trial court “declare the zoning amendment adopted by the . . . City Council on August 18, 1998 to be invalid and of no effect.”2 Defendants raised as a defense to this action that Plaintiff lacked standing to challenge the rezoning ordinance, and Defendants filed a motion for summary judgment on the ground no genuine issue of material fact existed. The record does not contain any evidence Plaintiff has a specific legal interest directly and adversely affected by the rezoning ordinance; therefore, Plaintiff has standing to challenge the rezoning ordinance only if all of its members/shareholders have a specific legal interest directly and adversely affected by the rezoning ordinance. The record shows, at best, only twelve of Plaintiff‘s 114 members have such an interest. Accordingly, the trial court properly granted summary judgment in favor of Defendants on the ground Plaintiff did not have standing to challenge the rezoning ordinance.
Affirmed.
Judge McCULLOUGH concurs.
Judge HUDSON concurs in the result with separate opinion.
HUDSON, Judge, concurring in result.
I disagree with the conclusion that a corporation has standing to challenge a zoning action only if “all of the members/shareholders of the corporation” would have individual standing to bring the action (emphasis added). Further, I believe that pertinent authority, including that cited in the majority opinion, compel a different conclusion on this issue. However, for reasons discussed below, I concur in the result reached by the majority.
In support of its holding, the majority cites Piney Mt. Neighborhood Assoc. v. Town of Chapel Hill, 63 N.C. App. 244, 247, 304 S.E.2d 251, 253 (1983). In Piney Mountain, this Court held that a corporate petitioner which “has no property interest, but represents individuals who live in the affected area and who potentially will suffer injury” from a zoning action, has standing to challenge that action on behalf of its members. Id. The decision does not specify that all of the individual members of the neighborhood association were required to have individual standing in order for the association to have standing. Rather, it notes “the trend in other jurisdictions toward relaxing strict procedural requirements involving standing” and then proceeds to follow this trend by holding that the association involved did have standing. Id.
In River Birch Associates v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990), the North Carolina Supreme Court addressed the standing of a homeowner‘s association to bring an unfair and deceptive trade practices suit on behalf of its members. The Court found: “To have standing the complaining association or one of its members must suffer some immediate or threatened injury.” Id. at 129, 388 S.E.2d at 555 (emphasis added). As such, the Court adopted the federal rule for associational standing set forth in Hunt v. Washington State Apple Advertising Comm., 432 U.S. 333, 342-43, 53 L. Ed. 2d 383, 393-94 (1977). River Birch sets forth the following test:
[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization‘s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members of the lawsuit.
326 N.C. at 130, 388 S.E.2d at 555 (quoting Hunt, 432 U.S. at 343, 53 L. Ed. 2d at 394). Thus, even though River Birch holds that an association‘s “members” must have standing in their own right in order for the association to have standing, it explains that not all of the members must have individual standing. For the same reason, I believe that Piney Mountain‘s language to the effect that a corporate petitioner has standing to challenge a zoning action if it “represents individuals” who have standing, does not mean that all of the members of the association are required to have individual standing.
I agree with the majority that North Carolina has developed by statute and case law certain tests for determining standing in zoning actions. See Taylor v. City of Raleigh, 290 N.C. 608, 620, 227 S.E.2d 576, 583 (1976);
This judge has been able to find no case in any jurisdiction which mandates that every single one of the individual members of an association must have standing on their own before an association itself may have standing to bring a zoning action. Rather, there are many cases which have found associational standing in zoning cases based upon the individual standing of one or several members. See, e.g., Simons v. City of Los Angeles, 161 Cal. Rptr. 67, 69 (Cal. Ct. App., 2d Distr. 1979) (standing found when “many” of association‘s members owned property in close proximity to site proposed to be rezoned); Life of the Land v. Land Use Com‘n, 594 P.2d 1079, 1082 (Haw. 1979) (three of organization‘s members lived in immediate vicinity of land proposed to be rezoned; other members used land for recreation); Ecology Action v. Van Cort, 417 N.Y.S.2d 165, 169 (N.Y. Sup. Ct. 1979)
A seminal state court decision examining associational standing in zoning cases is Douglaston Civic Association v. Galvin, 324 N.E.2d 317, 321 (N.Y. 1974), which sets forth the following factors in determining whether an organization has standing:
(1) the capacity of the organization to assume an adversary position, (2) the size and composition of the organization as reflecting a position fairly representative of the community or interests which it seeks to protect[,] (3) the adverse effect of the decision sought to be reviewed on the group represented by the organization as within the zone of interests sought to be protected[, and (4) whether] full participating membership in the representative organization [is] open to all residents and property owners in the relevant neighborhood.
Douglaston discusses the policy implications behind its holding:
It should be readily apparent that a person desiring relaxation of zoning restrictions—such as a change from residential to business—has little to lose and much to gain if he can prevail. He is not reluctant to spend money in retaining special counsel and real estate appraisers if it will bring him the desired result. The individual owner of developed land in the neighborhood, on the other hand, may not, at the time, realize the impact the proposed change of zoning will have on his property, or, realizing the effect, may not have the financial resources to effectively oppose the proposed change. . . . By granting neighborhood and civic associations standing in such situations, the expense can be spread out over a number of property owners putting them on an economic parity with the developer.
One practical effect of the majority‘s opinion may be to drastically curtail North Carolina citizens’ ability to challenge zoning changes in the areas where they live. As Douglaston recognized, few people can afford to bring such a lawsuit as individuals. However,
In conclusion, I believe our Supreme Court has already spoken to the requirements for associational standing in this state in River Birch and would require the trial court to apply the test set forth in River Birch to determine whether the association in this case has standing.
I must concur in the result reached by the majority, however, in that I do not believe plaintiff can prevail on the merits of its case. Plaintiff essentially makes two arguments before this Court: first, that Hickory‘s ordinance regarding the approval of Planned Development Districts is unduly vague; second, that certain members of the City Council were biased in favor of the rezoning before they heard and voted on the matter. Plaintiffs did not assert the vagueness of the ordinance in the trial court, and they may not present this issue for the first time on appeal.
Furthermore, the City Council, in voting to rezone the subject property as a Planned Development District, was acting in a legislative capacity. See Brown v. Town of Davidson, 113 N.C. App. 553, 556, 439 S.E.2d 206, 208 (1994) (zoning decisions are legislative acts). A predisposition to vote a certain way on a legislative matter does not amount to a due process violation. Id. I do not believe plaintiffs have demonstrated the City Council acted in an arbitrary and capricious manner in approving the subject rezoning.