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McDowell v. Randolph County

Court of Appeals of North Carolina

December 5, 2017

MAXTON MCDOWELL and WANDA MCDOWELL, Plaintiffs,
v.
RANDOLPH COUNTY and THE RANDOLPH COUNTY BOARD OF COUNTY COMMISSIONERS, Defendants.

          Heard in the Court of Appeals 1 November 2017.

         Appeal by plaintiffs from order entered 26 January 2017 by Judge Edwin G. Wilson in Randolph County, No. 16 CVS 1539 Superior Court.

          The Brough Law Firm, PLLC, by Robert E. Hornik, Jr. and Kevin R. Hornik, for plaintiff-appellants.

          Smith Moore Leatherwood LLP, by Kip David Nelson and Thomas E. Terrell, Jr., for defendant-appellees.

          TYSON, Judge.

         Maxton McDowell and Wanda McDowell ("Plaintiffs") appeal the trial court's entry of summary judgment in favor of Randolph County ("Defendant-County") and the Randolph County Board of County Commissioners ("Defendant-Board") (collectively, "Defendants"). This case involves the question of whether Randolph County properly "re-zoned" certain real property bordering Plaintiffs' property. We affirm the superior court's order.

         I. Background

         The record tends to show the following: Plaintiffs own and reside on certain real property located at 5354 Old N.C. Highway 49 in Randolph County. Maxton McDowell also owns a parcel of land on the south side of Old N.C. Highway 49 adjacent to certain real property owned by the McDowell Family Limited Partnership ("MFLP"). A portion of MFLP's property (the "Subject Property") is used by the McDowell Lumber Company (the "Lumber Company") as a saw mill, planing operation, and pallet-making operation.

         Since about 1987, Defendant-County has maintained a zoning ordinance, referred to as the Unified Development Ordinance ("UDO") which governs and regulates the uses of land in the county. Defendant-County also maintains a land use plan called the "Randolph County Growth Management Plan" (the "Plan").

         In 2009, Randolph County amended the Plan to include the Rural Industrial Overlay District zoning classification. The Rural Industrial Overlay District "is intended to accommodate industrial activities and uses requiring proximity to rural resources where the use of site specific development plans, natural buffers and landscaping, would lessen adverse impact upon the general growth characteristics anticipated by the Growth Management Plan." Randolph County, Uniform Development Ordinance Art. VII, § I (Apr. 6, 2009).

          Also included in the Plan is the Rural Industrial Overlay Conditional District zoning classification. The Rural Industrial Overlay Conditional District is "identical to the Rural Industrial Overlay District except site plans and individualized development conditions are imposed only upon petition of all owners of the land." Id.

         The Subject Property was rezoned by Defendant-Board to the Rural Industrial Overlay Conditional District classification ("CZ-RIO") in 2010 at the request of MFLP. The representative for the Lumber Company submitted a site plan for the Subject Property with the 2010 rezoning request. Defendant-Board approved the 2010 rezoning request with the condition that the Lumber Company conform its use of the property to the specifications set out in the site plan.

         In April 2016, the Lumber Company filed and requested a rezoning application to modify its site plan, by relocating a chemical vat. On 6 June 2016, Defendant-Board approved the Lumber Company's rezoning request. Defendant-Board made no change in the Subject Property's, nor any other adjoining property's, zoning classification, but approved only a modification to the Subject Property's site plan. The modification to the site plan permits the Lumber Company to relocate an existing chemical-containing vat to a different location within the Subject Property and to build a concrete pad and structure to partially enclose it.

         Plaintiffs brought suit against Defendants on 3 August 2016. Plaintiffs alleged that the rezoning was null and void because (1) Defendant-Board's decision was arbitrary and capricious, (2) Defendants had failed to adopt a proper consistency statement, and (3) Defendants engaged in illegal spot zoning.

         Defendants moved for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure on the grounds that the Board retained the statutory authority to "change the zoning and zoning conditions of all properties within the county, and the rezoning decision complied with all statutorily required procedures and was not illegal spot zoning." See N.C. Gen. Stat. § 1A-1, Rule 56 (2015). Plaintiffs filed a cross-motion for summary judgment pursuant to Rule 56. Id.

         On 26 January 2017, the trial court granted Defendants' motion for summary judgment and denied Plaintiffs' motion for summary judgment. Plaintiffs timely appealed the superior court's judgment.

         II. Jurisdiction

         Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. §§ 1-277(a) and 7A-27(b) (2015) as an appeal from a superior court's order in a civil action disposing of all the parties' issues.

         III. Stan ...


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