in the Court of Appeals 1 November 2017.
by plaintiffs from order entered 26 January 2017 by Judge
Edwin G. Wilson in Randolph County, No. 16 CVS 1539 Superior
Brough Law Firm, PLLC, by Robert E. Hornik, Jr. and Kevin R.
Hornik, for plaintiff-appellants.
Moore Leatherwood LLP, by Kip David Nelson and Thomas E.
Terrell, Jr., for defendant-appellees.
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
"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.
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.
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").
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).
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.
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.
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.
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.
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.
January 2017, the trial court granted Defendants' motion
for summary judgment and denied Plaintiffs' motion for
summary judgment. Plaintiffs timely appealed the superior
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