WALTON NORTH CAROLINA, LLC and WALTON NC CONCORD, LP, Plaintiffs,
THE CITY OF CONCORD, NORTH CAROLINA, Defendant.
in the Court of Appeals 29 November 2017.
by plaintiffs from order entered 5 May 2017 by Judge Kevin M.
Bridges in Cabarrus County No. 16 CVS 284Superior Court.
K&L Gates, LLP, by Roy H. Michaux, Jr., and Scarbrough
& Scarbrough, PLLC, by James E. Scarbrough and Madeline
J. Trilling, for plaintiff-appellants.
Brough Law Firm, PLLC, by G. Nicholas Herman, and City of
Concord Attorney Valerie Kolczynski, for defendant-appellee.
North Carolina, LLC and Walton NC Concord, LP (collectively
"Walton") appeal from the trial court's order
denying its motion for summary judgment and granting summary
judgment in favor of The City of Concord (the
"City"). We affirm.
History of the Property
property at issue consists of 275.637 acres of unimproved
land located on Odell School Road in Concord, North Carolina.
The property was annexed into the city limits as of 30
September 2005, and was initially zoned Residential Low
Density ("RL"). The RL zone allows a net density of
two dwellings per acre. In 2005, Section 4.8 of the Concord
Development Ordinance ("CDO") allowed for a
"Cluster Development, " to permit a density of more
than two dwellings per acre, subject to certain conditions
and early 2006, the prior owner of the property sought to
rezone the property from RL to Residential Medium Density
("RM-1" or "RM-2") to allow for the
development of 684 homes on the property. The Concord
Planning and Zoning Commission (the "Zoning
Commission") denied this request on 21 February 2006.
April 2006, the Zoning Commission approved the prior
owner's Preliminary Plat for the development of up to 563
dwellings through the use of the CDO's cluster
development provisions. The cluster development provisions
were repealed from the CDO on 12 January 2006, but the prior
owner had submitted its project "for review as a
'cluster' subdivision" prior to the effective
date of the repeal.
order to pursue development under the Preliminary Plat, the
developer was required to (1) submit and obtain approval for
construction drawings, (2) file a final plat, and (3) obtain
appropriate water and sewer infrastructure approvals prior to
the stated expiration of the Preliminary Plat approval on 31
December 2013. The prior property owner entered into an
agreement with the City for the construction and cost sharing
of water and sewer infrastructure on 30 October 2006. In May
2007, the prior owner submitted, and the City approved,
construction drawings indicating 551 dwellings, fewer than
the 563 allowed under the Preliminary Plat. No final plat was
ever submitted or approved.
of the economic collapse of 2008 and the effects thereafter,
the prior owner went bankrupt, and the property was
foreclosed upon on 24 August 2011.
Walton Purchases the Property
to purchasing the property, Walton had investigated the
potential economic uses of the property, as detailed in a
written report dated 17 February 2012. The report included a
plan for developing the property by: (1) creating a new
development plan, different from the previously approved
Preliminary Plat; (2) seeking rezoning of the property to
allow for a density of more than two dwellings per acre; and
(3) entering into a "Development Agreement" with
the City for an "offsite sewer extension."
report also expressly recognized the cluster development
provisions were no longer in effect for RL zoned property,
and stated "previous entitlements and approvals"
had expired and "the property should be considered raw
and unentitled." Walton purchased the property on 15
months later, on 12 December 2012, the City sent Walton a
letter concerning the 31 December 2013 expiration of the
approved Preliminary Plat, offering to provide more
information if requested. Walton never responded to the
City's letter nor requested any further information
regarding the approved Preliminary Plat.
2013, Walton discussed rezoning options for the property with
planning staff from the City. Walton had also spent over
$200, 000 on various surveys, assessments, and reports to
determine how many dwellings could be placed on the property
under current and proposed zoning classifications. At no
point in 2013 did Walton discuss pursuing development of the
property under the prior approved Preliminary Plat with the
City. The Preliminary Plat expired according to the terms of
the City's approval on 31 December 2013.
2014, Walton and the City worked upon a co-operative
development agreement for the off-site sewer extensions to
the property. From a meeting between Walton and the City
concerning the development agreement on 22 September 2014,
Walton's notes indicate its awareness of the expiration
of the prior approved Preliminary Plat and the prior repeal
of the cluster provisions from the CDO. The City approved its
development agreement with Walton on 9 October 2014, after
the required public notice and hearing.
November 2014, Walton submitted a preliminary site plan to
develop 551 dwellings on the property, pursuant to the
Preliminary Plat approval granted to the prior owner. This
plan more than doubled the number of dwellings allowed in the
RL zone, proposing a net density of 4.5 dwellings per acre
instead of the allowed two dwellings. In this submission,
Walton stated it believed the property ...