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Byron v. Synco Properties, Inc.

Court of Appeals of North Carolina

March 20, 2018

SYNCO PROPERTIES, INC., a North Carolina corporation, and CITY OF CHARLOTTE, a North Carolina body politic and corporate, Defendants.

          Heard in the Court of Appeals 5 September 2017.

         Appeal by Plaintiffs from Order entered 23 November 2016 by Judge Yvonne Mims-Evans in Mecklenburg County No. 16-CVS-1265 Superior Court.

          Scarbrough & Scarbrough, PLLC, by Madeline J. Trilling, and The Law Office of Kenneth T. Davies, P.C., by Kenneth T. Davies, for Plaintiffs.

          K&L Gates LLP, by Roy H. Michaux, Jr., for Defendant SYNCO Properties, Inc.

          Office of the Charlotte City Attorney, by Assistant City Attorney Thomas E. Powers, III, and Senior Assistant City Attorney Terrie Hagler-Gray, for Defendant City of Charlotte.

          INMAN, JUDGE.

         Landowners whose property is not directly and adversely affected by a zoning statute do not have standing to bring a declaratory judgment action to challenge the constitutionality of the statute or a municipality's interpretation of the statute.

         Plaintiffs William M. Byron and Dana T. Byron ("Plaintiffs"), husband and wife, appeal from a summary judgment order dismissing their declaratory judgment action against defendant SYNCO Properties, Inc. ("SYNCO") and the City of Charlotte (the "City, " collectively "Defendants") challenging the rezoning of real property in Charlotte, North Carolina. Plaintiffs contend that, because their complaint alleged facial constitutional challenges to a statute and session laws, the trial court was required to transfer those claims to a three-judge panel in Wake County pursuant to N.C. Gen. Stat. §§ 1-81.1, 1-267.1, and 1A-1, Rule 42(b)(4) (2015). Plaintiffs further challenge the trial court's dismissal of their claims challenging N.C. Gen. Stat. § 160A-385 (2015) and Session Law 2015-160 as moot, as well as its determination that the prior version of N.C. Gen. Stat. § 160A-385 (2013) did not apply to the rezoning based on its interpretation of that session law. Defendants contend that Plaintiffs lacked standing to bring their suit. After careful review, we agree with Defendants that Plaintiffs lacked standing to assert the claims they seek to revive on appeal. As a result, we affirm the order of the trial court.


         In late 2014, SYNCO filed an application with the City to rezone a tract located in the SouthPark area of Charlotte. On 11 March 2015, several local property owners (the "Petitioners") filed a protest petition (the "Protest Petition") with the City opposing the proposed rezoning pursuant to N.C. Gen. Stat. § 160A-385 (2013) (the "Protest Petition Statute"). Plaintiffs were not among the Petitioners that filed the Protest Petition.

         In July 2015, the North Carolina General Assembly passed Session Law 2015-160, which replaced the protest petition procedure in the Protest Petition Statute with a "Citizen Comment" procedure. 2015 N.C. Sess. Laws ch. 160, § 1 (2015) (codified as amended at N.C. Gen. Stat. § 160A-385 (2017)). Per the session law, the amended procedure "bec[ame] effective August 1, 2015, and applies to zoning ordinance changes initiated on or after that date." Id., § 6.

         On 24 September 2015, SYNCO withdrew its initial rezoning application. SYNCO filed a new rezoning application the following day. The new application sought approval for the same uses as those proposed in the initial rezoning application, along with revised building sizes and transportation improvements.

         On 19 January 2016, the Charlotte City Council voted unanimously to approve the second rezoning application. The City and SYNCO treated the second application as one not subject to the Protest Petition Statute. Nothing in the record indicates that the Petitioners sought injunctive or other relief requiring the City to recognize the applicability of the Protest Petition to the second rezoning application or to follow the procedures set forth in the Protest Petition Statute. Rather, one of the Petitioners stated in an affidavit that "a change in the state law had invalidated the Protest Petition" and declined to take action to revive the Petition or require its application.

         On 25 January 2016, Plaintiffs filed a declaratory judgment action seeking to invalidate the City Council's approval of the rezoning application. After two amendments to the original complaint and the voluntary dismissal of one claim, Plaintiffs' final amended complaint alleged that: (1) Defendants violated N.C. Gen. Stat. § 160A-364 (2015);[1] (2) Defendants made certain misrepresentations and omissions in the rezoning process; (3) Defendants violated the Protest Petition Statute, which they were required to follow per Plaintiffs' interpretation of Session Law 2015-160; (4) the City's actions were ultra vires; (5) Session Law 2000-84 was unconstitutional;[2] (6) the City's actions violated Plaintiffs' due process rights; (7) N.C. Gen. Stat. § 160A-383 (2015), which employs the citizen comment procedures rather than protest petition procedures, unconstitutionally deprives the judiciary of judicial power; and (8) ...

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