WILLIAM M. BYRON and DANA T. BYRON, Plaintiffs,
SYNCO PROPERTIES, INC., a North Carolina corporation, and CITY OF CHARLOTTE, a North Carolina body politic and corporate, Defendants.
in the Court of Appeals 5 September 2017.
by Plaintiffs from Order entered 23 November 2016 by Judge
Yvonne Mims-Evans in Mecklenburg County No. 16-CVS-1265
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.
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.
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
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.
FACTUAL AND PROCEDURAL HISTORY
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
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.
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
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.
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); (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; (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) ...