Orange County plaintiffs ask N.C. Supreme Court to revive their zoning challenge | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    Orange County property owners are urging the N.C. Supreme Court to take up their challenge against a local rezoning. The owners contend their case "involves legal principles of major significance to the jurisprudence of this State."

    A petition filed Tuesday asks the state's highest court to take up the case Mitchell v. Orange County. In May a unanimous three-judge panel of the N.C. Court of Appeals affirmed a trial judge's decision to dismiss the suit.

    Appellate judges determined that the property owners lacked legal standing to challenge the rezoning. Because the rezoning decision was "legislative" in nature, the plaintiffs would need to prove more than "diminution of one's property value."

    "In such a case, a landowner must show that (s)he will suffer 'special damages distinct from the rest of the community,'" wrote Judge Chris Dillon.

    The property owners contend that the Appeals Court has misapplied state Supreme Court precedent.

    "This Court is the ultimate arbiter of North Carolina law. When this Court decides an issue, the Court of Appeals must follow," according to the petition.

    "In Blades v. City of Raleigh, this Court established that neighboring property owners have standing to challenge a zoning ordinance in a declaratory judgment action if they live in an area affected by the ordinance," the plaintiffs' lawyers wrote. "This Court has since applied that standard in cases involving legislative zoning challenges, and the Court of Appeals is required to do the same."

    "While the Court of Appeals applied this Court's precedent in the first few decades following Blades, recently, the Court of Appeals has strayed, even claiming of late that its own case law has superseded the standard set forth by this Court."

    "Getting the standing requirement wrong matters," the property owners' lawyers argued. "The North Carolina Constitution provides that our 'courts shall be open,' and 'every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law.'"

    The Court of Appeals has been "imposing barriers to standing that this Court has never sanctioned nor has the General Assembly enacted," according to the petition. "The Court of Appeals repeatedly and often has imposed a special damages requirement for standing in legislative zoning cases that is both absent from section 160D-1401 [of the N.C. General Statutes], which governs those cases, and is contrary to this Court's precedent."

    "As a result, the lower courts have been denying neighboring property owners who live in areas affected by zoning ordinances their right under section 160D-1401 to seek judicial review of legislative zoning decisions, and those zoning decisions are now essentially immune from judicial review."

    The neighbors are challenging Research Triangle Logistics Park, an industrial park in Hillsborough that would include 12 acres of land that had been zoned for residential use. Plaintiffs contend the Orange County commissioners engaged in "arbitrary and capricious" "illegal spot zoning" when approving the project.

    The state Supreme Court is under no obligation to take up an appeal of a unanimous Appeals Court decision.