Massey v. City of Charlotte:
More Conditional Use Zoning Confusion
In a decision filed August 7,
2001, the North Carolina Court of Appeals further confused the law of
conditional use zoning and endorsed an approach previously considered by
most to be unlawful. In Massey v. City of Charlotte, the Court
reversed the April 2000 decision of Superior Court Judge Ben Tennille
which held that the City of Charlotte's conditional use zoning system was
invalid. At the lower court level, Judge Tennille had held that
Charlotte's purely legislative system of conditional use zoning violated
G.S. §§ 160A-381 and -382. He also explained that, “[a]lthough conditional
use zoning has been approved in North Carolina, both the courts and the
legislature have limited such approval to systems which utilize a two step
process - a legislative rezoning decision followed by a quasi-judicial
determination of whether to issue a conditional use permit.”
On appeal, the Court of Appeals considered whether the City's procedure
“fell within the range of permissible conditional use zoning as expressly
adopted by our Supreme Court in Chrismon v. Guilford County... and
whether the City acted within the authority of the general zoning
statute.”
First, the Court reasoned that the City's actions were within the mandate
of Chrismon. It explained that in Chrismon, the zoning
authority held a public hearing and voted in a single proceeding, as had
occurred in Charlotte. The Court noted that the Supreme Court held that
this was not illegal spot or contract zoning. Instead, the Supreme Court
held that the conditional use zoning decision was valid as long as it was
“reasonable, neither arbitrary nor unduly discriminatory, and in the
public interest.” The Court disagreed with the trial court's
interpretation of Chrismon and stated, “[n]owhere in the
Chrismon decision does our Supreme Court hold that a quasi-judicial
process is required in order for conditional use zoning to be valid.” It
further explained that in that case, the standard of review set forth by
the Supreme Court was the standard of review for a legislative decision.
Consequently, the Court held that “nothing in the Chrismon decision, or
any subsequent authority, required that the City employ a two-step
quasi-judicial process in determining whether to rezone the subject
property and adopt ALC’s site plan.”
Second, the Court of Appeals held that the City’s legislative conditional
use zoning process was not in violation of the general zoning enabling
statutes. In analyzing G.S. § 160-381(a), the Court noted that the statute
stated only that “the board of adjustment or the city council may issue
special use permits or conditional use permits.” It concluded that “[t]he
plain language of this statute does not require that local ordinances
provide for the issuance of conditional use permits.”
The Court also analyzed the language of G.S. § 160A-382, which provides
that a city may create districts which “may include, but shall not be
limited to, general use districts, . . . overlay districts, . . . and
special use districts or conditional use districts, in which uses are
permitted only upon the issuance of a special use permit or a conditional
use permit.” The Court pointed to the “but shall not be limited to”
language to explain that the City was free to establish a type of district
other than one of the four named by statute and that, therefore, the City
did not act in excess of its power under G.S. §160A-382.
What is the effect of Massey? If it remains good law, it will allow
local governments to have purely legislative conditional use zoning
procedures, which were previously believed to be unlawful. Massey
does not appear to prohibit quasi-judicial conditional use rezonings, but
rather that, a local government can decide to make the process purely
legislative if it so chooses. Massey interpreted the enabling
statutes to allow local governments to create their own peculiar zoning
schemes, an approach which has not previously been condoned by the courts
or legislature.
However, because of, among other things, Massey’s failure to
adequately address several other appellate cases and established points of
law, the case poses many questions and problems. The Massey Court
stated that nothing in Chrismon, “or any subsequent authority,
required that the City employ a two-step quasi-judicial process” in a
conditional use rezoning. However, that is not necessarily the case. In
Village Creek Property Owners Asso., Inc. v. Town of Edenton, which
analyzed the procedure to challenge conditional use zonings, the Court
held that a conditional use rezoning “requires two separate decisions,
with the rezoning decision meeting all of the statutory requirements for
legislative decisions and the permit decision meeting all of the
constitutional requirements for quasi-judicial decisions.” In Village
Creek, the Edenton Town Council heard both applications
simultaneously; and, the Court of Appeals acknowledged that “a decision
granting or denying a conditional use rezoning application may be made
concurrently with a decision granting or denying a conditional use permit.
. . .” Thus, Massey’s assumption that Chrismon did not
require two separate hearings and, therefore, did not require a
quasi-judicial aspect, appears misplaced.
Also, Massey recognized that in Chrismon, the City of Greensboro
had required a conditional use permit to be issued in a conditional use
rezoning. Chrismon expressly states that the Greensboro procedure
challenged in that case allowed uses in the conditional use district only
upon the issuance of a conditional use permit. In fact, the developer in
Massey was issued a “Conditional Use District Permit.” However,
conditional use permit decisions in North Carolina must be quasi-judicial.
And, even though a legislative body can grant or deny a conditional use
permit, it is well-established that in doing so, it sits as a
quasi-judicial body.
According to Massey, G.S. § 160A-382 likewise does not require a
two-step quasi-judicial aspect in conditional use rezonings. However,
Hall v. City of Durham held that, pursuant to § 160A-382, “the only
use which can be made of the land which is conditionally rezoned is that
which is specified in the conditional use permit.” Again, conditional use
permits cannot be granted legislatively, which brings Massey’s
entire analysis into question. See also S. Davenport and P. Green,
Special Use and Conditional Use Districts (Institute of Govt. 1980)
(Davenport and Green developed the Greensboro zoning provisions at issue
in Chrismon and state that quasi-judicial procedures are required
for conditional use rezonings).
Finally, Massey appears
to suggest that the Charlotte procedure, although admittedly authorized by
G.S. § 160A-382, was not a zoning scheme specifically enumerated by that
section. Nonetheless, Massey characterized the Charlotte procedure under
review as “conditional use” zoning, not some other type of zoning. Section
160A-382 specifically states that uses in conditional use districts
require conditional use permits.
Is Massey a good result? Probably not; simply because it confuses
existing law, and makes it more difficult to determine the applicable
rules. This is not to suggest that the quasi-judicial model is better. In
fact, there are advantages and disadvantages to both methods for both
developers and local governments. For example, the one-step legislative
process provides for virtually unlimited flexibility; however, it is
practically impossible to overturn a legislative zoning decision. The
two-step quasi-judicial scheme is more rigid; but, it assures proper
evidence is considered and that there is an impartial fact finder. The
problem with the current case law is that it makes the requirements
unclear and confusing. Accordingly, the Supreme Court or the General
Assembly should make a definitive decision and provide appropriate
guidance.
Should you have any questions regarding this alert, please feel free to
contact Robin L. Tatum.
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