Commercial Zoning

North Carolina Court of Appeals Speaks On the Issues of Zoning Ordinance "Consistency Statements" and "Spot Zoning"

In a recent, unpublished opinion in Wally, et al. v. City of Kannapolis, North Carolina decided February 15, 2011, the North Carolina Court of Appeals revisited two issues of interest to land use practitioners operating in the zoning realm: (1) consistency statements pursuant to N.C.G.S. 160A-383 in the adoption of a zoning ordinance, and (2) spot zoning. And the picture? That must be one of the appellants.

Consistency Statements
Upon the adoption of a zoning ordinance, N.C.G.S. 160A-383 requires that “the governing board … approve a statement describing whether its action is consistent with an adopted comprehensive plan and any other officially adopted plan that is applicable, and briefly explaining why the board considers the action taken to be reasonable and in the public interest.” The law continues, however, that such a “consistency statements,” as they are known, are “not subject to judicial review.”

If you’re asking yourself the following question, you’re not alone: how can the “consistency statement” be both mandatory and invincible? The Wally Court appears to answer this question by appealing to the “good enough” approach to legal analysis. In essence, the Court defers to the “no judicial review” gods by simply “accept[ing] defendant’s contention that it met this statutory requirement.” And as for the fact that the “consistency statement” is mandatory, the Court notes that the local government did, in fact, “approv[e] the staff report containing the findings required by section 160A-383.” In other words, when representing a local government, yes, a consistency statement is required but almost anything will do. And moreover, yes, a consistency statement is immune from judicial review but it is nonetheless wise to point out in responsive pleading, with any good faith basis, that the requirements have been satisfied.

Is this clear? We’ll wait to see if ever a local government actually trips over this nonreviewable requirement.

Spot Zoning
Spot zoning occurs when “a zoning ordinance, or amendment … singles out and reclassifies a relatively small tract owned by a single person and surrounded by a much larger area uniformly zoned, so as to impose upon the small tract greater restrictions than those imposed upon the larger area, or so as to relieve the small tract from restrictions to which the rest of the area is subjected.” Spot zoning is not, in and of itself, illegal in North Carolina. However, should spot zoning be found to exist, the zoning ordinance is then presumed invalid — whereas, it was once presumed valid — and the burden shifts to the local government to “make a clear showing of a reasonable basis for the zoning.”

The Wally Court concluded that the allegations couldn’t satisfy “spot zoning” as a matter of law because spot zoning can only exist as a matter of law where the property subject to the zoning “is owned by a common owner.” In Wally, the property “consisted of five tracts of land owned by two different entities – the Trust and Coddle Creek.” Distinct and multiple ownership is enough to carry the day. But what about the same individual owner, via different corporate entities? May the corporate veil be pierced in “spot zoning” actions?

We shall see.

Mike Thelen is a lawyer in Womble Carlyle’s Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

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