Commercial Zoning

A Game of Municipal Chicken: City Lacks Standing to Challenge County’s Re-Zoning of Property

In this battle between a City and a County over the location of a chicken processing plant, a battle about which we’ve previously blogged, the County looks to have won the second round.

As background for this lawsuit, the County re-zoned certain property “General Industrial” for the not-so-secret purpose of locating a chicken processing plant as part of an economic development effort.  The re-zoning, predictably, is a necessary condition for the location of the processing plant on the “subject property”. 

The City and five landowners, each of whom object to the location of a processing plant, filed a lawsuit challenging the County’s re-zoning of the “subject property”. 

The trial court dismissed the City’s challenge to the re-zoning on the basis that the City lacked standing, and the North Carolina Court of Appeals affirmed dismissal of the City’s complaint.  It is this specific issue that we’re interested with for purposes of this post. 

What is “standing”?  Standing is a plaintiff’s ability to maintain a lawsuit.  The Court, in other words, determined that the City did not have the ability to challenge the County’s re-zoning of the “subject property”. 

But why didn’t the City have the ability, or the “standing”, to challenge the County’s re-zoning of the property?  Well, for the Court, the answer can be digested as follows:

First, the City’s land is just too damn far away from the re-zoned “subject property” to confer standing.  Citing the very case the City attempts to use in its favor — Taylor v. City of Raleigh, 290 N.C. 608 (1976) — the Court notes that ownership of property in “proximity to the re-zoned property” is determinative as to standing.  Standing to challenge a re-zoning is unique.

Second, the damage has already been done.  The Court determined that the issue about which the City is concerned — the “injury” the City claims it will suffer — is “not made possible by the zoning amendment [the City] seeks to reverse” and, thus, will not be “redressed” or remedied by an undoing of the re-zoning.  The Court concluded that the environmental issues so concerning to the City have nothing to do with the re-zoned “subject property” (and, thus, a chicken processing plant); rather those environmental issues will exist by virtue of other land in the County that is not governed by the zoning decisions challenged in this lawsuit (the plant’s planned spray fields).  In short, the Court is convinced that the City’s real beef is with the spray fields, which are permitted as of right on other land, and not with the processing plant for which the “subject property” has been re-zoned.  It might be said that the City should be challenging the car’s tailpipe rather than challenging the car’s engine.

Third, the damage has been done, sure, but it’s not really damage.  The Court determined that the injury the City claims it will suffer is “conjectural” or “hypothetical”.  Specifically, the Court notes that any wastewater produced by a processing plant locating on the “subject property” would “have to meet state and federal effluent standards” and, if those standards were violated, “a separate action for violations of environmental regulations may provide the city with the proper remedy”.  In other words, it may be that environmental concerns are not be the proper basis upon which to mount a challenge to a re-zoning in the presence of other legal protections.   

It is this third point that, to me, is the most interesting.  How does this jive with the two-month statute of repose applicable to re-zoning challenges?  Will only the less-serious environmental harms suffice to confer standing for re-zoning challenges while the more serious harms (those guarded against by significant local, state and/or federal regulation) do not suffice?  We’ll see.

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

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