Appellate court dissents are often overlooked by the public, viewed more intently by the litigants as bases for further appeal or other strategic maneuvering. But dissents are an important part of legal doctrine.
In Good Neighbors of Oregon Hill Protecting Property Rights v. County of Rockingham, No. COA12-121 (July 21, 2015), we are specifically interested in the dissenting judge’s view that spot zoning in North Carolina does not require “a single owner”.
Judge Dillon would uphold the rezoning — he believes it is legal spot zoning — but he separates himself from the majority on the “single owner” point. We turn to Judge Dillon:
I recognize that our Supreme Court has used the phrase a single “tract owned by a single person” as part of a definition of spot zoning, Blades v. City of Raleigh, 280 N.C. 531, 549, 187 S.E.2d 35, 45 (1975), a phrase which has been repeated in subsequent cases, see Chrismon v. Guilford County, 322 N.C. 611, 627, 370 S.E.2d 579, 588 (1988); Musi, 200 N.C. App. at 382-83, 684 S.E.2d at 895, and, therefore, I understand how the majority reached its conclusion in the present case. I do not believe, however, that the Supreme Court intended by the use of this phrase to fashion a definitive rule whereby the question of whether the rezoning of a single tract of land constitutes “spot zoning” turns on whether that tract is owned by a single person rather than by two people. Such a rule would allow a landowner to avoid the spot zoning analysis simply by conveying a partial interest in his land to a “straw” entity. Rather, by its use of the phrase “by a single person” in certain opinions, I believe the Supreme Court was merely describing an example of spot zoning, as was the case in Chrismon…. I note that the Supreme Court has never expressly held – in Good Neighbors or otherwise – that a rezoning of a single tract did not constitute spot zoning simply because the tract was owned by multiple individuals. Rather, the Supreme Court recently avoided reaching this question. Wally v. City of Kannapolis, 365 N.C. 449, 722 S.E.2d 481 (2012).
We’ll see if the North Carolina Supreme Court has the opportunity and interest to settle the question Judge Dillon’s Good Neighbors dissent presents.