CALABRIA, Judge.
Currituck County ("the County") and the Currituck County Board of Commissioners ("the Board") (collectively "defendants") appeal from the portion of the trial court's order granting summary judgment in favor of E. Ray Etheridge, Fred G. Etheridge, and Mary Katherine R. Etheridge (collectively "plaintiffs") as to plaintiffs' claim of illegal spot zoning. Plaintiffs appeal the portion of the trial court's order denying their request for attorney's fees and costs pursuant to N.C. Gen. Stat. § 6-21.7 (2013). We affirm.
This appeal concerns a dispute over a 1.1 acre parcel of land ("the property") owned by Currituck Grain, Inc. ("Currituck Grain") in the town of Shawboro in Currituck County, North Carolina. Prior to 5 December 2011, the property was zoned agricultural under Currituck County's Unified Development Ordinance ("the UDO"). The adjoining parcels of land on three sides of the property were also zoned agricultural, and the parcel on the remaining side of the property was zoned general business.
Currituck Grain entered into a contract with Daniel Clay Cartwright ("Cartwright") by which Cartwright would purchase the property to establish what he called a "recycling center," which would handle, stockpile, and sell scrap metal and materials, rock, mulch, concrete, and dirt. Cartwright's proposed use was not permitted in an agricultural zoning district, but it was permitted in a heavy manufacturing zoning district with a special use permit.
On 23 September 2011, Cartwright submitted an application to have the property rezoned to Conditional District — Heavy Manufacturing. The County Planning Board ("the Planning Board") reviewed Cartwright's rezoning application ("the application") and recommended that it should be denied because, inter alia, the proposed use was inconsistent with the current rural zoning classification and was inconsistent with the County's comprehensive land use plan. The Board then conducted a hearing regarding the application on 5 December 2011. At the conclusion of the meeting, the Board voted 6-1 to approve the application.
On 25 January 2012, plaintiffs filed a complaint against defendants in Currituck County Superior Court seeking to have the rezoning of the property invalidated. Plaintiffs' complaint included claims of illegal spot zoning, arbitrary and capricious rezoning, and violation of due process. Plaintiffs sought a preliminary and permanent injunction against the rezoning as well as attorney's fees and costs pursuant to N.C. Gen.Stat.
As an initial matter, we note that this appeal is interlocutory because the trial court's order did not resolve all of plaintiffs' claims since it explicitly denied both parties summary judgment as to those remaining claims and there is no subsequent final disposition of those claims in the record. Appeal from an interlocutory order is proper if
Myers v. Mutton, 155 N.C. App. 213, 215, 574 S.E.2d 73, 75 (2002). In the instant case, the trial court's order entered final judgments as to plaintiffs' claims for illegal spot zoning and attorney's fees and certified pursuant to Rule 54(b) that there was no just reason to delay appeal of those claims. Accordingly, this appeal is properly before us. See Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) ("When the trial court [properly] certifies its order for immediate appeal under Rule 54(b), appellate review is mandatory.").
Defendants' sole argument on appeal is that the trial court erred by granting summary judgment in favor of plaintiffs as to plaintiffs' claim for illegal spot zoning. We disagree.
"Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that `there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.'" In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)).
Good Neighbors of S. Davidson v. Town of Denton, 355 N.C. 254, 257-58, 559 S.E.2d 768, 771 (2002) (footnotes omitted).
In the instant case, defendants conceded at oral arguments that the rezoning at issue constituted spot zoning as defined by our Supreme Court. However, they still contend that summary judgment in favor of plaintiffs was inappropriate because the undisputed evidence is that there was a reasonable basis for the rezoning. Defendants are mistaken.
In order to determine whether there was a reasonable basis for a spot zoning, this Court considers the following factors:
Childress v. Yadkin Cty., 186 N.C. App. 30, 37, 650 S.E.2d 55, 61 (2007).
In the instant case, the first two factors, the size of the tract and the compatibility of the rezoning with the County's comprehensive plan, clearly weigh against the reasonableness of the rezoning. The rezoned property is only 1.1 acres in size and, as noted by the Planning Board, the rezoning is inconsistent with the County's comprehensive plan. In their brief, defendants do not dispute that these factors should weigh against the rezoning's reasonableness. Instead, defendants argue that, consistent with Chrismon, the third and fourth factors support a determination that there was a reasonable basis for the spot zoning. See Chrismon, 322 N.C. at 633-34, 370 S.E.2d at 592 ("[W]e find that, because of the quite substantial benefits created for the surrounding community by the rezoning and because of the close relationship between the likely uses of the rezoned property and the uses already present in the surrounding tracts, there was a clear showing of a reasonable basis for the spot zoning in this instance.").
Defendants first contend that the rezoning would create substantial benefits for the community. Our Supreme Court has stated that the analysis of this factor "is expressly limited to examining the ordinance's beneficial and detrimental effects on the property owner, his neighbors, and the surrounding community." Good Neighbors, 355 N.C. at 259, 559 S.E.2d at 772.
Id. at 259-60, 559 S.E.2d at 772.
In the instant case, defendants argue that the rezoning will be beneficial because the proposed recycling center would (1) create three to four jobs; (2) allow for dilapidated structures on the property to be rehabilitated; (3) allow county citizens to dispose of their unwanted metals; and (4) make use of a railroad siding. In addition, defendants note that Commissioner J. Owen Etheridge ("Commissioner Etheridge") stated that he witnessed support for the rezoning from twenty-eight of thirty-three attendees at a preliminary community meeting regarding Cartwright's application.
Many of the benefits from the rezoning proposed by defendants are not supported by any evidence presented at the public hearing. For instance, there was no evidence presented that the surrounding community would be particularly likely to use the recycling center or that there was a specific need for a recycling center in the property's location. In Mahaffey v. Forsyth County, this Court held that a spot zoning to facilitate the establishment of an automobile parts store could not be said to benefit the community because "auto parts are a common and easily obtainable product and, if such a retail establishment were said to be `beneficial to a rural community,' then virtually any type of business could be similarly classified." 99 N.C. App. 676, 683, 394 S.E.2d 203, 208 (1990), aff'd per curiam, 328 N.C. 323, 401 S.E.2d 365 (1991). The recycling center in the instant case likewise provides only a generalized benefit that has no specific connection to the surrounding rural community.
Commissioner Etheridge's statement that he personally witnessed significant support for the rezoning at a preliminary public hearing is also not supported by any evidence in the record. Moreover, even assuming, arguendo,
In addition, two real estate professionals who spoke at the hearing stated that they believed that the proposed recycling center would decrease property values both in the immediate vicinity of the property and in the Shawboro community as a whole. There was no evidence to the contrary presented during the meeting. Finally, both Currituck County Sheriff Susan Johnson ("Sheriff Johnson") and a representative from the North Carolina Department of Cultural Resources ("the DCR") submitted letters to the Board expressing their concerns with the rezoning. Sheriff Johnson was concerned because businesses similar to the proposed recycling center had experienced increases in crime and other suspicious activity, and the DCR was concerned that the proposed recycling center would adversely affect two nearby historic properties.
In light of this evidence, defendants have failed to make a clear showing that the benefits of the rezoning outweighed its detriments. Consequently, this factor also weighs against the reasonableness of the rezoning.
Defendants next argue that the proposed uses under the rezoning would be consistent with the uses allowed or occurring on adjacent properties. The Chrismon Court stated the following regarding this factor:
Chrismon, 322 N.C. at 631, 370 S.E.2d at 591. The Court went on to note that "significant disturbances such as the rezoning of a parcel in an old and well-established residential district to a commercial or industrial district would clearly be objectionable" under this factor. Id. In Budd v. Davie County, this Court cited this language in concluding that a spot rezoning from residential-agricultural to industrial to permit the installation of a sand dredging operation "would destroy the tenor of the quiet residential and agricultural neighborhood." 116 N.C. App. 168, 178, 447 S.E.2d 449, 455 (1994). Similarly, in Good Neighbors, our Supreme Court held that a spot rezoning to permit chemical storage in an area "specifically zoned for farms and residences" was unreasonable under this factor. 355 N.C. at 262, 559 S.E.2d at 773.
In the instant case, the property was rezoned from agricultural, which is the least intense residential district under the UDO, to heavy manufacturing, which was the most intense industrial district. Thus, like the spot zonings found to be unreasonable in Budd and Good Neighbors, the rezoning in this case impermissibly "wrench[es] a single small lot from its environment and give[s] it a new rating which disturbs the tenor of the neighborhood." Chrismon, 322 N.C. at 631, 370 S.E.2d at 591 (emphasis omitted).
However, defendants contend that the rezoning should still be considered reasonable
In support of its second contention, defendants cite Purser v. Mecklenburg County, 127 N.C. App. 63, 488 S.E.2d 277 (1997). In Purser, the property at issue was rezoned from residential to a conditional-use district to allow for a "Neighborhood Convenience Center," which would provide retail establishments that were consistent with the daily needs of the nearby residents. Id. at 65, 488 S.E.2d at 278. This Court found that under those circumstances, the "relationship of uses" factor weighed in favor of the reasonableness of the spot zoning because "the development of the Center was governed by a conditional use site plan that was designed to integrate the Center into the neighborhood and insure that it would be in harmony with the existing and proposed residential uses on the surrounding property." Id. at 70-71, 488 S.E.2d at 282.
Purser is distinguishable from the instant case. Unlike in Purser, defendants in the instant case have presented no evidence that the recycling center has been designed to be integrated into the surrounding area. The only condition on the rezoning cited by defendants in their brief is an eight-foot fence which is to be installed around the property. However, defendants fail to adequately explain how this fence will significantly diminish the impact of the recycling center on surrounding properties. Consequently, we conclude that defendants have failed to clearly show that the proposed recycling center would be consistent with the uses of adjoining properties.
Ultimately, defendants have failed to meet their burden to make a clear showing pursuant to any of the Chrismon factors that the rezoning was a reasonable spot zoning. Accordingly, the trial court properly granted summary judgment in favor of plaintiffs because the rezoning constituted illegal spot zoning. Defendants' argument is overruled.
Plaintiffs' sole argument on appeal is that the trial court erred by denying their request for attorney's fees. Specifically, plaintiffs contend that defendant's illegal spot zoning constituted an abuse of discretion and that, as a result, N.C. Gen.Stat. § 6-21.7 required the trial court to award attorney's fees as a matter of law. We disagree.
Ordinarily, the "recovery of attorney's fees, even when authorized by statute is within the trial court's discretion and will only be reviewed for an abuse of that discretion." Martin Architectural Prods., Inc. v. Meridian Constr. Co., 155 N.C. App. 176, 182, 574 S.E.2d 189, 193 (2002). However, "[w]e review a trial court's decision whether to award mandatory attorney's fees de novo." Willow Bend Homeowners Ass'n v. Robinson, 192 N.C. App. 405, 418, 665 S.E.2d 570, 578 (2008) (emphasis added).
In the instant case, plaintiffs sought to recover attorney's fees pursuant to N.C. Gen.Stat. § 6-21.7, which states:
N.C. Gen.Stat. § 6-21.7. This statute permits a party that successfully challenges an action by a city or county to recover attorney's fees if the trial court makes certain findings of fact. When the court finds only that the city or county acted outside the scope of its legal
In the instant case, the trial court properly determined that the rezoning constituted illegal spot zoning and thus that the County acted outside the scope of its legal authority. See Alderman v. Chatham County, 89 N.C. App. 610, 616, 366 S.E.2d 885, 889 (1988) ("[U]nless there is a clear showing of a reasonable basis, spot zoning is beyond the authority of the county or municipality." (internal quotations and citation omitted)). However, the court did not find that the County's action was an abuse of discretion and instead ordered both parties to be "responsible for their own attorney's fees and costs." Plaintiffs argue that the trial court's failure to award them attorney's fees was error because (1) the County's action was necessarily an abuse of discretion as a matter of law; or (2) in the alternative, that the record supports a determination that the County abused its discretion. Plaintiffs are mistaken.
Plaintiffs first contend that "illegal spot zoning is always outside the scope of the County's legal authority and always an abuse of discretion and, therefore, once it is determined that illegal spot zoning occurred, the Trial Court is required to award attorney's fees." In support of this argument, plaintiffs rely on the principle noted in this Court's opinion in Summers v. City of Charlotte, which states, in relevant part:
149 N.C. App. 509, 517, 562 S.E.2d 18, 24 (2002). Plaintiffs contend that since local governments only have discretion to enact zoning legislation when they are acting within the limitations imposed by the Constitution and by statute, any action which exceeds those limitations must also exceed the discretionary authority of the local government such that the action constitutes an abuse of discretion as a matter of law, which in turn requires an automatic award of attorney's fees.
Plaintiffs' contention cannot be reconciled with the plain language of N.C. Gen. Stat. § 6-21.7. Pursuant to that statute, a "finding by the court that the city or county acted outside the scope of its legal authority," such as a finding that a local government engaged in illegal spot zoning, does not, in and of itself, trigger the mandatory award of attorney's fees. N.C. Gen.Stat. § 6-21.7. Instead, the trial court must also explicitly consider and "find[] that the city's or county's action was an abuse of its discretion" in order to trigger the mandatory award of fees. Id. Plaintiffs' proposed interpretation of the statute would collapse these two distinct required inquiries into one, essentially deleting a portion of the statute. Such an interpretation is impermissible because our Courts "have no power to add to or subtract from the language of the statute." Zaldana v. Smith, ___ N.C.App. ___, 749 S.E.2d 461, 463 (2013) (internal quotation and citation omitted), disc. rev. denied, ___ N.C. ___, 758 S.E.2d 869 (2014).
"[A]n abuse of discretion occurs when a determination `is so arbitrary that it could not have been the result of a reasoned decision.'" Bishop v. Ingles Mkts., Inc., ___ N.C.App. ___, ___, 756 S.E.2d 115, 121 (2014) (quoting Porter v. Fieldcrest Cannon, Inc., 133 N.C. App. 23, 26, 514 S.E.2d 517, 520 (1999)). Contrary to plaintiffs' argument,
Nonetheless, plaintiffs still argue that "the undisputed facts of the case sub judice are particularly egregious and further demonstrate the County's abuse of discretion in approving the rezoning." Specifically, plaintiffs note that during the hearing which considered the rezoning request, concerns with the proposed rezoning were raised by (1) the Planning Board, because the rezoning was inconsistent with the comprehensive plan; (2) Sheriff Johnson, because the proposed use would potentially require the hiring of a new law enforcement officer; (3) the DCR, which was concerned that the proposed use would have negative effects on two nearby historic properties; and (4) nearby landowners. Plaintiffs also contend that the record reflects that the Board failed to properly consider and analyze the relevant spot zoning reasonableness factors after being informed about those factors by the County Attorney. Plaintiffs argue that the Board's approval of the rezoning in these circumstances irrefutably demonstrates an abuse of discretion.
However, the evidence cited by plaintiffs was not the only information before the Board. Cartwright explained the benefits that the recycling center would bring to the community and informed the Board how he expected the center would operate, including the steps he would take to limit the center's impact on nearby landowners. In addition to Cartwright, three individuals spoke in favor of the rezoning at the public hearing. Two of these individuals specifically referenced prior uses of the property and suggested that the recycling center would not impact the area surrounding the property in a materially different manner than these prior uses. The third individual supported the rezoning because he felt there was a need for industry in Currituck County.
Based upon the information presented during the hearing, Commissioner Etheridge made the following motion in favor of the rezoning:
This statement is the only information on the record regarding the Board's reasoning for the approval of the rezoning, which occurred shortly after Commissioner Etheridge's motion was made. The motion demonstrates that the Board considered most of the Chrismon reasonableness factors prior to approving the rezoning. Commissioner Etheridge specifically cited his belief that the rezoning was consistent with the UDO, noted benefits to the community such as economic growth and significant community support, and discussed how the newly zoned property would be consistent with surrounding property uses, including how the recycling center's impact would be mitigated through the special use permit process. While we have determined that Commissioner Etheridge's reasoning was insufficient to meet the County's legal burden of making "a clear showing of a reasonable basis for the zoning," Good Neighbors, 355 N.C. at 258, 559 S.E.2d at 771, we cannot conclude that the Board's reliance on the information cited by Commissioner Etheridge was so unreasonable that the legislative act of the rezoning "could not have been the result of a reasoned decision." Bishop, ___ N.C.App. at ___, 756 S.E.2d at 121. Accordingly, the trial court did not err by determining that the rezoning was not an abuse of discretion by the County.
The trial court properly awarded summary judgment in favor of plaintiffs for their illegal spot zoning claim because there was no genuine issue of material fact as to whether the rezoning constituted illegal spot zoning. Pursuant to N.C. Gen.Stat. § 6-21.7, if the trial court finds only that a local government acted outside the scope of its authority, the award of attorney's fees is discretionary. However, if the trial court additionally finds that the local government's action was an abuse of discretion, the award of attorney's fees becomes mandatory. Since the court properly determined that the County did not abuse its discretion when it approved the illegal spot zoning of the property, it was not required to award attorney's fees to plaintiffs. The trial court did not abuse its discretion by ordering the parties to pay their own attorney's fees and costs. The trial court's order is affirmed.
Affirmed.
Judges HUNTER, Robert C. and GEER concur.
