{ "id": 4172556, "name": "PHILLIP McMILLAN, JANET CONNELL, TRACY TURNER, CARROLL C. TURNER, DALE DRAKE, REGINALD DRAKE, BOBBIE WILSON, J. BRUCE WILSON, MARGARET WILSON, GEORGIA C. MARX, MELVIN MARX, JOHN EARL FOY, RUTH P. FOY, STEVE K. PERRY, KIPP COX, NANCY MADAR, PAUL MADAR, JOAN R. POST, KARL A. WILLIAMS, BARBARA A. WILLIAMS, GUNTHAM M. GERSCH, STANLEY BRIGHTWELL, ALAN LURIA, PAT RYAN, EARL A. BETTINGER, J. RANDALL GROBE, Plaintiffs v. TOWN OF TRYON, an incorporated MUNICIPALITY OF THE STATE OF NORTH CAROLINA, TOWN COUNCIL FOR THE Town of Tryon, and the TRYON COUNTRY CLUB, INC., Respondents and Defendants, Defendants", "name_abbreviation": "McMillan v. Town of Tryon", "decision_date": "2009-10-06", "docket_number": "No. COA08-1253", "first_page": "228", "last_page": "238", "citations": [ { "type": "official", "cite": "200 N.C. App. 228" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "190 N.C. App. 633", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4157690 ], "year": 2008, "opinion_index": -1, "case_paths": [ "/nc-app/190/0633-01" ] }, { "cite": "660 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640944 ], "year": 2008, "pin_cites": [ { "page": "660", "parenthetical": "quoting Humane Soc'y of Moore Cty., Inc. v. Town of Southern Pines, 161 N.C. App. 625, 628-29, 589 S.E.2d 162, 165 (2003)" } ], "opinion_index": 0, "case_paths": [ "/se2d/660/0657-01" ] }, { "cite": "650 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639350 ], "year": 2007, "pin_cites": [ { "page": "59", "parenthetical": "\"Re-zoning is considered a legislative act.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/650/0055-01" ] }, { "cite": "673 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642963 ], "year": 2009, "pin_cites": [ { "page": "693", "parenthetical": "citing Keiger v. Board of Adjustment, 281 N.C. 715, 720, 190 S.E.2d 175, 179 (1972) and Surplus Co. v. Pleasants, 264 N.C. 650, 654, 142 S.E.2d 697, 701 (1965)" } ], "opinion_index": 0, "case_paths": [ "/se2d/673/0689-01" ] }, { "cite": "639 S.E.2d 421", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637514 ], "year": 2007, "pin_cites": [ { "page": "423", "parenthetical": "quoting Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003) (citing N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c))" } ], "opinion_index": 0, "case_paths": [ "/se2d/639/0421-01" ] }, { "cite": "2000 N.C. Sess. Laws 84", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "589 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2003, "pin_cites": [ { "page": "165" }, { "page": "165" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 625", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8959579 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "628-29" }, { "page": "628-29" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0625-01" ] }, { "cite": "550 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "186 N.C. App. 30", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8154414 ], "year": 2007, "pin_cites": [ { "page": "34", "parenthetical": "\"Re-zoning is considered a legislative act.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0030-01" ] }, { "cite": "349 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732777, 4738513, 4738804, 4734109, 4737790 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0417-02", "/nc/318/0417-01", "/nc/318/0417-03", "/nc/318/0417-04", "/nc/318/0417-05" ] }, { "cite": "344 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "360" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 369", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523145 ], "year": 1986, "pin_cites": [ { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0369-01" ] }, { "cite": "439 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "208", "parenthetical": "citing Sherrill v. Town of Wrightsville Beach, 81 N.C. App. 369, 373, 344 S.E.2d 357, 360, disc. rev. denied and appeal dismissed, 318 N.C. 417, 349 S.E.2d 600 (1986)" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 553", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523585 ], "year": 1994, "pin_cites": [ { "page": "556", "parenthetical": "citing Sherrill v. Town of Wrightsville Beach, 81 N.C. App. 369, 373, 344 S.E.2d 357, 360, disc. rev. denied and appeal dismissed, 318 N.C. 417, 349 S.E.2d 600 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0553-01" ] }, { "cite": "596 S.E.2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "884", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 766", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8901751 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "769" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0766-01" ] }, { "cite": "370 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "594-95", "parenthetical": "holding \"that the Board [validly exercised its legislative discretion] in this matter only after a lengthy deliberation completely consistent with both the procedure called for by the relevant zoning ordinance and the rules prohibiting illegal contract zoning\"" }, { "page": "586" } ], "opinion_index": 0 }, { "cite": "322 N.C. 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517410 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "638-39" }, { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0611-01" ] }, { "cite": "566 S.E.2d 482", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 758", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220129, 220138, 220077, 220083, 219964 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0758-04", "/nc/355/0758-03", "/nc/355/0758-02", "/nc/355/0758-01", "/nc/355/0758-05" ] }, { "cite": "562 S.E.2d 18", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2002, "pin_cites": [ { "page": "24", "parenthetical": "internal citations and quotation marks omitted" }, { "page": "24", "parenthetical": "affirming the city's conditional use re-zoning in a single, legislative procedure" }, { "page": "24", "parenthetical": "describing zoning as a legislative process" }, { "page": "21" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 509", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9129570 ], "weight": 5, "year": 2002, "pin_cites": [ { "page": "516-17" }, { "page": "516-17" }, { "page": "516-17" }, { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0509-01" ] }, { "cite": "554 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 219", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138531, 138505, 138350, 138362, 138367 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0219-04", "/nc/354/0219-03", "/nc/354/0219-05", "/nc/354/0219-01", "/nc/354/0219-02" ] }, { "cite": "550 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "845" }, { "page": "845" }, { "page": "844", "parenthetical": "noting that the city followed the procedural requirements set forth in its ordinance and rejecting the trial court's conclusion that the absence of a quasi-judicial element invalidated the re-zoning decision" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 345", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11437514 ], "weight": 5, "year": 2001, "pin_cites": [ { "page": "354" }, { "page": "355" }, { "page": "352-53" }, { "page": "349-50" }, { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0345-01" ] }, { "cite": "142 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "pin_cites": [ { "page": "701" } ], "opinion_index": 0 }, { "cite": "264 N.C. 650", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574837 ], "year": 1965, "pin_cites": [ { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0650-01" ] }, { "cite": "190 S.E.2d 175", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "179" } ], "opinion_index": 0 }, { "cite": "281 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576416 ], "year": 1972, "pin_cites": [ { "page": "720" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0715-01" ] }, { "cite": "195 N.C. App. 727", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4164629 ], "year": 2009, "pin_cites": [ { "page": "732", "parenthetical": "citing Keiger v. Board of Adjustment, 281 N.C. 715, 720, 190 S.E.2d 175, 179 (1972) and Surplus Co. v. Pleasants, 264 N.C. 650, 654, 142 S.E.2d 697, 701 (1965)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0727-01" ] }, { "cite": "586 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "249", "parenthetical": "citing N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c)" } ], "opinion_index": 0 }, { "cite": "357 N.C. 492", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491872 ], "year": 2003, "pin_cites": [ { "page": "496", "parenthetical": "citing N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c)" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0492-01" ] }, { "cite": "361 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739419 ], "year": 2007, "pin_cites": [ { "page": "196", "parenthetical": "quoting Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003) (citing N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c))" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0193-01" ] }, { "cite": "271 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "910", "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "301 N.C. 522", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568314 ], "year": 1980, "pin_cites": [ { "page": "524", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0522-01" ] }, { "cite": "244 S.E.2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574468, 8574405, 8574446, 8574425, 8574490 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0736-04", "/nc/294/0736-01", "/nc/294/0736-03", "/nc/294/0736-02", "/nc/294/0736-05" ] }, { "cite": "241 S.E.2d 119", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "35 N.C. App. 231", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548279 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/35/0231-01" ] }, { "cite": "266 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "16" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 725", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553283 ], "pin_cites": [ { "page": "727" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0725-01" ] }, { "cite": "536 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "350 N.C. 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132002, 132066, 132165, 132198, 132147 ], "year": 1999, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0379-05", "/nc/350/0379-04", "/nc/350/0379-02", "/nc/350/0379-01", "/nc/350/0379-03" ] }, { "cite": "510 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "694", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 160", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237254 ], "year": 1999, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0160-01" ] }, { "cite": "190 N.C. App. 633", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4157690 ], "year": 2008, "pin_cites": [ { "page": "636", "parenthetical": "quoting Humane Soc'y of Moore Cty., Inc. v. Town of Southern Pines, 161 N.C. App. 625, 628-29, 589 S.E.2d 162, 165 (2003)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0633-01" ] } ], "analysis": { "cardinality": 1101, "char_count": 25497, "ocr_confidence": 0.758, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.33980378778840004 }, "sha256": "7bf7a45e35735d696b9b8f4ce5060a7791c677063f37af2bcf246a13d452373b", "simhash": "1:8b21545cc57b3c93", "word_count": 4045 }, "last_updated": "2023-07-14T15:34:12.558956+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and STROUD concur." ], "parties": [ "PHILLIP McMILLAN, JANET CONNELL, TRACY TURNER, CARROLL C. TURNER, DALE DRAKE, REGINALD DRAKE, BOBBIE WILSON, J. BRUCE WILSON, MARGARET WILSON, GEORGIA C. MARX, MELVIN MARX, JOHN EARL FOY, RUTH P. FOY, STEVE K. PERRY, KIPP COX, NANCY MADAR, PAUL MADAR, JOAN R. POST, KARL A. WILLIAMS, BARBARA A. WILLIAMS, GUNTHAM M. GERSCH, STANLEY BRIGHTWELL, ALAN LURIA, PAT RYAN, EARL A. BETTINGER, J. RANDALL GROBE, Plaintiffs v. TOWN OF TRYON, an incorporated MUNICIPALITY OF THE STATE OF NORTH CAROLINA, TOWN COUNCIL FOR THE Town of Tryon, and the TRYON COUNTRY CLUB, INC., Respondents and Defendants, Defendants" ], "opinions": [ { "text": "JACKSON, Judge.\nPhillip McMillan (\u201cMcMillan\u201d), Janet Connell, Tracy Turner, Carol C. Turner, Dale Drake, Reginald Drake (\u201cDrake\u201d), Bobbie Wilson, J. Bruce Wilson (\u201cWilson\u201d), Georgia C. Marx, Melvin Marx, John Earl Foy, Ruth P. Foy, Steve K. Perry, Kipp Cox, Nancy Madar, Paul Madar, Joan R. Post, Karl A. Williams, Barbara A. Williams, Guntham M. Gersch, Stanley Brightwell, Alan Luria, Pat Ryan, Earl A. Bettinger, and J. Randall Grobe (collectively, \u201cplaintiffs\u201d) appeal from an order entered 29 May 2008 granting summary judgment in favor of the Town of Tryon (\u201cTown\u201d), Town Council for the Town of Tryon (\u201cTown Council\u201d), and the Tryon Country Club, Inc. (\u201cCountry Club\u201d) (collectively, \u201cdefendants\u201d). For the reasons set forth below, we affirm in part, reverse in part, and remand.\nAs set forth in a related appeal in Court of Appeals file number 08-642 filed contemporaneously herewith, the instant appeal concerns the re-zoning of approximately 126 acres of Country Club property \u2014 all of which is located within the Town\u2019s municipal boundaries or subject to the Town\u2019s zoning authority \u2014 to allow the development of sixty new residential homes.\nIn October 2006, a proposal to re-zone the property had been denied, and, after waiting the required three months, the proposal was resubmitted with additional information. On 20 March 2007, the Town Council conducted a hearing to reconsider re-zoning approximately 126 acres of the Country Club property from \u201cP-1\u201d open-space zone and \u201cR-3\u201d single-family home residential zone to an \u201cR-4 Conditional Use Zone\u201d so that it would be possible to build a mixture of single-family units as well as duplexes in a portion of the re-zoned area upon the issuance of a Conditional Use Permit.\nThe Country Club and developers from dewSouth Communities (\u201cdewSouth\u201d) planned to develop approximately sixty new residential units as well as a new tennis and swimming facility for the Country Club on approximately fifty-one of the 126 re-zoned acres. The sixty new residential units were to be comprised of forty single-family residences and ten duplexes. Without re-zoning the R-3 district to an R-4 Conditional Use Zone and issuing a Conditional Use Permit, the duplexes would be an unlawful use of the land.\nAt the 20 March 2007 hearing, the Town Council heard sworn testimony from Town residents; Country Club residents; plaintiffs McMillan, Drake, and Wilson; and architects and other members of the dewSouth development team. The Town Council unanimously voted in favor of re-zoning a portion of the Country Club property to an R-4 Conditional Use Zone. The Town Council also unanimously voted to approve the associated Conditional Use Permit necessary to allow the proposed development of the re-zoned property.\nOn 20 April 2007, plaintiffs filed a complaint and petition for writ of certiorari seeking review of the 20 March 2007 hearing. On 10 July 2007, defendants filed an answer. On 11 July 2007, the parties submitted to the superior court the record of the Town Council\u2019s proceedings at the 20 March 2007 hearing. On 14 January 2008, plaintiffs filed amendments to their original petition and complaint to which defendants jointly responded on 19 February 2008. On 14 March 2008, defendants filed a motion for summary judgment. On 20 March 2008, plaintiffs moved the trial court (1) for leave to further amend their amended petition and complaint, and (2) for a continuance. On 29 May 2008, the trial court entered an order denying plaintiffs\u2019 motion to further amend their amended petition and complaint and granting summary judgment in defendants\u2019 favor. Plaintiffs appeal.\nOn appeal, plaintiffs first argue that the trial court erred in denying their motion to further amend their pleadings to include additional allegations relating to Commissioner Benson\u2019s purported conflict of interest and ex parte communications prior to the 20 March 2007 re-zoning hearing. We disagree.\nNorth Carolina Rules of Civil Procedure, Rule 15 provides in relevant part that\n[a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 30 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 15(a) (2007). Proper reasons for denying a motion to amend include, inter alia, undue delay by the moving party, unfair prejudice to the non-moving party, and futility of the amendment. Delta Envtl. Consultants of N.C., Inc. v. Wysong & Miles Co., 132 N.C. App. 160; 166, 510 S.E.2d 690, 694, disc. rev. denied, 350 N.C. 379, 536 S.E.2d 70 (1999) (citations omitted). It is well-established that a motion pursuant to Rule 15(a) \u201cfor leave of court to amend a pleading is addressed to the sound discretion of the trial judge and the denial of such motion is not reviewable absent a clear showing of an abuse of discretion.\u201d Kinnard v. Mecklenburg Fair, Ltd., 46 N.C. App. 725, 727, 266 S.E.2d 14, 16 (citing Hudspeth v. Bunzey, 35 N.C. App. 231, 241 S.E.2d 119, cert. denied and appeal dismissed, 294 N.C. 736, 244 S.E.2d 154 (1978)), aff\u2019d, 301 N.C. 522, 524, 271 S.E.2d 909, 910 (1980) (per curiam).\nIn the case sub judice, plaintiffs filed their original complaint on 20 April 2007. On 14 January 2008, plaintiffs amended their complaint with leave of the court. In plaintiffs\u2019 original and amended complaints, plaintiffs alleged in relevant part that\n[t]he procedures followed by the Town Council at the March 20, 2007 [hearing] violated the procedural due process rights of the [plaintiffs] in that Commissioner Benson participated in the hearing, after disclosing that he was a member of the Country Club. Such membership by Commissioner Benson constituted an impermissible conflict of interest, and precluded consideration of the matter by an impartial decision-maker.\nOn 14 March 2008, defendants filed a motion for summary judgment with supporting affidavits, including an affidavit from Ted Hiley (\u201cHiley\u201d), a member of the Country Club\u2019s Board of Directors. In his affidavit, Hiley stated that after the October 2006 denial of the re-zoning proposal, the Town Council urged the Country Club to invite concerned property owners to a meeting where they could learn more about the proposed development.\nOn 20 March 2008 \u2014 one year after the events giving rise to plaintiffs\u2019 cause of action and eleven months after plaintiffs\u2019 original complaint \u2014 plaintiffs moved the trial court (1) for leave to amend their amended petition and complaint again in light of Hiley\u2019s affidavit, and (2) for a continuance to depose witnesses and secure affidavits in opposition to defendants\u2019 motion for summary judgment. Plaintiffs argued that Hiley\u2019s affidavit raised an inference of ex parte communications between the Town Council and the Country Club prior to the 20 March 2007 hearing, which may have created an improper bias.\nOn 14 April 2008, the matter came on for hearing. At the hearing, defendants\u2019 counsel argued that\n[concerning the undue prejudice argument, Your honor it\u2019s important for me to emphasize where we are in this case. Plaintiffs filed this lawsuit on April 20th last year. This Sunday will be the one-year anniversary. And until they took the depositions that they took last week[,] plaintiffs had conducted no discovery in this case, no interrogatories, no request for production, no depositions, nothing at all.\nThat\u2019s not until after we filed a motion for summary judgment on March 14 that they filed this motion to amend and noticed the depositions they took last week. Their motion to amend says that their motion is based on the [fjact that our motion for summary judgment revealed new information.\nIf that\u2019s true, I would submit that the information was new to them because plaintiffs did nothing for the first year of this case to obtain any information.\nIf you don\u2019t do any discovery],] the odds of being surprised by the defendant\u2019s motion for summary judgment is a chance that you take .... Plaintiffs have had a year to do discovery, develop their case, and figure out what their theories and allegations should be.\nOur motion for summary judgment is based on the complaint as it stands today and [it] would unduly prejudice us, Your honor to allow them to amend at this late stage.\nOn 29 May 2008, having reviewed the motion and counsels\u2019 arguments, the trial court denied plaintiffs\u2019 second motion to amend their pleadings \u201cbecause it would unduly prejudice Defendants, because Plaintiffs unduly delayed in seeking the amendment, and because the proposed amendment would be futile.\u201d On appeal, plaintiffs acknowledge that the original and amended pleadings \u201calready provided insight as to procedural irregularities that will necessarily require proof similar to that obtained in the depositions . . . .\u201d It is axiomatic that plaintiffs bear the burden of proof on their claims, and because plaintiffs admittedly were aware that discovery would clarify the issues and refine the theories, defendants should not be burdened by plaintiffs\u2019 unreasonable delay in vetting their claim. Accordingly, in light of the foregoing, we agree with the trial court, and we hold that the trial court did not abuse its discretion in denying plaintiffs\u2019 motion to further amend their pleadings.\nNext, plaintiffs argue that the trial court erred in granting defendants\u2019 motion for summary judgment because the record demonstrates that the Town Council committed procedural violations in adopting the ordinance. We agree.\n\u201cWe review a trial court\u2019s order for summary judgment de novo to determine whether there is a \u2018genuine issue of material fact\u2019 and whether either party is \u2018entitled to judgment as a matter of law.\u2019 \u201d Robins v. Town of Hillsborough, 361 N.C. 193, 196, 639 S.E.2d 421, 423 (2007) (quoting Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003) (citing N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c))).\nWe recently reiterated the well-established rule that \u201c[l]ocal governments have only powers conferred to them by the Legislature.\u201d Thrash Ltd. P\u2019ship v. County of Buncombe, 195 N.C. App. 727, 732, 673 S.E.2d 689, 693 (2009) (citing Keiger v. Board of Adjustment, 281 N.C. 715, 720, 190 S.E.2d 175, 179 (1972) and Surplus Co. v. Pleasants, 264 N.C. 650, 654, 142 S.E.2d 697, 701 (1965)). North Carolina General Statutes, section 160A-381 grants a municipality the power to regulate the uses of land within its jurisdiction \u201c[f]or the purpose of promoting health, safety, morals, or the general welfare of the community . . . .\u201d N.C. Gen. Stat. \u00a7 160A-381(a) (2007).\nSection 160A-381 further authorizes municipalities to enact regulations which allow the municipality to issue special use permits or conditional use permits \u201cin accordance with the principles, conditions, safeguards, and procedures specified therein and may impose reasonable and appropriate conditions and safeguards upon these permits.\u201d N.C. Gen. Stat. \u00a7 160A-381(c) (2007). \u201cWhen deciding special use permits or conditional use permits, the city council or planning board shall follow quasi-judicial procedures.\u201d Id. However, we have instructed that \u201c[t]he plain language of this statute does not require that local ordinances provide for the issuance of conditional use permits. The statute clearly states that a city may provide for the issuance of such permits, but it clearly does not mandate such a procedure.\u201d Massey v. City of Charlotte, 145 N.C. App. 345, 354, 550 S.E.2d 838, 845, cert. denied, 354 N.C. 219, 554 S.E.2d 342 (2001).\nNorth Carolina General Statutes, section 160A-382 allows municipalities to adopt conditional use districts. N.C. Gen. Stat. \u00a7 160A-382 (2007). In relevant part, section 160A-382 provides that\n[f]or any or all these purposes, the city may divide its territorial jurisdiction into districts of any number, shape, and area that may be deemed best suited to carry out the purposes of this Part; and within those districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair or use of buildings, structures, or land. Such districts may include, but shall not be limited to, general use districts, in which a variety of uses are permissible in accordance with general standards; overlay districts, in which additional requirements are imposed on certain properties within one or more underlying general or special use 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 and conditional zoning districts, in which site plans and individualized development conditions are imposed.\nN.C. Gen. Stat. \u00a7 160A-382 (2007).\nIn Summers v. City of Charlotte, 149 N.C. App. 509, 562 S.E.2d 18, disc. rev. denied and appeal dismissed, 355 N.C. 758, 566 S.E.2d 482 (2002), we explained that\n[z]oning is generally described as a legislative process. Conditional use zoning, as historically practiced, is a two-step process 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. More recently, however, some local governments have combined this two-step process into one proceeding, commonly referred to as conditional zoning. Under this procedure, the rezoning decision is made concurrent with approval of the site plan. This combined procedure or conditional zoning is entirely a legislative act.\nSummers, 149 N.C. App. at 516-17, 562 S.E.2d at 24 (internal citations and quotation marks omitted). We also have explained that section 160A-382 does not \u201cimpos[e] any requirement of a quasi-judicial permitting process as a prerequisite to the exercise of the [legislative] discretion granted under the statute.\u201d Massey, 145 N.C. App. at 355, 550 S.E.2d at 845.\nIn both Massey and Summers, we upheld the City of Charlotte\u2019s conditional use re-zoning as a legislative act, but we noted that the relevant ordinances did not require any quasi-judicial process. See Summers, 149 N.C. App. at 516-17, 562 S.E.2d at 24 (affirming the city\u2019s conditional use re-zoning in a single, legislative procedure); Massey, 145 N.C. App. at 352-53, 550 S.E.2d at 844 (noting that the city followed the procedural requirements set forth in its ordinance and rejecting the trial court\u2019s conclusion that the absence of a quasi-judicial element invalidated the re-zoning decision). See also Chrismon v. Guilford County, 322 N.C. 611, 638-39, 370 S.E.2d 579, 594-95 (1988) (holding \u201cthat the Board [validly exercised its legislative discretion] in this matter only after a lengthy deliberation completely consistent with both the procedure called for by the relevant zoning ordinance and the rules prohibiting illegal contract zoning\u201d).\nFurthermore, in Knight v. Town of Knightdale, 164 N.C. App. 766, 596 S.E.2d 881 (2004), we explained that\n[t]he rules applicable to the construction of statutes are equally applicable to the construction of municipal ordinances. The basic rule of statutory construction is to ascertain and effectuate the intention of the municipal legislative body. The best indicia of that intent are the language of the statute or ordinance, the spirit of the act and what the act seeks to accomplish.\nKnight, 164 N.C. App. at 769, 596 S.E.2d at 884 (internal citations and quotation marks omitted).\nIn the case sub judice, however, the Town\u2019s Zoning.Ordinance specifically required that\n[proposals for rezoning to any Conditional Use District shall always be accompanied by a request for a Conditional Use Permit. Such proposals and requests shall be processed and considered in a quasi-judicial manner.\nAny proposal for Conditional Use District rezoning and its accompanying request for a Conditional Use Permit shall be heard and considered simultaneously. If the Board of Commissioners should determine that the property involved in the proposal should be rezoned and the Conditional Use Permit issued, it shall adopt an Ordinance rezoning the property and authorizing the issuance of the Conditional Use Permit. Otherwise the proposal shall be denied.\nTown of Tryon, N.C. Zoning Ordinance art. 9, \u00a7 9.7 (2005) (emphasis added).\nIn contrast to Chrismon, Massey, and Summers, which relied upon legislative conditional use zoning, here we review the Town\u2019s exercise of its statutorily granted prerogative pursuant to North Carolina General Statutes, section 160A-381 to adopt a quasi-judicial process when conducting a consolidated hearing re-zoning proposals and conditional use permit requests. Nonetheless, our case law is clear that \u201c[zjoning and rezoning are legislative acts.\u201d Brown v. Town of Davidson, 113 N.C. App. 553, 556, 439 S.E.2d 206, 208 (1994) (citing Sherrill v. Town of Wrightsville Beach, 81 N.C. App. 369, 373, 344 S.E.2d 357, 360, disc. rev. denied and appeal dismissed, 318 N.C. 417, 349 S.E.2d 600 (1986)). See also Childress v. Yadkin County, 186 N.C. App. 30, 34, 650 S.E.2d 55, 59 (2007) (\u201cRe-zoning is considered a legislative act.\u201d) (citation omitted); Summers, 149 N.C. App. at 516-17, 562 S.E.2d at 24 (describing zoning as a legislative process).\nAt the outset of the 20 March 2007 hearing, it was explained that conditional use zoning consists of two components \u2014 a legislative, rezoning component and a quasi-judicial permitting component. Those who wished to speak at the hearing were sworn in at the beginning of the hearing \u201cin [the] interest of time and getting more information at one time.\u201d However, in Massey, we explained that a quasi-judicial hearing \u201cinvolves all due process requirementsf.]\u201d Massey, 145 N.C. App. at 349-50, 550 S.E.2d 842 (citations omitted). Therefore, we construe section 9.7 of the Town\u2019s Zoning Ordinance as a decision by the Town to employ a quasi-judicial process during hearings for conditional use zoning proposals and requests for conditional use permits as a means of (1) streamlining the introduction of evidence rather than receiving duplicative evidence in independent legislative and quasi-judicial hearings, and (2) offering the Town\u2019s residents enhanced due process protections even though the re-zoning decision ultimately remains legislative.\nAlthough Chrismon, Massey, and Summers make clear that a completely legislative process may be employed when a county or municipality seeks to use conditional use zoning, if a political subdivision chooses to adopt a consolidated quasi-judicial process in conditional use zoning, we recognize that process as another valid means to exercise the valuable flexibility conditional use zoning offers when regulating land use. Chrismon, 322 N.C. at 622, 370 S.E.2d at 586.\nNotwithstanding the Town\u2019s legislative decision to re-zone, by adoption of its ordinance, the Town bound itself to a quasi-judicial process when considering a re-zoning to Conditional Use District accompanied by a request for a Conditional Use Permit. Therefore, it was incumbent upon the superior court to\n(1) review the record for errors of law, (2) ensure that procedures specified by law in both statute and ordinance are followed, (3) ensure that appropriate due process rights of the petitioner are protected, including the right to offer evidence, cross-examine witnesses, and inspect documents; (4) ensure that the decision is supported by competent, material, and substantial evidence in the whole record; and (5) ensure that the decision is not arbitrary and capricious.\nFriends of Mt. Vernon Springs, Inc. v. Town of Siler City, 190 N.C. App. 633, 636, 660 S.E.2d 657, 660 (2008) (quoting Humane Soc\u2019y of Moore Cty., Inc. v. Town of Southern Pines, 161 N.C. App. 625, 628-29, 589 S.E.2d 162, 165 (2003)). On appeal, our task is to (1) \u201c \u2018determine whether the [superior] court exercised the proper scope of review, and (2) to review whether the [superior] court correctly applied this scope of review.\u2019 \u201d Id. (quoting Humane Soc\u2019y of Moore Cty., Inc. v. Town of Southern Pines, 161 N.C. App. 625, 628-29, 589 S.E.2d 162, 165 (2003)).\nUpon review, the trial court\u2019s order reveals that the court did not exercise the proper scope of review set forth in Friends of Mt. Vernon Springs, Inc. See id. In relevant part, the trial court\u2019s order granting defendants\u2019 motion for summary judgment stated:\nOn April 20, 2007, Plaintiffs filed this action in Polk County Superior Court seeking: (i) a declaratory judgment that the Town Council\u2019s decision to rezone TCC\u2019s property was invalid and (ii) a Writ of Certiorari for this Court to review and overturn the Town Council\u2019s quasi-judicial decision to issue the conditional use permit to TCC. This Court issued the Writ of Certiorari but, by Order dated February 14, 2008, subsequently dismissed Plaintiffs\u2019 quasi-judicial appeal of the conditional use permit.\nRemaining before this Court is Plaintiffs\u2019 declaratory judgment claim challenging the rezoning of TCC\u2019s property, and Defendants filed a March 14, 2008 Motion for Summary Judgment on that claim. On March 20, 2008, Plaintiffs filed a Motion to Amend their Amended Complaint in order to allege, among other things, that the rezoning of TCC\u2019s property was quasi-judicial in nature rather than legislative. After reviewing the Motion and considering the arguments of counsel, this Court rules that Plaintiffs\u2019 Motion to Amend should be DENIED because it would unduly prejudice Defendants, because plaintiffs unduly delayed in seeking the amendment, and because the proposed amendment would be futile.\nAnd the Court, having now considered all relevant pleadings in this matter, the affidavits and deposition transcripts submitted, the briefs submitted by each party, and the arguments made by the parties\u2019 respective counsel, determines that no genuine issue of material fact exists as to Plaintiffs\u2019 remaining claim for declaratory judgment and that Defendants are entitled to judgment in their favor as a matter of law.\nAccordingly, the order from which plaintiffs appealed is insufficient for us to perform our review as an appellate Court. See id. Therefore, we remand the matter to the trial court for imposition of the proper standard of review as set forth in Friends of Mt. Vernon Springs, Inc.\nBecause we so hold, we do not need to further address plaintiffs\u2019 remaining arguments.\nFor the foregoing reasons, the trial court\u2019s denial of plaintiffs\u2019 motion to amend their pleadings is affirmed, but the entry of summary judgment in defendants\u2019 favor is reversed, and the matter is remanded to the trial court.\nAffirmed in part; Reversed in part; Remanded.\nJudges STEPHENS and STROUD concur.\n. Issues related to plaintiffs\u2019 petition for writ of certiorari are not considered in this appeal, but are addressed in a related appeal filed contemporaneously herewith with our file number 08-642.\n. In Summers, we explained that the North Carolina General Assembly previously had enacted Session Law 2000-84 which expressly allowed the City of Charlotte \u201cto engage in conditional zoning as a legislative process.\u201d Summers, 149 N.C. App. at 512, 562 S.E.2d at 21; 2000 N.C. Sess. Laws 84, \u00a7 1(e).\n. In Massey, we noted that Session Law 2000-84 had been enacted by the time our decision was rendered, but that it had not been enacted when the proceeding had been filed. Massey, 145 N.C. App. at 347, 550 S.E.2d at 841. Accordingly, we limited our decision to the facts of the case and laws existing at the time the case had been filed. Id.", "type": "majority", "author": "JACKSON, Judge." } ], "attorneys": [ "Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Craig D. Justus; and Whitmire & Beeker, by Angela Beeker, Esq., for plaintiffs-appellants.", "Parker Poe Adams & Bernstein L.L.P., by Anthony Fox, Benjamin R. Sullivan, and Susan W. Matthews, for defendantsappellees." ], "corrections": "", "head_matter": "PHILLIP McMILLAN, JANET CONNELL, TRACY TURNER, CARROLL C. TURNER, DALE DRAKE, REGINALD DRAKE, BOBBIE WILSON, J. BRUCE WILSON, MARGARET WILSON, GEORGIA C. MARX, MELVIN MARX, JOHN EARL FOY, RUTH P. FOY, STEVE K. PERRY, KIPP COX, NANCY MADAR, PAUL MADAR, JOAN R. POST, KARL A. WILLIAMS, BARBARA A. WILLIAMS, GUNTHAM M. GERSCH, STANLEY BRIGHTWELL, ALAN LURIA, PAT RYAN, EARL A. BETTINGER, J. RANDALL GROBE, Plaintiffs v. TOWN OF TRYON, an incorporated MUNICIPALITY OF THE STATE OF NORTH CAROLINA, TOWN COUNCIL FOR THE Town of Tryon, and the TRYON COUNTRY CLUB, INC., Respondents and Defendants, Defendants\nNo. COA08-1253\n(Filed 6 October 2009)\n1. Pleadings\u2014 motion to further amend denied \u2014 undue prejudice to opposing party\nThe trial court did not abuse its discretion by denying plaintiffs\u2019 motion to further amend their pleadings to include additional allegations of a commissioner\u2019s conflict of interest and ex parte communications prior to a rezoning hearing. Plaintiffs\u2019 delay in seeking the amendment would have unduly prejudiced defendants and the proposed amendment would have been futile.\n2. Zoning\u2014 rezoning \u2014 summary judgment \u2014 scope of review\nThe trial court erred in a rezoning case by granting defendants\u2019 motion for summary judgment; the matter is remanded to the trial court for imposition of the standard of review set forth in Friends ofMt. Vernon Springs, Inc., 190 N.C. App. 633 (2008).\nAppeal by plaintiffs from an order entered 29 May 2008 by Judge J. Marlene Hyatt in Polk County Superior Court. Heard in the Court of Appeals 26 March 2009.\nVan Winkle, Buck, Wall, Starnes and Davis, P.A., by Craig D. Justus; and Whitmire & Beeker, by Angela Beeker, Esq., for plaintiffs-appellants.\nParker Poe Adams & Bernstein L.L.P., by Anthony Fox, Benjamin R. Sullivan, and Susan W. Matthews, for defendantsappellees." }, "file_name": "0228-01", "first_page_order": 254, "last_page_order": 264 }