{ "id": 4180827, "name": "JEFFREY BROOKS TEMPLETON and ELIZABETH A. COLONNA BIRD; Trustee of the ELIZABETH A. COLONNA BIRD REVOCABLE TRUST, dated August 31, 2000, Plaintiffs v. TOWN OF BOONE, Defendant", "name_abbreviation": "Templeton v. Town of Boone", "decision_date": "2010-11-16", "docket_number": "No. COA09-1332", "first_page": "50", "last_page": "70", "citations": [ { "type": "official", "cite": "208 N.C. App. 50" } ], "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": "605 S.E.2d 714", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632149 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/605/0714-01" ] }, { "cite": "673 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642963 ], "weight": 2, "year": 2009, "pin_cites": [ { "parenthetical": "\"Thrash II\"" }, { "page": "729" } ], "opinion_index": 0, "case_paths": [ "/se2d/673/0689-01" ] }, { "cite": "673 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642965 ], "weight": 2, "year": 2009, "pin_cites": [ { "parenthetical": "\"Thrash 7\"" }, { "parenthetical": "\"Thrash I\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/673/0706-01" ] }, { "cite": "654 S.E.2d 13", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640009 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "16", "parenthetical": "citation and quotation marks omitted" }, { "page": "17", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/654/0013-01" ] }, { "cite": "673 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642852 ], "year": 2009, "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/se2d/673/0145-01" ] }, { "cite": "115 L. Ed. 2d 1055", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1991, "opinion_index": 0 }, { "cite": "501 U.S. 1251", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1107681, 1108131, 1107783, 1107858, 1108178, 1108372, 1107894, 1108023, 1107672, 1108314, 1107677, 1108447 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/us/501/1251-12", "/us/501/1251-10", "/us/501/1251-07", "/us/501/1251-11", "/us/501/1251-05", "/us/501/1251-09", "/us/501/1251-06", "/us/501/1251-02", "/us/501/1251-01", "/us/501/1251-03", "/us/501/1251-08", "/us/501/1251-04" ] }, { "cite": "402 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542944, 2542610, 2544147, 2542835, 2537950 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0092-01", "/nc/328/0092-03", "/nc/328/0092-04", "/nc/328/0092-02", "/nc/328/0092-05" ] }, { "cite": "394 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "253", "parenthetical": "rejecting the plaintiff's argument that its challenge to a zoning ordinance was not barred by the statute of limitations because the defendant failed to properly notify plaintiff of impending zoning action in violation of N.C. Gen. Stat. \u00a7 160A-34" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526317 ], "year": 1990, "pin_cites": [ { "page": "80", "parenthetical": "rejecting the plaintiff's argument that its challenge to a zoning ordinance was not barred by the statute of limitations because the defendant failed to properly notify plaintiff of impending zoning action in violation of N.C. Gen. Stat. \u00a7 160A-34" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0077-01" ] }, { "cite": "462 S.E.2d 691", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "692" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 471", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916295 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/120/0471-01" ] }, { "cite": "118 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "254 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624445 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/254/0085-01" ] }, { "cite": "230 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "31 N.C. App. 648", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551825 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/31/0648-01" ] }, { "cite": "393 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 125", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2494289 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0125-01" ] }, { "cite": "435 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "112 N.C. App. 484", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522178 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/112/0484-01" ] }, { "cite": "167 N.C. App. 639", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8413186 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc-app/167/0639-01" ] }, { "cite": "520 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "795", "parenthetical": "quotation omitted" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 482", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241604 ], "year": 1999, "pin_cites": [ { "page": "485", "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0482-01" ] }, { "cite": "187 S.E.2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "42", "parenthetical": "\"The plaintiffs, owners of property in the adjoining area affected by the ordinance, are parties in interest entitled to maintain the action.\"" } ], "opinion_index": 0 }, { "cite": "280 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572863 ], "year": 1972, "pin_cites": [ { "page": "544", "parenthetical": "\"The plaintiffs, owners of property in the adjoining area affected by the ordinance, are parties in interest entitled to maintain the action.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0531-01" ] }, { "cite": "242 S.E.2d 877", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "878", "parenthetical": "\"Plaintiffs, as residents of Chowan County within the jurisdiction of the zoning powers of defendants, challenge in their complaint the legality of both actions of the Town Council and ask the court to determine their validity.\"" } ], "opinion_index": 0 }, { "cite": "294 N.C. 679", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574227 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "680", "parenthetical": "\"Plaintiffs, as residents of Chowan County within the jurisdiction of the zoning powers of defendants, challenge in their complaint the legality of both actions of the Town Council and ask the court to determine their validity.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0679-01" ] }, { "cite": "261 S.E.2d 295", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "plaintiffs, who were owners of property adjacent to property that was rezoned, succeeded in overturning the rezoning ordinance for lack of proper notice" } ], "opinion_index": 0 }, { "cite": "44 N.C. App. 611", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554607 ], "year": 1980, "pin_cites": [ { "parenthetical": "plaintiffs, who were owners of property adjacent to property that was rezoned, succeeded in overturning the rezoning ordinance for lack of proper notice" } ], "opinion_index": 0, "case_paths": [ "/nc-app/44/0611-01" ] }, { "cite": "416 S.E.2d 421", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "parenthetical": "plaintiffs, as landowners in the area of the county affected by the zoning ordinance, were allowed to challenge the ordinance on the basis of inadequate notice" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313344 ], "weight": 2, "year": 1992, "pin_cites": [ { "parenthetical": "plaintiffs, as landowners in the area of the county affected by the zoning ordinance, were allowed to challenge the ordinance on the basis of inadequate notice" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0234-01" ] }, { "cite": "195 N.C. App. 727", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4164629 ], "year": 2009, "pin_cites": [ { "parenthetical": "\"Thrash II\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0727-01" ] }, { "cite": "195 N.C. App. 678", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4164871 ], "weight": 2, "year": 2009, "pin_cites": [ { "parenthetical": "\"Thrash 7\"" }, { "parenthetical": "\"Thrash I\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0678-01" ] }, { "cite": "77 L. Ed. 2d 1328", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 3, "year": 1983, "opinion_index": 0 }, { "cite": "462 U.S. 1101", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6197409, 6197124, 6198053, 6197639, 6197864 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/462/1101-02", "/us/462/1101-01", "/us/462/1101-05", "/us/462/1101-03", "/us/462/1101-04" ] }, { "cite": "298 S.E.2d 686", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 422", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562583 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0422-01" ] }, { "cite": "358 S.E.2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 13, "year": 1987, "pin_cites": [ { "page": "441-42" }, { "page": "374" }, { "page": "442" }, { "page": "374" }, { "page": "443-44" }, { "page": "375" }, { "page": "443-44" }, { "page": "375" }, { "page": "444" }, { "page": "375" }, { "page": "375" } ], "opinion_index": 0 }, { "cite": "320 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727847 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0439-01" ] }, { "cite": "353 S.E.2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 222", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4740373 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0222-01" ] }, { "cite": "347 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4733357, 4737710, 4739538, 4737908, 4734073 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0284-04", "/nc/318/0284-02", "/nc/318/0284-05", "/nc/318/0284-03", "/nc/318/0284-01" ] }, { "cite": "344 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "73" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 56", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521348 ], "year": 1986, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0056-01" ] }, { "cite": "317 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "411", "parenthetical": "it is common learning that a correct judgment must be upheld even if entered for the wrong reason" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 551", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526654 ], "year": 1984, "pin_cites": [ { "page": "555", "parenthetical": "it is common learning that a correct judgment must be upheld even if entered for the wrong reason" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0551-01" ] }, { "cite": "105 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "pin_cites": [ { "page": "413", "parenthetical": "if correct result reached, judgment should not be disturbed even though court may not have assigned the correct reasons for the judgment entered" } ], "opinion_index": 0 }, { "cite": "249 N.C. 96", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608543 ], "year": 1958, "pin_cites": [ { "page": "99", "parenthetical": "if correct result reached, judgment should not be disturbed even though court may not have assigned the correct reasons for the judgment entered" } ], "opinion_index": 0, "case_paths": [ "/nc/249/0096-01" ] }, { "cite": "257 S.E.2d 109", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "113" } ], "opinion_index": 0 }, { "cite": "42 N.C. App. 515", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555021 ], "year": 1979, "pin_cites": [ { "page": "519" } ], "opinion_index": 0, "case_paths": [ "/nc-app/42/0515-01" ] }, { "cite": "522 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1999, "pin_cites": [ { "page": "785", "parenthetical": "citation omitted" }, { "page": "785" }, { "page": "785" }, { "page": "785" }, { "page": "785" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 734", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11242869 ], "weight": 5, "year": 1999, "pin_cites": [ { "page": "739", "parenthetical": "citation omitted" }, { "page": "739" }, { "page": "739" }, { "page": "739" }, { "page": "739" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0734-01" ] }, { "cite": "187 N.C. App. 491", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375024 ], "year": 2007, "pin_cites": [ { "page": "494", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0491-01" ] }, { "cite": "577 S.E.2d 628", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "356 N.C. 675", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511527, 1511629, 1511511, 1511639, 1511292 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/356/0675-01", "/nc/356/0675-02", "/nc/356/0675-03", "/nc/356/0675-05", "/nc/356/0675-04" ] }, { "cite": "574 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "51", "parenthetical": "citation omitted" }, { "page": "51" }, { "page": "51" }, { "page": "51" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249087 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "113", "parenthetical": "citation omitted" }, { "page": "113" }, { "page": "113" }, { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0110-01" ] }, { "cite": "669 S.E.2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2008, "pin_cites": [ { "page": "283" }, { "page": "283" } ], "opinion_index": 0 }, { "cite": "362 N.C. 640", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150246 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "644" }, { "page": "644" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0640-01" ] }, { "cite": "684 S.E.2d 709", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "714", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "195 N.C. App. 583", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4165370 ], "year": 2009, "pin_cites": [ { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0583-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "498 U.S. 1120", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6569408, 6569441, 6569344, 6569509, 6569322, 6569358, 6569486, 6569457, 6569428, 6569525, 6569333, 6569372, 6569308 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/us/498/1120-07", "/us/498/1120-09", "/us/498/1120-04", "/us/498/1120-12", "/us/498/1120-02", "/us/498/1120-05", "/us/498/1120-11", "/us/498/1120-10", "/us/498/1120-08", "/us/498/1120-13", "/us/498/1120-03", "/us/498/1120-06", "/us/498/1120-01" ] }, { "cite": "673 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642963 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "692" }, { "page": "731" } ], "opinion_index": 1, "case_paths": [ "/se2d/673/0689-01" ] }, { "cite": "1995 N.C. Sess. Laws 746", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 1 }, { "cite": "261 S.E.2d 205", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "206-07" } ], "opinion_index": 1 }, { "cite": "44 N.C. App. 495", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553898 ], "year": 1980, "pin_cites": [ { "page": "496-97" } ], "opinion_index": 1, "case_paths": [ "/nc-app/44/0495-01" ] }, { "cite": "485 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 13427 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "11", "parenthetical": "addressing facial challenge" }, { "page": "14", "parenthetical": "addressing facial challenge" }, { "parenthetical": "addressing facial challenge" }, { "page": "65" } ], "opinion_index": 1, "case_paths": [ "/us/485/0001-01" ] }, { "cite": "111 S. Ct. 1073", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 6506825 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/br/123/1073-01" ] }, { "cite": "112 L. Ed. 2d 1179", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1991, "opinion_index": 1 }, { "cite": "908 F.2d 716", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10539032 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/f2d/908/0716-01" ] }, { "cite": "485 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 1 }, { "cite": "346 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139358 ], "year": 1997, "opinion_index": 1, "case_paths": [ "/nc/346/0259-01" ] }, { "cite": "479 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "225" }, { "page": "226", "parenthetical": "Greene, J., dissenting" }, { "parenthetical": "Greene, J., dissenting" }, { "page": "225-26", "parenthetical": "Greene, J., dissenting" } ], "opinion_index": 1 }, { "cite": "125 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11865149 ], "year": 1997, "pin_cites": [ { "page": "64-65" } ], "opinion_index": 1, "case_paths": [ "/nc-app/125/0057-01" ] }, { "cite": "227 S.E.2d 576", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "583" }, { "page": "582", "parenthetical": "\"The General Assembly has delegated to 'the legislative body' of cities and incorporated towns the power to adopt zoning regulations and from time to time, to amend or repeal such regulations.\"" } ], "opinion_index": 1 }, { "cite": "290 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562814 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "620" }, { "page": "618", "parenthetical": "\"The General Assembly has delegated to 'the legislative body' of cities and incorporated towns the power to adopt zoning regulations and from time to time, to amend or repeal such regulations.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/290/0608-01" ] }, { "cite": "94 S.E.2d 482", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "485" } ], "opinion_index": 1 }, { "cite": "244 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219601 ], "year": 1956, "pin_cites": [ { "page": "500" } ], "opinion_index": 1, "case_paths": [ "/nc/244/0497-01" ] }, { "cite": "446 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "297" } ], "opinion_index": 1 }, { "cite": "337 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552615 ], "year": 1994, "pin_cites": [ { "page": "162" } ], "opinion_index": 1, "case_paths": [ "/nc/337/0150-01" ] }, { "cite": "349 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 1 }, { "cite": "318 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732777, 4738513, 4738804, 4734109, 4737790 ], "year": 1986, "opinion_index": 1, "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, "opinion_index": 1 }, { "cite": "81 N.C. App. 369", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523145 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/nc-app/81/0369-01" ] }, { "cite": "42 U.S.C.S. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "opinion_index": 1 }, { "cite": "471 U.S. 261", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6201048 ], "weight": 3, "year": 1985, "opinion_index": 1, "case_paths": [ "/us/471/0261-01" ] }, { "cite": "115 L. Ed. 2d 1055", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1991, "opinion_index": 1 }, { "cite": "501 U.S. 1251", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1107681, 1108131, 1107783, 1107858, 1108178, 1108372, 1107894, 1108023, 1107672, 1108314, 1107677, 1108447 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/us/501/1251-12", "/us/501/1251-10", "/us/501/1251-07", "/us/501/1251-11", "/us/501/1251-05", "/us/501/1251-09", "/us/501/1251-06", "/us/501/1251-02", "/us/501/1251-01", "/us/501/1251-03", "/us/501/1251-08", "/us/501/1251-04" ] }, { "cite": "402 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 1 }, { "cite": "328 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542944, 2542610, 2544147, 2542835, 2537950 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/nc/328/0092-01", "/nc/328/0092-03", "/nc/328/0092-04", "/nc/328/0092-02", "/nc/328/0092-05" ] }, { "cite": "394 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "page": "253" }, { "page": "253" }, { "page": "253-54" }, { "page": "253" } ], "opinion_index": 1 }, { "cite": "100 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526317 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "80" }, { "page": "80" } ], "opinion_index": 1, "case_paths": [ "/nc-app/100/0077-01" ] }, { "cite": "462 S.E.2d 691", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "692", "parenthetical": "citing Pinehurst Area Realty, 100 N.C. App. at 80, 394 S.E.2d at 253" } ], "opinion_index": 1 }, { "cite": "120 N.C. App. 471", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916295 ], "year": 1995, "pin_cites": [ { "page": "473", "parenthetical": "citing Pinehurst Area Realty, 100 N.C. App. at 80, 394 S.E.2d at 253" } ], "opinion_index": 1, "case_paths": [ "/nc-app/120/0471-01" ] }, { "cite": "520 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "795", "parenthetical": "quoting Taylor v. City of Raleigh, 290 N.C. 608, 620, 227 S.E.2d 576, 583 (1976)" } ], "opinion_index": 1 }, { "cite": "135 N.C. App. 482", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241604 ], "year": 1999, "pin_cites": [ { "page": "485", "parenthetical": "quoting Taylor v. City of Raleigh, 290 N.C. 608, 620, 227 S.E.2d 576, 583 (1976)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/135/0482-01" ] }, { "cite": "195 N.C. App. 727", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4164629 ], "year": 2009, "pin_cites": [ { "page": "730-31" } ], "opinion_index": 1, "case_paths": [ "/nc-app/195/0727-01" ] }, { "cite": "358 S.E.2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1987, "pin_cites": [ { "page": "375" }, { "page": "442-43" }, { "page": "374-75" } ], "opinion_index": 1 }, { "cite": "320 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727847 ], "year": 1987, "pin_cites": [ { "page": "444" } ], "opinion_index": 1, "case_paths": [ "/nc/320/0439-01" ] } ], "analysis": { "cardinality": 1422, "char_count": 52232, "ocr_confidence": 0.751, "pagerank": { "raw": 6.265060617006484e-08, "percentile": 0.38657253762671107 }, "sha256": "2abe7f086af30fcd89a4524c5e85c3ef3bf7a08ba01ae54fd5ecec4fdf2e6cec", "simhash": "1:a3896432edff2452", "word_count": 8241 }, "last_updated": "2023-07-14T21:19:36.775795+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ELMORE concurs.", "Judge JACKSON concurs in part and dissents in part in a separate opinion." ], "parties": [ "JEFFREY BROOKS TEMPLETON and ELIZABETH A. COLONNA BIRD; Trustee of the ELIZABETH A. COLONNA BIRD REVOCABLE TRUST, dated August 31, 2000, Plaintiffs v. TOWN OF BOONE, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nJeffrey Brooks Templeton and Elizabeth A. Colonna Bird, trustee of the Elizabeth A. Colonna Bird Revocable Trust, (referred to collectively as \u201cplaintiffs\u201d) appeal from a trial court\u2019s order in favor of the Town of Boone (\u201cdefendant\u201d) dismissing their complaint with prejudice \u201cfor failure to state a claim upon which relief can be granted[.]\u201d For the following reasons, we affirm the trial court\u2019s dismissal of plaintiffs\u2019 claims.\nI. Background\nPlaintiffs\u2019 complaint alleged the following: On 21 April 2005, the Boone Town Council adopted a resolution to form a task force to \u201cStudy Issues Relating to Development of Steep Slopes and MultiFamily Housing\u201d in order \u201cto work with town staff to develop a recommended strategy relating to the future development of steep slopes and large multi-family housing projects.\u201d The task force prepared a recommended \u201czoning map and text amendments\u201d to the town\u2019s Unified Development Ordinance. These recommendations resulted in a proposal for the Steep Slope Ordinance and the Viewshed Protection Ordinance amendments (\u201cthe subject zoning ordinance amendments\u201d), which the Boone Town Council adopted on 2 October 2006.\nPlaintiffs allege they are owners of real property \u201clocated in, and subject to, the zoning and extraterritorial zoning jurisdiction of the Town of Boone[,]\u201d and are \u201cdirectly and adversely affected\u201d \u201cby the zoning ordinances adopted by the Town of Boone.\u201d Plaintiff Bird was notified by letter from the Town of Boone that property owned by the Elizabeth A. Colonna Bird Revocable Trust was located within that area that would be affected by the proposed ordinance amendments. However, upon inspection of the Viewshed Protection Map, she determined that the trust property was not within the Viewshed area. Plaintiffs allege that without notice to plaintiff Bird or a change in the Viewshed Protection Map, the town improperly subjected the trust property to the Viewshed Protection Ordinance.\nOn 31 November 2006, plaintiff Templeton commenced this action against defendant by filing an \u201cApplication and Order extending time to file Complaint.\u201d On 21 December 2006, plaintiff Templeton and nine other plaintiffs, not including plaintiff Bird, filed a complaint in Superior Court, Watauga County against defendant alleging that the adoption of the subject ordinance amendments was a violation of plaintiffs\u2019 Constitutional substantive due process rights; a violation of plaintiffs\u2019 civil rights pursuant to 42 U.S.C. \u00a7 1983; an unlawful rezoning and limitation of the use of property; an inverse condemnation/unlawful taking; arbitrary and capricious; and an unlawful preemption of state building code. Plaintiffs sought a declaratory judgment and injunctive relief. This complaint was removed to the United States District Court for the Western District of North Carolina by defendants. Plaintiffs then amended their complaint and it was remanded to Superior Court, Watauga County; defendant filed a motion to dismiss; and on 8 October 2007, plaintiff Templeton and the other nine plaintiffs filed a \u201cNotice of Voluntary Dismissal\u201d without prejudice.\nOn 7 October 2008, plaintiffs Templeton and Bird filed the complaint which is the subject of this appeal in Superior Court, Watauga County. In plaintiffs\u2019 first two claims they request a declaratory judgment that the subject zoning ordinance amendments be declared \u201cfacially defective, vague and unenforceable[;]\u201d because (1) the ordinances give \u201c[u]nbridled, unqualified authority and discretion\u201d to the Town\u2019s staff \u201cin excess of the Town\u2019s legislative authority[;]\u201d (2) the ordinances amount to a violation of plaintiffs\u2019 procedural due process rights as (a) the ordinances fail to give notice as to which properties are affected by them, and (b) the procedures used by defendant to enact the ordinances failed to give proper notice to plaintiffs in violation of town ordinances and state law; (3) the ordinances amount to a violation of plaintiffs\u2019 substantive due process rights as (a) they are vague and unenforceable, (b) arbitrary and capricious, (c) unreasonable, (d) overreaching, and (e) were enacted in bad faith; (4) the Viewshed Protection Ordinance amounts to an unconstitutional taking;'and (5) the Steep Slope Ordinance unlawfully preempts state building codes. In plaintiffs\u2019 additional claims they allege that defendant\u2019s \u201cunlawful adoption\u201d of the subject zoning ordinance amendments \u201cchanged the zoning and use of Plaintiffs\u2019 land, and the lands of all persons who own property in the Town of Boone or its ETJ area[,]\u201d and the subject zoning ordinance amendments are a violation of plaintiffs\u2019 rights under Article I, \u00a7 19 of the North Carolina Constitution as they amount to a \u201cdeprivation of their rights and privileges as property owners[.]\u201d On 18 May 2009, defendant filed a motion to dismiss plaintiffs\u2019 suit pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6), Rule 12(b)(1), and Rule 12(c). On 10 June 2009, the trial court granted defendant\u2019s motion to dismiss \u201cfor failure to state a claim upon which relief can be granted[.]\u201d Plaintiffs appealed.\nOn appeal plaintiffs bring forth substantive arguments as to the statute of limitations, substantive due process, procedural due process, statutory claims, and arguments addressing standing. As \u201c[standing is a necessary prerequisite to a court\u2019s proper exercise of subject matter jurisdictionf,]\u201d Perdue v. Fuqua, 195 N.C. App. 583, 585, 673 S.E.2d 145, 147 (2009), we first review plaintiffs\u2019 standing to bring this suit.\nII. Standing\nA. Standard of Review\nThis Court has held that \u201c[a] ruling on a motion to dismiss for want of standing is reviewed de novo.\u201d Metcalf v. Black Dog Realty, LLC, - N.C. App. -, -, 684 S.E.2d 709, 714 (2009) (citation omitted). \u201cIn our de novo review of a motion to dismiss for lack of standing, we view the allegations as true and the supporting record in the light most favorable to the non-moving party.\u201d Mangum v. Raleigh Bd. of Adjustment, 362 N.C. 640, 644, 669 S.E.2d 279, 283 (2008). The party invoking jurisdiction has the burden of establishing standing. Neuse River Found. v. Smithfield Foods, 155 N.C. App. 110, 113, 574 S.E.2d 48, 51 (2002) (citation omitted), disc. review denied, 356 N.C. 675, 577 S.E.2d 628 (2003). The elements of standing are:\n(1) \u2018injury in fact\u2019-\u2014an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;\n(2) the injury is fairly traceable to the challenged action of the defendant;\n(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.\nMarriott v. Chatham County, 187 N.C. App. 491, 494, 654 S.E.2d 13, 16 (2007) (citation and quotation marks omitted). \u201cIf a party does not have standing to bring a claim, a court has no subject matter jurisdiction to hear the claim.\u201d Id. at 496, 654 S.E.2d at 17 (citation and quotation marks omitted). \u201cIf a court finds at any stage of the proceedings that it lacks jurisdiction over the subject matter of a case, it must dismiss the case for want of jurisdiction.\u201d State v. Linemann, 135 N.C. App. 734, 739, 522 S.E.2d 781, 785 (1999) (citation omitted).\nPlaintiffs first contend that \u201cthe trial court erred in granting defendants\u2019 motion to dismiss pursuant to Rule 12(b)(1) of the Rules of Civil Procedure on the grounds that plaintiffs pled sufficient facts demonstrating that they have standing and the trial court has subject-matter jurisdiction.\u201d However, it appears that the trial court based its order dismissing plaintiffs\u2019 claims on N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) (2005) (\u201cFailure to state a claim upon which relief can be granted\u201d), not N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(1) (\u201cLack of jurisdiction over the subject matter\u201d). This Court has held that even if dismissal was for the wrong reason,\na trial court\u2019s \u2018ruling must be upheld if it is correct upon any theory of law[,]\u2019 and thus it should \u2018not be set aside merely because the court gives a wrong or insufficient reason for [it].\u2019 Manpower, Inc. v. Hedgecock, 42 N.C. App. 515, 519, 257 S.E.2d 109, 113 (1979). See also Sanitary District v. Lenoir, 249 N.C. 96, 99, 105 S.E.2d 411, 413 (1958) (if correct result reached, judgment should not be disturbed even though court may not have assigned the correct reasons for the judgment entered); Payne v. Buffalo Reinsurance Co., 69 N.C. App. 551, 555, 317 S.E.2d 408, 411 (1984) (it is common learning that a correct judgment must be upheld even if entered for the wrong reason).\nOpsahl v. Pinehurst Inc., 81 N.C. App. 56, 63, 344 S.E.2d 68, 73, cert. granted, 318 N.C. 284, 347 S.E.2d 465 (1986), disc. review improvidently allowed, 319 N.C. 222, 353 S.E.2d 400 (1987). Therefore, we must determine whether the trial court\u2019s dismissal of plaintiffs\u2019 claims was \u201ccorrect upon any theory of law[.]\u201d See id. First, we address whether the trial court could have dismissed plaintiffs\u2019 complaint for lack of standing. Plaintiffs brought constitutional claims and statutory challenges to the subject zoning ordinance amendments. We will first address the issue of standing as to plaintiffs\u2019 constitutional claims.\nB. Standing for Plaintiffs\u2019 Constitutional Challenges\nPlaintiffs argue that they have standing to bring constitutional challenges to the subject zoning ordinance amendments as they have sufficiently alleged an \u201cimminent danger\u201d from the application of those ordinances to their property interests. Defendant, citing Grace Baptist Church v. Oxford, 320 N.C. 439, 358 S.E.2d 372 (1987), contends that to challenge the constitutionality of a zoning ordinance, the plaintiff must allege evidence that he has sustained an injury or is in immediate danger of sustaining an injury as a result of enforcement of the subject ordinances. Defendant concludes that there is no allegation by plaintiffs of an immediate danger of sustaining an injury because \u201cthere is no factual allegation in the Complaint. .. indicating that the Town enforced or attempted to enforce the Ordinances against [plaintiff] Templeton.\u201d\nIn Grace, the plaintiff brought an action against the defendant-city alleging \u201cthat portions of the Oxford ordinance of 1970\u201d that regulated the size of signs and required paved off-street parking \u201cwere unlawful in that they deprived appellant of due process of law and denied it equal protection of the law.\u201d Id. at 441-42, 358 S.E.2d at 374. On the defendant-city\u2019s motion to dismiss, the trial court declared that the ordinance requiring paved off-street parking was constitutional on its face and as applied. Id. at 442, 358 S.E.2d at 374. The plaintiff appealed, but \u201cthe Court of Appeals did not address the question of whether the challenged ordinance had been selectively enforced, inasmuch as it found that no enforcement action had been brought against appellant.\u201d Id. On appeal from this Court, to our Supreme Court, the plaintiff argued that the city ordinance was facially unconstitutional and \u201cviolated the equal protection clause of the fourteenth amendment because it was selectively enforced against the church.\u201d Id. at 443-44, 358 S.E.2d at 375. The Court held that the challenged ordinance was facially constitutional and found that the Court of Appeals erred in declining to address the question of whether the ordinance, as applied, was selectively enforced against the appellant. Id. at 443-44, 358 S.E.2d at 375. The Court held that \u201c[i]n order to challenge the constitutionality of an ordinance, a litigant must produce evidence that he has sustained an injury or is in immediate danger of sustaining an injury as a result of enforcement of the challenged ordinance.\u201d Id. at 444, 358 S.E.2d at 375. (citing Town of Atlantic Beach v. Young, 307 N.C. 422, 298 S.E.2d 686, appeal dismissed, 462 U.S. 1101, 77 L. Ed. 2d 1328 (1983)). The Court, in applying this rule, held that the plaintiff\u2019s complaint, alleging that the defendant-city intended to require it to pave its parking lot, in itself did not confer standing. Id. However, the Court held that when combined with the defendant-city\u2019s answer, which asked the court to order the church to immediately cease use of its property until \u201cthey are in compliance with the said Ordinance [,]\u201d and the trial court\u2019s finding that the defendant-city, \u201cat the commencement of this action and presently,\u201d intends to enforce the provision requiring paved parking lots, \u201cthe church was in immediate danger of sustaining injury\u201d and thus \u201chad standing to challenge the constitutionality of the ordinance.\u201d Id.\nHere, plaintiffs brought several constitutional claims alleging that the subject zoning ordinance amendments amounted to violations of plaintiffs rights under procedural due process, substantive due process, an unconstitutional taking of property, and a violation of their rights \u201cto use their land\u201d pursuant to Article 1, Section 19 of the North Carolina Constitution.\u201d However, there is no allegation in plaintiffs\u2019 complaint indicating that defendant enforced or attempted to enforce the subject zoning ordinance amendments against either plaintiff Templeton or plaintiff Bird. Plaintiffs\u2019 complaint simply states that plaintiffs own or have an interest in property within an area of town that will be affected by the subject zoning ordinance amendments. Without an allegation that the subject zoning ordinance amendments will be or have been enforced against property owned by plaintiffs, plaintiffs have failed to demonstrate that they have \u201csustained an injury or [are] in immediate danger of sustaining an injury\u201d from enforcement of the ordinance amendments against them. See id. at 444, 358 S.E.2d at 375. Therefore, plaintiffs failed to carry their burden to make sufficient allegations to establish standing to bring their constitutional claims against defendant. Neuse River Found., 155 N.C. App. at 113, 574 S.E.2d at 51. Accordingly, we affirm the trial court\u2019s dismissal of plaintiffs\u2019 constitutional claims. Linemann, 135 N.C. App. at 739, 522 S.E.2d at 785.\nC. Standing for Statutory Challenges\nPlaintiffs, citing Thrash Ltd. Partnership v. County of Buncombe, 195 N.C. App. 678, 673 S.E.2d 706 (2009) (\u201cThrash 7\u201d), argue that they have standing to bring statutory challenges alleging that defendant failed to follow proper procedures as to how it enacted the subject zoning ordinance amendments. Defendant counters that plaintiff Templeton does not have standing to bring his statutory claims because he failed to allege sufficient facts to show that he owns property in an area affected by the subject zoning ordinance amendments.\nWe note that in Thrash I the disputed ordinance was a countywide zoning ordinance and the location of the plaintiffs\u2019 property was not at issue as every property in the County was affected by the ordinance. 195 N.C. App. at 680, 673 S.E.2d at 708. Here, unlike Thrash I, the subject zoning ordinance amendments are not county-wide amendments, but ordinance amendments that are applicable only to properties located within 100 feet from major traffic corridors within the county or that have a slope value of 30% or greater. In Thrash Ltd. Partnership v. County of Buncombe, 195 N.C. App. 727, 673 S.E.2d 689 (2009) (\"Thrash II\"), a related case involving the same parties as Thrash I, this Court addressed the issue of standing in the context of statutory procedural challenges to the defendant-county\u2019s property elevation restriction ordinance which was only applicable to those properties located more than 2500 feet above sea level.\nIn Thrash II, the plaintiff filed a declaratory judgment action alleging that the defendant-county did not follow the proper \u201cprerequisite statutory requirements\u201d when it adopted the \u201cMulti-Family Dwelling Ordinance\u201d which set \u201crules for properties located above 2500 feet above sea level,\u201d and \u201cfor properties located 3000 feet above sea level.\u201d Id. at 729, 673 S.E.2d at 691. The ordinance did not apply to properties located below 2500 feet above sea level. Id. On a summary judgment motion, the defendant-county argued that the plaintiffs did not have standing to challenge the ordinance. Id. The trial court held that the plaintiffs had standing but granted summary judgment in favor of the defendant-county. Id. Defendant-county cross-appealed the trial court\u2019s ruling on standing. Id. This Court held that\nlandowners in the area of a county affected by a zoning ordinance are allowed to challenge the ordinance on the basis of procedural defects in the enactment of such ordinances. See Frizzelle v. Harnett County, 106 N.C. App. 234, 416 S.E.2d 421 (1992) (plaintiffs, as landowners in the area of the county affected by the zoning ordinance, were allowed to challenge the ordinance on the basis of inadequate notice); Lee v. Simpson, 44 N.C. App. 611, 261 S.E.2d 295 (1980) (plaintiffs, who were owners of property adjacent to property that was rezoned, succeeded in overturning the rezoning ordinance for lack of proper notice); George v. Town of Edenton, 294 N.C. 679, 680, 242 S.E.2d 877, 878 (1978) (\u201cPlaintiffs, as residents of Chowan County within the jurisdiction of the zoning powers of defendants, challenge in their complaint the legality of both actions of the Town Council and ask the court to determine their validity.\u201d); Blades v. City of Raleigh, 280 N.C. 531, 544, 187 S.E.2d 35, 42 (1972) (\u201cThe plaintiffs, owners of property in the adjoining area affected by the ordinance, are parties in interest entitled to maintain the action.\u201d).\nId. at 730, 673 S.E.2d at 691-92. As the location of the plaintiffs\u2019 property was relevant, the Court held that\n\u2018[a] party has standing to challenge a zoning ordinance in an action for declaratory judgment only when it \u2018has a specific personal and legal interest in the subject matter affected by the zoning ordinance and ... is directly and adversely affected thereby.\u201d Village Creek Prop. Owners Ass\u2019n v. Town of Edenton, 135 N.C. App. 482, 485, 520 S.E.2d 793, 795 (1999) (quotation omitted).\nId. at 731, 673 S.E.2d at 692. In applying this rule to determine if the plaintiffs had standing to bring their statutory challenges, the Court then analyzed whether plaintiffs were in an area \u201cdirectly and adversely affected\u201d by the \u201cMulti-Family Dwelling Ordinance[:]\u201d\nThe Multi-Family Dwelling Ordinance contains regulations of land which are contingent upon the elevation and use of the land. Plaintiff\u2019s land is located at an elevation above 2500 feet above sea level, and is suitable for multi-family dwelling use. Therefore, plaintiff\u2019s use of its land was limited by the zoning regulations.\nWe hold that plaintiff has standing to challenge the validity of the Multi-Family Dwelling Ordinance.\nId.\nHere, plaintiffs make several statutory challenges to the procedures defendant used to enact the subject zoning ordinances. As to the Viewshed Protection Ordinance (\u201cVPO\u201d), plaintiffs in their first claim made the following allegations challenging defendant\u2019s procedure in enacting this amendment to the town\u2019s Unified Development Ordinance (\u201cUDO\u201d):\ni. Adoption of the VPO amounted to substantial amendments to the UDO. The notices that preceded the September 25, 2006 public hearing, which formed the basis for the said amendments were fatally defective.\nii. The changes to the text of the VPO made after the September 14, 2006 public hearing were substantial enough to require new notice in accordance with the provisions of N.C.G.S. \u00a7 160A-364 and Town of Boone Ordinance \u00a7 21-380[c],\niii. In violation of the provisions of Town of Boone Ordinance \u00a7 21-380[d], the changes made to the August 24, 2006 Viewshed Protection Map after the September 14, 2006 public hearing were not made available until the time of [the] public hearing on September 25, 2006. The new map included properties not depicted on the August 24 map.\niv. In violation of Boone Ordinance \u00a7 21-379, the Town failed to provide to the public the analysis of the ordinances to determine compliance with the Comprehensive Plan ....\nAs to the Steep Slope Protection Ordinance (\u201cSSPO\u201d), plaintiffs made the following allegations challenging defendant\u2019s procedure in enacting this zoning ordinance amendment:\ni. Adoption of the SSPO amounted to substantial amendments to the UDO. The notices that preceded the September 25, 2006 public hearing, which formed the basis for the said amendments were fatally defective.\nii. In violation of N.C.G.S. \u00a7 160A-364 and Town of Boone Ordinance \u00a7 21-380[c], the changes made to the texts of the SSPO after the public hearing were substantial enough to require new notice;\niii. The changes made in the Steep Slope text after the September 14, 2006 public hearing were not made available until the time of public hearing dated September 25, 2006;\niv. The Defendant failed to provide to the public the analysis of the ordinances to determine compliance with the Comprehensive Plan as required by Town of Boone Ordinance \u00a7 21-379.\nHere, contrary to the facts in Thrash II, we cannot determine from plaintiffs\u2019 complaint whether the Viewshed Protection Ordinance \u201cdirectly and adversely affect[s]\u201d, the property owned by plaintiff Templeton. See id. The Viewshed Protection Ordinance is applicable only to properties located \u201cmore than 100 feet above the nearest major traffic corridor\u201d and which can be seen from a major traffic corridor \u201cduring any season of the year . . . .\u201d Even though plaintiffs\u2019 complaint alleges that plaintiff Templeton is the owner of real property \u201caffected by the zoning ordinances adopted by the Town of Boone which are subject of this action and he is directly and adversely affected thereby[,]\u201d the complaint makes no specific allegation that plaintiff Templeton\u2019s property is located within 100 feet of a major traffic corridor or that any portion of his property could be seen from a major traffic corridor. Therefore, unlike Thrash II, plaintiffs\u2019 complaint does not make factual allegations which would support a finding that plaintiff Templeton\u2019s property is \u201cdirectly and adversely affected!,]\u201d see id, by the Viewshed Protection Ordinance. Accordingly, we hold that plaintiff Templeton has not made sufficient allegations to carry his burden of establishing standing to bring his statutory claims against the Viewshed Protection Ordinance adopted by defendant, Neuse River Found., 155 N.C. App. at 113, 574 S.E.2d at 51, and those claims were properly dismissed by the trial court. Linemann, 135 N.C. App. at 739, 522 S.E.2d at 785.\nAs to plaintiff Bird, plaintiffs\u2019 complaint does allege that the Viewshed Protection Ordinance affects the trust property, as it alleges that \u201cthe Town subjected the trust property to the onerous regulations of the Viewshed Ordinance Map.\u201d Taking this allegation as true, Mangum, 362 N.C. at 644, 669 S.E.2d at 283, the trust property must be located within 100 feet of a major traffic corridor or a portion of the trust property can be seen from a major traffic corridor. Therefore, we hold that this allegation is sufficient to establish that the trust property is \u201cdirectly and adversely affected\u201d by the Viewshed Protection Ordinance, see Thrash II, 195 N.C. App. at 731, 673 S.E.2d at 692, and to give plaintiff Bird standing to bring her statutory claims against the Viewshed Protection Ordinance adopted by defendant.\nThe Steep Slope Ordinance is only applicable to properties with a slope value of 30% or greater. Plaintiffs\u2019 complaint makes no allegation that the slope value of the property owned by plaintiff Templeton or plaintiff Bird is 30% or greater and subject to this ordinance. Accordingly, plaintiffs failed to carry their burden to establish standing to bring a statutory claim against the Steep Slope Ordinance adopted by defendant, Neuse River Found., 155 N.C. App. at 113, 574 S.E.2d at 51, and those claims were properly dismissed by the trial court. Linemann, 135 N.C. App. at 739, 522 S.E.2d at 785.\nIn addition to the above statutory procedural challenges, plaintiffs also alleged that the subject zoning ordinance amendments unlawfully preempt \u201cregulation reserved by our legislature to the North Carolina State Building Code Council, in violation of NCGS \u00a7143-138(e)[,]\u201d and established standards for the exercise of authority and discretion in excess of defendant\u2019s \u201clegislative authority!.]\u201d As there is an allegation that the trust property was \u201csubjected to\u201d the Viewshed Protection Ordinance, plaintiffs\u2019 complaint makes sufficient allegations for plaintiff Bird to have standing to bring further statutory challenges to the Viewshed Protection Ordinance. See Thrash II, 195 N.C. App. at 731, 673 S.E.2d at 692. As stated above, plaintiffs\u2019 complaint does not give either plaintiff standing to make any further statutory challenges against the subject zoning ordinance amendments, and those claims were also properly dismissed by the trial court. Linemann, 785.\nPlaintiffs in their complaint allege that defendant\u2019s \u201cunlawful adoption\u201d of the subject zoning ordinance amendments \u201cchanged the zoning and use of Plaintiffs\u2019 land, and the lands of all persons who own property in the Town of Boone or its ETJ area.\u201d This claim does not allege a particular statutory or constitutional reason that the defendant\u2019s adoption of the subject zoning ordinance amendments was \u201cunlawful[.]\u201d Adoption of zoning ordinances in accordance with the governing statutes is clearly not \u201cunlawful[;]\u201d N.C. Gen. Stat. \u00a7 160A-381 (2005) permits a municipality to pass a zoning ordinance that changes the use of a landowner\u2019s property and N.C. Gen. Stat. \u00a7 160A-385 (2005) allows a municipality to supplement or change those zoning ordinances. Therefore, plaintiffs\u2019 claim could be interpreted as alleging that the amendments were \u201cunlawfully] \u201d adopted in that defendant failed to follow proper statutory procedures, as already discussed above. Plaintiffs\u2019 claim could also be interpreted as alleging an unlawful limitation to the use of plaintiffs\u2019 property, which could be a constitutional claim. It is thus unclear whether this claim is a statutory or constitutional claim, as the subject zoning ordinance amendments could be \u201cunlawful\u201d because their adoption violated the statutory scheme governing zoning changes in Chapter 160A of our General Statutes, see N.C. Gen. Stat. \u00a7\u00a7 160A-381 to 160A-392 (2005), or amounted to a violation of plaintiffs\u2019 rights under the North Carolina Constitution or the United States Constitution. In any event, plaintiffs failed to bring sufficient allegations to establish standing to bring their constitutional claims against defendant, and any constitutional allegations in plaintiffs\u2019 claim were properly dismissed. As to any statutory claims that the subject zoning ordinance amendments or their adoption was \u201cunlawful\u201d in this claim, only plaintiff Bird would have standing to bring statutory claims against the Viewshed Protection Ordinance. Any other statutory claims in plaintiffs complaint were properly dismissed by the trial court. Linemann, 135 N.C. App. at 739, 522 S.E.2d at 785. Therefore, we conclude that plaintiff Templeton does not have standing to bring a constitutional or statutory claim against defendant; plaintiff Bird failed to allege facts sufficient to have standing to bring constitutional claims or a statutory claim against defendant to challenge the Steep Slope Ordinance. However, plaintiff Bird does have standing to bring a statutory challenge against the Viewshed Protection Ordinance including the enactment procedures defendant used, whether this zoning amendment is preempted by state law, whether it grants authority and discretion in excess of defendant\u2019s statutory authority, or if its amounts to \u201cunlawful\u201d zoning.\nIII. Statute of Limitations\nPlaintiffs contend next that \u201cthe trial court erred in granting defendant\u2019s motion to dismiss pursuant to Rule 12(b)(6)\u201d as plaintiff Bird\u2019s claims are not barred by the applicable statute of limitations. Defendant counters that \u201c[u]nder the clear language of the statute of limitations and case law, Bird\u2019s claims are barred by the two-month statute of limitations.\u201d\nN.C. Gen. Stat. \u00a7 160A-364.1 (2005) states that \u201c[a] cause of action as to the validity of any zoning ordinance, or amendment thereto, adopted under this Article or other applicable law shall accrue upon adoption of the ordinance, or amendment thereto, and shall be brought within two months as provided in G.S. 1-54.1.\u201d (emphasis added). Here, plaintiffs alleged that defendant adopted the subject zoning ordinance amendments on 2 October 2006. Plaintiffs\u2019 complaint, which included plaintiff Bird as a party, was filed on 7 October 2008, more than two years following defendant\u2019s adoption of these ordinances. Therefore, plaintiff Bird\u2019s statutory claims are barred by the applicable statute of limitations.\nPlaintiffs cite Thrash Ltd. Partnership v. County of Buncombe, 195 N.C. App. 678, 673 S.E.2d 706 (2009) (\u201cThrash I\u201d), Beach Mt. Vacations, Inc. v. Fin., Inc., 167 N.C. App. 639, 605 S.E.2d 714 (2004), Miller v. Talton, 112 N.C. App. 484, 435 S.E.2d 793 (1993), Frizzelle v. Harnett County, 106 N.C. App. 234, 416 S.E.2d 421 (1992), Sofran Corp. v. Greensboro, 327 N.C. 125, 393 S.E.2d 767 (1990), George v. Edenton, 31 N.C. App. 648, 230 S.E.2d 695 (1976), reversed in part by, 294 N.C. 679, 242 S.E.2d 877 (1978), Walker v. Elkin, 254 N.C. 85, 118 S.E.2d 1 (1961) in support of their argument that the statute of limitations should not bar plaintiff Bird\u2019s claims because the Viewshed Map plaintiff Bird saw at the public hearing on 25 September 2006 showed that the trust property was not located in an area affected by the ordinance, but defendant subjected it to the ordinance later without notifying her and that is why she delayed in filing her action. Defendant, citing Thompson v. Town of Warsaw, 120 N.C. App. 471, 462 S.E.2d 691 (1995), argues that \u201cit is well established that the statute of limitations bars all claims challenging the validity of an ordinance, even if the notice of hearing for such a zoning ordinance was invalid.\u201d (Emphasis omitted).\nIn Thompson, the plaintiffs argued that the statute of limitations for filing a complaint against a zoning ordinance was not applicable because the challenged zoning ordinance was amended by the defendant-town without complying with the statutory notice provisions. Id. at 473-74, 462 S.E.2d at 692. This Court noted that it had \u201cpreviously held that even where an amendment is adopted inconsistent with the notice requirements of Chapter 160A, an action which attacks the validity of the amendment [but is] commenced more than [the statutory period] from the adoption of the amendment is barred.\u201d Id. at 473, 462 S.E.2d at 692 (citing Pinehurst Area Realty, Inc. v. Village of Pinehurst, 100 N.C. App. 77, 80, 394 S.E.2d 251, 253 (1990) (rejecting the plaintiff\u2019s argument that its challenge to a zoning ordinance was not barred by the statute of limitations because the defendant failed to properly notify plaintiff of impending zoning action in violation of N.C. Gen. Stat. \u00a7 160A-34), disc. rev. denied, 328 N.C. 92, 402 S.E.2d 417, cert. denied, 501 U.S. 1251, 115 L. Ed. 2d 1055 (1991)). Accordingly, we hold that even if defendant failed to properly notify plaintiffs pursuant to Chapter 160A, plaintiff Bird\u2019s claims are still barred by the applicable statute of limitations. Thrash I and the other cases cited by plaintiffs are not applicable as they do not address the effect of the statute of limitations on a zoning ordinance challenge. Plaintiff Bird\u2019s claims are barred by the applicable statute of limitations and were properly dismissed by the trial court.\nIV. Conclusion\nAs plaintiffs\u2019 claims were properly dismissed by the trial court, we affirm the trial court\u2019s order.\nAFFIRMED.\nJudge ELMORE concurs.\nJudge JACKSON concurs in part and dissents in part in a separate opinion.\n. We note that the procedural challenges in plaintiffs\u2019 claims one and two are also alleged violations of procedural due process. However, as we held that plaintiff did not properly allege facts sufficient to establish standing for their constitutional challenges to the subj ect zoning ordinance amendments, our focus is limited to reviewing only the statutory challenges in these claims.\n. N.C. Gen. Stat. \u00a7 160A-381(a) states that \u201c[f]or the purpose of promoting health, safety, morals, or the general welfare of the community, any city may adopt zoning and development regulation ordinances. These ordinances may be adopted as part of the unified development ordinance or as a separate ordinance. A zoning ordinance may regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lots that may be occupied, the size of yards, courts and other open spaces, the density of population, the location and use of buildings, structures and land....\u201d\n. N.C. Gen. Stat. \u00a7 160A-385(a)(l) states that \u201c[z]oning ordinances may from time to time be amended, supplemented, changed, modified or repealed....\u201d", "type": "majority", "author": "STROUD, Judge." }, { "text": "JACKSON, Judge,\nconcurring in part, dissenting in part.\nAlthough I agree with the majority\u2019s ultimate holding \u2014 that the claims of neither plaintiff survive the municipality\u2019s motions to dismiss \u2014 I write separately to highlight a significant problem I see with its analysis as to the issue of standing. Specifically, I am concerned with the majority\u2019s assertion that plaintiffs do not have standing to pursue their constitutional claims because their complaint did not allege \u201cthat the subject zoning ordinance amendments will be or have been enforced against property owned by plaintiffs[.]\u201d I think that a requirement that the ordinance be enforced before a property owner may challenge it could allow a municipality to evade statutorily-mandated procedural safeguards by waiting to enforce an ordinance until two months after its adoption, thereby immunizing itself pursuant to the statute of limitations.\nOur case law with respect to North Carolina General Statutes, section 160A-364.1 is fairly clear. When a plaintiff challenges the validity of a zoning ordinance, which a municipality enacted pursuant to its legislative function, he has two months within which to initiate an action for declaratory judgment. In Pinehurst Area Realty, Inc. v. Village of Pinehurst, we noted that our courts have construed this statute strictly. 100 N.C. App. 77, 80, 394 S.E.2d 251, 253 (1990), disc. rev. denied, 328 N.C. 92, 402 S.E.2d 417, cert. denied, 501 U.S. 1251, 115 L. Ed. 2d 1055 (1991). In that case, we also rejected the plaintiff\u2019s argument that section 160A-364.1 did not provide the relevant statute of limitations for constitutional claims:\nPlaintiff characterizes this action as \u201ca cause of action for deprivation of constitutional rights\u201d and states that the United States Supreme Court in Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254 (1985), has directed that such actions \u201cbe subject to the relevant state\u2019s personal injury statute of limitations\u201d which in North Carolina is three years. The Wilson court was addressing federal civil rights actions under 42 U.S.C.S. \u00a7 1983 when it chose to apply the personal injury statute of limitations. We do not find Wilson controlling.\nId. After recounting the \u201cimportant public policy considerations\u201d such as \u201ca strong need for finality with respect to zoning matters],]\u201d we explained that\nNorth Carolina courts have not held that violations of federal constitutional claims in zoning actions extend the usual [two-month] statute of limitations. In Sherrill v. Town of Wrightsville Beach, 81 N.C. App. 369, 344 S.E.2d 357, disc. rev. denied, 318 N.C. 417, 349 S.E.2d 600 (1986), this Court held that plaintiff\u2019s claims for federal due process violations were barred by the nine-month statute of limitations. It is noteworthy that Sherrill was decided after Wilson, supra.\nId. at 80-81, 394 S.E.2d at 253. The Pinehurst Court then held that the \u201cplaintiff\u2019s challenge to the 1985 zoning law based on alleged state and federal constitutional violations is barred by the [two]-month statute of limitations.\u201d Id. at 81, 394 S.E.2d at 253-54.\nIn Capital Outdoor Advertising v. City of Raleigh, our Supreme Court noted that this Court and the Fourth Circuit had dealt differently with which statute of limitations applied to facial constitutional challenges to zoning ordinances. 337 N.C. 150, 162, 446 S.E.2d 289, 297 (1994). Although that case did not require our Supreme Court to decide between the three-year time limit upheld by the Fourth Circuit and the nine-month- \u2014 now two-month \u2014 limitation supported by the Pinehurst Court, it nonetheless suggested its agreement with the shorter time frame. Id. (\u201cWhile our [two-month] statute of limitations contained in N.C.G.S. \u00a7 1-54.1 and N.C.G.S. \u00a7 160A-314.1 appears to treat the issue far more specifically than N.C.G.S. \u00a7 1-52(5) and while our North Carolina Court of Appeals decisions appear the better reasoned decisions on the issue, we need not resolve the matter in this case . . . .\u201d). Accordingly, our case law appears to be well-settled that a plaintiff must raise facial constitutional challenges to an ordinance within the two-month statute of limitations or else such claim is barred.\nOur case law also is well-established as to standing. Our Supreme Court has held that one\u2019s status as a taxpayer or as a citizen of a certain municipality does not confer standing to challenge a zoning ordinance. See Fox v. Board of Comm\u2019rs, 244 N.C. 497, 500, 94 S.E.2d 482, 485 (1956) (\u201c[I]t was not alleged or shown that any plaintiff owns realty constituting farm land either subject to or exempt from the provisions of the ordinance. Indeed, it is not alleged or shown that any plaintiff owns any property of any kind presently restricted by the ordinance. Plaintiffs cannot present an abstract question and obtain an adjudication in the nature of an advisory opinion.\u201d). Rather, \u201c[a] party has standing to challenge a zoning ordinance in an action for declaratory judgment only when it \u2018has a specific personal and legal interest in the subject matter affected by the zoning ordinance and ... is directly and adversely affected thereby.\u2019 \u201d Village Creek Prop. Owners\u2019 Ass\u2019n v. Town of Edenton, 135 N.C. App. 482, 485, 520 S.E.2d 793, 795 (1999) (quoting Taylor v. City of Raleigh, 290 N.C. 608, 620, 227 S.E.2d 576, 583 (1976)).\nIn Grace Baptist Church v. City of Oxford, cited by the majority, our Supreme Court held that a plaintiff\u2019s failure to allege specific facts within its complaint to establish standing was rectified by the municipality\u2019s request for an injunction in its responsive pleading. 320 N.C. 439, 444, 358 S.E.2d 372, 375 (1987). Based upon that threatened enforcement, the plaintiff was \u201cin immediate danger of sustaining an injury as a result of enforcement[.]\u201d Id. The majority in the case sub judice takes that application of facts a step further by requiring enforcement, or threatened enforcement, in order for a plaintiff to assert a constitutional challenge to a zoning ordinance. Notably, however, the Grace Baptist Court analyzed the plaintiff\u2019s standing in that case only with respect to its as-applied constitutional claim. Id. When analyzing whether an ordinance had been selectively enforced against the plaintiff as compared with others in the municipality, a threshold question of enforcement clearly is necessary. I emphasize, though, that immediately prior to that determination, the Grace Baptist Court had reviewed the merits of the plaintiff\u2019s facial challenge to the ordinance without addressing issues of standing. Id. at 442-43, 358 S.E.2d at 374-75. Accordingly, I do not think that Grace Baptist supports the majority\u2019s assertion that plaintiffs do not have standing to pursue their constitutional claims because their complaint did not allege \u201cthat the subject zoning ordinance amendments will be or have been enforced against property owned by plaintiffs[.]\u201d\nI think that the majority errs by considering the standing requirements for facial constitutional challenges in the same light as those required for as-applied constitutional claims. Requiring enforcement or threat of enforcement in order to mount an as-applied challenge to an ordinance or to challenge the quasi-judicial decision of a zoning board with respect to a requested variance ensures that only those citizens truly affected by a municipality\u2019s actions have standing to bring their claims. In contrast, a facial challenge to an ordinance\u2019s validity or, as the majority discusses, challenges to the procedures ensured by statute or local ordinance should not depend upon threat ened enforcement. Facial challenges, therefore, are more similar to what the majority labels \u201cstatutory challenges\u201d than to as-applied constitutional challenges.\nThrash Ltd. P\u2019ship v. County of Buncombe (Thrash II), as cited by the majority, addressed this specific issue when it distinguished a case relied upon by the municipality:\nWe find Andrews to be distinguishable. The plaintiff\u2019s challenge to the zoning ordinance in Andrews was based on arbitrariness, equal protection, or constitutionality as applied to the plaintiff\u2019s land. As the case necessarily involved a specific consideration of plaintiff\u2019s land, the plaintiff was required to show that she had an immediate risk of sustaining an injury in order to have standing. In the instant case, plaintiff is challenging the procedural enactment of the Multi-Family Dwelling Ordinance. Thus, plaintiff\u2019s declaratory judgment action is not an \u201cas-applied\u201d challenge, but rather is an attack on the validity of the zoning ordinance.\n195 N.C. App. 727, 730-31, 673 S.E.2d 689, 692 (2009). The Thrash II Court further noted \u201cthat to require a plaintiff to demonstrate a direct injury in order to challenge a zoning regulation would allow counties to make zoning decisions without complying with the statutory requirements . . . .\u201d Id. at 731, 673 S.E.2d at 692.\nIn Messer v. Town of Chapel Hill, this Court held that a plaintiff cannot challenge the validity of a zoning ordinance unless he first has requested a variance. 125 N.C. App. 57, 64-65, 479 S.E.2d 221, 225, vacated as moot, 346 N.C. 259, 485 S.E.2d 269 (1997). In a prescient dissent, Judge Greene acknowledged the potentially problematic interaction between our statute of limitations and a requirement of enforcement for standing purposes. Id. at 65, 479 S.E.2d at 226 (Greene, J., dissenting). At the.time he authored this dissent, the statute of limitations was nine months, id. (Greene, J., dissenting); Judge Greene\u2019s concerns may prove more relevant given the truncated two-month statute of limitations. According to Judge Greene,\nI do not agree that the complaint must be dismissed on the grounds that the claims are premature or \u201cnot ripe\u201d for consideration. The plaintiffs challenge the ordinance on the grounds that it is an arbitrary and capricious act by the government and is therefore unconstitutional. In other words, the plaintiffs contend that any application of the ordinance is unconstitutional because their property rights were violated the very moment the government enacted the ordinance, without regard to how it may be applied. This constitutes a \u201cfacial challenge\u201d as opposed to an \u201cas applied challenge,\u201d see Eide v. Sarasota County, 908 F.2d 716, 724 n.14 (11th Cir. 1990), cert. denied, 498 U.S. 1120, 112 L. Ed. 2d 1179, 111 S. Ct. 1073 (1991), and as such there is no requirement that the plaintiff, prior to filing the complaint, first seek a variance from the zoning requirement. See id.; Pennell v. San Jose, 485 U.S. 1, 11, 99 L. Ed. 2d 1, 14, 108 S. Ct. 849 (1988) (addressing facial challenge). Furthermore, because any action challenging the validity of the ordinance must be filed within nine months of its enactment, N.C.G.S. \u00a7 160A-364.1 (1994), requiring the plaintiffs to seek a final ruling on a variance request prior to filing this action would seriously jeopardize the right to file the action, as it is likely that a final decision would not be entered within nine months of the enactment of the ordinance. I would reverse the order of the trial court and remand.\nId. at 65, 479 S.E.2d at 225-26 (Greene, J., dissenting).\nThis precise problem presented itself in a pair of our unpublished cases. In Nags Head Constr. & Dev., Inc. v. Town of Nags Head, we held that the plaintiff had not established standing to challenge the validity of a zoning ordinance.\nIn its complaint, plaintiff does not claim or allege that it would be subject to the challenged ordinance or is about to suffer any direct injury. Rather, plaintiff merely alleges that it has a legal interest in certain parcels of property located within the Town\u2019s jurisdiction. This general interest, common to all members of the public, is insufficient to establish standing. [Wilkes v. North Carolina State Board of Alcoholic Control, 44 N.C. App. 495, 496-97, 261 S.E.2d 205, 206-07 (1980)]. Furthermore, plaintiff does not claim or allege that it sought or was denied a permit or variance under the challenged ordinance.\n2005 N.C. App. LEXIS 832, at *6 (unpublished). When the case came before us again, we held that the statute of limitations barred plaintiffs claim, leaving plaintiff with no method of redress.\nThe zoning ordinance at issue in this appeal was adopted on 20 August 2003. Pursuant to G.S. \u00a7 160A-364.1, plaintiff had until two months thereafter to file a suit challenging the ordinance. Although plaintiff filed a complaint on 20 October 2003, that complaint was dismissed for lack of standing and this Court subsequently affirmed the dismissal. See Nags Head Constr. & Dev., Inc. v. Town of Nags Head, \u2014 N.C. App. \u2014, \u2014 S.E.2d \u2014, 2005 N.C. App. LEXIS 832 (2005) (unpublished) (trial court properly dismissed the complaint as plaintiff failed to show an existing case or controversy with the Town and that plaintiff would suffer direct injury because a permit was neither sought or denied).\nPlaintiff next filed the subject complaint challenging the zoning ordinance on 4 February 2004, more than five months after the expiration of the two month limitations period. On these facts, the trial court properly determined that the plaintiff had not sustained his burden of showing that the action was instituted within the prescribed period. Thus, the order granting defendant\u2019s Rule 12(b)(6) motion was proper.\nNags Head Constr. & Dev., Inc. v. Town of Nags Head, 2006 N.C. App. LEXIS 971, at *4-5 (unpublished).\nHere, I agree with the majority that the two-month statute of limitations bars plaintiff Bird\u2019s claims. See N.C. Gen. Stat. \u00a7 160A-364.1 (2005). As cited by the majority, \u201cthis Court has previously held that even where an amendment is adopted inconsistent with the notice requirements of Chapter 160A, an action which attacks the validity of the amendment commenced more than [two] months from the adoption of the amendment is barred.\u201d Thompson v. Town of Warsaw, 120 N.C. App. 471, 473, 462 S.E.2d 691, 692 (1995) (citing Pinehurst Area Realty, 100 N.C. App. at 80, 394 S.E.2d at 253). Therefore, because plaintiff Bird did not bring her claims within the requisite two-month time frame, her complaint failed to state a claim upon which relief could be granted, as properly held by the trial court.\nHowever, plaintiff Templeton\u2019s claims are not barred by the statute of limitations, because he brought his original suit within the allotted two-month period and voluntarily dismissed those claims pursuant to Rule 41 of our Rules of Civil Procedure. He then re-filed within the one-year time frame provided by that Rule. Thus, I must look at whether plaintiff Templeton has standing to pursue his claim. In accordance with Thrash II, plaintiff Templeton has not alleged specific facts that support his standing to challenge the ordinance. However, I emphasize that an allegation as to the slope value of his property and as to the distance between his property and a major traffic corridor would satisfy the requirements of standing with respect to both \u201cstatutory challenges\u201d and a facial constitutional challenge. He need not allege that enforcement of the ordinance is imminent except as to his as-applied constitutional challenges. I also note that the majority\u2019s reasoning appears to be inconsistent with respect to its standing analysis. If plaintiff Bird\u2019s allegation that \u201cthe Town subjected the trust property to the onerous regulations of the Viewshed Ordinance and Map\u201d necessitates the inference that such property \u201cmust be located within 100 feet of a major traffic corridor or a portion of the trust property can be seen from a major traffic corridor[,]\u201d as asserted by the majority, then the allegations that plaintiff Bird\u2019s and plaintiff Templeton\u2019s properties are \u201cdirectly and adversely affected\u201d by the zoning ordinances would require the same inference. If we take the allegations as true, then both allegations are sufficient to establish standing. If we require specific factual allegations that support a finding of standing, as the Thrash II Court appeared to require, then neither party meets that threshold. As I would hold that all of plaintiff Bird\u2019s claims are barred by the statute of limitations, I do not address whether she established standing as to either of the ordinances.\n. The statute of limitations set forth in North Carolina General Statutes, section 160A-364.1 applies to a challenge to an ordinance\u2019s validity, which goes to a municipality\u2019s legislative authority to adopt, amend, and repeal zoning ordinances. See David W. Owens, Land Use Law in North Carolina 270-72 (2006); see also Taylor v. City of Raleigh, 290 N.C. 608, 618, 227 S.E.2d 576, 582 (1976) (\u201cThe General Assembly has delegated to \u2018the legislative body\u2019 of cities and incorporated towns the power to adopt zoning regulations and from time to time, to amend or repeal such regulations.\u201d) (citations omitted). In contrast, when a municipality makes a quasi-judicial decision, such as denying a variance from a zoning ordinance, the applicable statute of limitations is thirty days from the date of the decision. See Owens, supra, at 271-72; see also N.C. Gen. Stat. \u00a7 160A-388(e2) (2009).\n. North Carolina General Statutes, section 160A-364.1 originally provided a nine-month statute of limitations for challenges to zoning ordinances. However, effective 1 October 1996, the General Assembly amended the statute to two months, the time limit applicable to the case subjudice. 1995 N.C. Sess. Laws 746 \u00a7\u00a7 7, 8.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JACKSON, Judge," } ], "attorneys": [ "Clement Law Office by Charles E. Clement, for plaintiffs-appeUants.", "Cranfill Sumner & Hartzog LLP by Susan K. Burkhart, for defendant-appellee." ], "corrections": "", "head_matter": "JEFFREY BROOKS TEMPLETON and ELIZABETH A. COLONNA BIRD; Trustee of the ELIZABETH A. COLONNA BIRD REVOCABLE TRUST, dated August 31, 2000, Plaintiffs v. TOWN OF BOONE, Defendant\nNo. COA09-1332\n(Filed 16 November 2010)\n1. Zoning\u2014 standing to challenge ordinance amendment\u2014 motion to dismiss granted\nA de novo review revealed that the trial court did not err in a zoning ordinance amendment case by granting defendant\u2019s motion to dismiss plaintiffs\u2019 complaint for lack of standing. Plaintiff Templeton did not have standing to bring a constitutional or statutory claim against defendant, and plaintiff Bird failed to allege facts sufficient to have standing to bring constitutional claims or a statutory claim against defendant to challenge the Steep Slope Ordinance. However, plaintiff Bird did have standing to bring a statutory challenge against the Viewshed Protection Ordinance.\n2. Statutes of Limitation and Repose\u2014 zoning ordinance amendment \u2014 failure to give proper notice\nThe trial court did not err in a zoning ordinance amendment case by granting defendant\u2019s motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) based on expiration of the two-month statute of limitations under N.C.G.S. \u00a7 160A-364.1. Even if defendant failed to properly notify plaintiff under Chapter 160A, plaintiffs\u2019 complaint was filed more than two years following defendant\u2019s adoption of the ordinances.\nJudge JACKSON concurring in part and dissenting in part.\nAppeal by plaintiffs from order entered 10 June 2009 by Judge Joseph N. Crosswhite in Superior Court, Watauga County. Heard in the Court of Appeals 25 February 2010.\nClement Law Office by Charles E. Clement, for plaintiffs-appeUants.\nCranfill Sumner & Hartzog LLP by Susan K. Burkhart, for defendant-appellee." }, "file_name": "0050-01", "first_page_order": 74, "last_page_order": 94 }