{ "id": 4180956, "name": "CHARLES K. SAPP, NANCY SAPP, HENRY KEITH MILLER, JR., FOREST BRENT SLOOP, LORI A. SLOOP, RICHARD L. WHELPLEY, LOKEEL M. WHELPLEY, ETHEL P. SMITH, DOUGLAS JOHN BUTLER, PEGGY S. BOOSE, WILLIAM E. GARRETT, JR., CATHY S. HARPER, KENNETH J. HARPER, KEITH MILLER, SR., and BETTY MILLER, Plaintiffs, v. YADKIN COUNTY, YADKIN COUNTY PLANNING BOARD and YADKIN COUNTY BOARD OF ADJUSTMENT, Defendants", "name_abbreviation": "Sapp v. Yadkin County", "decision_date": "2011-02-01", "docket_number": "No. COA09-1725", "first_page": "430", "last_page": "440", "citations": [ { "type": "official", "cite": "209 N.C. App. 430" } ], "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": "638 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637368, 12637366, 12637367 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/638/0465-03", "/se2d/638/0465-01", "/se2d/638/0465-02" ] }, { "cite": "632 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636332 ], "year": 2006, "pin_cites": [ { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/se2d/632/0590-01" ] }, { "cite": "650 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639350 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "59" }, { "parenthetical": "internal citations, brackets, and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/650/0055-01" ] }, { "cite": "360 N.C. 645", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3795434, 3792818, 3786004, 3794132, 3797909, 3790711, 3797343 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0645-03", "/nc/360/0645-02", "/nc/360/0645-07", "/nc/360/0645-04", "/nc/360/0645-05", "/nc/360/0645-01", "/nc/360/0645-06" ] }, { "cite": "178 N.C. App. 646", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8379413 ], "year": 2006, "pin_cites": [ { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0646-01" ] }, { "cite": "186 N.C. App. 30", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8154414 ], "year": 2007, "pin_cites": [ { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0030-01" ] }, { "cite": "373 U.S. 526", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11718948 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "530", "parenthetical": "noting that the concept of \"deliberate speed\" countenanced indefinite delay in elimination of racial barriers in schools" }, { "page": "534", "parenthetical": "noting that the concept of \"deliberate speed\" countenanced indefinite delay in elimination of racial barriers in schools" } ], "opinion_index": 0, "case_paths": [ "/us/373/0526-01" ] }, { "cite": "571 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "69", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 565", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250860 ], "year": 2002, "pin_cites": [ { "page": "570", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0565-01" ] }, { "cite": "496 S.E.2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "611" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 716", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11656753 ], "year": 1998, "pin_cites": [ { "page": "721" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0716-01" ] } ], "analysis": { "cardinality": 834, "char_count": 23283, "ocr_confidence": 0.749, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1373578150695272 }, "sha256": "205b9b83e408bf6165e58beaf16faf211883240632a4dfa8ad35b2a29f1d491e", "simhash": "1:8f7fd0288b2abedf", "word_count": 3664 }, "last_updated": "2023-07-14T17:06:47.704823+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Robert C. HUNTER and Robert N. HUNTER, JR. concur." ], "parties": [ "CHARLES K. SAPP, NANCY SAPP, HENRY KEITH MILLER, JR., FOREST BRENT SLOOP, LORI A. SLOOP, RICHARD L. WHELPLEY, LOKEEL M. WHELPLEY, ETHEL P. SMITH, DOUGLAS JOHN BUTLER, PEGGY S. BOOSE, WILLIAM E. GARRETT, JR., CATHY S. HARPER, KENNETH J. HARPER, KEITH MILLER, SR., and BETTY MILLER, Plaintiffs, v. YADKIN COUNTY, YADKIN COUNTY PLANNING BOARD and YADKIN COUNTY BOARD OF ADJUSTMENT, Defendants" ], "opinions": [ { "text": "STEPHENS, Judge.\nFactual and Procedural History\nIn 2004, the Yadkin County Board of Commissioners (\u201cBoard of Commissioners\u201d) acquired a roughly ten-acre parcel of land known as the \u201cHoots Road site.\u201d In August 2008, the Board of Commissioners designated the Hoots Road site as the location for a new county jail.\nOn 13 August 2008, the Yadkin County Administration, through the Yadkin Interim County Manager, filed a Petition for Zoning Amendment (\u201cPetition\u201d), seeking to have the Hoots Road site rezoned from Highway Business to Manufacturing-Industrial One: Conditional. At their 8 September 2008 meeting, the Yadkin County Planning Board (\u201cPlanning Board\u201d) reviewed the Petition and recommended approval of the proposed rezoning to the Board of Commissioners.\nAt their 15 September 2008 meeting, the Board of Commissioners received the Planning Board\u2019s recommendation and scheduled a public hearing on the proposed rezoning of the Hoots Road site for 20 October 2008. Following the public hearing, the Board of Commissioners voted to approve the rezoning of the Hoots Road site for construction of the new jail.\nOn 29 December 2008, Plaintiffs filed their complaint against Defendant Yadkin County; the complaint was later amended to include the Planning Board and the Yadkin County Board of Adjustment as Defendants On 28 January 2009, Defendants filed a motion to dismiss Plaintiffs\u2019 complaint, which was granted by Judge Edwin G. Wilson, Jr. as to all claims in the complaint except Plaintiffs\u2019 claim for a declaratory judgment that the rezoning of the Hoots Road site violated the applicable zoning laws and ordinances.\nOn 13 April 2009, Defendants filed a motion for summary judgment on Plaintiffs\u2019 remaining claim and noticed hearing on the motion for 27 April 2009. On 16 April 2009, Plaintiffs filed a motion to continue the summary judgment hearing. In an order filed 8 May 2009, Judge A. Moses Massey granted Plaintiffs\u2019 motion and ordered that the summary judgment hearing be continued until 15 June 2009.\nOn 10 June 2009, Plaintiffs filed a cross-motion for summary judgment, as well as a motion for recusal of Judge John O. Craig, III, the judge assigned to hear the motions for summary judgment. The basis for Plaintiffs\u2019 motion to recuse was that Judge Craig\u2019s alleged extensive prior involvement in the Yadkin County jail issue made it inappropriate for him to decide the question of summary judgment.\nFollowing the hearing on the motions, Judge Craig issued the 2 July 2009 orders denying Plaintiffs\u2019 motion to recuse and granting Defendants\u2019 motion for summary judgment. From this order, as well as Judge Massey\u2019s order continuing the hearing on Defendants\u2019 summary judgment motion and Judge Wilson\u2019s order partially granting Defendants\u2019 motion to dismiss, Plaintiffs appeal.\nDiscussion\nI. Plaintiffs\u2019 motion to continue\nPlaintiffs\u2019 Rule 56(f) motion to continue the summary judgment hearing was granted on 27 April 2009, and the hearing date was continued until 15 June 2009. On appeal, Plaintiffs argue that the \u201c45-day period allotted by [the trial court] was insufficient, given the need to develop facts necessary to support their opposition to the [summary judgment] [m]otion.\u201d\n\u201cMotions to continue pursuant to Rules 56(f) and 40(b) of our Rules of Civil Procedure are granted in the trial court\u2019s discretion.\u201d Caswell Realty Assocs. I, L.P. v. Andrews Co., 128 N.C. App. 716, 721, 496 S.E.2d 607, 611 (1998).\nPlaintiffs argue that they were entitled to a 120-day discovery period following the last pleading based on their interpretation of Local Court Rule 4.1 for Superior Civil Cases, Judicial District 23, which provides that\n[discovery shall begin promptly .... For all cases except those which have previously been dismissed and refiled pursuant to Rule 41, N.C.R.Civ.P., discovery should be scheduled so as to be completed within 120 days of the last required pleading.\nCase Management Plan and Local Court Rules for Superior Civil Cases Judicial District 23, Rule 4.1 (enacted January 2008).\nAs noted by Defendants, Local Rule 4.1 clearly establishes no more than a presumptive 120-day maximum time within which discovery is to be completed, and does not entitle a party to a mandatory 120-day discovery period. Plaintiffs\u2019 interpretation of Local Rule 4.1 is untenable and, therefore, Plaintiffs\u2019 argument that the trial court abused its discretion by not allowing Plaintiffs the time to complete discovery granted them by the applicable local rule is without merit.\nPlaintiffs further argue that the \u201c45-day period\u201d was insufficient under North Carolina Rule of Civil Procedure 26(d), which provides as follows:\nAny order or rule of court setting the time within which discovery must be completed shall be construed to fix the date after which the pendency of discovery will not be allowed to delay trial or any other proceeding before the court, but shall not be construed to prevent any party from utilizing any procedures afforded under [the Rules], so long as trial or any hearing before the court is not thereby delayed.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 26(d) (2009). Plaintiffs contend that because \u201cadditional time was required in order to schedule and prepare interrogatories and depositions\u201d before the hearing, the court\u2019s 45-day continuance violated Rule 26(d) by preventing Plaintiffs from utilizing discovery procedures. We are unpersuaded.\nFirstly, we note that Plaintiffs\u2019 contention that they required additional time is belied by their conduct following the 27 April 2009 continuance: after the continuance was granted, Plaintiffs served Defendants with written discovery requests, to which Defendants responded on 8 June 2009; Plaintiffs requested no other discovery from Defendants and did not file any motions to compel discovery or to continue the 15 June 2009 hearing; and Plaintiffs filed their own cross-motion for summary judgment on 10 June 2009. From the fact that Plaintiffs sought no additional discovery, and the fact that Plaintiffs filed their own summary judgment motion prior to the hearing, it appears Plaintiffs did not require additional time to complete discovery.\nFurthermore, Plaintiffs\u2019 argument appears to be based on the erroneous assumption that, by setting a date for the summary judgment hearing, the trial court was issuing an order \u201csetting the time within which discovery must be completed\u201d under Rule 26(d). Although, a hearing on a motion for summary judgment may result in the limitation of additional discovery \u2014 by determining which facts are genuinely disputed and limiting further discovery to only those facts \u2014 such a hearing does not close the discovery period, and, therefore, cannot be considered \u201cthe time within which discovery must be completed.\u201d A summary judgment hearing is not required to take place upon completion of all factual discovery, and any argument that an order setting a date for a summary judgment hearing violates Rule 26(d) is clearly erroneous.\nBased on the foregoing, we conclude that Plaintiffs were not prevented from utilizing any necessary discovery procedures. Accordingly, Plaintiffs\u2019 argument is overruled.\nII. Plaintiffs\u2019 motion to recuse\nPlaintiffs next argue that the trial court erred by denying their motion for recusal of Judge Craig.\nWhen a party requests such a recusal by the trial court, the party must demonstrate objectively that grounds for disqualification actually exist. The requesting party has the burden of showing through substantial evidence that the judge has such a personal bias, prejudice or\u2019interest that he would be unable to rule impartially.\nIn re Faircloth, 153 N.C. App. 565, 570, 571 S.E.2d 65, 69 (2002) (internal citations and quotation marks omitted).\nPlaintiffs\u2019 claim of bias and prejudice is based on two Orders to Show Cause entered by Judge Craig on 21 November 2006 and 5 May 2008. In the first order, Judge Craig ordered the Board of Commissioners to \u201cshow cause why a Writ of Mandamus should not issue against you in light of your apparent failure to perform your inherent constitutional as well as statutory duties pertaining to the Yadkin County jail facility.\u201d In the second order, Judge Craig retained for the Court \u201cjurisdiction over this matter, in order to ensure that the County of Yadkin moves forward, with all deliberate speed, with the construction of a new jail that meets the standards imposed by the laws of this State.\u201d The second order further indicated that \u201c[t]his Order to Show Cause shall be continued from Term to Term, in the event that the Court deems it necessary to take appropriate action.\u201d\nPlaintiffs argue that Judge Craig\u2019s orders make it clear \u201cthat [Judge Craig] had a direct interest in the prompt resolution of the jail issue\u201d that was \u201cin unavoidable opposition to the Plaintiffs\u2019 claims which, if found meritorious, would have the necessary effect of delaying new jail construction until any rezoning was completed in a lawful manner.\u201d Plaintiffs\u2019 argument is without merit.\nAlthough the orders plausibly show that Judge Craig desired a prompt resolution of the jail issue, there is nothing to indicate that this desire was personal, or that it necessitated Judge Craig\u2019s disqualification based on an inability to rule impartially. Judge Craig\u2019s attempt to ensure that the construction moved forward \u201cwith all deliberate speed\u201d can hardly be interpreted as an attempt by Judge Craig to have the jail built without any delay and without regard for the requirements of \u201claws of the State.\u201d Cf. Watson v. Memphis, 373 U.S. 526, 530, 10 L. Ed. 2d 529, 534 (1963) (noting that the concept of \u201cdeliberate speed\u201d countenanced indefinite delay in elimination of racial barriers in schools). Most importantly, in the context of this case, the orders evince no evidence that Judge Craig had any preference or opinion on the location of the new jail. Accordingly, we conclude that the orders do not contain substantial evidence of Judge Craig\u2019s alleged impartiality. Plaintiffs\u2019 argument is overruled.\nIII. Defendants\u2019 motion for summary judgment\nPlaintiffs next argue that the trial court erred by granting summary judgment in favor of Defendants We review a trial court\u2019s grant of summary judgment de novo. Childress v. Yadkin County, 186 N.C. App. 30, 34, 650 S.E.2d 55, 59 (2007).\nSummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a party is entitled to a judgment as a matter of law. Evidence presented by the parties is viewed in the light most favorable to the non-movant.\nId. (internal citations, brackets, and quotation marks omitted).\nPlaintiffs claim to have offered substantial evidence of three violations of the procedural and substantive requirements of the Yadkin County zoning scheme such that summary judgment for Defendants was improper. We discuss the three alleged violations set forth by Plaintiffs separately.\nA. Improper recommendation to the Board of Commissioners\nPlaintiffs first contend that, in violation of N.C. Gen. Stat. \u00a7 153A-341 and the Yadkin County Zoning Ordinance (\u201cOrdinance\u201d), the Planning Board failed to include in its recommendation to the Board of Commissioners \u201ca statement of zoning consistency.\u201d As evidence of this failure, Plaintiffs presented an affidavit by Plaintiff Peggy Boose (\u201cBoose\u201d), which states that on 2 October 2008, Boose obtained from the Planning Department a copy of the minutes of the Planning Board\u2019s 8 September 2008 meeting. Boose\u2019s affidavit further alleges that on 20 October 2008, Boose obtained another copy of the Planning Board\u2019s 8 September 2008 minutes from the County Manager of Yadkin County, which contained both a discussion of the policy guidelines and a \u201cstatement of zoning consistency,\u201d neither of which were in the minutes obtained by Boose on 2 October 2008. Plaintiffs cite this \u201cdiscrepanc[y] in the Planning Board minutes\u201d as evidence of Defendants\u2019 violation of the applicable statutes and ordinances.\nUnder N.C. Gen. Stat. \u00a7 153A-341,\n[t]he planning board shall advise and comment on whether [a] proposed [zoning] amendment is consistent with any comprehensive plan that has been adopted and any other officially adopted plan that is applicable. The planning board shall provide a written recommendation to the board of county commissioners that addresses plan consistency and other matters as deemed appropriate by the planning board, but a comment by the planning board that a proposed amendment is inconsistent with the comprehensive plan shall not preclude consideration or approval of the proposed amendment by the governing board.\nN.C. Gen. Stat. \u00a7 153A-341 (2007) (emphasis added).\nThe Ordinance provides that \u201c[pjursuant to NC G.S. 153A-341, the Planning Board shall include, in its written recommendation and report to the Board of County Commissioners, comments on the consistency of the proposed change with the Land Use Plan[.]\u201d Further, the Planning Board shall \u201ctransmit its recommendation and report... to the Board of County Commissioners.\u201d\nIn compliance with the Ordinance, the Planning Board rendered its decision on the Petition at its 8 September 2008 meeting. Further, according to the Notice of Meeting for the 20 October 2008 meeting of the Board of Commissioners, the written recommendation by the Planning Board was received by the Board of Commissioners by at least 17 October 2008. Clearly, then, the Planning Board met the requirements of section 153A-341 by providing \u201ca written recommendation to the board of county commissioners that addresses plan consistency,\u201d and met the requirements of the Ordinance by transmitting its recommendation and report to the Board of Commissioners. Based on the foregoing, we conclude the actions of the Planning Board did not violate section 153A-341 or the Ordinance.\nAlthough Plaintiffs\u2019 evidence presents an issue as to the contents of the minutes as filed with the Planning Department, there is nothing in the statutes or Ordinance requiring the Planning Board to file a \u201cstatement of zoning consistency\u201d with its minutes at the Planning Department office. Accordingly, Plaintiffs\u2019 argument presents no ' genuine issue of material fact.\nB. Secretive and improper method of rezoning\nPlaintiffs next argue that the evidence sufficiently supported their allegation that the rezoning was \u201csecretive and improper\u201d such that a full hearing on the merits was required. The only support Plaintiffs offer for this argument is the \u201cundisputed reality that the Planning Board published two separate and wildly differing minutes of its September 8 meeting[.]\u201d Based on our review of the Ordinance, the evidence presented by Plaintiffs does not raise a genuine issue of material fact regarding any secrecy or impropriety surrounding the Planning Board\u2019s recommendation.\nThe Ordinance requires that a proposed zoning amendment meet-the policy guidelines set out in the Ordinance before the amendment can receive favorable recommendation. As discussed supra, the Planning Board must transmit its recommendation, along with a statement of zoning consistency, to the Board of Commissioners.\nRegardless of the contents of the minutes obtained by Boose at the Planning Department office, the recommendation received by the Board of Commissioners contained both a statement of consistency and a discussion indicating that the proposed amendment met the policy guidelines in the Ordinance.\nFurther, the record indicates that at the 15 September 2008 meeting of the Board of Commissioners, 17 days before Boose obtained the first set of minutes, a member of the Planning Board informed the Board of Commissioners of the recommendation and read the statement of zoning consistency from the Planning Board. Accordingly, Plaintiffs\u2019 contention that a missing portion of the minutes at the Planning Department office indicates that the Planning Board failed to consider the policy guidelines and the amendment\u2019s consistency, or that the Planning Board added the missing portion surreptitiously after their initial meeting, is untenable. Plaintiffs\u2019 argument is overruled.\nC. Improper approval of a correctional facility within one mile of residential property\nPlaintiffs lastly argue that summary judgment was improper because the rezoning violates Article 17 of the Ordinance, which provides that \u201c[n]o correctional facility shall be permitted to locate or expand within a one (1) mile radius of any property used for residential purposes[.]\u201d\nAs Defendants correctly point out, Article 17, which governs \u201cConditional Uses,\u201d is not applicable in this case. As the minutes of the Board of Commissioners\u2019 20 October 2008 meeting indicate, this matter is governed by Article 16, \u201cParallel Conditional Districts and the Conditional Rezoning Process.\u201d Section 1 of Article 16 provides as follows:\nIn the event that an application for the reclassification of property to a parallel conditional district seeks the approval of a use normally allowed as a conditional use in the corresponding general use district: Approval of the application by the Board of Commissioners solely in accordance with the provisions of this Article shall be deemed sufficient to allow such use of the property, and it will not be necessary for the applicant or the property owner to obtain a conditional use or other compliance permit, or to meet the conditions prescribed by other Articles of this Ordinance.\nIn this case, the application seeks the Board of Commissioners\u2019 approval to use the Hoots Road site as a correctional facility, which is a conditional use normally allowed in the corresponding general use district (i.e., Manufacturing-Industrial One). Accordingly, it is not necessary for Defendants to meet the conditions prescribed by the other articles of the Ordinance, specifically Article 17. Plaintiffs\u2019 argument is without merit.\nBased on the foregoing, we hold that the trial court did not err by granting Defendants\u2019 motion for summary judgment, by denying Plaintiffs\u2019 motion to recuse, or by granting Plaintiffs\u2019 motion to continue. The orders of the trial court are\nAFFIRMED.\nJudges Robert C. HUNTER and Robert N. HUNTER, JR. concur.\n. On appeal, Plaintiffs fail to argue any grounds for appeal of Judge Wilson\u2019s order partially granting Defendants\u2019 motion to dismiss. Accordingly, Plaintiffs\u2019 appeal of this order is taken as abandoned. See N.C. R. App. P. 28(b)(6) (2009).\n. The citations to the record page numbers in Plaintiffs\u2019 assignments of error are incorrect. However, this failure is not sufficient to warrant dismissal of this appeal based on failure to comply with the Rules of Appellate Procedure. Davis v. Macon Cty. Bd. of Educ., 178 N.C. App. 646, 650, 632 S.E.2d 590, 593, disc. review denied, 360 N.C. 645, 638 S.E.2d 465 (2006).\n. Although Plaintiffs\u2019 motion was granted in open court on 27 April 2009, Plaintiffs begin their calculation of the continuance period on the date the trial court signed its order: 1 May 2009.\n. In their motion to continue, Plaintiffs prayed for a 150-day continuance. However, at the hearing on the motion, Plaintiffs requested the hearing be continued for 120 days following the last pleading filed in the case, which was Defendants\u2019 13 April 2009 answer. Because Plaintiffs only address the issue of whether the court abused its discretion in not granting the 120-day continuance, we, too, only address that issue.\n. Further, the process outlined in Article 17 involves application for a permit granted by the Yadkin County Board of Adjustment. Although the Board of Adjustment is a named Defendant, other than in the caption, there is no mention of the Board of Adjustment in the record, transcript, or briefs. In this case, Defendants sought to rezone the Hoots Road site by application to the Board of Commissioners and the Planning Board and by following the procedures outlined in Article 16.", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "Randolph and Fischer, by J. Clark Fischer, and Melvin & Powell, by Edward L. Powell, for Plaintiffs.", "James L. Graham and Bell, Davis & Pitt, P.A., by Michael D. Phillips, for Defendants." ], "corrections": "", "head_matter": "CHARLES K. SAPP, NANCY SAPP, HENRY KEITH MILLER, JR., FOREST BRENT SLOOP, LORI A. SLOOP, RICHARD L. WHELPLEY, LOKEEL M. WHELPLEY, ETHEL P. SMITH, DOUGLAS JOHN BUTLER, PEGGY S. BOOSE, WILLIAM E. GARRETT, JR., CATHY S. HARPER, KENNETH J. HARPER, KEITH MILLER, SR., and BETTY MILLER, Plaintiffs, v. YADKIN COUNTY, YADKIN COUNTY PLANNING BOARD and YADKIN COUNTY BOARD OF ADJUSTMENT, Defendants\nNo. COA09-1725\n(Filed 1 February 2011)\n1. Discovery\u2014 time \u2014 local rules\nThe trial court did not err by granting plaintiffs\u2019 motion to continue discovery for only 45 days instead of 120. The local rule allowing 120 days for completion of discovery does not entitle a party to a mandatory 120 day period.\n2. Discovery\u2014 hearing date \u2014 sufficient time allowed \u2014 discovery not closed\nPlaintiffs were not prevented from utilizing any necessary discovery procedures by a continuance of discovery for only 45 days. Plaintiffs\u2019 conduct following the continuance belied the need for additional time; furthermore, setting a date for the summary judgment hearing did not close the discovery period.\n3. Judges\u2014 recusal denied \u2014 no personal interest or preference\nThe trial court did not err by denying a motion to recuse where the case involved rezoning for a new jail and the judge had previously issued show cause orders involving jail conditions and the construction of a new jail \u201cwith all deliberate speed.\u201d There was nothing to indicate that the judge\u2019s desire for a prompt resolution of the jail issue was personal or that he had any preference or opinion on the location of the new jail.\n4. Zoning\u2014 statement of consistency \u2014 supplied to Commissioners \u2014not required to be in minutes\nThe Planning Board met the requirements of N.C.G.S. \u00a7 153A-341 and a Yadkin County zoning ordinance by providing a written recommendation to the Board of Commissioners addressing zoning consistency. There was nothing in the statutes or ordinance requiring a statement of consistency in the Planning Board minutes.\n5. Zoning\u2014 consistency and policy guidelines \u2014 no secrecy or impropriety\nThere was no genuine issue of fact regarding any secrecy or impropriety surrounding a rezoning where, regardless of the contents of the Planning Board minutes, the recommendation received at the Planning office by plaintiff Boose contained both a statement of consistency and a discussion indicating that the proposed zoning amendment met the policy guidelines in the ordinance. Moreover, a member of the Planning Board informed the Board of Commissioners of the recommendation and read the statement of consistency.\n6. Zoning\u2014 conditional use \u2014 correctional facility\nThe trial court did not err by granting summary judgment for defendants in a case involving a rezoning for a new jail. Plaintiffs pointed to an ordinance provision regarding proximity of correctional facilities to residential properties, but that provision was not applicable.\nAppeal by Plaintiffs from orders entered 17 April 2009, 8 May 2009, and 2 July 2009 by Judges Edwin G. Wilson, Jr., A. Moses Massey, and John O. Craig, III, respectively, in Yadkin County Superior Court. Heard in the Court of Appeals 18 August 2010.\nRandolph and Fischer, by J. Clark Fischer, and Melvin & Powell, by Edward L. Powell, for Plaintiffs.\nJames L. Graham and Bell, Davis & Pitt, P.A., by Michael D. Phillips, for Defendants." }, "file_name": "0430-01", "first_page_order": 440, "last_page_order": 450 }