{ "id": 12172143, "name": "BRIAN THOMAS ATKINSON and MYERS PARK HOMEOWNERS ASSOCIATION, INC., a North Carolina Non-Profit Corporation, Plaintiffs v. CITY OF CHARLOTTE, a North Carolina Body Politic and Corporate, Defendant and QUEENS UNIVERSITY OF CHARLOTTE and JOHNSON C. SMITH UNIVERSITY, North Carolina non-profit corporations, Defendant-Intervenors", "name_abbreviation": "Atkinson v. City of Charlotte", "decision_date": "2014-07-29", "docket_number": "No. COA13-1226", "first_page": "1", "last_page": "6", "citations": [ { "type": "official", "cite": "235 N.C. App. 1" } ], "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": "649 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639168 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0382-01" ] }, { "cite": "722 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 2012, "pin_cites": [ { "page": "483" }, { "page": "482" }, { "page": "483" }, { "page": "484" }, { "page": "483" }, { "page": "484", "parenthetical": "emphasis added" }, { "page": "484" } ], "opinion_index": 0 }, { "cite": "365 N.C. 449", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4153582 ], "year": 2012, "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/nc/365/0449-01" ] }, { "cite": "361 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739573 ], "year": 2007, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0519-01" ] }, { "cite": "669 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "576", "parenthetical": "quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)" } ], "opinion_index": 0 }, { "cite": "362 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150896 ], "year": 2008, "pin_cites": [ { "page": "573", "parenthetical": "quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0569-01" ] } ], "analysis": { "cardinality": 477, "char_count": 11808, "ocr_confidence": 0.713, "pagerank": { "raw": 6.836822038331608e-08, "percentile": 0.4171320412888937 }, "sha256": "7097082dda71366173d8f9776f092408b9681249f5abfc9095970fabc7a3f41b", "simhash": "1:9c2c0222179b4d50", "word_count": 1841 }, "last_updated": "2023-07-14T16:54:11.341648+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge McGEE concur." ], "parties": [ "BRIAN THOMAS ATKINSON and MYERS PARK HOMEOWNERS ASSOCIATION, INC., a North Carolina Non-Profit Corporation, Plaintiffs v. CITY OF CHARLOTTE, a North Carolina Body Politic and Corporate, Defendant and QUEENS UNIVERSITY OF CHARLOTTE and JOHNSON C. SMITH UNIVERSITY, North Carolina non-profit corporations, Defendant-Intervenors" ], "opinions": [ { "text": "CALABRIA, Judge.\nBrian Thomas Atkinson (\u201cAtkinson\u201d) and Myers Park Homeowners Association, Inc. (\u201cthe Association\u201d) (collectively \u201cplaintiffs\u201d) appeal from the trial court\u2019s order granting summary judgment in favor of the City of Charlotte (\u201cthe City\u201d) and intervenors Queens University of Charlotte (\u201cQueens\u201d) and Johnson C. Smith University (\u201cSmith\u201d) (collectively \u201cintervenors\u201d). We reverse and remand.\nIn late 2009, representatives from Queens and other Charlotte residents initiated an amendment (\u201cthe amendment\u201d) to the text of the City of Charlotte Zoning Ordinance (\u201cthe Zoning Ordinance\u201d). The purpose of the proposed amendment was to exempt certain parking decks from floor area ratio requirements imposed by the Zoning Ordinance.\nThe City\u2019s Planning Commission (\u201cthe Planning Commission\u201d) reviewed the proposed amendment and Planning Commission staff made a written recommendation to the Charlotte City Council (\u201cthe City Council\u201d) and to the seven members of the Planning Commission serving on the Department\u2019s Zoning Committee {\u201cthe Zoning Committee\u201d) that the amendment should be adopted. After a public hearing, the Zoning Committee voted unanimously to recommend the amendment\u2019s approval to the City Council on 26 May 2010. As part of that recommendation, the Zoning Committee included a statement which found the proposed amendment was consistent with the City\u2019s adopted policies and was reasonable and in the public interest.\nOn 21 June 2010, the City Council considered the proposed amendment. Mayor Anthony Foxx informed the Council that the Zoning Committee had found the amendment as proposed was consistent with the City\u2019s adopted policies, reasonable, and in the public interest (\u201cthe Statement of Consistency\u201d). The City Council voted to approve the Statement of Consistency and the amendment unanimously. Under the terms of the newly-passed amendment, parking decks which were constructed as \u201can accessory use to an institutional use\u201d were now exempt for the floor area ratio standards of the Zoning Ordinance when the decks were located in single family and multifamily zoning districts.\nAtkinson is a property owner in the Myers Park residential area, which is located adjacent to Queens. On 10 December 2012, Atkinson and the Association, on behalf of other Myers Park residents, initiated a declaratory judgment action in Mecklenburg County Superior Court seeking to have the amendment invalidated. Plaintiffs alleged that the City Council failed to comply with the requirements of N.C. Gen. Stat. \u00a7 160A-383 when it adopted the amendment.\nAfter the City filed its answer to plaintiffs\u2019 complaint, Queens and Smith filed a motion to intervene pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 24 (2013). The trial court granted this motion on 22 March 2013, and intervenors filed their responsive pleading that same day. Subsequently, all parties filed motions for summary judgment. The motions were heard on 24 June 2013. On 26 June 2013, the trial court entered an order granting summary judgment in favor of the City and intervenors. Plaintiffs appeal.\n\u201cOur standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that \u2018there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u2019 \u201d In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)).\nPlaintiffs argue that the trial court erred by granting summary judgment in favor of the City and intervenors because the undisputed facts establish that the City Council failed to comply with N.C. Gen. Stat. \u00a7 160A-383 when it adopted the amendment. Specifically, plaintiffs contend (1) that the \u201cStatement of Consistency\u201d adopted by the City Council did not meet the requirements of a \u201cstatement\u201d pursuant to that statute; and (2) that the Zoning Committee did not include the entire Planning Commission and thus the Zoning Committee\u2019s approval of the amendment also did not meet all statutory requirements. We agree with plaintiffs\u2019 first contention and find it to be dispositive. Consequently, we do not address plaintiffs\u2019 second contention.\nWhen adopting or rejecting any zoning amendment, the governing board shall also approve a statement describing whether its action is consistent with an adopted comprehensive plan and any other officially adopted plan that is applicable, and briefly explaining why the board considers the action taken to be reasonable and in the public interest. That statement is not subject to judicial review.\nN.C. Gen. Stat. \u00a7 160A-383 (2013). Thus,\nthe statute requires that defendant take two actions in this situation: first, adopt or reject the zoning amendment, and second, approve a proper statement. Id. The approved statement must describe whether the action is consistent with any controlling comprehensive plan and explain why the action is \u201creasonable and in the public interest.\u201d\nWally v. City of Kannapolis, 365 N.C. 449, 452, 722 S.E.2d 481, 483 (2012).\nIn Wally, the plaintiffs were property owners who challenged the rezoning of a nearby property because, inter alia, the City of Kannapolis had failed to expressly approve the consistency statement required by N.C. Gen. Stat. \u00a7 160A-383. Id. at 451, 722 S.E.2d at 482. The Court agreed with the plaintiffs\u2019 argument and held that the challenged zoning amendment was void for failure to comply with the statute\u2019s procedures. Id.\nIn reaching its holding, the Wally Court rejected three arguments made by the defendant-city in favor of upholding the amendment. First, the Court rejected the defendant-city\u2019s argument that any judicial review regarding a consistency statement was barred by N.C. Gen. Stat. \u00a7 160A-383, explaining that \u201cthe statute refers to an approved statement. While an approved statement is not subject to judicial review, the statute does not prohibit review of whether the City Council approved a statement, which is the issue here.\u201d Id. at 453, 722 S.E.2d at 483. Next, the Court rejected the defendant-city\u2019s argument that it had impliedly approved a consistency statement by virtue of having a staff report which included a consistency statement in its possession at the time the amendment was adopted because \u201c[t]he language of section 160A-383 does not authorize an implied approval.\u201d Id. Finally, the Court rejected the defendant-city\u2019s argument that its adoption of a statement \u201cannouncing that it acted within the guidelines of its zoning authority\u201d satisfied N.C. Gen. Stat. \u00a7 160A-383 because \u201cto meet the statutory requirements, an approved statement must describe whether the zoning amendment is consistent with any controlling land use plan and explain why it is reasonable and in the public interest. The statement adopted by the City Council provides no such explanation or description.\u201d Id. at 453-54, 722 S.E.2d at 484.\nIn the instant case, it is undisputed that the City Council formally adopted and approved the following statement proposed by the Zoning Commission:\nSTATEMENT OF CONSISTENCY This petition is found to be consistent with adopted policies and to be reasonable and in the public interest....\nDefendant and intervenors contend that, under Wally, since only the issue \u201cof whether the City Council approved a [consistency] statement\u201d is subject to judicial review, the trial court properly determined that it could not review this statement for compliance with N.C. Gen. Stat. \u00a7 160A-383. Id. at 453, 722 S.E.2d at 483. Defendant and intervenors axe mistaken.\nAs the Wally Court\u2019s discussion of the defendant-city\u2019s third argument in that case mak\u00e9s clear, judicial review of compliance with N.C. Gen. Stat. \u00a7 160A-383 requires more than a cursory review of the record for a statement that could plausibly be considered a consistency statement:\nCompliance with section 160A-383 requires more than a general declaration that the action comports with relevant law. Section 160A-383 explains that to meet the statutory requirements, an approved statement must describe whether the zoning amendment is consistent with any controlling land use plan and explain why it is reasonable and in the public interest. The statement adopted by the City Council provides no such explanation or description. Rather, it consists of a general declaration that in adopting the zoning amendment, the City Council acted within the guidelines of its zoning authority.\nId. at 453-54, 722 S.E.2d at 484 (emphasis added). Therefore, under Wally, judicial review of whether a city has adequately adopted a consistency statement as defined by N.C. Gen. Stat. \u00a7 160A-383 is limited to a court\u2019s determination of whether a city adopted a consistency statement which contains, at a minimum, both a description of whether the zoning amendment is consistent with any controlling land use plan and an explanation as to why the amendment is reasonable and in the public interest. Once it is determined that a proper statement, which includes a description and explanation, has been adopted, the content of the statement \u201cis not subject to judicial review.\u201d N.C. Gen. Stat. \u00a7 160A-383.\nThe Statement of Consistency adopted by the City Council in the instant case cannot reasonably be said to include an \u201cexplanation\u201d as to why the amendment is reasonable and in the public interest under the plain meaning of that term. Instead, the statement merely tracks the language of N.C. Gen. Stat. \u00a7 160A-383. While this statement attempts to more specifically address the requirements of N.C. Gen. Stat. \u00a7 160A-383 than the more generalized statement that the Court rejected in Wally, it still suffers from the same fatal flaw: \u201cThe statement adopted by the City Council provides no . . . explanation,\u201d as required by the statute. Id. at 454, 722 S.E.2d at 484. As a result, the City did not comply with N.C. Gen. Stat. \u00a7 160A-383 when it failed to adopt a proper \u201cstatement\u201d as that term is defined by the statute and interpreted by Wally, and its purported \u201cConsistency Statement\u201d does not fall within that statute\u2019s protections against judicial review. Accordingly, we reverse the trial court\u2019s order granting summary judgment in favor of defendant and intervenors and remand for the entry of summary judgment in favor of plaintiffs which declares the amendment to be void.\nReversed and remanded.\nChief Judge MARTIN and Judge McGEE concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Currin & Currin, by Robin T. Currin and George B. Currin, for plaintiff-appellants.", "Senior Assistant City Attorney Terrie Hagler-Gray, for defendant-appellee.", "Robinson Bradshaw & Hinson, P.A., by Richard A. Vinroot and John H. Carmichael, for defendant-intervenor-appellees." ], "corrections": "", "head_matter": "BRIAN THOMAS ATKINSON and MYERS PARK HOMEOWNERS ASSOCIATION, INC., a North Carolina Non-Profit Corporation, Plaintiffs v. CITY OF CHARLOTTE, a North Carolina Body Politic and Corporate, Defendant and QUEENS UNIVERSITY OF CHARLOTTE and JOHNSON C. SMITH UNIVERSITY, North Carolina non-profit corporations, Defendant-Intervenors\nNo. COA13-1226\nFiled 29 July 2014\nZoning\u2014amendment\u2014parking decks\u2014statement of consistency \u2014not sufficient\nSummary judgment was erroneously granted for defendant and the intervenors in an action involving a zoning amendment for parking decks, and the matter was remanded for the entry of summary judgment in favor of plaintiffs. The undisputed facts established that the City Council failed to comply with N.C.G.S. \u00a7 160A-383 when it adopted the amendment in that it could not reasonably have been said that The Statement of Consistency included an explanation as to why the amendment was reasonable and in the public interest.\nAppeal by plaintiffs from order entered 26 June 2013 by Judge Robert T. Sumner in Mecklenburg County Superior Court. Heard in the Court of Appeals 17 March 2014.\nCurrin & Currin, by Robin T. Currin and George B. Currin, for plaintiff-appellants.\nSenior Assistant City Attorney Terrie Hagler-Gray, for defendant-appellee.\nRobinson Bradshaw & Hinson, P.A., by Richard A. Vinroot and John H. Carmichael, for defendant-intervenor-appellees." }, "file_name": "0001-01", "first_page_order": 11, "last_page_order": 16 }