Zoning_building moratorium_public notice requirement_police power
The trial court erred by denying summary judgment for plaintiffs, and by granting
summary judgment for defendant county, on a claim for an injunction against enforcement of a
moratorium against operation of new or expanded heavy industry within 2,000 feet of structures
including schools. The public hearing at which the moratorium was passed took place without
sufficient public notice; defendant cannot avoid the requirements of N.C.G.S. § 153A-323 simply
because the ordinance stated it was enacted pursuant to the county's general police powers
.
Bazzle & Carr, P.A., by Eugene M. Carr, III, for plaintiff-
appellant.
Sigmon, Clark, Mackie, Hutton, Hanvey, & Ferrell, P.A., by
Warren A. Hutton and Forrest A. Ferrell; Nanney, Dalton &
Miller, L.L.P., by Walter H. Dalton and Elizabeth Thomas
Miller, for defendant-appellee.
HUNTER, Judge.
Sandy Mush Properties, Inc. (“plaintiff”) appeals an order
denying its Motion for Summary Judgment and Motion to Amend
Complaint; and granting Rutherford County's (“the County”), by and
through the County Board of Commissioners (“the Board”)
(collectively “defendants”), Motion for Summary Judgment. For the
reasons stated herein, we reverse.
On 21 June 2001, defendants ran a legal advertisement in The
Daily Courier, a newspaper of general circulation in the County,noticing a public hearing to be held on 2 July 2001. The hearing
was in reference to a proposed Polluting Industries Development
Ordinance (“PIDO”) that prohibited the operation of a new or
expanded heavy industry within 2,000 feet of a church, school,
residence or other structures.
At the time of the notice's publication, Hanson Aggregates
Southeast, Inc. (“Hanson”) had an option to lease a tract of land
in the County from plaintiff that consisted of approximately 180
acres (“the Property”) that was within 2,000 feet of a school
boundary. On 26 June 2001, Hanson applied to the County Building
Department for a building permit to operate a crushed stone quarry
on the Property. The request was denied. Hanson was informed that
it needed to obtain approval from the County Health Department for
a septic tank and submit a set of building plans for the proposed
site that were stamped by a North Carolina licensed engineer.
On 2 July 2001, the Board conducted a public hearing on the
proposed PIDO. Hanson attended the hearing and spoke in opposition
to the proposed ordinance. At the close of the hearing, a County
Commissioner moved that an ordinance imposing a 120-day moratorium
to prohibit the initiation of heavy industry in the County school
zones be adopted, during which time the County Planning Commission
could study a land use ordinance which would regulate future
construction of heavy industry within school zones.
(See footnote 1)
The motion
was approved. On 28 August 2001, the County Planning Commission recommended
that the proposed PIDO not be adopted by the Board. Thereafter,
Hanson renewed its application for a building permit on 31 August
2001. The application included a copy of building plans that had
been stamped by a North Carolina licensed engineer. Nevertheless,
the County Building Department denied the permit based upon the
moratorium.
On 12 September 2001, Hanson filed a complaint against
defendants requesting that they be enjoined from enforcing the
moratorium because defendants had violated statutory procedures by
not publishing adequate notice of the public hearing at which the
moratorium was passed. Hanson's complaint also requested a Writ of
Mandamus requiring defendants to issue it a building permit.
Following a 28 September 2001 hearing on this matter, the trial
court concluded that the moratorium “was not an exercise of the
[County's] police power and was therefore invalid.” Thus,
defendants were enjoined from enforcing the moratorium and were
ordered to issue Hanson the building permit; however, the court's
order provided that its “findings of fact and conclusions of law
concerning the injunction [were] not binding on any future court
hearing this matter.”
During that same time, the Board met and considered the School
Zone Protective Ordinance (“SZPO”) on 4 September 2001, which
prohibited the construction or operation of any heavy industry in
areas identical to those listed in the moratorium. The Board
unanimously voted to adopt the SZPO pursuant to the County's
general police powers under Section 153A-121 of the North CarolinaGeneral Statutes. Thereafter, Hanson filed an Amended Verified
Complaint and Petition for Mandamus. Defendants answered and
counterclaimed that Hanson should be enjoined from operating a
crushed rock quarry on the Property because it would be in
violation of the SZPO. Following Hanson's reply to the
counterclaim, defendants filed a Motion for Summary Judgment on 21
June 2002.
On 2 July 2002, it was announced that Hanson had terminated
its lease with plaintiff and that plaintiff was willing to be
substituted for Hanson in the action, ratifying all claims by
Hanson. An order approving substitution of the parties was entered
on 8 August 2002. Prior to the entry of the order, however,
plaintiff filed a Motion to Amend (Hanson's Amended Verified)
Complaint to add another claim on 30 July 2002, as well as its own
Motion for Summary Judgment. Defendants filed an objection to the
Motion to Amend Complaint.
The parties' motions were heard on 12 August 2002. The trial
court subsequently denied both of plaintiff's motions and granted
defendants' Motion for Summary Judgment. Finally, the court
dismissed plaintiff's claims and dissolved the Writ of Mandamus and
preliminary injunction issued as a result of the 28 September 2001
hearing. Plaintiff appeals.
Plaintiff assigns error to the trial court's denial of its
Motion for Summary Judgment and grant of defendants' Motion for
Summary Judgment. Specifically, plaintiff contends that the public
hearing at which the moratorium was passed, ultimately resulting inthe denial of its building permit, took place without sufficient
notice pursuant to Section 153A-323 of our statutes. We agree.
Generally, “notice and public hearing are not mandated for the
adoption of ordinances.” Vulcan Materials Co. v. Iredell County,
103 N.C. App. 779, 782, 407 S.E.2d 283, 285 (1991). However, our
statutes and case law recognize an exception for the adoption of
any ordinance authorized by Article 18 of Chapter 153A. Id.
“Article 18 governs zoning, subdivision regulation, building
inspection (including issuance of building permits), and community
development.” Id. at 782, 407 S.E.2d at 286. When the adoption of
an ordinance authorized under this article is at issue, the county
board of commissioners is required to “hold a public hearing on the
ordinance . . . [and] shall cause notice of the hearing to be
published once a week for two successive calendar weeks.” N.C.
Gen. Stat. § 153A-323 (2001). Failure to adhere to the notice
requirements of Section 153A-323 will result in any subsequently
enacted ordinance covered by Article 18 being invalid as
demonstrated by this Court's holding in Vulcan.
In Vulcan, the plaintiff challenged a local ordinance imposing
a 60-day moratorium on the issuance of building permits pending the
enactment of a zoning ordinance. The plaintiff asserted that the
moratorium violated Section 153A-323 and its requirements of notice
to the public and a public hearing prior to the moratorium's
adoption. The trial court granted summary judgment in favor of the
plaintiff and ordered that the requested building permit be
granted. On appeal by the defendants, the Vulcan Court determined
that no specific authority existed for the imposition of amoratorium on the issuance of building permits pending zoning.
Nevertheless, it concluded that the defendants' moratorium was
within the purview of Article 18 because both zoning and ordinances
imposing moratoriums that deal specifically with the issuance of
building permits are governed by Article 18. Thus, the defendants'
failure to hold a public hearing or give notice, as required under
Section 153A-323, invalidated the moratorium. Vulcan, 103 N.C.
App. at 782, 407 S.E.2d at 286.
The present case is analogous to Vulcan. As in Vulcan, this
case involves an ordinance imposing a moratorium that effectively
denied plaintiff the issuance of a building permit pending
enactment of the SZPO. Since the moratorium “deal[t] specifically
with the issuance of building permits, [it] is . . . covered by
Article 18[,]” and its adoption had to comply with the notice
requirements of Section 153A-323. Id. Yet, only one advertisement
noticing the public hearing at which the moratorium was adopted
appeared in the local paper approximately ten days prior to the
hearing, despite Section 153A-323's requirement that “[t]he board
shall cause notice of the hearing to be published once a week for
two successive calendar weeks.” N.C. Gen. Stat. § 153A-323. The
moratorium was therefore invalid.
It should be noted that defendants argue that any notice of a
public hearing was unnecessary because the moratorium was allowable
under the County's police power pursuant to Section 153A-121 of our
statutes and PNE AOA Media, L.L.C. v. Jackson Cty., 146 N.C. App.
470, 554 S.E.2d 657 (2001). Section 153A-121, entitled “General
ordinance-making power[,]” provides, inter alia, that as anexercise of a county's general police power, it “may by ordinance
define, regulate, prohibit, or abate acts, omissions, or conditions
detrimental to the health, safety, or welfare of its citizens and
the peace and dignity of the county[.]” N.C. Gen. Stat. § 153A-
121(a) (2001). Based on this statute, the defendant in PNE argued
that it did not have to publish notice or advertise that it was
considering adoption of a moratorium that would prohibit PNE from
being issued a billboard permit that conflicted with the Jackson
County zoning code. On appeal, the PNE Court concluded that the
general police powers of Section 153A-121 did not require notice in
that situation, particularly since the ordinance stated it was
enacted pursuant to Section 153A-121(a). PNE, 146 N.C. App. at
478-79, 554 S.E.2d at 662-63.
Like PNE, defendants also contend that no notice was required
because the moratorium prohibiting the issuance of plaintiff's
building permit stated it was enacted pursuant to Section 153A-121.
However, defendants' reliance on our holding in PNE is misplaced.
PNE involved the adoption of a moratorium prohibiting the issuance
of a billboard permit. Ordinances imposing moratoriums of that
nature are not governed by Article 18 of Chapter 153A; therefore,
the defendant in PNE properly acted under Section 153-121's general
police power. In the case sub judice, defendants clearly adopted
an ordinance that imposed a moratorium on the issuance of building
permits, which are governed by Article 18 of Chapter 153A.
Defendants cannot now avoid the notice requirements of Section
153A-323 simply because the moratorium stated it was “enactedpursuant to and by virtue of the general police powers granted
Rutherford County pursuant to N.C.G.S. 153A-121.”
Accordingly, we reverse the trial court's denial of
plaintiff's summary judgment motion and its grant of summary
judgment in favor of defendants. Reversal on this issue renders
the need to address plaintiff's remaining assignment of error
unnecessary.
Reversed.
Judges McGEE and CALABRIA concur.
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