An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-727

NO. COA02-728


Filed: 15 July 2003

                                    Guilford County
v .                                 Nos. 00 CVS 2434-35


    Appeal by plaintiffs from orders entered 8 November 2001 and 6 December 2001 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 24 March 2003.
    No. COA02-727 (appealing No. 00 CVS 2434) and No. COA02-728 (appealing No. 00 CVS 2435) present related questions arising from the same controversy. Therefore, on its own initiative, this Court consolidated these cases for hearing pursuant to Rule 40 of the North Carolina Rules of Appellate Procedure. Consequently, we address both appeals in this opinion.

    Biesecker, Tripp, Sink & Fritts, L.L.P., by Christopher Alan Raines and Joe E. Biesecker, for plaintiff-appellants.

    Womble Carlyle Sandridge & Rice, P.L.L.C., by Gusti W. Frankel and Alison R. Bost, for defendant-appellee.

    HUNTER, Judge.

    Doctors Deborah and David Novak (“plaintiffs”) appeal the trial court's decision in 00 CVS 2434 to grant both a protective order and summary judgment in favor of the City of High Point (“the City”) in an action regarding the denial of plaintiffs' rezoningrequest. Plaintiffs also appeal the court's denial of their petition for writ of certiorari in 00 CVS 2435 regarding plaintiffs' request for a Conditional Use Permit (“Permit”). For the reasons stated herein, we affirm the trial court's order with respect to 00 CVS 2434, but remand with instructions its denial of plaintiffs' petition with respect to 00 CVS 2435.
    Plaintiffs are the owners of two lots on West Lexington Avenue that are located within the zoning jurisdiction of the City. Plaintiffs' lots, as well as those lots to the west, south, and east of their lots, have been in a district zoned Residential Single Family (“RS-9”) for nearly sixty years. In January of 1997, however, the City appointed a Citizens Advisory Committee to recommend revisions to both the City's Land Use Plan and Land Use Map (“Land Use Plan and Map”), which included the possible rezoning of plaintiffs' lots. The committee subsequently recommended, in part, that the Land Use Plan and Map should be revised to designate plaintiffs' two lots from low-density residential to office use. Following various public hearings and reviews, the recommended revisions were adopted by the City on 6 April 2000.
    Following the adoption, plaintiffs petitioned the City Council to rezone their lots from RS-9 to Conditional Use-Limited Office (“CU-LO”). Plaintiffs, both of whom are dental practitioners, sought to demolish the existing residences on the lots and build a dental office with a maximum size of 6,000 square feet. Plaintiffs filed a petition for a Permit for the proposed dental office simultaneously with their rezoning request.    Plaintiffs' rezoning request was met with opposition, which resulted in local residents signing a protest petition. In response to that petition, the City Council held a public hearing on 5 September 2000 to consider plaintiffs' request and to consider revisions to the Land Use Plan and Map. At the close of the hearing, during which evidence was offered from local residents and a representative from a school located across from plaintiffs' lots, the City Council voted unanimously to (1) amend the Land Use Plan and Map designation of plaintiffs' lots back to low-density residential, and (2) deny plaintiffs' rezoning request. The City Council chose not to vote on plaintiffs' Permit application because the denial of the rezoning request prevented the lots from qualifying for use as a dental office.
    On 9 October 2000, plaintiffs filed a declaratory judgment action challenging the City's refusal to rezone their lots (00 CVS 2434). Plaintiffs subsequently sought to depose the City Council and the Mayor to inquire about ex parte communications that allegedly took place prior to the public hearing. The City filed a motion seeking a protective order to prevent plaintiffs from inquiring about those communications on the grounds of legislative and quasi-judicial immunity. The protective order was granted on 8 November 2001 on those grounds. Thereafter, the City filed a motion for summary judgment.
    In addition to their declaratory judgment action, plaintiffs also filed a companion petition for writ of certiorari to challenge the non-issuance of the Permit (00 CVS 2435). The City moved todismiss the petition on the grounds that (1) plaintiffs' claims were not ripe for review, and (2) the action was not permitted pursuant to Section 160A-381 of the North Carolina General Statutes because the City Council had never rendered a decision on the Permit application.
    Arguments regarding the City's motion for summary judgment and plaintiffs' petition for writ of certiorari were heard in superior court on 3 December 2001. Ultimately, summary judgment was granted in the City's favor, and plaintiffs' petition was denied in a separate order. Plaintiffs filed separate appeals: (1) COA02-727, appealing the grant of the protective order and summary judgment in favor of the City in 00 CVS 2434; and (2) COA02-728, appealing the denial of plaintiffs' petition for writ of certiorari in 00 CVS 2435.

I. COA02-727

    In this appeal, plaintiffs take issue with the trial court's decision to (A) uphold the City Council's denial of plaintiffs' rezoning request, and (B) grant the City's protective order.

    Plaintiffs argue the trial court erred in granting summary judgment in favor of the City because its decision not to rezone plaintiffs' lots was (1) arbitrary and capricious, (2) a violation of plaintiffs' equal protection rights, and (3) a denial of plaintiffs' substantive due process rights.
1. Arbitrary and Capricious
    Plaintiffs contend the City's denial of their rezoning request was arbitrary and capricious because there was not substantial evidence in the record supporting the conclusion that the proposed dental office was incompatible with the residential neighborhood or constituted a risk to public safety.
    Initially, we note that plaintiffs' assertion as to insubstantial evidence implies the wrong standard by which to test the validity of a zoning decision. Since the grant or denial of a rezoning request is purely a legislative decision, that decision will only be deemed arbitrary and capricious if “the record demonstrates that it had no foundation in reason and bears no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense.” Graham v. City of Raleigh, 55 N.C. App. 107, 110, 284 S.E.2d 742, 744 (1981). A reviewing court is “not free to substitute [its] opinion for that of the legislative body so long as there is some plausible basis for the conclusion reached by that body.” Id. Thus, as the reviewing court, we are not to determine whether there was substantial evidence supporting the City's decision, but rather whether there was a plausible basis for that decision.
    The evidence presented in the instant case demonstrated that there was some plausible basis for the City's denial of plaintiffs' rezoning request. At the public hearing, evidence was offered that plaintiffs' lots had been continuously zoned RS-9 for approximately sixty years. The proposed dental office was going to be nearly three times larger than the single family homes in the immediatearea. Due to the number of children living and playing in that area, local residents and a school representative voiced concerns as to the increased traffic the proposed office would generate. These concerns were further supported by plaintiffs' own expert who testified that the proposed office would generate approximately 198 more vehicle trips per day. This evidence provides a plausible basis for denying the rezoning of plaintiffs' lots.
2. Equal Protection Rights

    Plaintiffs also attack the denial of their rezoning request on equal protection grounds. The Equal Protection Clause protects persons who are intentionally treated differently from others similarly situated when there is no rational basis for the difference in treatment. Cleburne v. Cleburne Living Center, 473 U.S. 432, 87 L. Ed. 2d 313 (1985). Plaintiffs contend that they were not treated the same as persons owning similarly situated properties who were granted rezoning requests of a more intensive commercial nature. To support their contention, plaintiffs presented a chart during the public hearing that listed approximately fifty other properties in the City that had been rezoned from residential to office use. Of these numerous properties, only one was rezoned from RS-9 to CU-LO, which was identical to the request sought by plaintiffs. Yet, plaintiffs offered no other evidence as to how that property or any of the other properties listed on the chart were similarly situated to their two lots with respect to neighborhood characteristics and/or traffic concerns. Without more, plaintiffs were unable to provethey were treated differently from those similarly situated to them.
    Nevertheless, assuming arguendo that plaintiffs proved their lots were similarly situated to the properties listed on the chart, the evidence supports the conclusion that the City Council's refusal to rezone plaintiffs' lots was related to a legitimate governmental interest. “Generally, when . . . a governmental act classifies persons or entities in a manner that does not involve a suspect class or fundamental right, equal protection requirements are not violated so long as the classification bears some rational relationship to a conceivable, legitimate public interest.” Goodman Toyota v. City of Raleigh, 63 N.C. App. 660, 665, 306 S.E.2d 192, 195 (1983) (footnote omitted). Plaintiffs contend the City offered only speculative and generalized fears that their proposed rezoning would increase traffic congestion and pose safety problems, particularly to the neighborhood children. We disagree.
    As previously stated, plaintiffs' own expert testified that the proposed office would increase daily traffic by 198 more vehicle trips a day in an area where children frequented due to their living in the single-family residential neighborhood and attending the nearby school. Traffic safety and the protection of an existing single-family residential neighborhood is an appropriate goal of rezoning regulations and therefore is recognized as a legitimate public interest. See id. See also Finch v. City of Durham, 325 N.C. 352, 368, 384 S.E.2d 8, 17 (1989). Thus, the denial of the rezoning request was rationallyrelated to the City's desire to limit increased traffic and safety concerns.
3. Substantive Due Process Rights

    Plaintiffs further contend that the denial of their rezoning request violated their substantive due process rights. In order to comply with substantive due process, the denial of changes to zoning regulations must pass a two prong test: (1) the denial “must be designed to achieve objectives within the scope of the police power[;]” and (2) the denial “must seek to achieve those objectives by reasonable means.” Goodman Toyota, 63 N.C. App. at 663, 306 S.E.2d at 194. Plaintiffs bring forth two arguments with respect to the second prong of this due process analysis.
    First, plaintiffs generally argue that the City's objectives were unreasonable because they required plaintiffs to comply with a vague development ordinance (“ordinance”) that was not in conformity with due process. The ordinance at issue provides, inter alia, that:
        The zoning map amendment and conditional use permit shall not be approved unless . . . :

            . . . .

        the location and character of the development in accordance with the proposed conditions will be in harmony with the area in which it is to be located and in general conformity with the plan of development of the city and its environs.
Plaintiffs contend that although not expressly stated in the ordinance, it is the general practice of the City to grant rezoning requests that conform to the Land Use Plan and Map, which theirrequest did at the time of its filing. By allowing changes to be made to the Land Use Plan and Map during the City Council's consideration of the request, plaintiffs assert the City prevented them from reasonably knowing how to comply with the ordinance thereby giving the City Council a reason to deny the request. We disagree.
    This Court has held that “[s]tatutes and ordinances must be sufficiently precise; a 'statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.'” Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 128 N.C. App. 703, 708, 496 S.E.2d 825, 828 (1998) (citation omitted). At the time plaintiffs in the present case filed the request to have their property rezoned from RS-9 to CU-LO, the City Council had already revised the Land Use Plan and Map designating their lots from low-density residential to office use. However, a Land Use Plan does not constitute rezoning, “but rather the plan sets out general guidelines for the guidance of zoning policy.” Graham, 55 N.C. App. at 114, 284 S.E.2d at 747. The Land Use Plan specifically stated that the plan amendment process “allows for minor changes to the Land Use Plan and Map based on small area plans, zoning decisions or other detailed planning studies that suggest minor shifts in planning objectives or land use classifications to reflect emerging trends.” Thus, plaintiffs havefailed to state a constitutional violation based on the alleged vagueness of the ordinance.
    Secondly, plaintiffs argue the denial of their rezoning request was not reasonable because the benefits of denying their request did not outweigh the burden upon them as property owners. Whether the means surrounding the denial of a rezoning request are reasonable “depends on their promotion of the public good and their reasonably minimal interference with the property owner's right to use his property as he deems appropriate.” Goodman Toyota, 63 N.C. App. at 663, 306 S.E.2d at 194. As noted in our prior analysis of plaintiffs' equal protection argument, the denial of their rezoning request was a reasonable means of implementing the City's public goal of limiting the safety and traffic concerns that the proposed office would have on the surrounding neighborhood and community. Thus, we must now determine whether the City's action was reasonable in degree as to plaintiffs' right to use their property as they deemed appropriate.
    With respect to this issue, plaintiffs argue the City's future plans to widen West Lexington Avenue will reduce the size of their lots making them unfeasible for residential use. Yet, there is no indication that the City's denial in any way affects the current use of plaintiffs' lots as low-density residential. Nevertheless, assuming arguendo that plaintiffs' lots were affected in some way, “'the mere fact that an ordinance results in the depreciation of the value of an individual's property or restricts to a certain degree the right to develop it as he deems appropriate is notsufficient reason to render the ordinance invalid.'” Responsible Citizens v. City of Asheville, 308 N.C. 255, 265, 302 S.E.2d 204, 210 (1983) (quoting A-S-P Associates v. City of Raleigh, 298 N.C. 207, 218, 258 S.E.2d 444, 451 (1979)). As plaintiffs have pointed out, and the record reveals, they can still use their lots in many other productive ways under the designation of low-density residential, such as for a common area recreation and service facility, family care home, child or adult care home, or a site for Christmas tree sales. See In re Appeal of CAMA Permit, 82 N.C. App. 32, 38, 345 S.E.2d 699, 703 (1986).
    Accordingly, the trial court did not err in granting summary judgment in favor of the City regarding plaintiffs' rezoning request.

    Next, plaintiffs argue the trial court erred in granting the City's protective order with respect to the depositions of the Mayor and City Council members. A protective order is “[a] court order prohibiting or restricting a party from engaging in a legal procedure (esp. discovery) that unduly annoys or burdens the opposing party or a third-party witness.” Black's Law Dictionary 1239 (7th ed. 1999). A trial court's grant of a protective order is discretionary and reviewable only for an abuse of that discretion. Powers v. Parisher, 104 N.C. App. 400, 409, 409 S.E.2d 725, 730 (1991). The protective order in the case sub judice prohibited plaintiffs,
        during the depositions of the Mayor and City Council members, from inquiring into 1) theactions, intentions, and motives of the Mayor and City Council members in enacting zoning and rezoning ordinances on the grounds of legislative immunity; and 2) the actions, intentions, and motives of the Mayor and City Council members in acting on plaintiffs' conditional use permit application on the grounds of quasi-judicial immunity.
Plaintiffs contend that although the Mayor and City Council members are individuals normally entitled to immunity, any ex parte communications that occurred outside the public hearings with citizens regarding the rezoning request were not within the scope of that power and thus, the Mayor and City Council members were not covered by any immunity or privilege. We disagree.
    City council members and the city mayor are “entitled to absolute legislative immunity for 'all actions taken “in the sphere of legitimate legislative activity.”'” Northfield Dev. Co. v. City of Burlington, 136 N.C. App. 272, 281, 523 S.E.2d 743, 749 (citations omitted), aff'd in part per curiam, disc. review improvidently allowed in part, 352 N.C. 671, 535 S.E.2d 32 (2000), aff'd in part, dismissed in part, vacated and remanded in apart, 151 N.C. App. 297, 565 S.E.2d 279 (2002). These same individuals are also entitled to “absolute quasi-judicial immunity for actions taken in the exercise of their judicial function.” Id. “These immunities shield the individual from the consequences of the litigation results and provide a testimonial privilege.” Id. at 282, 523 S.E.2d at 749. Here, the ex parte communications allegedly involved the rezoning of plaintiffs' lots. This Court has held that rezoning is a legislative act that entitles city council members and the city mayor to absolute legislative immunityand a testimonial privilege. Id. See also Kerik v. Davidson Cty., 145 N.C. App. 222, 551 S.E.2d 186 (2001). Further, the application of zoning policies to individual situations, applications, and requests is a quasi-judicial decision that also provides a testimonial privilege. Northfield Dev. Co., 136 N.C. App. at 282, 523 S.E.2d at 749. The communications that plaintiffs sought to discover dealt directly with the actions, intentions, and motives of the Mayor and City Council members in denying plaintiffs' request, making them immune from discovery. Therefore, the trial court did not abuse its discretion in granting the protective order.
II. COA02-728

    In plaintiffs' second appeal, they take issue with the trial court's order denying their petition for writ of certiorari based on the City Council's decision not to vote on plaintiffs' application for a Permit in light of the rezoning request being denied. Determining whether we need to reach the merits of plaintiffs' arguments however, requires this Court to first address the City's contention that this appeal is not properly before us. We conclude plaintiff's second appeal is not properly before this Court.
    A city may regulate the size, location, and use of buildings for the purpose of promoting health, safety, morals, or the general welfare of the community. N.C. Gen. Stat. § 160A-381(a) (2001); Hall v. City of Durham, 323 N.C. 293, 372 S.E.2d 564 (1988). To achieve that purpose, the city council may issue “conditional usepermits in the classes of cases or situations and in accordance with the principles, conditions, safeguards, and procedures specified therein and may impose reasonable and appropriate conditions and safeguards upon these permits.” N.C. Gen. Stat. § 160A-381(a). When an application for a conditional use permit is issued or denied, the city council's decision “shall be subject to review by the superior court by proceedings in the nature of certiorari.” N.C. Gen. Stat. § 160A-381(c). See also White Oak Properties v. Town of Carrboro, 313 N.C. 306, 308, 327 S.E.2d 882, 884 (1985).
    In the case sub judice, the City essentially contends that it was unnecessary that the City Council vote on plaintiffs' Permit application because the denial of the rezoning request prevented the conditional use plaintiffs sought. However, “[w]hile, as a practical matter, a decision granting or denying a . . . rezoning application may be made concurrently with a decision granting or denying a conditional use permit, the municipality is required to make separate decisions regarding a rezoning application and a permit application.” Village Creek Prop. Owners' Ass'n, Inc. v. Town of Edenton, 135 N.C. App. 482, 487, 520 S.E.2d 793, 796 (1999) (emphasis added). Since the City Council erroneously chose to neither grant nor deny plaintiffs' Permit application, the trial court should have remanded this issue to the superior court for further remand to the City Council directing it to make such a decision separate from that regarding the zoning request. Thus, although this Court has no jurisdiction to review on certiorari theCity Council's decision not to vote on plaintiffs' Permit application, we can and do remand this issue to the trial court with those instructions.
    COA02-727: Affirmed.
    COA02-728: Remanded with instructions.
    Chief Judge EAGLES and Judge CALABRIA concur.
    Report per Rule 30(e).

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