Zoning_building moratorium_public notice requirement
After a rehearing (and with this opinion superseding the first), the Court of Appeals held
that the trial court erred by not granting summary judgment for plaintiff in an action involving a
building permit sought by plaintiff and a moratorium on heavy industry imposed by defendant.
The moratorium dealt specifically with building permits and was therefore subject to the notice
requirements of Article 18 of Chapter 153A, which were not met. N.C.G.S. § 153A-323.
Bazzle & Carr, P.A., by Eugene M. Carr, III, Kennedy,
Covington, Lobdell & Hickman, L.L.P., by Lacy H. Reaves and
Amie Flowers Carmack, for plaintiff-appellant.
Sigmon, Clark, Mackie, Hutton, Hanvey, & Ferrell, P.A., by
Warren A. Hutton, Forrest A. Ferrell and Stephen L. Palmer;
Nanney, Dalton & Miller, L.L.P., by Walter H. Dalton and
Elizabeth Thomas Miller, for defendant-appellee.
HUNTER, Judge.
An opinion was filed in this case on 21 October 2003. On 25
November 2003, defendants filed a petition for rehearing. On 5
December 2003, we allowed that petition, reconsidering the case
with the filing of additional briefs, and the hearing of oral
arguments on 14 January 2004. The following opinion supersedes and
replaces the opinion filed 21 October 2003.
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 andthrough 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 futureconstruction 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 after having met those requirements that led to the
application's initial denial. Nevertheless, the County Building
Department denied Hanson's permit application again, basing that
denial on the recent approval of 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 the 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.”
The Board met on 1 October 2001 to consider the School Zone
Protective Ordinance (“SZPO”), which would prohibit theconstruction or operation of any heavy industry in areas identical
to those listed in the moratorium. Notice of the hearing complied
with relevant statutory procedures regarding ordinances that govern
zoning. The Board unanimously voted to adopt the SZPO pursuant to
the County's general police powers under Section 153A-121 of the
North Carolina General Statutes.
Hanson filed an Amended Verified Complaint and Petition for
Mandamus on 2 October 2001. Defendants answered and counterclaimed
that Hanson should be enjoined from operating a crushed rock quarry
on the Property because, inter alia, (1) the moratorium was
properly enacted pursuant to the County's general police powers and
therefore no notice was required, and (2) at no time prior to the
adoption of the SZPO did Hanson have the requisite state permits or
any vested statutory or common law right to operate a rock quarry
on the Property. 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 granteddefendants' 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 in
the 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. “Before adopting or
amending any ordinance authorized by this Article . . . , the board
of commissioners shall 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
(2003) (emphasis added). 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 sixty-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 a
moratorium 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.
Plaintiff contends that Vulcan is analogous to the present
case; a contention defendants dispute. In turn, defendants cite
Maynor v. Onslow County, 127 N.C. App. 102, 105, 488 S.E.2d 289,
291 (1997), in which this Court recognized that “[c]ounties may
enact ordinances regulating land use in two fashions: one,
pursuant to a comprehensive zoning plan, N.C. Gen. Stat. § 153-341
. . . , and two, pursuant to their police powers, N.C. Gen. Stat.
§ 153A-121 . . . .” Defendants contend this case is
distinguishable from Vulcan because the County did not have a
comprehensive zoning plan. A zoning plan consists of ordinances designed to enable the
government of counties to divide the county into districts or zones
for the purpose of regulating the uses of each parcel of land in
the county. James A. Webster, Jr., Webster's Real Estate Law in
North Carolina § 18-14, at 863 (Patrick K. Hetrick & James B.
McLaughlin, Jr., eds., 5th ed. 1999). In Vulcan, the moratorium
enacted restricted “'any building permits being issued in all areas
not currently zoned if the building permit call[ed] for uses of the
land other than stated in the land use plan.'” Vulcan, 103 N.C.
App. at 780, 407 S.E.2d at 284. Defendant contends that unlike the
County's moratorium, the moratorium in Vulcan “did not address any
conditions affecting the health, safety or welfare of the citizens
of Iredell County[,]” but “simply furthered the process already
begun by the County to enact a complete countywide zoning
ordinance.” Therefore, any notice of a public hearing was
unnecessary because the moratorium was allowable under the County's
police powers pursuant to Section 153A-121, specifically stating as
such, 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 a county's police powers, are those
delegated to it by the Legislature to make ordinances which
“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). See also Maynor, 127 N.C. App. at 105,
488 S.E.2d at 291. Based on this statute, the defendant in PNEargued 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.
Despite defendants' contentions, we conclude the present case
is analogous to Vulcan. As in Vulcan, the moratorium had the
effect of making unzoned areas of the County subject to zoning
prior to the adoption of a zoning ordinance. Vulcan, 103 N.C. App.
at 782, 407 S.E.2d at 286. Essentially, the moratorium was itself
a temporary comprehensive land use plan that allowed the County
Planning Commission 120 days to study the adoption of a permanent
land use plan (the SZPO) to regulate heavy industry within school
zones. Our statutes recognize that a comprehensive zoning land use
plan does not have to be complex, it need only
divide [a county's] territorial jurisdiction
into districts of any number, shape, and area
. . . . Within these districts a county may
regulate and restrict the erection,
construction, reconstruction, alteration,
repair or use of buildings, structures, or
land. . . .
A county may determine that the public
interest does not require that the entire
territorial jurisdiction of the county be
zoned and may designate one or more portions
of that jurisdiction as a zoning area or
areas.
N.C. Gen. Stat. § 153A-342 (2003). By approving the moratorium,
the Board divided the County into two areas -- zones in which heavyindustry was allowed and those in which it was not. An action of
this nature is authorized under Article 18 even though the Board
sought to use Section 153A-121 to justify the County division.
Also, like Vulcan, this case involves the approval of 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.
Finally, 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 powers. 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 “enacted pursuant to and by virtue of the generalpolice powers granted Rutherford County pursuant to N.C.G.S. 153A-121.”
In conclusion, since the moratorium was the type of ordinance
authorized by Article 18, the County had to comply with the notice
requirements of Section 153A-323. Although the County subsequently
complied with those requirements before adopting the SZPO,
defendants had already been ordered to issue Hanson a building
permit because the moratorium was an invalid exercise of the
County's police powers. Plaintiff, as the owner of the Property
and the party properly substituted for Hanson in this action, is
now therefore entitled to that permit. Accordingly, we reverse the
trial court's denial of plaintiff's summary judgment motion and its
grant of summary judgment in favor of defendants. To hold
otherwise would allow counties to make zoning decisions without
complying with the statutory requirements of Article 18. Further,
reversal on this issue renders the need to address plaintiff's
remaining assignment of error unnecessary. It should be noted,
however, that our holding provides only that the trial court erred
in enforcing the moratorium against plaintiff thereby preventing it
from being issued a building permit. Thus, regardless of those
arguments raised by the parties during re-hearing of this case as
to plaintiff's application to the State for a mining permit, there
was neither sufficient evidence in the record for this Court to
view that issue nor did the order from which plaintiff appeals
address any issues related to the mining permit.
Reversed.
Judges McGEE and CALABRIA concur.
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