Appeal by plaintiffs from an order entered 28 June 2006 by
Judge Catherine C. Eagles in Yadkin County Superior Court. Heard
in the Court of Appeals 23 May 2007.
Randolph and Fischer, by J. Clark Fischer; Melvin and Powell,
by Edward L. Powell, for plaintiff-appellants.
Benjamin H. Harding, Jr., PLLC, by Benjamin H. Harding, Jr.,
for defendant-appellees Yadkin County, Leon Casstevens, Kim
Clark Phillips, Allen Sneed, D.C. Swain, and Brady Wooten,
Members of the Board of Commissioners of Yadkin County.
Vannoy, Colvard, Triplett & Vannoy, P.L.L.C., by Daniel S.
Johnson, for defendant-appellee Jerry L. Bryant.
HUNTER, Judge.
Delbert Chris Childress, Norma M. Davis, Steve G. Davis, Eddie
Allen Bryant, Eunice B. Macemore, L. Herman Burcham, Ruth K.
Burcham, Delmer Simmons, Ronald Childress, Kenneth Vestal, and Paul
Brown (“plaintiffs”) appeal the trial court's entry of summary
judgment in favor of Jerry Bryant (“Bryant”) and Yadkin County
(“the County”).
(See footnote 1)
This case involves the question of whether Yadkin
County properly re-zoned Bryant's property from rural agriculture
to restricted residential. After careful consideration, we affirm.
On 29 December 2004, Bryant filed a petition to re-zone
approximately fifty-one (51) acres of real property in BoonvilleTownship, Yadkin County, from a zoning classification of rural
agricultural to restricted residential. On 10 January 2005, the
Yadkin County Planning Board met to consider Bryant's petition to
re-zone the subject property and recommended that the petition be
denied.
After this hearing, notice of public hearing on this petition
was published in the Yadkin Ripple newspaper and signage was posted
on the property. On 21 February 2005, the Yadkin County Board of
Commissioners (“the Board”) held a public hearing to take comments
on Bryant's petition for re-zoning. The Board granted Bryant's re-
zoning request by a three to two (3-2) vote.
On 24 March 2005, plaintiffs filed a complaint against
defendants seeking a declaratory judgment that the amendment to the
Yadkin County Zoning Ordinance approved by the Board constituted
illegal spot zoning and/or illegal contract zoning. Yadkin County
and individual members of the Board filed an answer denying the
essential allegation of the complaint, and Bryant's answer denied
any impropriety in the amendment and counterclaimed on the grounds
that plaintiffs' complaint was wrongfully filed for the purpose of
harassment.
On 19 April 2005, the trial court granted plaintiffs' motion
for preliminary injunction and entered an order prohibiting Yadkin
County and the Board from reclassifying the property and Bryant
from using the property in a manner inconsistent with the rural
agriculture designation. Defendants and plaintiffs then moved forsummary judgment. The trial court granted defendants' motion for
summary judgment and denied plaintiffs' summary judgment motion.
In support of their motion for summary judgment, Yadkin County
and the Board submitted the affidavit of County Manager Cecil Wood
(“Wood”). According to Wood, the minutes of the Board's meeting
showed that “nine (9) people spoke in favor of the re-zoning
petition, four (4) people spoke in opposition to the re-zoning
petition and six (6) people spoke without directly indicating”
their position on the issue. The Board then considered the Yadkin
County Planning Board's recommendation that Bryant's petition be
denied and requested that the Planning Board gather additional
information regarding Bryant's petition to re-zone.
The Planning Board again recommended that Bryant's petition be
denied. On 9 March 2005, the Board then held another hearing
regarding Bryant's petition. Wood stated that at this meeting,
“one (1) person spoke in favor of the re-zoning petition and three
(3) people spoke in opposition to the re-zoning petition.” The
Board then voted in favor of the re-zoning.
Plaintiffs presented several affidavits in opposition to
defendants' summary judgment motion and in support of their motion
for summary judgment. One of the plaintiffs, Delbert Chris
Childress (“Childress”), provided an affidavit stating that Bryant
presented no evidence of the presence of adequate water and sewer
systems for the subdivision that Bryant had proposed. Childress
also alleged that the Board, in approving the re-zoning, never
articulated any reason for disagreeing with the Planning Board'sposition against the re-zoning. Other affidavits presented by
plaintiffs stated that the re-zoning was not in the best interest
of the community, would fundamentally change the nature of the
surrounding property, and would increase traffic in and around the
re-zoned property.
Plaintiffs present the following issues for this Court's
review: (1) whether the trial court erred in granting summary
judgment in favor of defendants on the issue of illegal spot
zoning; and (2) whether the trial court erred in granting summary
judgment in favor of defendants on the issue of illegal contract
zoning.
We review a trial court's grant of summary judgment de novo.
Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674,
693 (2004). “Summary 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.'” Summey v. Barker, 357 N.C. 492,
496, 586 S.E.2d 247, 249 (2003) (quoting N.C. Gen. Stat. § 1A-1,
Rule 56(c)). “Evidence presented by the parties is viewed in the
light most favorable to the non-movant.” Id.
Re-zoning is considered a legislative act. Kerik v. Davidson
Cty., 145 N.C. App. 222, 228, 551 S.E.2d 186, 190 (2001).
Accordingly, zoning decisions are typically afforded great
deference by reviewing courts and “[w]hen the most that can be said
against such ordinances is that whether it was an unreasonable,arbitrary or unequal exercise of power is fairly debatable, the
courts will not interfere[]” and in most circumstances, “will not
substitute its judgment for that of the legislative body[.]” In re
Appeal of Parker, 214 N.C. 51, 55, 197 S.E. 706, 709, appeal
dismissed, 305 U.S. 568 (1938). It therefore follows that the
burden of establishing that a zoning decision was invalid is
generally on the party challenging such a decision. Kinney v.
Sutton, 230 N.C. 404, 411, 53 S.E.2d 306, 310 (1949). In
situations involving spot zoning, however, the zoning authority
must establish a clear showing of a reasonable basis for the
action. Chrismon v. Guilford County, 322 N.C. 611, 627, 370 S.E.2d
579, 589 (1988).
I.
[1] Plaintiffs argue that the trial court erred in determining
that the re-zoning was not illegal spot zoning. We disagree.
Spot zoning has been defined as:
A zoning ordinance, or amendment, which
singles out and reclassifies a relatively
small tract owned by a single person and
surrounded by a much larger area uniformly
zoned, so as to impose upon the small tract
greater restrictions than those imposed upon
the larger area, or so as to relieve the small
tract from restrictions to which the rest of
the area is subjected, is called “spot
zoning.”
Blades v. City of Raleigh, 280 N.C. 531, 549, 187 S.E.2d 35, 45
(1972). Spot zoning is not invalid
per se in North Carolina so
long as the zoning authority made “a clear showing of a reasonable
basis for such distinction.”
Id. If a zoning decision is not
considered spot zoning then it is presumed valid.
Good Neighborsof S. Davidson v. Town of Denton, 355 N.C. 254, 258 n.2, 559 S.E.2d
768, 771 n.2 (2002).
Plaintiffs make only a conclusory argument that spot zoning
did occur and argue instead that the Board did not have a
reasonable basis to engage in spot zoning. Before reaching the
issue of whether the Board was reasonable, however, we must first
determine whether spot zoning occurred in the instant case.
A.
In order to determine whether spot zoning has occurred a
reviewing court looks to the following factors: (1) whether a
relatively small tract has been re-zoned (2) that is surrounded by
a much larger area uniformly zoned (3) which imposes on the small
tract greater restrictions
or relieves the small tract from those
restrictions. We address each factor in turn.
As to whether the tract is a “small tract” defendants put
forth only Wood's legal conclusion that the property in question
“would not meet the 'small tract' requirements of spot zoning.”
Plaintiffs also state a legal conclusion that the property is a
small tract. Thus, the parties' affidavits and briefing on this
issue are of little guidance. Our Supreme Court, however, has
concluded that fifty (50) acres can be considered a “small tract”
for purposes of determining whether spot zoning has occurred.
Good
Neighbors of S. Davidson, 355 N.C. at 259, 559 S.E.2d at 772.
Thus, defendant Bryant's property, being approximately the same
size, meets the first element of spot zoning. The next issue is whether the re-zoned tract is surrounded by
a much larger uniform tract. Reading plaintiffs' affidavits
together they assert that defendant Bryant's tract is “surrounded
for several miles by a much larger area uniformly zoned [r]ural
[a]griculture” property. Defendants argue that there are “sixty-
seven areas [
sic] of non-[r]ural [a]gricultural classification”
within a three (3) mile radius of defendant Bryant's property.
That, however, does not necessarily address those tracts
immediately surrounding the tract in question. A map included in
the record reveals that the tracts immediately surrounding
defendant Bryant's tract are uniformly zoned as rural agricultural
for most of the one mile radius around that property. Given our
requirement to view the evidence in the light most favorable to the
non-movant (in this case, plaintiffs), we conclude that the re-
zoned tract is surrounded by a larger uniformly zoned property.
As defendant County states in their brief and defendant Bryant
cites in his, the third element of spot zoning is found where the
re-zoning “
impose[s] upon the small tract greater restrictions than
those imposed upon the larger area, or so as
to relieve the small
tract from restrictions[.]”
Blades, 280 N.C. at 549, 187 S.E.2d
at 45 (emphasis added). Under a literal interpretation of this
rule, then, nearly any re-zoning action would satisfy the third
element of spot zoning as it would almost certainly either remove
or add restrictions to the property. We do not read
Blades so
literally. In
Good Neighbors, our Supreme Court found spot zoning where
a fifty (50) acre tract, which the Court characterized as a small
tract, “was: (1) owned by a single entity, (2) freed of
restrictions imposed on neighboring landowners, and (3) surrounded
by a uniformly zoned area[.]”
Good Neighbors of S. Davidson, 355
N.C. at 259, 559 S.E.2d at 772. As we have already discussed,
similar factors are present in the instant case which lend support
to plaintiffs' conclusion of spot zoning. Important to the finding
of spot zoning in
Good Neighbors, however, was that the land being
re-zoned “was transformed from one of the most restrictive zoning
classifications under the county ordinance (residential-
agricultural) to one of the most expansive under the town's
ordinance (forty acres as heavy industrial and ten acres as light
industrial).”
Id. Such is not the case here.
Re-zoning an area as restricted residential provides far more
protections to surrounding rural agricultural property than the
heavy industry/light industry re-zoning in
Good Neighbors. Here,
the re-zoned property would be limited to medium density stick
built and modular homes, and housing in this zoning district is
allowed only where adequate water and sewer or septic systems are
available. The restricted residential zoning would not allow for
either light or heavy industry to take place on the property.
Furthermore, under both the restricted residential and residential
agricultural the minimum lot size for a residence is thirty
thousand (30,000) square feet where no public water and sewer
supply exits. Therefore, defendant Bryant's property has not beenrelieved from restrictions on lot size to which the rest of the
area is subject. Finally, single family homes are allowed in the
rural agricultural zoning district as well as in the residential
restricted zoning district. Given the similarities between the two
zoning classifications, we cannot say that the third element of
spot zoning has been met. Accordingly, the Board's decision is
presumed valid, and plaintiffs have not overcome this presumption.
Thus, the trial court had a valid basis to grant summary judgment
on this ground.
B.
Additionally, we also hold that even if the Board did engage
in spot zoning it had a reasonable basis to do so. Thus, the trial
court's grant of summary judgment to defendants was proper on this
ground as well. On this alternate ground we must address whether
defendants can establish a clear showing of reasonable basis for
the re-zoning decision. The following factors are relevant in that
determination: (1) “the size of the tract in question”; (2) “the
compatibility of the disputed zoning action with an existing
comprehensive zoning plan”; (3) “the benefits and detriments
resulting from the zoning action for the owner of the newly zoned
property, his neighbors, and the surrounding community; and” (4)
“the relationship between the uses envisioned under the new zoning
and the uses currently present in adjacent tracts.”
Chrismon, 322
N.C. at 628, 370 S.E.2d at 589. With these factors in mind, “the
criteria are flexible, and the specific analysis used depends on
the facts and circumstances of a particular case.”
Id. As to the first factor, the size of defendant Bryant's
property is approximately fifty-one (51) acres. As stated,
property of a similar size has been considered a “small tract.”
Good Neighbors of S. Davidson, 355 N.C. at 259, 559 S.E.2d at 772.
Additionally, defendant Bryant's property is the only tract of land
that has been re-zoned. Under
Good Neighbors, the size of
defendant Bryant's tract and the fact that his was the only piece
of property re-zoned weighs against the reasonableness of the
Board's decision.
Id.
The second factor is whether the re-zoning was compatible with
the County's existing comprehensive plan. Defendants submitted an
affidavit of the County Manager, Wood, that the County
“recogniz[ed] that the development of residential subdivisions
[will be] an inevitable consequence of the transition of [the]
County from a purely rural environment to a mixed use
environment[.]” The problem, according to Wood, is that most of
the land in the County is still classified as rural agricultural.
Therefore, “[i]f no [r]ural [a]gricultural classified land could
ever be re-zoned to a [r]esidential classification, then few, if
any, new sub-divisions in excess of three (3) lots could ever be
built in [the] County.” Plaintiffs present no argument on this
issue. We find that Wood's affidavit is well reasoned and reflects
the likely transition of the County from a purely rural environment
to a mixed use environment. Additionally, Article 6, Section 4 of
the Zoning Ordinance recognizes this fact and states, “[i]n order
to allow the development of residential subdivisions that arecompatible to the rural parts of the County” the Board may re-zone
lands classified as rural agricultural to one of the residential
zoning classifications. We thus conclude that this re-zoning was
compatible with the County's existing comprehensive plan and, thus,
this factor weighs in favor of defendants.
The third factor, characterized as the “'benefits versus
detriments'” test, has recently been used by our Supreme Court.
The inquiry “is
expressly limited to examining the ordinance's
beneficial and detrimental effects on the property owner, his
neighbors, and the surrounding community[]” and merely showing a
lack of a detriment will not suffice.
Id. at 259-60, 559 S.E.2d at
772 (emphasis added) (citing
Chrismon, 322 N.C. at 628, 370 S.E.2d
at 589);
cf.
Chrismon, 322 N.C. at 628, 370 S.E.2d at 589 (“[t]he
possible 'factors' are numerous and flexible, and they exist to
provide guidelines for a judicial balancing of interests”). The
Good Neighbors Court relied on
Chrismon to determine that a
reviewing court's analysis would be limited to those three areas
and concluded that any benefit to the town could not be considered.
Good Neighbors of S. Davidson, 355 N.C. at 259, 559 S.E.2d at 772
(specifically holding that an increase in a town's tax base was not
relevant).
The
Chrismon Court, however, in addition to those items listed
in
Good Neighbors, also held that “it is important, in our view, to
consider this in the added context of both the benefits of the
rezoning for the surrounding community
and for the public
interest.”
Chrismon, 322 N.C. at 630, 370 S.E.2d at 590 (emphasisadded). Indeed, the
Chrismon Court held that “'[t]he standard is
not the advantage or detriment to particular neighboring
landowners, but rather the effect upon the entire community as a
social, economic and
political unit.'”
Id. at 629, 370 S.E.2d at
590 (emphasis added) (quoting
Mansfield & Swett, Inc. v. West
Orange, 120 N.J.L. 145, 150, 198 A. 225, 233 (1938)). To not
consider the impact on the political unit, in this case the County,
which is in charge of protecting the public good, would defeat the
purpose of having local governments making such decisions.
See In
re Appeal of Parker, 214 N.C. at 55, 197 S.E. at 709 (noting in a
re-zoning case that legislative bodies are “charged with the
primary duty and responsibility of determining whether its action
is in the interest of the public health, safety, morals, or general
welfare”). Accordingly, as we review this case
de novo, we look at
all relevant facts and the impact they will have on the entirety of
the County, not just the immediate area.
See Chrismon, 322 N.C. at
628, 370 S.E.2d at 589 (the factors in determining whether a spot
zoning is illegal “are flexible, and the specific analysis used
depends on the facts and circumstances of a particular case”).
In the instant case, defendant Bryant concedes that the re-
zoning would create a detriment for the neighbors inasmuch as
population density and traffic would increase. Bryant, however,
points out that traffic concerns would be the same whether Bryant
built homes on the property or manufactured homes were placed on
the property. Placing manufactured homes on the property is
permissible according to a County summary of permitted uses forrural agriculture property. Specifically, the summary includes the
following language:
Without rezoning, the owner may subdivide the
property into up to three lots less than ten
acres each, and subdivide the remainder into
10+ acre lots. Each of these lots may be
deeded to a second unrelated party, and then
subdivided again into up to three lots. This
process can be repeated without rezoning, as
long as the resulting lots are at least 30,000
square feet (0.69 acre) in area. County staff
would have to approve this development without
Planning Board review. Depending on acreage,
ownership and residency, each lot may have up
to three manufactured homes, without rezoning,
and with no road requirements -- only a 45-
foot right-of-way easement. Conceivably,
without rezoning, the Bryant property might be
developed this way with 40-plus singlewide
manufactured homes and no road specifications.
. . .
If the tract is rezoned to [r]esidential
[r]estricted, a major subdivision of the
property would be allowed with Planning Board
approval, with lots 30,000 square feet or
more. Only one dwelling per lot would be
allowed. State requirements for roads would
be in place; if subdivided into nine lots or
more, all roads must be paved to state
specifications. We estimate that the Bryant
property could be developed under this zoning
for 30 to 40 site-built or modular homes.
As to plaintiffs' concerns regarding water and sewer, both types of
housing would require water and sewer services. Some of this,
however, merely establishes a lack of a detriment to the community.
The advantage in building homes for the community instead of
placing forty (40) manufactured homes on Bryant's property (the
number which the property could hold) is that placement of
manufactured homes would come without road specifications and
without Board involvement. Under the restricted residentialclassifications, however, the Board must approve the subdivision of
the property, North Carolina road requirements would be in effect,
and the building would be limited to stick_built and modular homes.
Under rural agricultural zoning a number of different styles of
homes could be placed on the property from stick-built and modular
homes to Class A and Class B manufactured homes. Thus, the
restricted residential zoning classification will provide
consistency in the development of the subdivision.
Finally, Wood's affidavit recognizes the economic reality in
the County inasmuch as there is uncertainty in the tobacco market
along with a decline in the price of some agricultural products.
Thus, farmers have looked for ways to put their lands previously
used for agriculture to more productive uses. One of those uses is
to subdivide the property and to sell those lots for the
construction of single family homes. An increased number of people
encourages more businesses to enter the County, which in turn
creates more employment opportunities for the County's residents.
In sum, this factor weighs in favor of defendants.
The fourth factor requires this Court to compare the
relationship between uses anticipated under the new zoning with
land use in adjacent tracts. The intent of the two zoning
classifications follow:
[Rural Agriculture:] The purpose of this
district is to maintain a rural development
pattern where single-family housing is
intermingled with agricultural uses, not
having access to public water and sewer
systems. This district is also designed to
protect rural areas from the intrusion of non-
agricultural land uses that could create anuisance, detract from the quality of life
and/or present a danger to the natural
environment.
[Restricted Residential:] The purpose of this
district is to stabilize established and
planned residential neighborhoods by providing
a place for medium density stick built and
modular homes, provided that adequate water
and sewer systems are available.
It is settled that “rezoning of a parcel in an old and well-
established residential district to a commercial or industrial
district would clearly be objectionable[.]”
Chrismon, 322 N.C. at
631, 370 S.E.2d at 591. This is not the case here. In the instant
case, the use of the property to be re-zoned will become
residential. The surrounding tracts of land also have a
residential component, and under existing zoning regulations
defendant Bryant could place manufactured homes on the property,
which, as stated above, would have the same effect on the
surrounding tracts in terms of population density, water, and sewer
concerns.
Furthermore, both the rural agricultural zoning district and
the restricted residential zoning district have the same minimum
lot size of thirty thousand (30,000) square feet. Therefore,
defendant Bryant's property as re-zoned is restricted to the same
lot size as existed prior to the re-zoning, and the property has
not been relieved from restrictions on lot size to which the rest
of the area is subjected. Accordingly, we find that this factor
favors defendants.
Plaintiffs rely on
Good Neighbors and
Budd v. Davie County,
116 N.C. App. 168, 447 S.E.2d 449 (1994), in support of theirargument that the re-zoning in the instant case is a fundamental
departure from the zoning in adjacent tracts. We find those cases
distinguishable from the instant one. In
Budd, this Court reviewed
a trial court's grant of summary judgment for the defendant county
and board of commissioners in a spot zoning case.
Budd, 116 N.C.
App. at 169-70, 447 S.E.2d at 450. In that case, the board had re-
zoned the property from rural agricultural to industrial while the
surrounding tracts remained rural agricultural.
Id. at 175, 447
S.E.2d at 453. The envisioned use was sand dredging, which we held
to be inconsistent and objectionable with the residential and
agricultural u
se of the surrounding tracts.
Id. at 177-78, 447
S.E.2d at 455. We fail to see how
Budd controls this case. Here,
the property is not being re-zoned for a commercial or industrial
purpose but will maintain its status as a residential area. We
similarly do not find
Good Neighbors persuasive on this issue
because it too dealt with a re-zoning from primarily rural uses to
industrial uses.
Good Neighbors of S. Davidson, 355 N.C. at 260-
61, 559 S.E.2d at 773.
In summary, then, most of the individual factors deemed
relevant to a spot zoning inquiry under
Chrismon favor defendants.
Specifically, we find that: (1) the re-zoning will benefit the
community by allowing the growth of the area to be regulated; (2)
Bryant's re-zoned property is compatible with the County's
comprehensive plan for the area; and (3) a tract of land zoned as
restricted residential is compatible with the surrounding tracts.
We find further support for our decision in that the re-zoning isto restricted residential from rural residential, which does not
represent the drastic change from rural residential to heavy/light
industry found in
Good Neighbors. Thus, we hold that the Board and
the County had a reasonable basis to re-zone the property and did
not engage in illegal spot zoning. Plaintiffs' assignments of
error as to this issue are rejected.
II.
[2] Plaintiffs next argue that the trial court erred in
granting summary judgment to defendants on the issue of contract
zoning. We disagree.
Illegal contract zoning is “a transaction wherein both the
landowner who is seeking a certain zoning action and the zoning
authority itself undertake reciprocal obligations in the context of
a
bilateral contract.”
Chrismon, 322 N.C. at 635, 370 S.E.2d at
593. Contract zoning is illegal in North Carolina “because it
represents an abandonment on the part of the zoning authority of
its duty to exercise independent judgment in making zoning
decisions.”
Id.
Plaintiffs concede that they did not present direct evidence
of a specific bargain between defendants for the use of the re-
zoned property. Plaintiffs argue instead that defendant Bryant, by
testifying in detail before the Board about the use of the
property, and by the Board's vote to re-zone the property, created
a contract between him and the Board. Plaintiffs make strenuous
arguments in their brief that the Board acted without any
reasonable basis or information before they made their decision tore-zone but now argue that the Board had so much information that
a contract must have formed. We simply fail to see how both can be
true. Because plaintiffs have failed to produce any evidence of a
contract or bilateral obligation between defendants, we reject
plaintiffs' arguments as to this issue.
III.
[3] We address plaintiffs' additional arguments in this
section. Plaintiffs argue that zoning boards have “an absolute
obligation to make appropriate factual findings which clearly
demonstrate the reasonableness of the rezoning determination[.]”
We disagree.
Plaintiffs rely on
Good Neighbors. In that case, our Supreme
Court stated that there is “no evidence showing that the town's
zoning authority considered the relationship between the envisioned
uses of the property and the uses present in the adjacent
tracts[.]”
Good Neighbors of S. Davidson, 355 N.C. at 262, 559
S.E.2d at 774. We do not read such language as creating an
“absolute obligation” to make factual findings. At best, this
could be read as requiring that zoning boards consider evidence
related to envisioned use of the property compared with the use of
the surrounding tracts. In the instant case, the minutes from the
board meeting clearly establish that the Board considered the
impact of re-zoning defendant Bryant's property on the surrounding
tract.
When a zoning board is acting in a quasi-judicial capacity,
however, it is required to make findings of fact.
See Devaney v.City of Burlington, 143 N.C. App. 334, 337-38, 545 S.E.2d 763, 765
(2001) (a city council's denial of requests by a plaintiff for
Manufactured Home Overlay District zoning is quasi-judicial because
it involves the application of set policies to an individual
situation and requires findings of fact). Such is not the case
here. As we stated above, a re-zoning decision is a legislative
act.
Kerik, 145 N.C. App. at 228, 551 S.E.2d at 190.
Plaintiffs also argue that the trial court erred by not making
findings as to whether the Board adequately considered the relevant
Chrismon factors. We disagree. “[I]t is not a part of the
function of the [trial] court on a motion for summary judgment to
make findings of fact and conclusions of law.”
Capps v. City of
Raleigh, 35 N.C. App 290, 292, 241 S.E.2d 527, 528 (1978).
Plaintiffs' argument as to this issue is rejected.
Plaintiffs' final argument is that it is “highly significant”
that plaintiffs prevailed on their motion for preliminary
injunction. Defendant County correctly points out, however, that
findings and conclusions made in the grant of an injunction are
“'not authoritative as “'the law of the case'” for any other
purpose, and the judgment or order [is] not
res adjudicata on'”
final hearings.
Schloss v. Jamison, 258 N.C. 271, 276, 128 S.E.2d
590, 594 (1962) (quoting
Patterson v. Hosiery Mills, 214 N.C. 806,
810, 200 S.E. 906, 908 (1939)). Plaintiffs' argument as to this
issue is also rejected.
IV.
In summary, we conclude that the Board did not engage in spot
zoning when it re-zoned defendant Bryant's property. Additionally,
we find that even if spot zoning did occur, it was not illegal spot
zoning. We also conclude that defendants did not engage in
contract zoning. Finally, plaintiffs' remaining arguments are
rejected and thus we affirm the trial court's grant of summary
judgment to defendants.
Affirmed.
Judges ELMORE and GEER concur.
Footnote: 1