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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
THOMAS ROBERT MARRIOTT, ALICE BANKS YEAMAN, JOHN A. WAGNER, ANITA
J. SARBO, TIMOTHY MORGAN, JERRY L. MARKATOS, JOSEPH W. JACOB,
NANCY BANKS, RACHEL WILFERT, ROBERT GRAHAM, PATRICIA KENLAN,
ELAINE C. CHIOSSO, JOHN W. BROOKS, DEBORAH WECHSLER, DAVID
PETERSON, JUDITH PETERSON, ANNE R. FLASH, WILLIAM FLASH, KAREN
STRAZZA MOORE and WILLIAM MOORE, Plaintiffs, v. CHATHAM COUNTY, A
NORTH CAROLINA COUNTY AND A BODY CORPORATE AND POLITIC; MEMBERS
OF THE CHATHAM COUNTY BOARD OF COMMISSIONERS, IN THEIR OFFICIAL
CAPACITIES: BUNKEY MORGAN, CHAIR; TOMMY EMERSON, VICE-CHAIR;
PATRICK BARNES; ALLEN MICHAEL CROSS; CARL H. OUTZ; MEMBERS OF THE
CHATHAM COUNTY PLANNING BOARD, IN THEIR OFFICIAL CAPACITIES:
CHARLES ELIASON, CHAIR; MARK McBEE, VICE-CHAIR; PAUL McCOY;
MARTIN MASON; MARY NETTLES; EVELYN CROSS; SALLY KOST; CHRIS
WALKER; CLYDE HARRIS; and CECIL WILSON, Defendants, and POLK-
SULLIVAN, LLC, CHATHAM PARTNERS, LLC, AND ROBERT D. SWAIN,
Filed: 04 December 2007
Zoning--subject matter--standing--separation of powers--procedural injury standing
The trial court did not err by dismissing under N.C.G.S. § 1A-1, Rule 12(b)(1) plaintiffs'
complaint to enjoin development of the pertinent property until the county amends two of its
ordinances, including adopting minimum criteria to be used in determining whether developers
must prepare and submit an environmental impact assessment (EIA), based on lack of subject
matter jurisdiction, because: (1) granting the relief requested would violate the doctrine of
separation of powers since the adoption of minimum criteria by the county constituted a
legislative function, and the judicial branch has no authority to direct a legislative body to enact
legislation; and (2) although plaintiffs contend they have procedural injury standing, the remedies
plaintiffs seek are unavailable and inappropriate, and their claims do not satisfy the third element
of standing which is the redressability of their injury by a favorable decision.
Appeal by plaintiffs from judgment entered 4 December 2006 by
Judge Orlando F. Hudson, Jr. in Chatham County Superior Court.
Heard in the Court of Appeals 11 October 2007.
Lewis, Anderson, Phillips & Hinkle, PLLC by J. Dickson
Phillips, III for plaintiffs-appellants.
Gunn & Messick, LLP by Paul S. Messick, Jr. for defendants-
Kilpatrick Stockton, LLP by Hayden J. Silver, III and
Betsy Cooke for defendant intervenor-appellees.
When plaintiffs seek a remedy which the court is without the
authority to grant, plaintiffs do not have standing to pursue the
I. Factual Background
Plaintiffs-appellants (plaintiffs) are landowners in Chatham
County whose properties are adjacent to several large tracts of
land proposed for residential development along the banks of the
Haw River. Defendants-appellees (defendants) are Chatham County,
members of the Chatham County Board of Commissioners
(Commissioners), and members of the Chatham County Planning Board
(Planning Board). Defendant-Intervenors (developers) own real
property in Chatham County commonly referred to as The Bluffs, the
Banner Tract and Shively Tract (collectively, the property) which
adjoins plaintiffs' properties.
Chatham County has adopted a Subdivision Ordinance, which
requires the submission of a sketch plan, a preliminary plat and a
final plat. Each stage of development is reviewed and approved by
the Planning Board and the Commissioners. On 15 May 2006, the
Commissioners approved subdivision sketch plans for The Bluffs. On
21 August 2006, the Commissioners approved subdivision sketch plans
for certain lots on the Shively Tract. On 16 October 2006,
developers submitted sketch plans for additional lots on Phase II
and Phase III of the Shively Tract to the Planning Board. On 6
November 2006, the Planning Board recommended approval of thepreliminary plat for Phase I of The Bluffs and sketch plans for
Phase II and Phase III of the Shively Tract.
At the 1 May 2006 Planning Board meeting, plaintiffs requested
that the Planning Board require that developers prepare an
environmental impact assessment (EIA) in connection with the
developments. At the 21 August 2006 Commissioners meeting,
plaintiffs Tom Marriott and Alice Yeaman expressed concern
regarding the absence of an EIA. The Planning Board determined,
and the Commissioners agreed, that an EIA was unnecessary.
Plaintiffs brought suit on 20 September 2006 to enjoin the
development of the property until the county amends two of its
ordinances. Plaintiffs sought a writ of mandamus to compel
defendants to adopt minimum criteria to be used in determining
whether developers must prepare and submit an EIA.
The first ordinance at issue is Chatham County Subdivision
Ordinance . 5.2, which provides in part:
Pursuant to Chapter 113A of the North Carolina
General Statutes, the Planning Board may
require the subdivider to submit an
environmental impact statement with the
preliminary plat if the development exceeds
two acres in area, and if the Board deems it
necessary for responsible review due to the
nature of the land to be subdivided, or
peculiarities in the proposed layout.
The Subdivision Ordinance . 5.2 was enacted pursuant to
authority set forth in the North Carolina Environmental Policy Act,
N.C. Gen. Stat. . 113A-1 et. seq. (SEPA). N.C. Gen. Stat. .
113A-8 addresses major development projects, and gives counties,cities, and towns the authority to require developers to submit
EIAs. Subsection (c) of N.C. Gen. Stat. . 113A-8 provides:
Any ordinance adopted pursuant to this section
shall establish minimum criteria to be used in
determining whether a statement of
environmental impact is required (emphasis
There is no dispute that Chatham County has never enacted minimum
criteria under its ordinance as required by N.C. Gen. Stat. . 113A-
Defendants filed a motion to dismiss on 16 October 2006,
asserting lack of standing and failure to state a claim upon which
relief may be granted. On 18 October 2006 developers filed a
motion to intervene and a motion to dismiss. On 26 October 2006
plaintiffs filed a First Amended Complaint pursuant to Rule 15(a)
of the North Carolina Rules of Civil Procedure. Judge Hudson heard
all pending motions on 16 November 2006 and granted defendants'
motions to dismiss on the basis of lack of subject matter
jurisdiction (N.C.R. Civ. P. 12(b)(1)) and failure to state a claim
upon which relief can be granted (N.C.R. Civ. P. 12(b)(6)). Orders
dismissing plaintiffs' claims with prejudice were filed on 6
December 2006 and 11 December 2006. Plaintiffs appeal.
II. Subject Matter Jurisdiction: Standing
In their first argument, plaintiffs contend that the trial
court erred in dismissing their complaint on the grounds of lack of
subject matter jurisdiction pursuant to N.C. R. Civ. Pro. 12(b)(1).
We disagree. Standing is a necessary prerequisite to a court's proper
exercise of subject matter jurisdiction. Aubin v. Susi
, 149 N.C.
App. 320, 324, 560 S.E.2d 875, 878 (2002) (citation omitted). As
the party invoking jurisdiction, plaintiffs have the burden of
establishing standing. Neuse River Found. v. Smithfield Foods
N.C. App. 110, 113, 574 S.E.2d 48, 51 (2002) (citation omitted).
The elements of standing are:
(1) injury in fact - an invasion of a
legally protected interest that is (a)
concrete and particularized and (b)
actual or imminent, not conjectural or
(2) the injury is fairly traceable to the
challenged action of the defendant;
(3) it is likely, as opposed to merely
speculative, that the injury will be
redressed by a favorable decision.
, 155 N.C. App. at 114, 574 S.E.2d at 52 (quoting Lujan
v. Defenders of Wildlife
, 504 U.S. 555, 560-561, 119 L. Ed. 2d 351,
364 (1992)). Our standard of review on appeal of a trial court's
dismissal on the grounds of lack of standing is de novo
. Smith v.
, 128 N.C. App. 490, 493, 495 S.E.2d 395, 397 (1998).
[A] zoning ordinance or an amendment thereto which is not
adopted in accordance with the enabling statute is invalid and
ineffective. Keiger v. Winston-Salem Bd. of Adjustment
, 281 N.C.
715, 720, 190 S.E.2d 175, 179 (1972) (citations and quotations
Although defendants contend that counties have the
discretionary right to decide whether private developers must
submit EIAs, this argument mis-characterizes the statutory scheme. Counties have discretion in choosing whether to adopt an ordinance
pursuant to Section 113A-8. Counties also have discretion in
determining what minimum criteria to adopt. However, the adoption
of minimum criteria is not optional. Chatham County has adopted no
minimum criteria under its Subdivision Ordinance . 5.2, and the
ordinance does not comply with its enabling statute N.C. Gen. Stat.
In their first amended complaint
, plaintiffs sought an
injunction against further approval of developments, and against
all development activities in connection with proposed projects,
pending adoption by Chatham County of minimum criteria and the
preparation of proper EIAs.
The courts have absolutely no authority to control or
supervise the power vested by the Constitution in the General
Assembly as a coordinate branch of the government. Person v.
Board of State Tax Com'rs
, 184 N.C. 499, 503, 115 S.E. 336, 339
(1922). The adoption of minimum criteria by Chatham County
constitutes a legislative function. Although courts are authorized
to interpret and declare the law, the judicial branch has no
authority to direct a legislative body to enact legislation. In re
, 259 N.C. 566, 570, 131 S.E.2d 329, 333 (1963) (While it
is within the province of the courts to pass upon the validity of
statutes and ordinances, courts may not legislate nor undertake to
compel legislative bodies to do so one way or another. (Citations)
The court erred in seeking to compel the defendant mayor and city
commission members to amend the ordinance.) To grant the reliefrequested by plaintiffs would be to violate the doctrine of
separation of powers, Godfrey v. Zoning Bd. of Adjustment
, 317 N.C.
51, 58, 344 S.E.2d 272, 276 (1986), and the trial court was without
authority to do so.
Plaintiffs argue that they have procedural injury standing
and that the harm they have suffered is the failure to require the
environmental impact study. This argument must fail. First, the
authority cited by plaintiffs for the procedural injury standing
doctrine is in the context of the North Carolina Administrative
Procedure Act, which is inapposite here. Second, the injury in the
instant case is not the failure to require the study, as plaintiffs
suggest, but instead it is the failure to adopt minimum criteria.
The only remedy available to plaintiffs is to have the courts
invalidate the provisions of the Subdivision Ordinance that do not
comply with the provisions of N.C. Gen. Stat. . 113A-8. If this
portion of the ordinance is invalidated, then there is no
requirement of an EIS, and this remedy would not redress
plaintiffs' alleged injuries. The remedies plaintiffs seek are
unavailable and inappropriate, and their claims do not satisfy the
third element of standing, which is the redressability of their
injury by a favorable decision.
If a party does not have standing to bring a claim, a court
has no subject matter jurisdiction to hear the claim. Estate of
Apple v. Commercial Courier Express, Inc.
, 168 N.C. App. 175, 177,
607 S.E.2d 14, 16, disc. review denied
, 359 N.C. 632, 613 S.E.2d
688 (2005) (citation omitted). We hold that plaintiffs lackedstanding to bring their claims and that the trial court properly
granted defendants' and defendants-intervenors' motions to dismiss.
Because we affirm the superior court's decision that it lacked
subject matter jurisdiction, we do not address plaintiffs' other
assignments of error.
Judges BRYANT and GEER concur.
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