An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                 NO. COA13-1425

                      NORTH CAROLINA COURT OF APPEALS

                           Filed: 31 December 2014


FRED WALLY, LAVON BENTON, DON
CROWE, and GEORGE MARTOCCHIO,
          Plaintiffs,

      v.                                    Cabarrus County
                                            No. 13 CVS 1562
THE CITY OF KANNAPOLIS, a North
Carolina Municipal Corporation,
          Defendant.


      Appeal by Plaintiffs from order entered 19 September 2013

by Judge    W. Robert Bell        in Superior Court,        Cabarrus    County.

Heard in the Court of Appeals 23 April 2014.


      The Brough Law Firm, by T.C. Morphis, Jr., for Plaintiffs-
      Appellants.

      Hamilton Stephens Steele & Martin, PLLC, by Keith J.
      Merritt, Rebecca K. Cheney, and Melanie D. Johnson Raubach,
      for Defendant-Appellee.


      McGEE, Chief Judge.


      Fred Wally, Lavon Benton, Don Crowe, and George Martocchio

(“Plaintiffs”) appeal from an order dismissing their complaint
                                           -2-
for failure to state a claim for relief alleging spot zoning.

Plaintiffs argue that the trial court should not have applied

the common owner requirement as articulated in Musi v. Town of

Shallotte, 200 N.C. App. 379, 684 S.E.2d 892 (2009), to justify

dismissing their claim.             Because Musi is controlling and, under

Musi, Plaintiffs failed to state a claim for spot zoning, we

affirm.

                                           Facts

    The property that is the subject of this case, the Coddle

Creek     property,    is     a    75.9-acre       tract    of   land    located    in

northwestern Cabarrus County at the intersection of Highway 3

and Odell School Road.              The Coddle Creek property lies in an

area of Cabarrus County known as the Odell Community, the vast

majority    of     which    is     zoned     for    Agricultural-Open      Space    or

Countryside        Residential        uses       that      prohibit     high-traffic

commercial activity.              The City of Kannapolis (“the City”) was

given authority by the General Assembly to perform a satellite

annexation of the Coddle Creek property in 2007.                       At that time,

the Coddle Creek property was owned by Coddle Creek, LLC and the

Wallace Charitable Trust.

    On     14     January   2008,     the    City    rezoned     the    Coddle   Creek

property     to     "Campus       Development-Conditional          Zoning,"      which

allowed retail space and commercial service as permitted uses
                                       -3-
and   restaurants   as    a    conditional     use.        Wally     v.   City   of

Kannapolis, 209 N.C. App. 752, 709 S.E.2d 601, 2011 WL 601167 at

*2, 2011 N.C. App. LEXIS 245 at *4 (2011) (unpublished) ("Wally

I"), rev'd on other grounds, 365 N.C. 449, 450, 722 S.E.2d 481

(2012) ("Wally II").       Plaintiffs challenged that rezoning.               This

Court affirmed the trial court's grant of summary judgment on

all of Plaintiffs' claims, including their spot zoning claim.

Id., 2011 WL 601167 at *8, 2011 N.C. App. LEXIS 245 at *19.

However, our Supreme Court reversed, holding that the rezoning

was invalid because the City had not adopted a "statement of

reasonableness"     as   required      by    N.C.   Gen.   Stat.     §    160A-383

(2011).   Wally II, 365 N.C. at 454, 722 S.E.2d at 484.

      The Coddle Creek property is presently comprised of two

parcels of land, one parcel owned by Coddle Creek, LLC and the

other parcel owned by Highway 3 Associates 1, LLC.                        In March

2013, the City rezoned the Coddle Creek property for a second

time and authorized retail shopping and other uses alleged to be

incompatible   with      the   Odell    Community.         On   23    May    2013,

Plaintiffs filed an action in superior court to invalidate the

second rezoning on the grounds that it constituted impermissible

spot zoning.   On 19 September 2013, the trial court entered an

order granting Defendant's motion to dismiss pursuant to Rule
                                     -4-
12(b)(6) of the Rules of Civil Procedure.                     Plaintiffs timely

appealed to this Court.

                               Discussion

    "We   review   de   novo   the   grant   of     a    motion   to   dismiss."

Neier v. State, 151 N.C. App. 228, 232, 565 S.E.2d 229, 232

(2002).

               "A motion to dismiss made pursuant to
          G.S. 1A-1, Rule 12(b)(6) tests the legal
          sufficiency of the complaint.    In order to
          withstand such a motion, the complaint must
          provide sufficient notice of the events and
          circumstances from which the claim arises,
          and must state allegations sufficient to
          satisfy the substantive elements of at least
          some recognized claim. The question for the
          court is whether, as a matter of law, the
          allegations of the complaint, treated as
          true, are sufficient to state a claim upon
          which relief may be granted under some legal
          theory, whether properly labeled or not. In
          general, a complaint should not be dismissed
          for insufficiency unless it appears to a
          certainty that plaintiff is entitled to no
          relief under any state of facts which could
          be proved in support of the claim.    Such a
          lack of merit may consist of the disclosure
          of facts which will necessarily defeat the
          claim as well as where there is an absence
          of law or fact necessary to support a
          claim."

Id. (quoting Harris v. NCNB Nat. Bank of N.C., 85 N.C. App. 669,

670-71, 355 S.E.2d 838, 840-41 (1987)).

    Plaintiffs'    complaint    alleged      that       the   rezoning   of   the

Coddle Creek property constituted unlawful spot zoning.

          Spot zoning is defined, in pertinent part,
                                      -5-
            as a zoning ordinance or amendment that
            “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     . . . relieve the small
            tract from restrictions to which the rest of
            the area is subjected."

Good Neighbors of S. Davidson v. Town of Denton, 355 N.C. 254,

257, 559 S.E.2d 768, 771 (2002) (emphasis added) (quoting Blades

v.   City   of   Raleigh,    280   N.C.   531,   549,   187   S.E.2d     35,   45

(1972)).

      As Plaintiffs acknowledge in their complaint, "the Property

in this case is owned by two entities and . . . the North

Carolina Court of Appeals has held that a rezoned property must

be owned by a single owner before a rezoning can be considered

spot zoning.       See, Musi v. Town of Shallotte, 200 N.C. App. 379,

684 S.E.[2d] 892 (2009)."            In Musi, the plaintiffs tried to

bring   a   spot    zoning   claim   to   challenge     the   rezoning    of   15

separate tracts shared by six "different" owners.               200 N.C. App.

at 380, 684 S.E.2d at 893-94.             In upholding the trial court's

grant of summary judgment for defendant, Musi pointed to the

requirement of a "common owner," explaining:

            "An essential element of spot zoning is a
            small tract of land owned by a single person
            and surrounded by a much        larger area
            uniformly zoned."     Covington v. Town of
            Apex, 108 N.C. App. 231, 237, 423 S.E.2d
            537, 540 (1992).      We conclude that the
            subject property meets neither of these
            criteria for spot zoning.
                               -6-


              The subject property does not have a
         common owner, but is comprised of fifteen
         (15)   parcels,    with    six  (6)    owners.
         Plaintiffs   allege   that   "a  rezoning   of
         property owned by more than one person can
         still constitute spot zoning."     In support
         of this proposition, Plaintiffs cite three
         cases.    Two of these, Alderman v. Chatham
         County, 89 N.C. App. 610, 366 S.E.2d 885
         (1988); and Lathan v. Bd. of Commissioners,
         47 N.C. App. 357, 267 S.E.2d 30 (1980),
         involve the rezoning of property with a
         common owner, and thus shed no light on this
         issue.   The third case . . . Budd v. Davie
         County, 116 N.C. App. 168, 447 S.E.2d 449
         (1994), . . . [w]e do not find . . .
         persuasive . . . .

Id. at 383, 684 S.E.2d at 895 (emphasis added).

    In Alderman, this Court upheld a trial court's finding of

spot zoning with respect to a county's rezoning of a 14.2-acre

tract owned by a husband and wife.    89 N.C. App. at 611, 617,

366 S.E.2d at 886, 890.   In Lathan, this Court upheld the trial

court's grant of plaintiff's summary judgment motion for a spot

zoning claim challenging a county's rezoning of an 11.412-acre

tract "owned by the Keith Nesbit family."   47 N.C. App. at 357,

267 S.E.2d at 30.

    Budd, however, invalidated as impermissible spot zoning a

county's rezoning of two tracts, a 14-acre tract owned by a

mother and a half-mile-long strip of land owned by her son.    116

N.C. App. at 170, 447 S.E.2d at 450.        This Court in     Musi,
                                         -7-
declined to extend Budd to permit a spot zoning claim in that

case, reasoning:

                   Firstly, Budd's holding is internally
              inconsistent.     After    quoting  the   same
              definition of spot zoning given [in Blades
              v. City of Raleigh, 280 N.C. 531, 187 S.E.2d
              35   (1972)],  and    even   noting  that   an
              "essential element of spot zoning is a small
              tract of land owned by a single person", the
              Court then holds that the rezoning in
              question,   involving    property   with   two
              different owners, was spot zoning.

                   Additionally, in     Good Neighbors, a
              Supreme Court of North Carolina case decided
              after   Budd,   the   Court    reiterates the
              definition   in   Blades   and   Chrismon [v.
              Guilford Cnty., 322 N.C. 611, 370 S.E.2d 579
              (1988)], including the requirement that the
              rezoning be of a parcel with one owner. To
              the extent that Good Neighbors conflicts
              with Budd, we are bound to follow Good
              Neighbors.

Musi,   200    N.C.   App.   at   383,    684   S.E.2d   at   895-96   (emphasis

added).

     Just as Musi was bound to follow Good Neighbors, we are

bound to follow Musi.             Plaintiffs acknowledge in their brief

that "the common owner rule" as articulated in Musi "appear[s]

to prohibit . . . the use of the spot zoning label when more

than one tract owned by legally distinct owners is involved."

Since the complaint in this case challenges as spot zoning the

rezoning of two parcels owned by two legally distinct owners,
                                   -8-
Plaintiffs have failed, under Musi, to state a claim for spot

zoning.

    While Plaintiffs make various arguments that Musi is too

vague   to   be   practically   applied,   is   inconsistent    with   the

purpose of the spot zoning doctrine, and produces inequitable

and absurd results, those arguments must be presented to the

Supreme Court.     We are not free to disregard Musi.          It is well

established that "[w]here a panel of the Court of Appeals has

decided the same issue, albeit in a different case, a subsequent

panel of the same court is bound by that precedent, unless it

has been overturned by a higher court."          In re Civil Penalty,

324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).            Because Musi's

"common owner" requirement precludes any spot zoning claim by

Plaintiffs in this action, we affirm the trial court's grant of

Defendant's motion to dismiss.

    Affirmed.

    Judges STEPHENS and ERVIN concur.

    Report per Rule 30(e).
