                             NO. COA13-1226

                   NORTH CAROLINA COURT OF APPEALS

                         Filed:    29 July 2014


BRIAN THOMAS ATKINSON and MYERS
PARK HOMEOWNERS ASSOCIATION, INC.,
a North Carolina Non-Profit
Corporation,
     Plaintiffs

      v.                               Mecklenburg County
                                       No. 12 CVS 21209
CITY OF CHARLOTTE, a North
Carolina Body Politic and
Corporate,
     Defendant

and

QUEENS UNIVERSITY OF CHARLOTTE and
JOHNSON C. SMITH UNIVERSITY, North
Carolina non-profit corporations,
     Defendant-Intervenors


      Appeal by plaintiffs from order entered 26 June 2013 by

Judge Robert T. Sumner in Mecklenburg County Superior Court.

Heard in the Court of Appeals 17 March 2014.


      Currin & Currin, by Robin T. Currin and George B. Currin,
      for plaintiff-appellants.

      Senior Assistant City       Attorney   Terrie   Hagler-Gray,   for
      defendant-appellee.

      Robinson Bradshaw & Hinson, P.A., by Richard A. Vinroot and
      John H. Carmichael, for defendant-intervenor-appellees.


      CALABRIA, Judge.
                                            -2-
       Brian        Thomas     Atkinson      (“Atkinson”)       and      Myers     Park

Homeowners Association, Inc. (“the Association”) (collectively

“plaintiffs”)         appeal    from   the    trial      court’s    order    granting

summary judgment in favor of the City of Charlotte (“the City”)

and intervenors Queens University of Charlotte (“Queens”) and

Johnson        C.      Smith       University         (“Smith”)       (collectively

“intervenors”).         We reverse and remand.

       In    late     2009,     representatives          from   Queens    and     other

Charlotte residents initiated an amendment (“the amendment”) to

the text of the City of Charlotte Zoning Ordinance (“the Zoning

Ordinance”).          The    purpose   of    the   proposed      amendment       was   to

exempt certain parking decks from floor area ratio requirements

imposed by the Zoning Ordinance.

       The City’s Planning Commission (“the Planning Commission”)

reviewed the proposed amendment and Planning Commission staff

made    a   written     recommendation       to    the    Charlotte   City      Council

(“the City Council”) and to the seven members of the Planning

Commission serving on the Department’s Zoning Committee {“the

Zoning Committee”) that the amendment should be adopted.                          After

a   public     hearing,      the   Zoning    Committee      voted   unanimously        to

recommend the amendment’s approval to the City Council on 26 May

2010.       As part of that recommendation, the Zoning Committee
                                         -3-
included    a    statement     which    found      the   proposed      amendment   was

consistent with the City’s adopted policies and was reasonable

and in the public interest.

    On 21 June 2010, the City Council considered the proposed

amendment.        Mayor Anthony Foxx informed the Council that the

Zoning     Committee    had     found       the    amendment      as    proposed   was

consistent with the City’s adopted policies, reasonable, and in

the public interest (“the Statement of Consistency”).                       The City

Council voted to approve the Statement of Consistency and the

amendment       unanimously.        Under    the    terms    of   the    newly-passed

amendment, parking decks which were constructed as “an accessory

use to an institutional use” were now exempt for the floor area

ratio standards of the Zoning Ordinance when the decks were

located in single family and multifamily zoning districts.

    Atkinson is a property owner in the Myers Park residential

area, which is located adjacent to Queens.                   On 10 December 2012,

Atkinson and the Association, on behalf of other Myers Park

residents,        initiated     a      declaratory          judgment      action    in

Mecklenburg County Superior Court seeking to have the amendment

invalidated.       Plaintiffs alleged that the City Council failed to

comply with the requirements of N.C. Gen. Stat. § 160A-383 when

it adopted the amendment.
                                          -4-
       After the City filed its answer to plaintiffs’ complaint,

Queens and Smith filed a motion to intervene pursuant to N.C.

Gen. Stat. § 1A-1, Rule 24 (2013).                 The trial court granted this

motion on 22 March 2013, and intervenors filed their responsive

pleading that same day.           Subsequently, all parties filed motions

for summary judgment.            The motions were heard on 24 June 2013.

On    26   June   2013,   the    trial    court     entered     an   order     granting

summary     judgment      in     favor     of     the    City    and      intervenors.

Plaintiffs appeal.

       “Our standard of review of an appeal from summary judgment

is de novo; such judgment is appropriate only when the record

shows that ‘there is no genuine issue as to any material fact

and that any party is entitled to a judgment as a matter of

law.’” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572,

576    (2008)     (quoting     Forbis    v.     Neal,   361   N.C.     519,   524,   649

S.E.2d 382, 385 (2007)).

       Plaintiffs argue that the trial court erred by granting

summary judgment in favor of the City and intervenors because

the undisputed facts establish that the City Council failed to

comply     with    N.C.   Gen.   Stat.     §    160A-383      when   it   adopted    the

amendment.         Specifically,         plaintiffs      contend       (1)    that   the

“Statement of Consistency” adopted by the City Council did not
                                         -5-
meet the requirements of a “statement” pursuant to that statute;

and (2) that the Zoning Committee did not include the entire

Planning Commission and thus the Zoning Committee’s approval of

the amendment also did not meet all statutory requirements.                        We

agree   with    plaintiffs’     first     contention     and     find    it   to   be

dispositive.     Consequently, we do not address plaintiffs’ second

contention.

           When   adopting   or  rejecting  any  zoning
           amendment, the governing board shall also
           approve a statement describing whether its
           action   is   consistent   with an   adopted
           comprehensive plan and any other officially
           adopted plan that is applicable, and briefly
           explaining why the board considers the
           action taken to be reasonable and in the
           public interest. That statement is not
           subject to judicial review.

N.C. Gen. Stat. § 160A-383 (2013).             Thus,

           the statute requires that defendant take two
           actions in this situation: first, adopt or
           reject the zoning amendment, and second,
           approve a proper statement. Id. The approved
           statement   must    describe   whether   the
           action   is consistent with any controlling
           comprehensive plan and explain why the
           action is “reasonable and in the public
           interest.”

Wally v. City of Kannapolis, 365 N.C. 449, 452, 722 S.E.2d 481,

483 (2012).

    In    Wally,      the   plaintiffs         were     property        owners     who

challenged     the   rezoning   of   a    nearby      property   because,        inter
                                           -6-
alia, the City of Kannapolis had failed to expressly approve the

consistency statement required by N.C. Gen. Stat. § 160A-383.

Id. at 451, 722 S.E.2d at                482.      The Court agreed with              the

plaintiffs’       argument       and    held     that       the     challenged   zoning

amendment was void          for failure to comply with the statute’s

procedures. Id.

    In reaching its holding, the Wally Court rejected three

arguments made by the defendant-city in favor of upholding the

amendment.     First,       the    Court       rejected       the     defendant-city’s

argument     that    any     judicial      review       regarding       a    consistency

statement was barred by N.C. Gen. Stat. § 160A-383, explaining

that “the statute refers to an approved statement. While an

approved    statement       is    not    subject       to    judicial       review,   the

statute does not prohibit review of whether the City Council

approved a statement, which is the issue here.” Id. at 453, 722

S.E.2d at 483.        Next, the Court rejected the defendant-city’s

argument that it had impliedly approved a consistency statement

by virtue of having a staff report which included a consistency

statement    in     its    possession      at    the    time      the   amendment     was

adopted because “[t]he language of section 160A-383 does not

authorize an implied approval.” Id.                 Finally, the Court rejected

the defendant-city’s argument that its adoption of a statement
                                        -7-
“announcing that it acted within the guidelines of its zoning

authority” satisfied N.C. Gen. Stat. § 160A-383 because “to meet

the statutory requirements, an approved statement must describe

whether the zoning amendment is consistent with any controlling

land use plan and explain why it is reasonable and in the public

interest. The statement adopted by the City Council provides no

such explanation or description.” Id. at 453-54, 722 S.E.2d at

484.

       In the instant case, it is undisputed that the City Council

formally adopted and approved the following statement proposed

by the Zoning Commission:

             STATEMENT OF CONSISTENCY This petition is
             found to be consistent with adopted policies
             and to be reasonable and in the public
             interest . . . .

Defendant and intervenors contend that, under Wally,                  since only

the issue “of whether the City Council approved a [consistency]

statement”        is   subject   to   judicial     review,     the   trial   court

properly determined that it could not review this statement for

compliance with N.C. Gen. Stat. § 160A-383.                    Id. at 453, 722

S.E.2d at 483.         Defendant and intervenors are mistaken.

       As   the    Wally   Court’s    discussion    of   the    defendant-city’s

third argument in that case makes clear, judicial review of

compliance with N.C. Gen. Stat. § 160A-383 requires more than a
                                     -8-
cursory   review    of    the   record     for   a   statement   that   could

plausibly be considered a consistency statement:

          Compliance with section 160A-383 requires
          more than a general declaration that the
          action comports with relevant law. Section
          160A-383 explains that to meet the statutory
          requirements, an approved statement must
          describe whether the zoning amendment is
          consistent with any controlling land use
          plan and explain why it is reasonable and in
          the public interest. The statement adopted
          by the City Council provides no such
          explanation   or  description.   Rather,  it
          consists of a general declaration that in
          adopting the zoning amendment, the City
          Council acted within the guidelines of its
          zoning authority.

Id. at 453-54, 722 S.E.2d at 484 (emphasis added).                Therefore,

under Wally, judicial review of whether a city has adequately

adopted a consistency statement as defined by N.C. Gen. Stat. §

160A-383 is limited to a court’s determination of whether a city

adopted a consistency statement which contains, at a minimum,

both a description of whether the zoning amendment is consistent

with any controlling land use plan and an explanation as to why

the amendment is reasonable and in the public interest.              Once it

is   determined    that    a    proper     statement,   which    includes   a

description and explanation, has been adopted, the content of

the statement “is not subject to judicial review.” N.C. Gen.

Stat. § 160A-383.
                                      -9-
      The Statement of Consistency adopted by the City Council in

the   instant    case   cannot   reasonably    be    said     to    include   an

“explanation” as to why the amendment is reasonable and in the

public interest under the plain meaning of that term.                 Instead,

the statement merely tracks the language of N.C. Gen. Stat. §

160A-383.       While this statement attempts to more specifically

address the requirements of N.C. Gen. Stat. § 160A-383 than the

more generalized statement that the Court rejected in Wally, it

still suffers from the same fatal flaw: “The statement adopted

by the City Council provides no . . . explanation,” as required

by the statute. Id. at 454, 722 S.E.2d at 484.               As a result, the

City did not comply with N.C. Gen. Stat. § 160A-383 when it

failed to adopt a proper “statement” as that term is defined by

the   statute     and   interpreted    by   Wally,     and    its    purported

“Consistency     Statement”   does    not   fall    within    that   statute’s

protections against judicial review.               Accordingly, we reverse

the trial court’s order granting summary judgment in favor of

defendant and intervenors and remand for the entry of summary

judgment in favor of plaintiffs which declares the amendment to

be void.

      Reversed and remanded.

      Chief Judge MARTIN and Judge McGEE concur.
