                            NO. COA13-834

                   NORTH CAROLINA COURT OF APPEALS

                        Filed:   5 August 2014


E. RAY ETHERIDGE, FRED G.
ETHERIDGE, and MARY KATHERINE R.
ETHERIDGE,
     Plaintiffs

    v.                               Currituck County
                                     No. 12 CVS 38
COUNTY OF CURRITUCK; THE CURRITUCK
COUNTY BOARD OF COMMISSIONERS; and
JOHN D. RORER, MARION GILBERT, O.
VANCE AYDLETT, JR., H.M. PETREY,
J. OWEN ETHERIDGE, PAUL MARTIN,
and S. PAUL O’NEAL as members of
the CURRITUCK COUNTY BOARD OF
COMMISSIONERS,
     Defendants


    Appeal by plaintiffs and defendants from order entered 25

April 2013 by Judge Walter H. Godwin, Jr. in Currituck County

Superior Court.   Heard in the Court of Appeals 22 January 2014.


    Currin & Currin, by Robin T. Currin and George B. Currin,
    for plaintiffs.

    Currituck County     Attorney    Donald   I.   McRee,   Jr.,   for
    defendants.


    CALABRIA, Judge.


    Currituck County (“the County”) and the Currituck County

Board of Commissioners (“the Board”) (collectively “defendants”)

appeal from the portion of the trial court’s order granting
                                            -2-
summary     judgment       in     favor    of     E.     Ray      Etheridge,     Fred    G.

Etheridge,        and    Mary     Katherine        R.      Etheridge        (collectively

“plaintiffs”) as to plaintiffs’ claim of illegal spot zoning.

Plaintiffs appeal the portion of the trial court’s order denying

their request for attorney’s fees and costs pursuant to N.C.

Gen. Stat. § 6-21.7 (2013).               We affirm.

                                     I. Background

    This appeal concerns a dispute over a 1.1 acre parcel of

land (“the property”) owned by Currituck Grain, Inc. (“Currituck

Grain”)    in     the    town   of    Shawboro      in     Currituck      County,      North

Carolina.        Prior to 5 December 2011, the property was zoned

agricultural        under       Currituck       County’s          Unified     Development

Ordinance (“the UDO”).               The adjoining parcels of land on three

sides of the property              were also zoned agricultural, and the

parcel on the remaining side of the property was zoned general

business.

    Currituck Grain entered into a contract with Daniel Clay

Cartwright (“Cartwright”) by which Cartwright would purchase the

property    to     establish      what     he     called      a    “recycling     center,”

which     would    handle,        stockpile,       and     sell      scrap     metal    and

materials,       rock,    mulch,       concrete,        and       dirt.      Cartwright’s

proposed     use    was     not      permitted      in     an      agricultural     zoning
                                   -3-
district, but it was permitted in a heavy manufacturing zoning

district with a special use permit.

    On 23 September 2011, Cartwright submitted an application

to have the property rezoned to Conditional District – Heavy

Manufacturing.      The County Planning Board (“the Planning Board”)

reviewed Cartwright’s rezoning application (“the application”)

and recommended that it should be denied because, inter alia,

the proposed use was inconsistent with the current rural zoning

classification      and   was    inconsistent     with     the    County’s

comprehensive land use plan.       The Board then conducted a hearing

regarding the application on 5 December 2011.           At the conclusion

of the meeting, the Board voted 6-1 to approve the application.

    On 25 January 2012, plaintiffs filed a complaint against

defendants in Currituck County Superior Court seeking to have

the rezoning of the property invalidated.        Plaintiffs’ complaint

included claims of illegal spot zoning, arbitrary and capricious

rezoning, and violation of due process.            Plaintiffs sought a

preliminary   and    permanent   injunction   against    the   rezoning   as

well as attorney’s fees and costs pursuant to N.C. Gen. Stat. §

6-21.7.   On 23 March 2012, plaintiffs filed an amended complaint

which added an additional claim for violation of N.C. Gen. Stat.

§ 153A-341 and the UDO.          Plaintiffs then filed a motion for
                                        -4-
summary judgment as to all claims other than their claim for a

preliminary and permanent injunction. After a hearing, the trial

court entered an order granting summary judgment in favor of

plaintiffs as to their claim for illegal spot zoning and denying

plaintiffs’ request for attorney’s fees.                    The trial court also

denied      plaintiffs’     motion    for    summary       judgment    as     to    their

remaining claims. Plaintiffs and defendants each appeal.

                               II.    Jurisdiction

       As    an   initial    matter,        we   note      that     this    appeal     is

interlocutory because the trial court’s order did not resolve

all    of    plaintiffs’     claims    since     it     explicitly         denied    both

parties summary judgment as to those remaining claims and there

is    no    subsequent    final   disposition         of    those    claims     in    the

record.      Appeal from an interlocutory order is proper if

              (1) the order is final as to some claims or
              parties, and the trial court certifies
              pursuant to N.C.G.S. § 1A-1, Rule 54(b) that
              there is no just reason to delay the appeal,
              or (2) the order deprives the appellant of a
              substantial right that would be lost unless
              immediately reviewed.

Myers v. Mutton, 155 N.C. App. 213, 215, 574 S.E.2d 73, 75

(2002).       In the instant case, the trial court’s order entered

final judgments as to plaintiffs’ claims for illegal spot zoning

and attorney’s fees and certified pursuant to Rule 54(b) that
                                           -5-
there   was    no   just    reason    to    delay    appeal   of   those    claims.

Accordingly, this appeal is properly before us.                    See Sharpe v.

Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (“When

the trial court [properly] certifies its order for immediate

appeal under Rule 54(b), appellate review is mandatory.”).

                 III.      Defendants’ Appeal – Spot Zoning

      Defendants’ sole argument on appeal is that the trial court

erred by granting summary judgment in favor of plaintiffs as to

plaintiffs’ claim for illegal spot zoning.                 We disagree.

      “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)).

              Spot zoning is defined, in pertinent part,
              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.” Blades v. City of
              Raleigh, 280 N.C. 531, 549, 187 S.E.2d 35,
              45 (1972), quoted in Chrismon [v. Guilford
              Cty.], 322 N.C. [611,] 627, 370 S.E.2d
              [579,] 588-89 [(1988)] The practice [of spot
                                 -6-
            zoning] may be valid or invalid, depending
            on the facts of the specific case. Chrismon,
            322 N.C. at 626, 370 S.E.2d at 588.        In
            order to establish the validity of such a
            zoning ordinance, the finder of fact must
            answer two questions in the affirmative: (1)
            did the zoning activity constitute spot
            zoning as our courts have defined that term;
            and (2) if so, did the zoning authority make
            a clear showing of a reasonable basis for
            the zoning. Id. at 627, 370 S.E.2d at 589.

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

257-58, 559 S.E.2d 768, 771 (2002) (footnotes omitted).

    In the instant case, defendants conceded at oral arguments

that the rezoning at issue constituted spot zoning as defined by

our Supreme Court.      However, they still contend that summary

judgment in favor of plaintiffs was inappropriate because the

undisputed evidence is that there was a reasonable basis for the

rezoning.    Defendants are mistaken.

    In order to determine whether there was a reasonable basis

for a spot zoning, this Court considers the following factors:

            (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
                                            -7-
               criteria are flexible, and the specific
               analysis used depends on the facts and
               circumstances of a particular case.” Id.

Childress v. Yadkin Cty., 186 N.C. App. 30, 37, 650 S.E.2d 55,

61 (2007).

       In the instant case, the first two factors, the size of the

tract and the compatibility of the rezoning with the County’s

comprehensive plan, clearly weigh against the reasonableness of

the rezoning.            The rezoned property is only 1.1 acres in size

and,    as      noted      by    the     Planning     Board,       the     rezoning       is

inconsistent with the County’s comprehensive plan.                              In their

brief, defendants do not dispute that these factors should weigh

against       the    rezoning’s        reasonableness.          Instead,      defendants

argue       that,   consistent      with    Chrismon,       the    third      and   fourth

factors      support      a    determination      that     there   was    a   reasonable

basis for the spot zoning.                 See Chrismon, 322 N.C. at 633-34,

370    S.E.2d       at   592    (“[W]e    find     that,    because      of   the    quite

substantial benefits created for the surrounding community by

the rezoning and because of the close relationship between the

likely uses of the rezoned property and the uses already present

in    the    surrounding        tracts,    there    was     a   clear    showing     of   a

reasonable basis for the spot zoning in this instance.”).

       A. Benefits vs. detriments
                                            -8-
          Defendants   first    contend      that   the   rezoning      would    create

substantial benefits for the community.                    Our Supreme Court has

stated that the analysis of this factor “is expressly limited to

examining the ordinance’s beneficial and detrimental effects on

the       property     owner,    his        neighbors,    and     the    surrounding

community.” Good Neighbors, 355 N.C. at 259, 559 S.E.2d at 772.

              One example of a qualifying benefit is a
              showing that neighboring property values
              would increase as a result of the rezoning.
              Other benefits previously recognized by the
              Court, as illustrated in Chrismon, include:
              (1) a showing of broad-based support for the
              proposed use of the property, and (2) a
              showing   that   many  of   the  surrounding
              landowners were likely to use the expanded
              services offered by the property owner
              seeking the zoning change.

Id. at 259-60, 559 S.E.2d at 772.

          In the instant case, defendants argue that the rezoning

will be beneficial because the proposed recycling center would

(1)    create    three    to    four    jobs;       (2)   allow   for    dilapidated

structures on the property to be rehabilitated; (3) allow county

citizens to dispose of their unwanted metals; and (4) make use

of    a    railroad    siding.         In    addition,     defendants     note    that

Commissioner J. Owen Etheridge (“Commissioner Etheridge”) stated

that he witnessed support for the rezoning from twenty-eight of
                                           -9-
thirty-three        attendees    at    a     preliminary        community     meeting

regarding Cartwright’s application.

       Many    of    the    benefits       from   the    rezoning        proposed    by

defendants are not supported by any evidence presented at the

public hearing.        For instance, there was no evidence presented

that the surrounding community would be particularly likely to

use the recycling center or that there was a specific need for a

recycling center in the property’s location.                       In Mahaffey v.

Forsyth County, this Court held that a spot zoning to facilitate

the establishment of an automobile parts store could not be said

to benefit the community because “auto parts are a common and

easily obtainable product and, if such a retail establishment

were    said   to    be     ‘beneficial      to   a     rural    community,’        then

virtually any type of business could be similarly classified.”

99 N.C. App. 676, 683, 394 S.E.2d 203, 208 (1990), aff’d per

curiam, 328 N.C. 323, 401 S.E.2d 365 (1991).                        The recycling

center in the instant case likewise provides only a generalized

benefit that has no specific connection to the surrounding rural

community.

       Commissioner        Etheridge’s      statement      that     he     personally

witnessed significant support for the rezoning at a preliminary

public hearing is also not supported by any evidence in the
                                          -10-
record.     Moreover, even assuming, arguendo, that the statement

was   accurate,     it     still   fails     to    establish      that       there    was

substantial community support for the rezoning.                         Commissioner

Etheridge’s       statement    acknowledges        that    multiple      individuals

were opposed to the rezoning at the meeting he attended, and at

the actual public meeting where the rezoning was considered, the

vast majority of individuals who addressed the rezoning spoke in

opposition to it.          Thus, there was not the type of overwhelming

public    support    for    the    rezoning      that    would    be    necessary      to

establish that the rezoning was beneficial to the surrounding

community.        Cf. Chrismon, 322 N.C. at 630, 370 S.E.2d at 590

(benefit    of    spot   zoning    demonstrated         when    eighty-eight         local

residents signed a petition supporting the rezoning, multiple

members of the community spoke in favor of the rezoning, and

only one property owner spoke in opposition to it).

      In addition, two real estate professionals who spoke at the

hearing stated that they believed that the proposed recycling

center    would    decrease    property      values      both    in    the    immediate

vicinity of the property and in the Shawboro community as a

whole.     There was no evidence to the contrary presented during

the   meeting.       Finally,      both    Currituck      County       Sheriff   Susan

Johnson (“Sheriff Johnson”) and a representative from the North
                                         -11-
Carolina Department of Cultural Resources (“the DCR”) submitted

letters     to   the    Board     expressing          their   concerns    with    the

rezoning.        Sheriff      Johnson    was    concerned     because     businesses

similar     to   the     proposed       recycling       center    had    experienced

increases in crime and other suspicious activity, and the DCR

was concerned that the proposed recycling center would adversely

affect two nearby historic properties.

    In light of this evidence, defendants have failed to make a

clear showing that the benefits of the rezoning outweighed its

detriments.       Consequently, this factor also weighs against the

reasonableness of the rezoning.

    B.    Relationship of Uses

    Defendants         next   argue     that    the    proposed   uses    under   the

rezoning would be consistent with the uses allowed or occurring

on adjacent properties.          The Chrismon Court stated the following

regarding this factor:

                   In determining whether a zoning
                   amendment constitutes spot zoning,
                   the   courts    will   consider    the
                   character    of    the   area    which
                   surrounds the parcel reclassified
                   by the amendment. Most likely to
                   be found invalid is an amendment
                   which   reclassifies    land    in   a
                   manner    inconsistent     with    the
                   surrounding neighborhood.
                                       -12-
              1 R. Anderson, American Law of Zoning § 5.16
              at 383 (3d ed. 1986) (emphasis added). One
              court has described the evil to be avoided
              as “an attempt to wrench a single small lot
              from its environment and give it a new
              rating which disturbs the tenor of the
              neighborhood.” Magnin v. Zoning Commission,
              145 Conn. 26, 28, 138 A. 2d 522, 523 (1958)
              (emphasis added).

Chrismon, 322 N.C. at 631, 370 S.E.2d at 591.               The Court went on

to note that “significant disturbances such as the rezoning of a

parcel in an old and well-established residential district to a

commercial        or      industrial     district     would       clearly       be

objectionable” under this factor. Id.              In Budd v. Davie County,

this    Court     cited     this   language   in   concluding    that    a    spot

rezoning from residential-agricultural to industrial to permit

the installation of a sand dredging operation “would destroy the

tenor of the quiet residential and agricultural neighborhood.”

116 N.C. App. 168, 178, 447 S.E.2d 449, 455 (1994).                    Similarly,

in Good Neighbors, our Supreme Court held that a spot rezoning

to permit chemical storage in an area “specifically zoned for

farms and residences” was unreasonable under this factor.                      355

N.C. App. at 262, 559 S.E.2d at 773.

       In   the    instant     case,   the    property     was   rezoned      from

agricultural, which is the least intense residential district

under   the     UDO,   to    heavy   manufacturing,      which   was    the   most
                                     -13-
intense industrial district.         Thus, like the spot zonings found

to be unreasonable in Budd and Good Neighbors, the rezoning in

this case impermissibly “wrench[es] a single small lot from its

environment and give[s] it a new rating which disturbs the tenor

of the neighborhood.” Chrismon, 322 N.C. at 631, 370 S.E.2d at

591 (emphasis omitted).

       However, defendants contend that the rezoning should still

be considered reasonable pursuant to this factor because (1) the

previous use of the property, a granary, was in greater conflict

with   the    surrounding   properties      than   the   proposed    recycling

center; and (2) the County may still place limitations upon the

property that would bring it into harmony with the surrounding

properties when Cartwright seeks a required special use permit.

Defendants’     first   contention    is    immaterial,    because    previous

uses of the rezoned property are not considered as part of this

factor.      See Good Neighbors, 355 N.C. at 261, 559 S.E.2d at 773

(This factor consists of “evaluating the relationship between

the uses envisioned under the new zoning and the uses currently

present in adjacent tracts . . . .” (emphasis added)).

       In support of its second contention, defendants cite Purser

v. Mecklenburg County, 127 N.C. App. 63, 488 S.E.2d 277 (1997).

In Purser, the property at issue was rezoned from residential to
                                             -14-
a   conditional-use          district        to     allow      for    a        “Neighborhood

Convenience Center,” which would provide retail establishments

that    were    consistent        with       the    daily     needs       of     the     nearby

residents. Id. at 65, 488 S.E.2d at 278.                       This Court found that

under   those     circumstances,         the       “relationship      of       uses”     factor

weighed    in   favor     of      the    reasonableness         of    the       spot     zoning

because    “the    development          of    the     Center    was       governed        by    a

conditional use site plan that was designed to integrate the

Center into the neighborhood and insure that it would be in

harmony with the existing and proposed residential uses on the

surrounding property.”            Id. at 70-71, 488 S.E.2d at 282.

       Purser is distinguishable from the instant case.                              Unlike in

Purser,    defendants        in    the       instant    case     have          presented       no

evidence   that     the      recycling       center     has    been    designed          to    be

integrated into the surrounding area.                   The only condition on the

rezoning cited by defendants in their brief is an eight-foot

fence which is to be installed around the property.                                    However,

defendants      fail    to     adequately          explain     how    this       fence     will

significantly diminish the impact of the recycling center on

surrounding       properties.             Consequently,          we       conclude         that

defendants      have    failed      to       clearly    show     that          the     proposed
                                        -15-
recycling center would be consistent with the uses of adjoining

properties.

       Ultimately, defendants have failed to meet their burden to

make a clear showing pursuant to any of the Chrismon factors

that the rezoning was a reasonable spot zoning.                         Accordingly,

the trial court properly granted summary judgment in favor of

plaintiffs because the rezoning constituted illegal spot zoning.

Defendants’ argument is overruled.

                IV.    Plaintiffs’ Appeal – Attorney’s Fees

       Plaintiffs’ sole argument on appeal is that the trial court

erred     by     denying       their     request        for      attorney’s         fees.

Specifically, plaintiffs contend that defendant’s illegal spot

zoning constituted an abuse of discretion and that, as a result,

N.C.    Gen.   Stat.    §    6-21.7    required       the   trial    court   to     award

attorney’s fees as a matter of law.               We disagree.

       Ordinarily,     the    “recovery    of     attorney’s        fees,    even    when

authorized by statute is within the trial court’s discretion and

will only be reviewed for an abuse of that discretion.” Martin

Architectural Prods., Inc. v. Meridian Constr. Co., 155 N.C.

App.    176,   182,    574   S.E.2d    189,     193    (2002).       However,       “[w]e

review    a    trial   court’s    decision       whether       to   award    mandatory

attorney’s      fees    de    novo.”    Willow     Bend       Homeowners     Ass'n     v.
                                       -16-
Robinson, 192 N.C. App. 405, 418, 665 S.E.2d 570, 578 (2008)

(emphasis added).

     In    the   instant       case,     plaintiffs    sought   to     recover

attorney’s fees     pursuant to N.C. Gen. Stat. § 6-21.7, which

states:

            In any action in which a city or county is a
            party, upon a finding by the court that the
            city or county acted outside the scope of
            its legal authority, the court may award
            reasonable attorneys’ fees and costs to the
            party who successfully challenged the city’s
            or county’s action, provided that if the
            court also finds that the city’s or county’s
            action was an abuse of its discretion, the
            court shall award attorneys’ fees and costs.

N.C. Gen. Stat. § 6-21.7.              This statute permits a party that

successfully challenges an action by a city or county to recover

attorney’s fees if the trial court makes certain findings of

fact.     When the court finds only that the city or county acted

outside    the   scope    of    its     legal   authority,    the    award   of

attorney’s fees is discretionary. See Brock and Scott Holdings,

Inc. v. Stone, 203 N.C. App. 135, 137, 691 S.E.2d 37, 38 (2010)

(“[T]he use of [the word] ‘may’ generally connotes permissive or

discretionary action and does not mandate or compel a particular

act.”).     However,     if    the    court   additionally   finds   that    the

city’s or county’s action constituted an abuse of discretion,

then the award of attorney’s fees is mandatory. See Internet E.,
                                            -17-
Inc. v. Duro Communications, Inc., 146 N.C. App. 401, 405-06,

553 S.E.2d 84, 87 (2001) (“The word ‘shall’ is defined as ‘must’

or ‘used in laws, regulations, or directives to express what is

mandatory.’”).

       In the instant case, the trial court properly determined

that the rezoning constituted illegal spot zoning and thus that

the County acted outside the scope of its legal authority.                                See

Alderman v. Chatham County, 89 N.C. App. 610, 616, 366 S.E.2d

885,   889        (1988)    (“[U]nless      there     is    a   clear     showing    of    a

reasonable basis, spot zoning is beyond the authority                               of the

county      or     municipality.”         (internal        quotations     and     citation

omitted)).           However, the court did not find that the County’s

action      was    an     abuse     of   discretion    and      instead    ordered       both

parties to be “responsible for their own attorney’s fees and

costs.”          Plaintiffs        argue that the      trial court’s failure to

award them attorney’s fees was error because (1) the County’s

action was necessarily an abuse of discretion as a matter of

law;   or    (2)     in    the     alternative,     that     the   record    supports      a

determination that the County abused its discretion.                            Plaintiffs

are mistaken.

       Plaintiffs          first    contend    that    “illegal      spot       zoning    is

always outside the scope of the County’s legal authority and
                                            -18-
always    an    abuse     of    discretion         and,     therefore,         once     it    is

determined that illegal spot zoning occurred, the Trial Court is

required       to    award     attorney’s         fees.”         In     support    of        this

argument, plaintiffs rely on the principle noted in this Court’s

opinion    in       Summers    v.   City     of    Charlotte,          which    states,        in

relevant part:

               Local governments have been delegated the
               power to zone their territories and restrict
               them to specified purposes by the General
               Assembly. Zopfi v. City of Wilmington, 273
               N.C. 430, 434, 160 S.E.2d 325, 330 (1968).
               This authority “is subject both to the . . .
               limitations imposed by the Constitution and
               to the limitations of the enabling statute.”
               Id. Within those limitations, the enactment
               of zoning legislation “is a matter within
               the discretion of the legislative body of
               the city or town.” Id.

149 N.C. App. 509, 517, 562 S.E.2d 18, 24 (2002).                                 Plaintiffs

contend that since local governments only have discretion to

enact     zoning      legislation         when     they    are        acting    within       the

limitations         imposed    by   the    Constitution          and    by     statute,      any

action    which      exceeds    those      limitations       must       also    exceed       the

discretionary authority of the local government such that the

action constitutes an abuse of discretion as a matter of law,

which in turn requires an automatic award of attorney’s fees.

    Plaintiffs’ contention cannot be reconciled with the plain

language of N.C. Gen. Stat. § 6-21.7.                      Pursuant to that statute,
                                              -19-
a “finding by the court that the city or county acted outside

the scope of its legal authority,” such as a finding that a

local government engaged in illegal spot zoning, does not, in

and of itself, trigger the mandatory award of attorney’s fees.

N.C. Gen. Stat. § 6-21.7.                Instead, the trial court must also

explicitly      consider        and   “find[]        that       the   city’s     or   county’s

action was an abuse of its discretion” in order to trigger the

mandatory        award     of         fees.        Id.            Plaintiffs’         proposed

interpretation of the statute would collapse these two distinct

required inquiries into one, essentially deleting a portion of

the statute.           Such an interpretation is impermissible because

our    Courts    “have     no    power       to    add     to    or    subtract       from   the

language of the statute.” Zaldana v. Smith, ___ N.C. App. ___,

___, 749 S.E.2d 461, 463 (2013) (internal quotation and citation

omitted),       disc.    rev.     denied,         ___    N.C.     ___,    ___    S.E.2d      ___

(2014).

       “[A]n abuse of discretion occurs when a determination ‘is

so    arbitrary    that     it    could       not       have    been     the    result    of   a

reasoned decision.’” Bishop v. Ingles Mkts., Inc., ___ N.C. App.

___,    ___,     756     S.E.2d       115,     121       (2014)       (quoting    Porter       v.

Fieldcrest Cannon, Inc., 133 N.C. App. 23, 26, 514 S.E.2d 517,

520 (1999)).       Contrary to plaintiffs’ argument, the language of
                                           -20-
N.C. Gen. Stat. § 6-21.7 clearly indicates that the General

Assembly believed that a local government could erroneously act

outside the scope of its legal authority but yet not be acting

in a manner “so arbitrary that it could not have been the result

of a reasoned decision.” Id.                Thus, we conclude that under the

plain    language        of     the    statute,   the        trial        court       is    always

required        to     separately       determine       both        (1)     that       a     local

government acted outside the scope of its legal authority; and

(2) that the act in question constituted an abuse of discretion

before     the        court     is    required    to     award        attorney’s             fees.

Plaintiffs’          proposed    interpretation         to    the     contrary             must   be

rejected.

      Nonetheless,           plaintiffs still argue that “the undisputed

facts of the case              sub judice are particularly egregious and

further     demonstrate          the     County’s       abuse        of     discretion             in

approving       the    rezoning.”         Specifically,        plaintiffs             note       that

during     the       hearing     which    considered          the     rezoning             request,

concerns    with       the     proposed    rezoning      were       raised        by       (1)    the

Planning Board, because the rezoning was inconsistent with the

comprehensive plan; (2) Sheriff Johnson, because the proposed

use     would        potentially       require    the        hiring        of     a    new        law

enforcement officer; (3) the DCR, which was concerned that the
                                             -21-
proposed use would have negative effects on two nearby historic

properties; and (4) nearby landowners.                      Plaintiffs also contend

that    the     record      reflects    that      the     Board     failed      to    properly

consider      and    analyze      the   relevant        spot   zoning       reasonableness

factors after being informed about those factors by the County

Attorney.           Plaintiffs argue that the Board’s approval of the

rezoning      in    these     circumstances          irrefutably          demonstrates         an

abuse of discretion.

       However, the evidence cited by plaintiffs was not the only

information before the Board.                 Cartwright explained the benefits

that    the     recycling      center       would   bring      to    the    community         and

informed the Board how he expected the center would operate,

including the steps he would take to limit the center’s impact

on     nearby      landowners.          In     addition        to     Cartwright,        three

individuals         spoke    in     favor    of     the    rezoning        at   the     public

hearing.       Two of these individuals specifically referenced prior

uses of the property and suggested that the recycling center

would    not       impact     the    area     surrounding           the    property      in    a

materially different manner than these prior uses.                                   The third

individual supported the rezoning because he felt there was a

need for industry in Currituck County.
                                -22-
    Based upon the information presented during the hearing,

Commissioner Etheridge made the following motion in favor of the

rezoning:

            Mr. Chairman, since I live in the Shawboro
            community and I will be affected by this one
            way or the other, I am going to make a
            motion to recommend approval of this. And I
            do so citing that it is consistent with the
            land use plan, and the request is reasonable
            and in the public interest. It also promotes
            orderly   growth  and  development   in  our
            community, and it follows the long history
            of industrial uses that have been in this
            area.

            One, it’s a rail siding with three rail
            spurs, the largest one in Currituck County.
            It has had a cotton gin, an asphalt plant,
            two      different      fertilizer     plants,
            agricultural chemical storage, granaries, as
            I   said   to   [inaudible],   lime  off--they
            offloaded lime there. DOT has--NCDOT, DOT,
            has used this property to offload rail cars
            of highway maintenance materials. Various
            contracting firms have offloaded rail cars
            at this site. North Carolina Power has, on
            occasion,     offloaded    large    electrical
            equipment here. So it has a history of being
            an industrial area, or the railroad would
            have never put the siding there to begin
            with.

            So with that, and the fact that there was
            overwhelming   support  at   the   community
            meeting--I think the report was thirty-three
            people there, twenty-eight supported it.
            Here tonight it appears to be somewhat
            overwhelming   support  from   the   general
            community. And the general community we’re
            talking about is Currituck and Shawboro in
            particular. And I look out here and I see
                                     -23-
            people from Shawboro and throughout the
            county. And I think it is time that we take
            the foot of government off the throat of
            starting businesses in this county and we do
            what we can to make sure.

            Now, in this additional zoning permit, I
            would also add that we add opaque fencing to
            be determined height-wise, and a special use
            permit that every factor that the staff and
            Mr. Cartwright can work on to mitigate any
            possible negative impacts be looked at and
            then addressed at the special use permit.

This statement is the only information on the record regarding

the Board’s reasoning for the approval of the rezoning, which

occurred shortly after Commissioner Etheridge’s motion was made.

The motion demonstrates that the Board considered most of the

Chrismon reasonableness factors prior to approving the rezoning.

Commissioner Etheridge specifically cited his belief that the

rezoning was consistent with the UDO,                 noted benefits to the

community    such    as   economic   growth     and    significant      community

support, and discussed how the newly zoned property would be

consistent    with   surrounding     property    uses,     including     how   the

recycling center’s impact would be mitigated through the special

use permit process.        While we have determined that Commissioner

Etheridge’s    reasoning     was   insufficient       to   meet   the   County’s

legal burden of making “a clear showing of a reasonable basis

for the zoning,” Good Neighbors, 355 N.C. at 258, 559 S.E.2d at
                                        -24-
771,    we    cannot    conclude     that    the   Board’s   reliance      on    the

information cited by Commissioner Etheridge was so unreasonable

that the legislative act of the rezoning “could not have been

the result of a reasoned decision.” Bishop, ___ N.C. App. at

___, 756 S.E.2d at 121.              Accordingly, the trial court did not

err    by    determining     that    the    rezoning   was   not    an   abuse    of

discretion by the County.1            Since there was sufficient evidence

for the trial court to decide that the rezoning was not an abuse

of discretion, there was also sufficient evidence for the court,

in its discretion, to deny plaintiffs’ motion for attorney’s

fees.        Thus, we conclude the trial court did not abuse its

discretion by denying that motion.             This argument is overruled.

                                V.     Conclusion

       The trial court properly awarded summary judgment in favor

of plaintiffs for their illegal spot zoning claim because there

was no genuine issue of material fact as to whether the rezoning

constituted illegal spot zoning.               Pursuant to N.C. Gen. Stat. §

6-21.7, if the trial court finds only that a local government

acted       outside    the   scope    of    its    authority,      the   award   of

attorney’s fees is discretionary. However, if the trial court

1
  Although the trial court did not explicitly find that the
County did not abuse its discretion by enacting the rezoning,
such a finding is implicit in the court’s decision to have both
parties bear their own costs and attorney’s fees.
                                   -25-
additionally finds that the local government’s action was an

abuse   of   discretion,   the    award    of   attorney’s   fees   becomes

mandatory.     Since the court properly determined that the County

did not abuse its discretion when it approved the illegal spot

zoning of the property, it was not required to award attorney’s

fees    to   plaintiffs.    The    trial    court   did   not   abuse   its

discretion by ordering the parties to pay their own attorney’s

fees and costs.    The trial court’s order is affirmed.

       Affirmed.

       Judges HUNTER, Robert C. and GEER concur.
