              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA17-401

                               Filed: 5 December 2017

Randolph County, No. 16 CVS 1539

MAXTON MCDOWELL and WANDA MCDOWELL, Plaintiffs,

             v.

RANDOLPH COUNTY and THE RANDOLPH COUNTY BOARD OF COUNTY
COMMISSIONERS, Defendants.


      Appeal by plaintiffs from order entered 26 January 2017 by Judge Edwin G.

Wilson in Randolph County Superior Court.        Heard in the Court of Appeals 1

November 2017.


      The Brough Law Firm, PLLC, by Robert E. Hornik, Jr. and Kevin R. Hornik,
      for plaintiff-appellants.

      Smith Moore Leatherwood LLP, by Kip David Nelson and Thomas E. Terrell,
      Jr., for defendant-appellees.


      TYSON, Judge.


      Maxton McDowell and Wanda McDowell (“Plaintiffs”) appeal the trial court’s

entry of summary judgment in favor of Randolph County (“Defendant-County”) and

the Randolph County Board of County Commissioners (“Defendant-Board”)

(collectively, “Defendants”). This case involves the question of whether Randolph

County properly “re-zoned” certain real property bordering Plaintiffs’ property. We

affirm the superior court’s order.
                           MCDOWELL V. RANDOLPH CTY.

                                 Opinion of the Court



                                  I. Background

      The record tends to show the following: Plaintiffs own and reside on certain

real property located at 5354 Old N.C. Highway 49 in Randolph County. Maxton

McDowell also owns a parcel of land on the south side of Old N.C. Highway 49

adjacent to certain real property owned by the McDowell Family Limited Partnership

(“MFLP”). A portion of MFLP’s property (the “Subject Property”) is used by the

McDowell Lumber Company (the “Lumber Company”) as a saw mill, planing

operation, and pallet-making operation.

      Since about 1987, Defendant-County has maintained a zoning ordinance,

referred to as the Unified Development Ordinance (“UDO”) which governs and

regulates the uses of land in the county. Defendant-County also maintains a land

use plan called the “Randolph County Growth Management Plan” (the “Plan”).

      In 2009, Randolph County amended the Plan to include the Rural Industrial

Overlay District zoning classification. The Rural Industrial Overlay District “is

intended to accommodate industrial activities and uses requiring proximity to rural

resources where the use of site specific development plans, natural buffers and

landscaping, would lessen adverse impact upon the general growth characteristics

anticipated by the Growth Management Plan.” Randolph County, Uniform

Development Ordinance Art. VII, § I (Apr. 6, 2009).




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      Also included in the Plan is the Rural Industrial Overlay Conditional District

zoning classification. The Rural Industrial Overlay Conditional District is “identical

to the Rural Industrial Overlay District except site plans and individualized

development conditions are imposed only upon petition of all owners of the land.” Id.

      The Subject Property was rezoned by Defendant-Board to the Rural Industrial

Overlay Conditional District classification (“CZ-RIO”) in 2010 at the request of

MFLP. The representative for the Lumber Company submitted a site plan for the

Subject Property with the 2010 rezoning request. Defendant-Board approved the

2010 rezoning request with the condition that the Lumber Company conform its use

of the property to the specifications set out in the site plan.

      In April 2016, the Lumber Company filed and requested a rezoning application

to modify its site plan, by relocating a chemical vat. On 6 June 2016, Defendant-

Board approved the Lumber Company’s rezoning request. Defendant-Board made no

change in the Subject Property’s, nor any other adjoining property’s, zoning

classification, but approved only a modification to the Subject Property’s site plan.

The modification to the site plan permits the Lumber Company to relocate an existing

chemical-containing vat to a different location within the Subject Property and to

build a concrete pad and structure to partially enclose it.

      Plaintiffs brought suit against Defendants on 3 August 2016. Plaintiffs alleged

that the rezoning was null and void because (1) Defendant-Board’s decision was



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arbitrary and capricious, (2) Defendants had failed to adopt a proper consistency

statement, and (3) Defendants engaged in illegal spot zoning.

       Defendants moved for summary judgment pursuant to Rule 56 of the North

Carolina Rules of Civil Procedure on the grounds that the Board retained the

statutory authority to “change the zoning and zoning conditions of all properties

within the county, and the rezoning decision complied with all statutorily required

procedures and was not illegal spot zoning.” See N.C. Gen. Stat. § 1A-1, Rule 56

(2015). Plaintiffs filed a cross-motion for summary judgment pursuant to Rule 56.

Id.

       On 26 January 2017, the trial court granted Defendants’ motion for summary

judgment and denied Plaintiffs’ motion for summary judgment. Plaintiffs timely

appealed the superior court’s judgment.

                                    II. Jurisdiction

       Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. §§ 1-277(a) and 7A-

27(b) (2015) as an appeal from a superior court’s order in a civil action disposing of

all the parties’ issues.

                               III. Standard of Review

       Summary judgment is proper when “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 any party is entitled to a



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                                   Opinion of the Court



judgment as a matter of law.” N.C. Gen. Stat. § 1A–1, Rule 56(c). The moving party

bears the burden of demonstrating the lack of triable issues of fact. Koontz v. City of

Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972).               On appeal

from summary judgment, “[w]e review the record in the light most favorable to the

non-moving party.” Bradley v. Hidden Valley Transp., Inc., 148 N.C. App. 163, 165,

557 S.E.2d 610, 612 (2001) (citing Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d

379, 381 (1975)), aff’d, 355 N.C. 485, 562 S.E.2d 422 (2002). “We review a trial court’s

order granting summary judgment de novo[.]” Adkins v. Stanly Cty. Bd. of Educ., 203

N.C. App. 642, 644, 692 S.E.2d 470, 472 (2010).

                                     IV. Analysis

      Plaintiffs renew their arguments made before the superior court in opposition

to Defendants’ motion for summary judgment and in support of their own motion for

summary judgment. Plaintiffs assert Defendants’ rezoning amendment is null and

void because: (1) Defendant-Board’s decision was arbitrary and capricious, (2)

Defendants failed to adopt a proper consistency statement, and (3) Defendants

engaged in illegal spot zoning. We address each argument in turn.

                                A. Arbitrary and Capricious

      Plaintiffs argue Defendant-Board acted arbitrarily and capriciously when it

rezoned the property to approve the modified site plan. We disagree.

             The Constitution imposes limits on the legislative power to
             zone by forbidding arbitrary, capricious, and unduly


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                                  Opinion of the Court



             discriminatory interference with the rights of property
             owners. This standard is a very difficult standard to meet.
             A decision is arbitrary and capricious if it was patently in
             bad faith, whimsical, or if it lacked fair and careful
             consideration. In deciding whether a decision is arbitrary
             and capricious, courts must apply the whole record test.

      Summers v. City of Charlotte, 149 N.C. App. 509, 518, 562 S.E.2d 18, 25 (2002)

(internal quotations and citations omitted).

      Under de novo review, on questions of law “[a] reviewing court is not free to

substitute [its] opinion for that of the legislative body so long as there is some

plausible basis for the conclusion reached by that body.” Ashby v. Town of Cary, 161

N.C. App. 499, 503, 588 S.E.2d 572, 574 (2003) (internal quotations and citation

omitted).   A rezoning decision can only be deemed improper if “the record

demonstrates that it had no foundation in reason and bears no substantial relation

to the public health, the public morals, the public safety or the public welfare in its

proper sense.” Id. (quotation marks and citation omitted).

      Under the deferential review of the Board’s factual findings, “[t]he whole

record test requires the reviewing court to examine all the competent evidence . . .

which comprises the whole record to determine if there is substantial evidence in the

record to support the [Board’s] findings and conclusions.” Northwest Prop. Grp., LLC

v. Town of Carrboro, 201 N.C. App. 449, 456, 687 S.E.2d 1, 6 (2009) (internal

quotations and citations omitted).     “The ‘whole record’ test does not allow the

reviewing court to replace the [Board’s] judgment as between two reasonably


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conflicting views, even though the court could justifiably have reached a different

result had the matter been before it de novo.” Id. (quoting Thompson v. Board of

Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977)).

      Defendant-Board reached its decision to rezone the Subject Property by

granting the Lumber Company’s modified site plan. The modified site plan specifies

moving the existing chemical-containing vat at issue onto a concrete pad to divert

storm water runoff to an on-site retention pond, adding a cover over the vat, and the

addition of walls to block the view of the vat.

      The minutes of the 6 June 2016 hearing of Defendant-Board on the decision to

review the Lumber Company’s petition show Defendant-Board received testimony

from the Lumber Company’s representative. The Lumber Company representative

asserted the relocation of the vat as shown on the proposed site plan would reduce

the dust, noise, and emissions on and from the Subject Property, and cut the driving

time of the Lumber Company’s vehicles in half.

      Defendant-Board found the rezoning amendment to be in furtherance of the

2009 Randolph County Growth Management Policy by furthering the goal of

“[e]nsur[ing] the opportunity for landowners to achieve the highest and best uses of

their land that are consistent with growth management policies in order to protect

the economic viability of the County’s citizens and tax bases.”




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                                  Opinion of the Court



      Defendant-Board had several plausible bases to justify its decision to rezone

the Subject Property by granting the Lumber Company’s modification to the site plan.

No genuine issue of material fact exists to show Defendants’ conduct was whimsical

or exercised patently in bad faith. The proposed relocation of the chemical vat

arguably will make the Subject Property safer, reduce emissions and lower the

probability of runoff or spills onto adjoining properties. Plaintiffs’ arguments are

overruled.

                                 B. Statement of Consistency

      Plaintiffs argue Defendant-Board did not adopt a valid statement of

consistency contemporaneously with, or prior to, approving the rezoning of the

Subject Property. We disagree.


      N.C. Gen. Stat. § 153A-341 (2015) requires:

             Zoning regulations shall be made in accordance with a
             comprehensive plan. Prior to adopting or rejecting any
             zoning amendment, the governing board shall adopt a
             statement describing whether its action is consistent with
             an adopted comprehensive plan and explaining why the
             board considers the action taken to be reasonable and in
             the public interest. That statement is not subject to judicial
             review.

      Our Supreme Court in Wally v. City of Kannapolis, 365 N.C. 449, 453-54, 722

S.E.2d 481, 484 (2012), held a zoning amendment to be void, where the city council

had failed to approve a statement of reasonableness when adopting the amendment.

The Supreme Court in Wally stated:

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                                   Opinion of the Court



              The statute requires that defendant take two actions in
              this situation: first, adopt or reject the zoning amendment,
              and second, approve a proper statement. 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.”

Id. at 452, 722 S.E.2d at 483 (emphasis in original) (citations omitted).

       This Court, in Morgan v. Nash Cty., 224 N.C. App. 60, 69, 735 S.E.2d 615, 622

(2012), held “the statute at issue in Wally, N.C. Gen. Stat. § 160A-383, is substantially

similar to N.C. Gen. Stat. § 153A-341, but section 160A-383 applies to zoning

amendments adopted by cities and towns rather than by counties.”

       This Court, in Atkinson v. City of Charlotte, 235 N.C. App. 1, 4, 760 S.E.2d 395,

397 (2014) held the following statement of consistency not to be in compliance with

N.C. Gen. Stat. § 160A-383: “STATEMENT OF CONSISTENCY This petition is

found to be consistent with adopted policies and to be reasonable and in the public

interest . . . .”   The Court concluded the statement merely contained summary

language that tracked the statute, and did not actually contain 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. Id.

       Although N.C. Gen. Stat. § 160A-383 [applicable to cities] and N.C. Gen. Stat.

§ 153A-341 [applicable to counties] both plainly state that a statement of consistency

“is not subject to judicial review,” the Court in Atkinson, following Wally, held that

while the content of a statement of consistency is not subject to judicial review,


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                                   Opinion of the Court



whether the statement includes the required description and explanation is subject

to judicial review. Id. at 5, 760 S.E.2d at 398. The Court reversed the trial court’s

order granting summary judgment in favor of the defendants and remanded for the

entry of summary judgment in favor of the plaintiffs on the basis the amendment was

void for lack of a valid consistency statement. Id. at 6, 760 S.E.2d at 398.

      Here, the minutes of the Board hearing, during which the Board voted to

approve the zoning amendment at issue, contains the following statement of

consistency:


               On motion of Kemp, seconded by Lanier, the Board voted
               3-2, with Commissioners Frye and Allen opposing, to
               approve the request of McDowell Family Limited
               Partnership, as determined consistent with the standards
               and policies contained within the Growth Management
               Plan; and having further found from information and
               testimony provided at public hearing, that the following
               Growth Management policies support the Determination of
               Consistency and find the decision reasonable and in the
               public interest.

               Policy 3.9[:] Individual rezoning decisions within Rural
               Growth Areas will depend upon the scale of the
               development, and the specific nature of the site and its
               location.
               Resolution Adopting the 2009 Randolph County Growth
               Management Plan, Policy #2[:] Recognize that growth
               management policies should afford flexibility to County
               boards and agencies that will enable them to adapt to the
               practical requirements often necessary for rural
               development.
               Resolution Adopting the 2009 Randolph County Growth
               Management Policy #3[:] Ensure the opportunity for


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                                 Opinion of the Court



             landowners to achieve the highest and best uses of their
             land that are consistent with growth management policies
             in order to protect the economic viability of the County’s
             citizens and tax bases. [Emphasis supplied.]

      Plaintiffs argue the Board’s statement of consistency fails to comply with N.C.

Gen. Stat. § 153A-341, because it does not include an explanation to show the

amendment is reasonable and in the public interest. We disagree.

      Defendant-Board’s statement of consistency shows Defendant-Board, based

upon the “information and testimony produced at public hearing” found the rezoning

to be consistent with the Growth Management Plan, and to be reasonable and in the

public interest because it was consistent with the three listed plan policies. Unlike

the city council in Wally, Defendant-Board clearly found and adopted a sufficient

statement of consistency. Unlike the statement of consistency at issue in Atkinson,

Defendant-Board found and adopted a statement which goes beyond merely reciting

the language of N.C. Gen. Stat. § 153A-341.             Defendant-Board’s statement of

consistency lists the bases of its finding and “describe[s] whether the action is

consistent with any controlling comprehensive plan and explain[s] why the action is

‘reasonable and in the public interest.’” Wally, 365 N.C. at 452, 722 S.E.2d at 483

(emphasis omitted). Plaintiffs’ argument is overruled.

                                  C. “Spot Zoning”

      Plaintiffs argue Defendants engaged in illegal spot zoning by rezoning the

Subject Property to accepting the modified site plan. We disagree.


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                                  Opinion of the Court



      Our Supreme Court has defined “spot zoning” to be:

             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[.]

Blades v. City of Raleigh, 280 N.C. 531, 549, 187 S.E.2d 35, 45 (1972) (emphasis

supplied). North Carolina appellate courts have repeatedly followed this definition

of spot zoning. See Musi v. Town of Shallotte, 200 N.C. App. 379, 382, 684 S.E.2d 892,

895 (2009) (applying the Blades definition of spot zoning), Friends of Mt. Vernon

Springs, Inc. v. Town of Siler City, 190 N.C. App. 633, 638, 660 S.E.2d 657, 661 (2008)

(applying the Blades definition of spot zoning), Childress v. Yadkin Cty. 186 N.C. App.

30, 34, 650 S.E.2d 55, 59 (2007) (applying the Blades definition of spot zoning). “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.” Childress, 186 N.C. App. at

35, 650 S.E.2d at 59 (citation and internal quotation marks omitted).

      No genuine issue of material fact exists of Defendant-Board’s approval of the

modified site plan of the Subject Property in 2016. Defendants rezoned the Subject

Property to Rural Industrial Overlay Conditional District zoning classification in

2010. In the 2016 rezoning action Plaintiffs challenge here, Defendant-Board did not

change the classification of the subject property from Rural Industrial Overlay



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                                    Opinion of the Court



Conditional District to another zoning district, or reclassify any other tract of

property to this zoning district.

       Defendant-Board merely approved the relocation of the existing chemical vat

to another location on the Subject Property, by approving the modification to the

Subject Property’s site plan.

             Within two months an action contesting the validity of any
             ordinance adopting or amending a zoning map or
             approving a special use, conditional use, or conditional
             zoning district rezoning request under Part 3 of Article 18
             of Chapter 153A of the General Statutes or Part 3 of Article
             19 of Chapter 160A of the General Statutes or other
             applicable law. Such an action accrues upon adoption of
             such ordinance or amendment.

N.C. Gen. Stat. § 1-54.1 (2015). Under N.C. Gen. Stat. § 1-54.1, 2010 would have

been the appropriate time to have brought a spot zoning challenge to Defendants’

classifying the subject property as Rural Industrial Overlay Conditional District.

Plaintiffs cannot challenge this classification now, which is not a reclassification of

zoning, but is merely a review and approval of the modification to the previously

approved site plan.

      No genuine issue of material fact exists to show Defendants’ 2016 rezoning

action constitutes illegal spot zoning. Plaintiffs’ argument is overruled.

                                     V. Conclusion




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                                 Opinion of the Court



      The superior court’s judgment granting Defendants’ motion for summary

judgment, and denying Plaintiffs’ motion for summary judgment, is affirmed. It is

so ordered.

      AFFIRMED.

      Judges STROUD and HUNTER concur.




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