              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA17-318

                                 Filed: 20 March 2018

Mecklenburg County, No. 16-CVS-1265

WILLIAM M. BYRON and DANA T. BYRON, Plaintiffs,

             v.

SYNCO PROPERTIES, INC., a North Carolina corporation, and CITY OF
CHARLOTTE, a North Carolina body politic and corporate, Defendants.


      Appeal by Plaintiffs from Order entered 23 November 2016 by Judge Yvonne

Mims-Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals

5 September 2017.


      Scarbrough & Scarbrough, PLLC, by Madeline J. Trilling, and The Law Office
      of Kenneth T. Davies, P.C., by Kenneth T. Davies, for Plaintiffs.

      K&L Gates LLP, by Roy H. Michaux, Jr., for Defendant SYNCO Properties, Inc.

      Office of the Charlotte City Attorney, by Assistant City Attorney Thomas E.
      Powers, III, and Senior Assistant City Attorney Terrie Hagler-Gray, for
      Defendant City of Charlotte.


      INMAN, Judge.


      Landowners whose property is not directly and adversely affected by a zoning

statute do not have standing to bring a declaratory judgment action to challenge the

constitutionality of the statute or a municipality’s interpretation of the statute.

      Plaintiffs William M. Byron and Dana T. Byron (“Plaintiffs”), husband and

wife, appeal from a summary judgment order dismissing their declaratory judgment
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                                   Opinion of the Court



action against defendant SYNCO Properties, Inc. (“SYNCO”) and the City of

Charlotte (the “City,” collectively “Defendants”) challenging the rezoning of real

property in Charlotte, North Carolina.          Plaintiffs contend that, because their

complaint alleged facial constitutional challenges to a statute and session laws, the

trial court was required to transfer those claims to a three-judge panel in Wake

County pursuant to N.C. Gen. Stat. §§ 1-81.1, 1-267.1, and 1A-1, Rule 42(b)(4) (2015).

Plaintiffs further challenge the trial court’s dismissal of their claims challenging N.C.

Gen. Stat. § 160A-385 (2015) and Session Law 2015-160 as moot, as well as its

determination that the prior version of N.C. Gen. Stat. § 160A-385 (2013) did not

apply to the rezoning based on its interpretation of that session law. Defendants

contend that Plaintiffs lacked standing to bring their suit. After careful review, we

agree with Defendants that Plaintiffs lacked standing to assert the claims they seek

to revive on appeal. As a result, we affirm the order of the trial court.

                    I. FACTUAL AND PROCEDURAL HISTORY

      In late 2014, SYNCO filed an application with the City to rezone a tract located

in the SouthPark area of Charlotte. On 11 March 2015, several local property owners

(the “Petitioners”) filed a protest petition (the “Protest Petition”) with the City

opposing the proposed rezoning pursuant to N.C. Gen. Stat. § 160A-385 (2013) (the

“Protest Petition Statute”). Plaintiffs were not among the Petitioners that filed the

Protest Petition.



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      In July 2015, the North Carolina General Assembly passed Session Law 2015-

160, which replaced the protest petition procedure in the Protest Petition Statute

with a “Citizen Comment” procedure. 2015 N.C. Sess. Laws ch. 160, § 1 (2015)

(codified as amended at N.C. Gen. Stat. § 160A-385 (2017)). Per the session law, the

amended procedure “bec[ame] effective August 1, 2015, and applies to zoning

ordinance changes initiated on or after that date.” Id., § 6.

      On 24 September 2015, SYNCO withdrew its initial rezoning application.

SYNCO filed a new rezoning application the following day. The new application

sought approval for the same uses as those proposed in the initial rezoning

application, along with revised building sizes and transportation improvements.

      On 19 January 2016, the Charlotte City Council voted unanimously to approve

the second rezoning application. The City and SYNCO treated the second application

as one not subject to the Protest Petition Statute. Nothing in the record indicates

that the Petitioners sought injunctive or other relief requiring the City to recognize

the applicability of the Protest Petition to the second rezoning application or to follow

the procedures set forth in the Protest Petition Statute. Rather, one of the Petitioners

stated in an affidavit that “a change in the state law had invalidated the Protest

Petition” and declined to take action to revive the Petition or require its application.

      On 25 January 2016, Plaintiffs filed a declaratory judgment action seeking to

invalidate the City Council’s approval of the rezoning application.           After two



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amendments to the original complaint and the voluntary dismissal of one claim,

Plaintiffs’ final amended complaint alleged that: (1) Defendants violated N.C. Gen.

Stat. § 160A-364 (2015);1 (2) Defendants made certain misrepresentations and

omissions in the rezoning process; (3) Defendants violated the Protest Petition

Statute, which they were required to follow per Plaintiffs’ interpretation of Session

Law 2015-160; (4) the City’s actions were ultra vires; (5) Session Law 2000-84 was

unconstitutional;2 (6) the City’s actions violated Plaintiffs’ due process rights; (7) N.C.

Gen. Stat. § 160A-383 (2015), which employs the citizen comment procedures rather

than protest petition procedures, unconstitutionally deprives the judiciary of judicial

power; and (8) N.C. Gen. Stat. § 160A-383 (2015) and Session Law 2015-160’s

replacement of protest petition procedures with citizen comment procedures deprives

Plaintiffs of their constitutional right to petition the government for the redress of

grievances.3

        The parties filed competing motions for summary judgment, and the trial court

granted summary judgment against Plaintiffs on 23 November 2016.                                  In the

summary judgment order, the trial court held that Plaintiffs had standing to bring




        1  This statute establishes the procedures applicable to the adoption, amendment, or repeal of
ordinances by cities and towns, and is unrelated to the issues raised on appeal. N.C. Gen. Stat. §
160A-364.
        2 This session law permitted the City to engage in conditional zoning. 2000 N.C. Sess. Laws

ch. 84 (2000).
        3 These claims are identified in Plaintiffs’ final amended complaint as their first, second, third,

fourth, fifth, sixth, eighth, and ninth causes of action, respectively.

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their claims, but nonetheless dismissed all claims against Defendants, including

Plaintiffs’ facial constitutional challenges. The Plaintiffs timely appealed.

                                   II. ANALYSIS

A. Standard of Review

      The standard of review on an appeal from summary judgment is de novo, and

“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.” Atkinson v. City of Charlotte, 235 N.C. App. 1, 3, 760 S.E.2d 395, 397 (2014)

(internal citation and quotation marks omitted). Because standing is a question of

law, it, too, is subject to de novo review by this Court. Cherry v. Wiesner, ___ N.C.

App. ___, ___, 781 S.E.2d 871, 876 (2016).

B. The Standing Requirements Relevant to Plaintiffs’ Appeal

      Resolution of this appeal requires distinguishing the different standing

doctrines applicable to: (1) zoning ordinance challenges; (2) statutory construction

and validity claims; and (3) constitutional challenges to zoning ordinances.       “In

passing on the validity of an annexation or zoning ordinance, one of the court’s first

concerns is whether the plaintiff has standing to bring the action.” Town of Ayden v.

Town of Winterville, 143 N.C. App. 136, 138, 544 S.E.2d 821, 823 (2001) (citation

omitted). The question of standing “is a threshold issue that must be addressed, and

found to exist, before the merits of the case are judicially resolved.” In re Baby Boy,



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238 N.C. App. 316, 321-22, 767 S.E.2d 628, 631 (2014) (citation and quotation marks

omitted).

      A rezoning ordinance may be challenged in a declaratory judgment action

“only . . . by a person who has a specific personal and legal interest in the subject

matter affected by the zoning ordinance and who is directly and adversely affected

thereby.” Taylor v. City of Raleigh, 290 N.C. 608, 620, 227 S.E.2d 576, 583 (1976)

(emphasis added) (citations omitted). Standing to challenge a statute requires that

the statute directly and adversely affect the plaintiff. Wake Cares, Inc. v. Wake Cty.

Bd. of Educ., 190 N.C. App. 1, 11, 660 S.E.2d 217, 223 (2008) (“A declaratory judgment

may be used to determine the construction and validity of a statute, but the plaintiff

must be directly and adversely affected by the statute[.]” (emphasis added) (internal

citation and quotation marks omitted)).           Finally, standing to challenge the

constitutionality of a zoning ordinance or statute requires that the plaintiff

demonstrate injury or immediate danger of injury to a constitutionally protected

interest in the property subject to that ordinance or statute. See, e.g., Coventry Woods

Neighborhood Ass’n, Inc. v. City of Charlotte, 202 N.C. App. 247, 257, 688 S.E.2d 538,

545 (2010) (holding that neighboring property owners could not challenge a rezoning

decision on facial or as-applied constitutional and procedural due process grounds

because “a change in the treatment of an adjoining tract of property under local land

use ordinances that affects the use and enjoyment of [the plaintiffs’] property [does



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not] implicate[] a constitutionally-protected property interest”); Templeton v. Town of

Boone, 208 N.C. App. 50, 56, 701 S.E.2d 709, 713-14 (2010) (holding plaintiffs lacked

standing to challenge a zoning ordinance on constitutional grounds where the

ordinance was not enforced against plaintiffs’ properties but only “affected” them

(emphasis in original)).

       The trial court’s summary judgment order dismissed all of Plaintiffs’ claims;

however, Plaintiffs argue on appeal only that the trial court: (1) incorrectly concluded

that the City was not required to apply the Protest Petition Statute to the rezoning

due to its misinterpretation of the effective date of Session Law 2015-160; (2)

wrongfully concluded their challenges to certain zoning statutes and session laws

were moot; and (3) impermissibly dismissed their constitutional challenges to those

zoning statutes and session laws. In effect, then, Plaintiffs seek to revive their

declaratory judgment action only as to: (1) the interpretation of Session Law 2015-

160 (and by extension the applicability of the Protest Petition Statute); and (2) the

constitutionality of the zoning statutes and session laws governing the procedure

employed by the City in rezoning.4            In short, Plaintiffs’ appeal challenges the

interpretation and constitutionality of the statutes and session laws governing the

City’s rezoning decision, rather than the inherent validity of the rezoning decision

itself. As a result, the question before this Court is not whether Plaintiffs had


       4  Plaintiffs confirmed at oral argument that their only claims on appeal related to their
constitutional challenges and the interpretation of Session Law 2015-160.

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standing to challenge the rezoning decision, as they sought to do in the claims not at

issue on appeal,5 but whether they had standing to seek a declaratory judgment

determining the construction and constitutionality of the session laws and statutes

governing that rezoning. Compare Taylor, 290 N.C. at 620, 227 S.E.2d at 583 (“[T]he

validity of a municipal zoning ordinance . . . may be determined . . . under our

Declaratory Judgment Act . . . by a person who has a specific personal and legal

interest in the subject matter affected by the zoning ordinance and who is directly

and adversely affected thereby.” (emphasis added) (citations omitted)) with Wake

Cares, Inc., 190 N.C. App. at 11, 660 S.E.2d at 223 (“A declaratory judgment may be

used to determine the construction and validity of a statute, but the plaintiff must be

directly and adversely affected by the statute[.]” (emphasis added) (internal citations

and quotation marks omitted)).

C. Plaintiffs Lack Standing to Challenge the City’s Interpretation of Session Law

2015-160 and the Applicability of the Protest Petition Statute



       5  For example, Plaintiffs challenged the rezoning on the grounds that the City’s decision
constituted an ultra vires action that was “not in accordance with . . . adopted land use plans[,]” as
well as “arbitrary and without reasonable basis[.]” This claim, in contrast to Plaintiffs’ statutory
construction and constitutional validity claims, would be subject to the standing analysis employed in
a declaratory judgment action challenging a zoning decision as inherently unlawful. See, e.g., Taylor
290 N.C. at 620, 227 S.E.2d at 583 (holding that standing exists in a declaratory judgment action
challenging a rezoning as contrary to the established land use plan and as arbitrary and capricious
where “challenged by a person who has a specific personal and legal interest in the subject matter
affected by the zoning ordinance and who is directly and adversely affected thereby” (citations
omitted)); cf. Templeton, 208 N.C. App. at 54-62, 701 S.E.2d at 713-17 (applying, in a declaratory
judgment action, one set of standing requirements to claims challenging the constitutionality of a
zoning ordinance itself and a different set of standing requirements to claims alleging violation of a
procedural statute governing the zoning decision).

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      Plaintiffs contend that the City and trial court misinterpreted the words

“zoning ordinance changes initiated on or after [1 August 2015]” in Session Law 2015-

160. 2015 N.C. Sess. Laws ch. 160, § 6. Specifically, Plaintiffs argue that, because

SYNCO filed its first rezoning petition prior to that date, we should hold the rezoning

under its second petition was a “zoning ordinance change[ ] initiated” prior to the

session law’s effective date. Id., § 6. Such a reading would require the City to have

followed the Protest Petition Statute in the consideration of SYNCO’s rezoning

petition and, as a result, render the City’s rezoning decision invalid.

      As noted supra, “[a] declaratory judgment may be used to determine the

construction and validity of a statute, but the plaintiff must be directly and adversely

affected by the statute[.]” Wake Cares, Inc., 190 N.C. App. at 11, 660 S.E.2d at 223

(emphasis added) (internal citations and quotation marks omitted).           Thus, the

Plaintiffs can only seek a declaratory judgment proclaiming their preferred

interpretation of the statute if they are “directly and adversely affected” by its

enactment and replacement of protest petition procedures with citizen comments. Id.

at 11, 660 S.E.2d at 223. Plaintiffs, however, were never entitled to oppose the

rezoning by protest petition, as they did not meet the statutory requirements for such

a filing under the Protest Petition Statute. The Protest Petition Statute specifically

delineated those who had access to such a remedy: “owners of either (i) twenty percent

(20%) or more of the area included in the proposed change or (ii) five percent (5%) of



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a 100-foot-wide buffer . . . .” N.C. Gen. Stat. § 160A-385 (2013). As conceded by

Plaintiffs in oral argument before this Court, their property is neither subject to the

proposed change in SYNCO’s petition, nor is it within 100 feet of the area subject to

rezoning. Thus, Plaintiffs, as parties not subject to or able to avail themselves of the

Protest Petition Statute, are not “directly and adversely affected” by the

unavailability of a statutory procedure they were never entitled to enjoy in the first

instance. Nor are they permitted to bring a claim interpreting the language “initiated

on” in Session Law 2015-160, as its application concerns only whether qualifying

persons able to avail themselves of the Protest Petition Statute could continue to

pursue their rights thereunder.

        While Plaintiffs argue in their brief that the Protest Petition filed by the

Petitioners     resulted      in   “heightened       procedural      requirements,”6        they     also

acknowledge that those requirements are “imposed for the benefit and protection of

the protest petition filer(s).”        (emphasis added).         In other words, any perceived

procedural or due process benefits were bestowed on Plaintiffs not by the Protest

Petition Statute itself, but instead by the Petitioners’ filing of a valid Protest Petition.




        6  Plaintiffs claim in their briefs that certain ordinances enacted by the City impose these
requirements. Specifically, Plaintiffs claim these ordinances impose “additional requirements for
notice and public hearing to the protest petition filer(s).” (emphasis added). Ignoring the fact that
Plaintiffs were not and could not be protest petition filers in this case, several ordinances cited by the
Plaintiffs are not included in the record on appeal, and we are prohibited by precedent from taking
judicial notice of municipal ordinances. State v. Pallet, 283 N.C. 705, 712, 198 S.E.2d 433, 437 (1973).
We therefore do not consider those ordinances not present in the record in our resolution of this appeal.

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It was, therefore, Petitioners’ failure to revive or otherwise pursue the reinstatement

of their Protest Petition—not Session Law 2015-160—that injured Plaintiffs.

      “Every claim must be prosecuted in the name of the real party in interest[,]”

Goodrich v. Rice, 75 N.C. App. 530, 536, 331 S.E.2d 195, 199 (1985) (citation omitted),

and, by extension, “[a] party has standing to initiate a lawsuit if he is a ‘real party in

interest[,]’ ” Slaughter v. Swicegood, 162 N.C. App. 457, 463, 591 S.E.2d 577, 582

(2004) (citations omitted). When it comes to the interpretation of Session Law 2015-

160 and the loss of the protections afforded by the Protest Petition and the Protest

Petition Statute, it is the Petitioners, not Plaintiffs, who are the real parties in

interest “directly and adversely affected by the statute” and the City’s and trial court’s

interpretations thereof. Wake Cares, Inc., 190 N.C. App. at 11, 660 S.E.2d at 223.

Because “[a] declaratory judgment may be used to determine the construction and

validity of a statute, but the plaintiff must be directly and adversely affected by the

statute,” id. at 11, 660 S.E.2d at 223 (emphasis added) (internal citations and

quotation marks omitted), and Plaintiffs are not so affected, we hold they are without

standing to pursue their claims requiring the interpretation of Session Law 2015-160.

      The prior decisions by this Court relied upon by Plaintiffs are distinguishable

and therefore not binding or persuasive. See Thrash Ltd. Partnership v. Cty. of

Buncombe, 195 N.C. App. 727, 673 S.E.2d 689 (2009); Frizzelle v. Harnett Cty., 106

N.C. App. 234, 416 S.E.2d 421 (1992); Lee v. Simpson, 44 N.C. App. 611, 261 S.E.2d



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295 (1980). In Thrash, we held that the landowner had standing to sue because its

land fell within the ambit of the zoning ordinance in question, and “plaintiff’s use of

its land was limited by the zoning regulations.” 195 N.C. App. at 731, 673 S.E.2d at

692. Similarly, in Frizzelle, the plaintiff landowners alleged that Harnett County

commissioners failed to follow required notice and hearing procedures in enacting a

zoning ordinance applicable to the plaintiffs’ lands. 106 N.C. App. at 242-43, 416

S.E.2d at 425-26. Finally, in Lee, Union County’s ordinances required its Board of

Commissioners to provide notice and hearing to owners of real property adjoining

land subject to a rezoning application; the plaintiffs, who were such owners subject

to receive that notice, did not, and challenged the rezoning on procedural grounds.

44 N.C. App. at 612, 261 S.E.2d at 295-96.

      Plaintiffs were not entitled to avail themselves of the Protest Petition Statute,

the procedural process that Plaintiffs contend they were wrongfully denied. Thus,

Thrash, Frizzelle, and Lee are inapposite. See also Ring v. Moore Cty., ___ N.C. App.

___, ___, 809 S.E.2d 11, 14 (2017) (distinguishing Thrash where “in this case Plaintiffs

have not alleged that the zoning ordinance directly limits the use of their land”).

D. Plaintiffs Lack Standing to Bring Their Constitutional Claims

      Just as a declaratory judgment action concerning statutory interpretation

cannot be maintained by a party without legal standing, “this Court will not

determine the constitutionality of a legislative provision in a proceeding in which



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there is no actual antagonistic interest in the parties.”     Nicholson v. State Ed.

Assistance Auth., 275 N.C. 439, 447, 168 S.E.2d 401, 406 (1969) (internal citation and

quotation marks omitted). As a result, “[o]nly one who is in immediate danger of

sustaining a direct injury from legislative action may assail the validity of such

action. It is not sufficient that he has merely a general interest common to all

members of the public.” Charles Stores Co., Inc. v. Tucker, 263 N.C. 710, 717, 140

S.E.2d 370, 375 (1965). Further, when the constitutionality of an ordinance itself is

challenged, “a litigant must produce evidence that he has sustained an injury or is in

immediate danger of sustaining an injury as a result of enforcement of the challenged

ordinance.” Grace Baptist Church v. City of Oxford, 320 N.C. 439, 444, 358 S.E.2d

372, 375 (1987) (citation omitted).

      Here, several of the facial challenges by Plaintiffs concern generalized

grievances claiming the City and State governments have acted to: (1) violate the

constitutionally mandated separation of powers; or (2) unlawfully restrict judicial

power. Plaintiffs also specifically allege that: (1) the rezoning proceeding was quasi-

judicial, requiring due process standards which the City and State governments

violated; and (2) Session Law 2015-160, N.C. Gen. Stat. § 160A-385 (2015), and the

City’s actions thereunder deprived the Plaintiffs of a right to petition and access to

open courts to seek redress.




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       Plaintiffs assert their separation of powers and unlawful restriction claims

solely as persons with a “general interest as . . . citizen[s] in good government in

accordance with the provisions of the Constitution[,]” Nicholson, 275 N.C. at 448, 168

S.E.2d at 406 (citations omitted), rather than as those “who [are] in immediate danger

of sustaining a direct injury[,]” Charles Stores, 263 N.C. at 717, 140 S.E.2d at 375.

This is also true of Plaintiffs’ specific facial challenges, as: (1) Plaintiffs had no legal

right to file a protest petition in this case, and therefore were not deprived of any

right to petition or access to open courts by the enactment of Session Law 2015-160

and the application of N.C. Gen. Stat. § 160A-385 (2015); and (2) the property rezoned

was not the Plaintiffs’. See, e.g., Coventry Woods, 202 N.C. App. at 256, 688 S.E.2d at

544 (holding that neighbors to a property undergoing rezoning could not bring a facial

or as-applied constitutional challenge to the rezoning on procedural due process

grounds, as there is no “authority in support of the proposition that they are entitled

to constitutional protection against changes in the treatment of adjoining tracts of

property under properly-adopted zoning or subdivision ordinances”); Templeton, 208

N.C. App. at 56, 701 S.E.2d at 713-14 (2010) (“Without an allegation that the subject

zoning ordinance amendments will be or have been enforced against property owned

by plaintiffs, plaintiffs have failed to demonstrate that they have ‘sustained an injury

or [are] in immediate danger of sustaining an injury’ from enforcement of the

ordinance amendments against them.           Therefore, plaintiffs failed to carry their



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burden to make sufficient allegations to establish standing to bring their

constitutional claims against defendant.” (alteration in original) (quoting Grace

Baptist Church, 320 N.C. at 444, 358 S.E.2d at 375)). Because Plaintiffs do not have

a constitutionally protected interest in the rezoning of an adjoining landowner’s

property, and because their remaining constitutional challenges assert only

generalized grievances, we hold these claims were properly dismissed.

E. The Trial Court Was Not Required to Transfer Plaintiffs’ Constitutional Claims

Due to Their Lack of Standing

      Per the language of N.C. Gen. Stat. § 1-267.1, all facial constitutional

challenges to acts of the General Assembly must be heard by a three-judge panel in

Wake County.     N.C. Gen. Stat. § 1-267.1(a1).            Where a lawsuit asserting such

challenges not before the three-judge panel involves other claims unrelated thereto,

the court with jurisdiction and venue over the action:

             shall, on its own motion, transfer that portion of the action
             challenging the validity of the act of the General Assembly
             to the . . . three-judge panel if, after all other matters in the
             action have been resolved, a determination as to the facial
             validity of an act . . . must be made in order to completely
             resolve any matters in the case.

N.C. Gen. Stat. § 1A-1, Rule 42(b)(4) (emphasis added); see also N.C. Gen. Stat. § 1-

81.1(a1) (establishing venue for such claims with the three-judge panel and requiring

such actions be transferred consistent with Rule 42(b)(4)). In other words, facial

constitutional challenges must be transferred to the three-judge panel only if the


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constitutionality of the statute in question must be resolved in order to conclude the

action.

      Because we hold that Plaintiffs did not have standing to bring their

constitutional challenges as set forth supra Part II.D., the transfer of Plaintiffs’

constitutional claims to a three-judge panel was not necessary, as “a determination

as to the facial validity of [the] act[s]” in question was not required to “completely

resolve any matters in the case.” N.C. Gen. Stat. § 1A-1, Rule 42(b)(4); see also N.C.

Gen. Stat. § 1-81.1(a1) (requiring the transfer of claims only if a determination of

facial validity is necessary “after all other questions of law in the action have been

resolved”). Further, because we hold that Plaintiffs lacked standing, we need not

address the merits of their mootness and statutory interpretation arguments.

                                 III. CONCLUSION

      Plaintiffs brought multiple claims in their declaratory judgment action, some

challenging the propriety of the rezoning itself and others challenging the

construction and constitutional validity of certain statutes and session laws.

Plaintiffs’ appeal challenges only the trial court’s dismissal of their constitutional and

statutory construction claims. We hold that Plaintiffs lack standing to bring those

claims and we affirm their dismissal. Plaintiffs did not argue error in the dismissal

of their remaining causes of action; as a result, we affirm the order of the trial court.

      AFFIRMED.



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Judges BRYANT and DAVIS concur.




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