Case Law Update – Spot Zoning, Consistency Statements, and Arbitrary Decisions

The Court of Appeals recently reviewed three issues in a Randolph County rezoning: was the decision “spot zoning”? Was it arbitrary and capricious? And was it adopted with appropriate procedures?  On spot zoning the law was slightly expanded. On the other two issues the court reminds us of the distinction between judicial and legislative functions.

If the case McDowell v. Randolph sounds familiar it’s probably because you’ve seen the caption before.  This was the parties’ third trip to the Court of Appeals, each under different facts and slightly different causes of action, but all involving the McDowells (as plaintiffs) versus the McDowell Lumber Company next door.

Rightful Disclosure: My colleague Kip Nelson and I represented Randolph County. For this reason I won’t editorialize as I typically do, but I can give you additional facts from the record that weren’t in the opinion.

The Facts

McDowell Lumber Company was initially rezoned to heavy industry in 2005 when the county’s comprehensive plan map showed only half the site to be slated for industrial use while the other half was designated for Rural Growth. In 2007 the Court of Appeals found the site to have been spot zoned, primarily because of the inconsistency between the comp plan map and the rezoning.

The county amended its growth plan in 2009 to create Rural Industrial Overlay districts to allow, among other things, sawmills and lumberyards to be located near their sources of materials (forests). And in 2010, McDowell Lumber was rezoned to Rural Industrial Overlay, but as a conditional district.  The only condition of the 2010 rezoning was the added approval of an extremely site specific development plan that showed where every building and structure was required to be located.

Six years later (2016) McDowell Lumber returned for another rezoning, but only to change one small aspect of the site plan – the placement of a chemical dipping vat about 200 feet from its original placement ON THIS 137 ACRE SITE (caps were intentional). The underlying zoning district remained the same.  And the purpose for the site plan change was to create a location where the vat could be covered, thereby reducing dust, noise, emissions, reduce the amount of internal trips, and lower the probability of runoff or spills onto adjoining properties.

The Board of Commissioners voted to approve the rezoning and adopted a short statement explaining why the rezoning was consistent with the Growth Plan and reasonable and in the public interest.

But it was Not Spot Zoning

Spot zoning is an archaic concept that harkens back to the days when land use planning was in its infancy, zoning was still new, and courts needed ways to identify whether the local government had exceeded the bounds of rational thought.  Today it exists primarily as a litigation tool for NIMBYs in search of one more bullet for their stop-this-development gun.

To be considered spot zoning the site first must be considered a “spot,” which typically means a relatively small tract surrounded by a sea of uniformly zoned or developed property. And even if it is a spot, it’s not illegal spot zoning if there is a rational basis.  But as to the size itself, 137 acres is 130 times the size of a logical “spot” and almost 3 times the size of the largest spot ever recognized by our courts.

We showed the Court – and the Court fully  agreed – that every spot zoning case in the history of spot zoning cases defines spot zoning as the reclassification of land through the zoning process, and that nothing here was reclassified. The underlying zoning stayed the same.  The only change was minor, and it related only to a zoning condition.

So . . . now we have a case that establishes that a mere change in a zoning condition does not give rise to spot zoning.

Consistency/Reasonableness Statement

I think I once knew why our legislature enacted the requirement that local governments adopt consistency statements and statements of reasonableness and public interest, but over the past years I’ve watched planning boards and elected bodies stumble horribly over this requirement, try desperately to rationalize their otherwise rational decision, and get sued in one more of those “gotcha” causes of action.

But here, Judge Tyson reminds us that the Court’s role is limited to two things: making sure a statement was enacted and that it has something of substance in it.  Courts will not interfere even if the substance makes no sense whatsoever (although in this case the statement was pretty well written).

And the Decision was Not Arbitrary or Capricious

Claiming this decision was arbitrary and capricious was a Hail Mary football throw in search of a ball and a receiver. A rationale was clearly present in the record to support this very minor site plan change, plus the Board articulated well how it furthered the goals in the Growth Plan.

The Court reminds us that it must look at the whole record and if there is any plausible basis it must affirm the decision.  Why? Because the review is “deferential.”  Courts do what courts do, and legislatures do what legislatures do, and courts don’t second guess the wisdom of the legislative body.  Well, as a rule anyway.

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Comments
One Response to “Case Law Update – Spot Zoning, Consistency Statements, and Arbitrary Decisions”
  1. Monroe Pannell says:

    Tom I just today in my capacity as City Attorney for Conover reminded our staff of the change in the consistency statement statute effective for all applications filed after October 1, 2017. I haven’t researched the history of the statute but have to assume that the homebuilders crowd or some other pro development interest wanted it in the first place( my assumption may be wrong). However in my view this statute is now a weapon for the any party that has the means to litigate-either pro development or NIMBY’s . Maybe the pro development lobby might want to think about getting their friends in the GA to repeal the whole thing.