Developer tries to have zoning case dismissed
By Ginger Livingston
The Daily Reflector
Wednesday, November 14, 2018
A Wake County Superior Court judge on Tuesday heard arguments on whether he should dismiss a zoning appeal challenging a subdivision development on N.C. 33 East.
Judge Bryan Collins said he was going to review briefs submitted by attorneys for the homeowners who brought the suit, Pitt County government and Bill Clark Homes, which wants to build a 145-lot subdivision on property about four miles east of Greenville.
The Pitt County Board of Commissioners in May approved a request to rezone the 67 acres of property to suburban residential from rural residential. The change allows for denser home development than typically allowed in rural areas as long as a municipal sewer service agrees to serve the homes.
Residents in Beech Cover, Holly Ridge and Moss Bend subdivisions argued the development will creating flooding problems, increase traffic congestion, lead to more traffic accidents and is not in keeping with the surrounding neighborhoods.
Bradley Evans, an attorney with Ward and Smith who represents Bill Clark Homes, argued the case should be dismissed because the plaintiffs — more than 20 individuals plus the homeowners associations of the three subdivisions — didn’t have standing to bring the suit.
Evans said the plaintiffs cannot show they will suffer damage distinct from the rest of the community, such as would be the case if rezoning allowed a paper mill or adult business to be built next door.
North Carolina courts have also ruled that the approved rezoning didn’t change the use of the property, it will continue to be residential, just with a different density, Evans said.
He also challenged whether the plaintiff’s property was close enough to the proposed development to claim potential flooding problems. He also questioned if the homeowners associations should be plaintiffs.
Evans said he also didn’t think the property owners could claim their property value would be negatively affected by the development because suburban residential zoning was more restrictive that rural residential zoning.
Raleigh attorney Benjamin Worley, who represents the plaintiffs, said they do have standing to bring the suit because 10 of the plaintiffs own property immediately adjacent to Luke’s Landing.
Worley also referenced the brief he filed in response to the dismissal notice.
Worley cited a Feb. 6 opinion handed down by the State Appellate Court involving a community organization that filed a zoning petition against the city of Charlotte. The judge issued a summary judgement dismissing the case, saying “the community organization did not have standing to prosecute the action,” Worley’s brief said.
The appeals court said evidence needed to survive a motion to dismiss is different from evidence needed to prove a motion of summary judgement. The appeals court said the community organization “met the minimum pleading requirements of standing to survive a motion to dismiss.”
The court also found the evidence presented by the community organization “did not allow it to survive summary judgement.”
Based on this appellate court ruling, Worley said, the judge should allow the local case to continue.
Contact Ginger Livingston at email@example.com or 252-329-9570.