Appeals court finds flaw in city zoning process

CHARLOTTE – On their fourth try, about 150 Myers Park homeowners living near Queens University last week won a court victory in their fight against the city of Charlotte over two new buildings that opened on the private school’s campus last year.

The Queens University Levine Center, left, and the South Residence Hall/garage, right, have been the subjects of legal actions brought by the school’s neighbors in Myers Park. File photo by Nell Richmond

An N.C. Court of Appeals decision filed last Tuesday found a procedural flaw in the way the Charlotte City Council made a 2010 zoning decision that allowed one of the private university’s two projects – a five-story parking deck topped by a two-story dormitory – to go forward.

That, both sides agree, does not mean that the South Residence Hall structure will be pulled down, or that the city or university would be likely to build a street through campus that neighbors had asked for.

But, representatives of the city and the neighbors said, it might mean that the City Council will vote all over again on the zoning proposal at issue in the 2012 lawsuit.

That, said Michael Abbott, president of the Myers Park Homeowners Association, was exactly the point of the lawsuit, the second court action the neighborhood has taken against the project.

“We don’t believe that the neighborhood had a full opportunity to make its interest in the case known – this just moved through the system, and the neighbors would like to have their concerns heard,” Abbott said on Thursday.

“If the council chooses to vote on this again, we will take this opportunity to speak.”

City Attorney Bob Hagemann said the city has not yet decided whether to file an appeal to the N.C. Supreme Court, which must be done within 30 days, or to have the City Council reconsider the decision – or to do both.

But, he said, the City Council already made changes in the way it makes planning and zoning decisions after the lawsuit was filed in December 2012, to avoid similar court fights in the future.

Those changes, he said, reduce but do not completely rule out the chance that other City Council zoning decisions made in 2011 and 2012 could be challenged on the same technicality.

“We think we’re in pretty good shape,” Hagemann said. “After this suit was filed, we beefed up the statement of consistency that is made when a council member makes a motion (to approve a zoning decision) and reads (the statement) out. This is a pretty technical issue, and we believe we have addressed it with the stronger language and making sure it is read out.”

The statement of consistency, mandated by N.C. General Statutes, was the central issue of the lawsuit.

The statute says that governing boards voting up or down on any zoning decisions must also vote to adopt “a statement describing whether its action is consistent with an adopted comprehensive plan. . .and briefly explaining why the board considers the action taken to be reasonable and in the public interest.”

The city argued, and a judge in Mecklenburg County Superior Court in March 2013 agreed, that by approving a consistency statement proposed by the Charlotte-Mecklenburg Planning Commission’s Zoning Committee, the City Council had lived up to its statutory responsibility.

But in last week’s state appeals court decision, a three-judge panel unanimously sided with the neighbors and the Myers Park HOA.

The appeals court judges cited a similar case in Kannapolis in which the N.C. Supreme Court in 2012 issued an opinion saying that a governing board’s statement of consistency “must describe whether the action is consistent with any controlling comprehensive plan and explain why the action is ‘reasonable and in the public interest.'” The emphases were made by the court.

In the Charlotte case, the appeals court ruled that by adopting a pre-written consistency statement, the City Council had failed to meet the standard set by the Supreme Court’s interpretation of the statute.

The City Council decision at issue was an amendment to the zoning ordinance itself, not a variance or rezoning.

While Queens officials and other interested parties proposed the zoning ordinance amendment, the changes applied to all institutional land uses, including churches, hospitals and other schools.

Under the amended ordinance, parking decks constructed as “an accessory use to an institutional use” were exempted from the “floor area ratio,” which restricts how much institutional-use land in a residential area can be built on.

Former Charlotte Mayor Richard Vinroot, a privately practicing lawyer who helped defend Queens in both court actions brought by the neighbors, said he didn’t understand the motivation of the plaintiffs.

“It was an amendment adopted for the whole community, and it promotes using parking decks, which preserves more green space than parking lots,” Vinroot said. “Parking lots don’t count against you in figuring the floor area ratio; why should parking decks, which are better land uses?”

In their first court action taken against the city, in April 2012, the neighbors challenged the city’s approval of the university’s site plan, saying it did not meet the standards of the zoning ordinance. They asked the Mecklenburg County Superior Court to review the decision. Three months later, the court upheld the city’s site plan approval.

In addition to filing an appeal of that decision – which the neighbors lost last year in the state Court of Appeals – the neighbors in December 2012 filed suit against the city challenging the legality of the procedure used in voting to approve the zoning ordinance amendment.

“We made a case in the courts on the substance of the zoning that was unsuccessful,” Abbott said. “But we found this flaw by looking through city records and took advantage of it, challenging the procedural flaw in order to have the (City) Council understand our point of view.”

In the neighbors’ second action, the County Superior Court decided in June 2013 – after both Queens and Johnson C. Smith universities joined the city in defending the zoning amendment decision – that the City Council had proceeded correctly. Last Tuesday’s state Court of Appeals decision sent the case back to the county court and ordered it to find for the plaintiffs.

Asked if the neighbors would file further legal action, Abbott said: “No. We’ve pursued it fully in the courts. Our only opportunity is to have the City Council revisit this.”

Asked if he thought it was worth the time and money to win a case on a technicality that would not change the fact that the parking garage-dorm will continue to stand and might result in the City Council making the same decision about the zoning ordinance amendment, Abbott said: “Well, sure. One-hundred-and-fifty neighbors have contributed to this initiative, which has the backing of the homeowners association. Those concerns are valid and appropriate and need to be heard. Now we have an opportunity for them to be heard.

“We love Queens. We are happy to see them develop. But maybe they need a different zoning plan.”