Rockingham Co. asks top NC court to toss casino-related rezoning suit

Rockingham County is asking the North Carolina Supreme Court to throw out a lawsuit challenging a recent 192-acre rezoning. Opponents linked the rezoning to a 2023 dispute over legalizing casino gambling.

A trial judge dismissed the lawsuit from the Camp Carefree summer camp, Kalo Food bakery, and nine individual neighboring property owners in April 2024. But a unanimous three-judge state Appeals Court panel ruled in July that the case could move forward.

Now Rockingham County leaders urge the state’s highest court to overturn the appellate judges’ decision.

“This Petition for Discretionary Review is requesting the [Supreme] Court to review the Court of Appeals’ decision in this case where the Court held that Plaintiffs challenging the zoning decisions of Rockingham County were not required to allege special damages to show standing to file their complaint under the Declaratory Judgment Act,” lawyers led by County Attorney Clyde Albright wrote Monday.

“This ruling contradicted prior decisions of the Court of Appeals and is inconsistent with prior holdings of this Court requiring a showing of direct and adverse consequences to have standing to challenge a zoning decision of a local governmental entity,” the petition continued. “The holding in this case significantly increases the potential for litigation for any person residing in the County to file suit and contest the local zoning decisions of governmental entities.”

Judge Allegra Collins wrote the July 16 Appeals Court opinion allowing the case to proceed.

“Plaintiffs argue that they made sufficient allegations to establish standing to bring this action and did not need to further plead special damages,” Collins wrote. “Following this Court’s recent opinion in Gardner v. Richmond Cnty. and the North Carolina Supreme Court decisions relied on and synthesized therein, we agree and reverse the trial court’s order.”

Rezoning critics filed suit in October 2023. They are asking state courts to throw out two amendments to Rockingham County’s development ordinance. One changes the affected property’s zoning from “residential agricultural” to “highway commercial.” The other added permitted uses in the county’s “highway commercial” district.

Rockingham County commissioners made the changes as debate took place in Raleigh over permitting new casinos in North Carolina.

“With the adoption of the Text Amendment, electronic gaming operations and State Licensed Uses are now allowed by right in a Highway Commercial district,” Collins explained. “Additional uses now permitted by right in a Highway Commercial district include dry cleaning facilities, crematories, fertilizer manufacturers, hotels, fairgrounds, hospitals, landfills for hazardous and industrial waste, and wastewater collection, treatment and disposal facilities.”

Camp Carefree’s managing board member raised concerns in the lawsuit about the potential impact on children with chronic illnesses who use the camp during the summer. The bakery’s owner raised traffic concerns. Individual neighbors cited issues involving potential water contamination, increased noise and light from additional traffic, potential trespassing, and other criminal activity.

“Because these amendments were ‘legislative, not quasi-judicial, Plaintiff[s] w[ere] not required to allege special damages within [their] complaint, separate and distinct from the general community,’” Collins wrote. “Accordingly, so long as Plaintiffs in this case sufficiently alleged that they were ‘affected by’ Defendant Rockingham County’s decision to rezone the Property, Plaintiffs have standing to seek a declaratory judgment to clarify their legal rights and relations.”

Rezoning “completely changed” the targeted property’s permitted uses, Collins explained.

“While the purpose of the Residential Agriculture district is the ‘preservation and conservation of rural lands throughout the county where low density is desirable in order to protect environmentally sensitive areas, agricultural areas, and viewsheds,’ the Highway Commercial district is ‘designed to protect and encourage the transitional character of the districts’ and to provide ‘areas for more intensive regional highway-oriented business, office, service and civil use.’ Furthermore, the Highway Commercial district allows for the development of industry that is not consistent with agricultural use–such as electronic gaming operations, dry-cleaning facilities, research laboratories, hotels, hospitals, multi-family apartments and condominiums, crematoriums, radio stations, and billboards,” the Appeals Court opinion continued.

Before Rockingham County’s text amendment, “the following uses were not permitted by right in Highway Commercial districts: electronic gaming operations, dry cleaning facilities, crematories, fertilizer manufacturers, hotels, fairgrounds, hospitals, landfills for hazardous and industrial waste, and wastewater collection, treatment and disposal facilities,” Collins wrote. “After the Text Amendment, all these uses are now permitted by right in Highway Commercial districts, including on the Property.”

“Additionally, there are now no development standards, temporary use restrictions, or special use permits required for these uses on the Property,” she added.

“Here Plaintiffs’ properties are either abutting or in close proximity to the rezoned Property and ‘a plaintiff’s proximity to the rezoned property is a factor our Courts have considered,’” Collins wrote. “[E]ach Plaintiff has clearly alleged how the Rezoning Legislation would directly and negatively affect them.”

Appeals Court Judges Donna Stroud and Valerie Zachary joined Collins’ decision.

If the state Supreme Court declines to take the case, it will return to a trial judge for further action on the plaintiffs’ claims.

The post Rockingham Co. asks top NC court to toss casino-related rezoning suit first appeared on Carolina Journal.

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