The North Carolina Court of Appeals will allow neighbors of a 192-acre Rockingham County property to move forward with a lawsuit connected to the property’s rezoning. The suit stemmed from concerns that the property could be used for a casino.
The unanimous decision Wednesday from a three-judge appellate panel reversed a trial judge’s decision to dismiss the case.
“Plaintiffs argue that they made sufficient allegations to establish standing to bring this action and did not need to further plead special damages,” wrote Judge Allegra Collins. “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.”
The Camp Carefree summer camp, Kalo Food bakery, and nine individual neighboring property owners 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.”
The case now returns to a trial judge.
Appeals Court Judges Donna Stroud and Valerie Zachary joined Collins’ decision.
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