Appeal by defendant and cross appeal by plaintiffs from order
entered 27 September 1999 by Judge Loto Greenlee Caviness in
Buncombe County Superior Court. Heard in the Court of Appeals 12
January 2001.
Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Albert L.Sneed, Jr., and Craig D. Justus, for plaintiff-appe
llee/cross-
appellant Morris Communications, Inc.
Long, Parker, Warren & Jones, P.A., by Robert B. Long, Jr.,
and Philip S. Anderson, for plaintiffs-appellees/cross-
appellants Outdoor Communications, Inc., and Maple Cove, Inc.
Roberts & Stevens, P.A., by Sarah Patterson Brison Meldrum;
Kilpatrick Stockton, LLP, by Robert C. Stephens; and Robert
W. Oast, Jr., City Attorney, for defendant-appellant/cross-
appellee.
CAMPBELL, Judge.
Defendant appeals and plaintiffs cross appeal from an order of
the trial court granting partial summary judgment to plaintiffs and
denying defendant's motion for partial summary judgment. We affirm
in part, reverse in part, and remand for further proceedings.
Plaintiffs, Morris Communications Corp., d/b/a Fairway Outdoor
Advertising, Inc. (Fairway), Outdoor Communications, Inc. (OCI),
and Maple Cove, Inc. (Maple), own and/or lease various properties
within the zoning jurisdiction of defendant City of Asheville (the
City). Fairway and OCI own and maintain advertising billboards on
the properties they own and/or lease. Maple owns property which it
rents to others and upon which advertising billboards are located.
The following overview of the history of the City's regulation
of advertising billboards is relevant to the instant case: In
1977, the Asheville City Council (City Council) adopted zoning
regulations (1977 Sign Regulations) regarding “off-premises signs”
(signs used for the purpose of displaying, advertising, identifying
or directing attention to a business, products, operations or
services sold or offered at a site other than the site where such
sign is displayed) located within the City's zoning jurisdiction. The 1977 Sign Regulations permitted “off-premises signs,” inclu
ding
billboards and directional signs, in all commercial and industrial
zoning districts, subject to area and height limitations. The 1977
Sign Regulations also provided that any existing “off-premises
sign” which exceeded the area and height limitations by ten percent
(10%) or less would be considered a “conforming” sign under the
regulations, and all other existing “off-premises signs” which
exceeded the area and height limitations would be considered “non-
conforming.” These “non-conforming” signs were “grand-fathered” by
the regulations, allowing them to remain in perpetuity, so long as
they were not altered in any significant way.
In August 1990, the City Council amended the 1977 Sign
Regulations related to “off-premises signs,” reducing the area and
height limitations, mandating certain spacing requirements, and
requiring that all “non-conforming” signs under the 1977 Sign
Regulations be brought into conformity with the 1990 Regulations or
be removed (amortized) within five years without monetary
compensation to the owner. Those “off-premises signs” that were
“conforming” under the 1977 Sign Regulations but were “non-
conforming” under the 1990 Regulations were required to be brought
into conformity or amortized within seven years.
In February 1995, the City Council amended the 1990
Regulations to allow “off-premises signs” that conformed with the
1977 Regulations to avoid amortization. In May 1997, the Council
repealed all of its zoning laws, and enacted Chapter 7 of the
Unified Development Ordinance (UDO), carrying forward the
protection from amortization afforded those “off-premises signs”that did not conform under the 1990 Regulations, but did conform
under the 1977 Sign Regulations. On 16 September 1997, the City
Council directed its planning and development staff to study
possible revisions to the UDO as it pertained to outdoor
advertising billboards. Specifically, the Council ordered studies
of three proposed ordinances which would amend the text of Section
7-13 of the UDO. One of the proposed ordinances (Ordinance No.
2426) severely limited the area and height of “off-premises signs,”
effectively prohibiting future billboards within the City's zoning
jurisdiction. The other two proposals were alternative versions of
an ordinance (Ordinance No. 2427) requiring amortization of “non-
conforming” signs.
A public hearing before the City Council was scheduled for 11
November 1997 to consider these proposed amendments. Public notice
of this hearing was given by newspaper publication.
Prior to the public hearing, plaintiffs Fairway and OCI
obtained from the City's Planning and Development Office a list of
“off-premises signs,” including billboards and directional signs,
located within the City's zoning jurisdiction. This list, which
was compiled from the City's 1990 sign survey database and field
survey updates conducted in 1996, identified the property owner,
property address and acreage of each lot upon which an “off-
premises sign” was located within the City's zoning jurisdiction.
The list also identified the owner of each of these “off-premises
signs.” Based on this information, Fairway and OCI obtained
protest petition signatures from the owners of 49 lots on which
“off-premises signs” were located. Fairway and OCI also signedprotest petitions as owners of property, and as owners of the vast
majority of billboards required to be amortized under the proposed
ordinances.
On 6 November 1997, three working days prior to the City
Council's public hearing, plaintiffs filed with the City Clerk the
aforementioned protest petitions pursuant to N.C. Gen. Stat. §§
160A-385 and 160A-386. Each petition was entitled “Protest of
Proposed Zoning Amendment” and referenced “Proposed Amendment of
Section 7-13 of the Zoning Ordinance of the City of Asheville.”
The City Attorney and City Planning Director subsequently met to
coordinate a review of the petitions to determine whether they were
valid and effective under N.C.G.S. §§ 160A-385 and 160A-386, and to
determine whether a three-fourths vote of the City Council would be
required for passage of the proposed ordinances.
In making this determination, the City's planning and
development staff calculated the acreage of the entire zoning
jurisdiction of the City, including the City's extraterritorial
jurisdiction, to be 32,700 acres. The staff also determined the
acreage within the City's zoning jurisdiction that was at that time
zoned to permit “off-premises signs” to be 4,928 acres. The staff
then determined the acreage of the lots on which “off-premises
signs” were located, based on the list generated from the City's
updated 1990 sign survey database, to be 243.89 acres.
Having established these three figures, the City staff was
advised to assume that each of the lots shown on the City's updated
1990 sign survey database in fact had an “off-premises sign”
located on it. The City staff was also advised to assume that thepersons whose signatures appeared on the protest petitions as
signing for a particular lot had actual authority to do so. Using
the acreage of the lots on which “off-premises signs” were located
according to the sign survey database (243.89 acres) as the
numerator and the acreage of the area within the City's zoning
jurisdiction zoned to permit “off-premises signs” (4,928 acres) as
the denominator, the staff determined that the protest petitions
that had been filed represented 4.95% of the area of the lots
included in the proposed change, well below the twenty percent
(20%) required to trigger the three-fourths vote requirement under
N.C.G.S. § 160A-385. The staff also made the calculation using the
City's entire zoning jurisdiction (32,700 acres) as the
denominator, and determined that the three-fourths vote requirement
would, a fortiori, not be triggered by that calculation.
Therefore, the City Attorney advised the City Council that only a
simple majority vote was required for passage of the proposed
ordinances.
At the 11 November 1997 public hearing, the City Council
unanimously approved Ordinance No. 2426, prohibiting new “off-
premises signs” larger than six (6) square feet in size. The City
Council then approved Ordinance No. 2427, which required
amortization within seven years of all “non-conforming” signs,
whether “grand-fathered” by earlier regulations or not, by a vote
of 4 to 3. As required by N.C. Gen. Stat. § 160A-75, the City
Council held a second reading of Ordinance No. 2427, and it was
finally adopted by a 4 to 3 vote on 25 November 1997.
On 9 January 1998, plaintiffs filed the complaint in theinstant action. In count one, plaintiffs sought a declarat
ory
judgment that Ordinance No. 2427 had been enacted in violation of
N.C.G.S. §§ 160A-385 and 160A-386, thereby making it invalid. In
count two, plaintiffs alleged that Ordinance No. 2427 was
unconstitutional, or, in the alternative, that plaintiffs were
entitled to just compensation for the taking of their private
property. Defendant filed its answer on 30 March 1998.
On 4 August 1999, plaintiffs moved for summary judgment on
count one of their complaint. On 5 August 1999, the City filed its
own motion for summary judgment on count one. On 27 September
1999, Judge Loto Greenlee Caviness entered an order granting
plaintiffs' motion for partial summary judgment, and denying
defendant's motion for partial summary judgment, making the
following conclusions of law:
1. Asheville Ordinance 2427 and its passage
are subject to the zoning laws of North
Carolina including those applicable to protest
petitions. G.S. § 160A-385 and § 160A-386.
2. The class of lots affected by Ordinance
2427 are the lots upon which off-premise signs
affected by the seven (7) year amortization
provisions of Ordinance 2427 were located at
the time of its passage.
3. That there are disputes that are not
resolved by this Order for Partial Summary
Judgment as to whether or not the City of
Asheville carried out its duties under the
protest petition law as mandated by Unruh v.
City of Asheville, 97 N.C. App. 287 (1990)
and, if so, whether or not the protest
petitions filed constitute twenty (20%)
percent of the lots included in the affected
class.
The trial court “[f]urther [o]rdered that there is no just
reason for delay of an appeal of the denial of Defendant's Motionfor Summary Judgment and the granting of Plaintiffs' Motion for
Partial Summary Judgment,” and “[t]his ruling affects a substantial
right of Defendant pursuant of N.C.G.S. § 1-277 and Rule 54(b) of
the North Carolina Rules of Civil Procedure.”
Defendant filed notice of appeal on 25 October 1999, and a
petition for writ of certiorari on 26 October 1999. Plaintiffs
filed a cross appeal pursuant to N.C. R. App. P. 3(c) on 4 November
1999, along with their own petition for writ of certiorari. The
parties' petitions for certiorari were dismissed without prejudice
to the parties' rights to re-file them after the record on appeal
was filed in this case. After the record on appeal was filed, both
parties re-filed their petitions for writ of certiorari. Defendant
subsequently filed a motion to dismiss plaintiffs' petition for
certiorari. These petitions are currently pending before this
Court.
We begin by noting that the denial of a motion for summary
judgment does not qualify as an appealable order. Lamb v.
Wedgewood South Corp., 308 N.C. 419, 424, 302 S.E.2d 868, 871
(1983). Likewise, “[a] grant of partial summary judgment, because
it does not completely dispose of the case, is an interlocutory
order from which there is ordinarily no right of appeal.” Liggett
Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993).
The order appealed from in the instant case granted partial summary
judgment in favor of plaintiffs and denied defendant's motion for
partial summary judgment; therefore, it is an interlocutory order.
“As a general rule, a party has no right to immediateappellate review of an interlocutory order.” Tis
e v. Yates
Construction Co., 122 N.C. App. 582, 584, 471 S.E.2d 102, 105
(1996). However, appeal from an interlocutory order is permissible
under two specific statutory exceptions. Town Center Assoc. v. Y
& C Corp., 127 N.C. App. 381, 384, 489 S.E.2d 434, 436 (1997).
“First, if the order or judgment is final as to some but not all of
the claims or parties, and the trial court certifies the case for
appeal pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b), an immediate
appeal will lie.” N.C. Dept. of Transportation v. Page, 119 N.C.
App. 730, 734, 460 S.E.2d 332, 334 (1995). The order appealed from
in the instant case contained the trial court's certification
pursuant to Rule 54(b); however, a trial court cannot make its
decree immediately appealable under Rule 54(b) by simply
denominating it a final judgment if it is not such a judgment.
Industries, Inc. v. Insurance Co., 296 N.C. 486, 491, 251 S.E.2d
443, 447 (1979). Here, the trial court's order failed to fully
resolve any of the parties' claims, and, therefore, it is not a
final judgment under Rule 54(b).
The other situation in which an immediate appeal may be taken
from an interlocutory order is when, pursuant to N.C. Gen. Stat. §§
1-277 and 7A-27(d), “the trial court's order (1) affects a
substantial right, (2) in effect determines the action and prevents
a judgment from which an appeal might be taken, (3) discontinues an
action, or (4) grants or refuses a new trial.” Town Center Assoc.,
127 N.C. App. at 385, 489 S.E.2d at 436; N.C. Gen. Stat. § 1-277
(2000); N.C. Gen. Stat. § 7A-27(d)(2000). Only the substantialright exception is potentially applicable in the instant case.
However, we need not determine whether the trial court's order
affects a “substantial right” pursuant to N.C.G.S. §§ 1-277 and 7A-
27(d), because we have elected to exercise our discretionary
authority under N.C. R. App. P. 21(a)(1) and allow each parties'
petition for writ of certiorari in order to address the merits of
this appeal. We have so chosen to exercise our discretion because
the major issues presented on appeal are strictly legal and their
resolution is not dependent on further factual development. See
Lamb, 308 N.C. at 425, 302 S.E.2d at 872. Consequently,
defendant's motion to dismiss plaintiffs' petition for writ of
certiorari is hereby denied. We now proceed to the merits of this
appeal.
Defendant's Appeal
On appeal, defendant contends the trial court erred in denying
its motion for partial summary judgment and granting partial
summary judgment for plaintiffs. Summary judgment is appropriate
when “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that any
party is entitled to a judgment as a matter of law.” N.C. R. Civ.
P. 56(c)(2000). The issues raised by defendant are not dependent
on further factual development, but are purely legal
in nature,
and, thus, appropriately resolved at the summary judgment stage.
[1]By its first assignment of error, defendant argues the
trial court erred in concluding that the passage of Ordinance No.2427 was subject to the protest petition provisions of N.C.G.S. §
7;
160A-385 and 160A-386. Defendant contends that the protest
petition procedure does not apply to amendments to the text of a
zoning ordinance, but that it only applies to zoning map
amendments. We disagree.
While we realize that the protest petition procedure is
generally applied to map amendments rather than text amendments,
the language of the statute leads us to conclude that it also
applies to text amendments, for it speaks of zoning regulations,
restrictions,
and zone boundaries.
See David W. Owens,
Legislative
Zoning Decisions (2d ed. 1999). N.C.G.S. § 160A-385 provides, in
pertinent part:
(a) Zoning regulations and restrictions
and zone boundaries may from time to time be
amended, supplemented, changed, modified or
repealed. In case, however, of a protest
against
such change, signed by the owners of
twenty percent (20%) or more either of the
area of the lots included in a proposed
change, or . . . .
N.C. Gen. Stat. § 160A-385(a)(1999)(emphases added). Further,
N.C.G.S. § 160A-386, which sets out requirements for valid protest
petitions under § 160A-385, reads in
pertinent part:
No protest against
any change in or
amendment to a zoning ordinance
or zoning map
shall be valid or effective for the purposes
of G.S. 160A-385 unless it be in the form of a
written petition actually bearing the
signatures of the requisite number of property
owners and stating that the signers do protest
the proposed change or amendment . . .
N.C. Gen. Stat. § 160A-386 (1999)(emphases added).
“Statutory interpretation properly begins with an examinationof the plain words of the statute.”
Corr
ell v. Division of Social
Servs., 332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992). “If the
language of the statute is clear and is not ambiguous, we must
conclude that the legislature intended the statute to be
implemented according to the plain meaning of its terms.”
Hyler v.
GTE Prods. Co., 333 N.C. 258, 262, 425 S.E.2d 698, 701 (1993).
“[A] statute must be considered as a whole and construed, if
possible, so that none of its provisions shall be rendered useless
or redundant.”
Builders, Inc. v. City of Winston-Salem, 302 N.C.
550, 556, 276 S.E.2d 443, 447 (1981). “It is presumed that the
legislature intended each portion to be given full effect and did
not intend any provision to be mere surplusage.”
Id.
The clear and unambiguous language of N.C.G.S. § 160A-385(a)
states that zoning regulations and restrictions, as well as zone
boundaries, are subject to change or amendment from time to time,
and that a protest against any such change is subject to the twenty
percent (20%) protest petition threshold. The protest language is
not limited to changes or amendments to zone boundaries; it applies
equally to changes or amendments to zoning regulations and
restrictions. In addition, N.C.G.S. § 160A-386 expressly refers to
changes in or amendments to zoning ordinances
or zoning maps.
It is clear from this language that the Legislature intended
to make a distinction between amendments to zoning maps and zone
boundaries, on the one hand, and other regulations and restrictions
found in the text of zoning ordinances, on the other. It is
equally clear that the Legislature intended for the protestpetition procedure in N.C.G.S. § 160A-385 to apply to both zoning
map amendments and amendments to the text of zoning ordinances.
The interpretation sought by defendant would render the
inclusion of the terms “zoning regulations and restrictions” in
N.C.G.S. § 160A-385(a) and “zoning ordinance” in N.C.G.S. § 160A-
386 mere surplusage. This Court cannot assume the Legislature
intended for these words to have no effect. Further, we feel that
a text amendment which adversely affects the rights of property
owners should be treated no differently than a map amendment which
has such adverse effect. Therefore, we hold that the protest
petition procedure found in N.C.G.S. §§ 160A-385 and 160A-386
applies to
text amendments to zoning ordinances in the same manner
as it applies to zoning map amendments. Thus, the passage of
Ordinance No. 2427 was subject to the protest petition procedure.
We affirm the portion of the trial court's order so holding, and
overrule defendant's first assignment of error.
[2]Defendant next argues the trial court erred in concluding
that the class of lots affected by Ordinance No. 2427 are those
lots upon which signs affected by the seven-year amortization
provisions of Ordinance No. 2427 were located at the time of its
passage. We agree with defendant and reverse that portion of the
trial court's order.
In relevant part, N.C.G.S. § 160A-385(a) reads:
In case, however, of a protest against
such change, signed by the owners of twenty
percent (20%) or more either of the
area of
the lots included in a proposed change, or of
those immediately adjacent thereto either in
the rear thereof or on either side thereof,
extending 100 feet therefrom, or of thosedirectly opposite thereto extending 100 feet
from the street frontage of the opposite lots,
an amendment shall not become effective except
by favorable vote of three-fourths of all the
members of the city council.
. . .
N.C. Gen. Stat. § 160A-385(1999)(emphasis added). The question for
this Court is what meaning to give to the phrase “area of the lots
included in a proposed change” as it relates to Ordinance No. 2427.
Defendant contends that the phrase should be interpreted to include
the entire zoning jurisdiction of the City, or, at a minimum, all
of the zoning districts in the City where “off-premises signs” were
permitted at the time Ordinance No. 2427 was passed.
The question of what meaning should be given to the phrase
“area of the lots included in a proposed change” as found in
N.C.G.S. § 160A-385, in the context of text amendments to zoning
ordinances, is one of first impression. However, our Supreme Court
has addressed the meaning of the word “lot” as it appears in
N.C.G.S. § 160A-385 (formerly N.C.G.S. § 160-176), holding that
there is nothing in the statute that indicates the word “lot”
should be given any meaning other than its common and ordinary
meaning. Heaton v. City of Charlotte, 277 N.C. 506, 526-27, 178
S.E.2d 352, 364 (1971). Therefore, in determining what constitutes
the lots included in Ordinance No. 2427, we must give the words of
the phrase “area of the lots included in a proposed change” their
common and ordinary meaning.
Prior to passage of Ordinance No. 2427, certain “off-premises
signs” which did not conform with the 1990 Sign Regulations, but
did conform with the original 1977 Sign Regulations, were allowedto escape amortization by being “grand-fathered” under the City's
existing zoning regulations. Ordinance No. 2427 removed this
protection by mandating that all “off-premises signs,” whether
“grand-fathered” under earlier regulations or not, which did not
conform with Ordinance No. 2426 were required to be amortized by no
later than 25 November 2004. It is true that this provision of
Ordinance No. 2427 only immediately affects those existing signs
that it requires to be amortized within seven years. However,
Ordinance No. 2427 expressly encompasses “[a]ll off-premises signs
(and their sign structures) which are made nonconforming by a
subsequent amendment to this article, or by amendment to the
official zoning maps, or by extension of the city's territorial
jurisdiction.” Asheville City Code § 7-13-8(d)(3). This provision
of Ordinance No. 2427 applies to existing signs that conform with
Ordinance No. 2426, as well as any conforming signs built in the
future, which may be made “non-conforming” by subsequent action.
It does not apply to those “non-conforming” signs which are
immediately required to be amortized by Ordinance No. 2427.
Therefore, it is clear that Ordinance No. 2427 included a larger
area than just those lots on which “non-conforming” signs subject
to amortization were located at the time of its passage.
Accordingly, the trial court's ruling on this issue is reversed.
Plaintiffs' Cross Appeal
[3]Plaintiffs argue the trial court erred in not concluding,
as a matter of law, that the City failed to carry out its duties
under the protest petition statute as prescribed in
Unruh v. City
of Asheville, 97 N.C. App. 287, 388 S.E.2d 235,
disc. reviewdenied, 326 N.C. 487, 391 S.E.2d 813 (1990). We disagree.
In
Unruh, the record showed that the City had not prescribed
a form for protest petitions although N.C.G.S. § 160A-386
authorized it to do so. The record also showed that the City had
received numerous writings from purported property owners opposing
the proposed ordinance, and that the City had made no effort to
determine either the accuracy or sufficiency of the protests or the
percentage of rezoned or adjacent land owned by the protestors.
These facts led the court to conclude as a matter of law that:
In undertaking to enact the ordinance over the
protests of affected property owners the City
had an affirmative duty to determine the
sufficiency, timeliness, and percentage of the
protests and to call for the vote that the law
required; and its failure to determine those
essential facts rendered the ordinance invalid
on its face, since the 4 to 3 vote was
insufficient to overcome a protest by property
owners that complied with the provisions of
G.S. 160A-385.
Id. at 290, 388 S.E.2d at 237.
The facts of the instant case are distinguishable from those
in
Unruh. Here, the City had a prescribed form for protest
petitions under N.C.G.S. § 160A-386 which was used by plaintiffs
and other protestors in submitting their protests to the proposed
ordinances. The City Attorney reviewed the protest petitions and
the proposed ordinances, and came to the legal conclusion that the
protest petition procedure did not apply to text amendments.
However, the City did not stop there. The City then performed
calculations to determine whether the twenty percent (20%)
threshold under N.C.G.S. § 160A-385 had been met. The Citycalculated the acreage of its entire zoning jurisdiction, as well
as the acreage of the parts of the jurisdiction where “off-premises
signs” were permitted at that time. The City also calculated the
acreage of the lots on which “off-premises signs” were located,
according to its updated 1990 sign survey database. Based on these
calculations, the City determined that the twenty percent (20%)
threshold of N.C.G.S. § 160A-385 had not been met. In
Unruh, the
City made no effort to determine whether N.C.G.S. § 160-385
required a three-fourths vote for passage of the ordinance in
question. In the case
sub judice, the City took substantial action
to determine whether a three-fourths vote of the City Council was
required. Therefore, we cannot hold as a matter of law that the
City failed to meet its affirmative duties under
Unruh. Thus,
plaintiffs' first assignment of error is overruled.
Plaintiffs also argue the trial court erred in allowing
defendant to support its summary judgment motion with affidavits
from experts in the field of municipal zoning regulation containing
their opinions related to the interpretation and construction of
the protest petition statutes. However, we are unable to determine
from the record what consideration, if any, the affidavits were
given by the trial court. Thus, we need not address this issue
further.
In conclusion, we affirm that portion of the trial court's
order concluding that the passage of Ordinance No. 2427 was subject
to the protest petition statutes, and we reverse that portion of
the trial court's order concluding that the class of lots affectedby Ordinance No. 2427 only includes those upon which “off-premises
signs” required to be amortized under Ordinance No. 2427 were
located at the time of its passage. Further, we hold that the
plaintiffs are not entitled to summary judgment under
Unruh,
because defendant has thus far met its affirmative duties under
N.C.G.S. §§ 160A-385 and 160A-386. Finally, the case is remanded
to determine whether those protest petitions that were filed with
the City constitute twenty percent (20%) of the lots included in
Ordinance No. 2427. In making this determination, the denominator
to be used should be, at a minimum, the area within the City's
zoning jurisdiction that was zoned to permit “off-premises signs”
at the time Ordinance No. 2427 was passed. It is undisputed from
the record that this figure is 4,928 acres. The numerator to be
used is the area of the lots actually represented by the protest
petitions which were timely filed. Thus, the matter is remanded to
the trial court for further proceedings consistent with this
opinion.
Affirmed in part, reversed in part, and remanded.
Judges WALKER and HUNTER concur.
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