Supreme Court could decide Kannapolis rezoning fight

By Hugh Fisher

hfisher@salisburypost.com

KANNAPOLIS — In the weeks ahead, the N.C. Supreme Court will issue a decision in a precedent-setting case with ramifications for zoning and annexation decisions statewide.

A group of area citizens, including Odell-area resident Fred Wally, filed suit against Kannapolis regarding a zoning decision made when a parcel was annexed for a development deal in 2007.

After the annexation, Kannapolis rezoned approximately 73 acres to Campus Development, a zoning classification which allows a variety of uses including office, retail and residential development.

If it sides with the plaintiffs, the state’s high court could potentially overturn a key provision governing what is considered “spot zoning” — the unfair targeting of a parcel of land for zoning that’s out of proportion to neighboring properties.

This is what Wally and other residents of the area believe Kannapolis was doing.

Wally and other members of the citizens’ group Stop Rezoning Now have challenged the rezoning because they believe it was out of compliance with laws and procedures in place to prevent spot zoning.

Wally is named as a plaintiff, along with Lavon Benton, Randall Benton, Don Crowe and George Martocchio.

The issue began when Kannapolis entered into discussions with Wayne Brothers, Inc. through an intermediary to create a potential joint project, Concrescere, off N.C. 3 near the intersection of Odell School Road and Davidson Road.

According to City Manager Mike Legg, the proposed 73-acre development was to house the Wayne Brothers corporate office, 19 acres of neighborhood retail and 38 acres of additional Class A office space.

Wally and other residents spoke out against original plans which, he said, would have put a concrete manufacturing plant on the site.

But Legg noted the city had never agreed to any proposal which would have done so.

“The uses for this site were all clean, high quality uses,” Legg said.

But Wally and other residents contended the real purpose of the zoning was to prepare for a manufacturing facility at the site — something he said would damage property values and the quality of life nearby.

“We are potentially being heavily impacted by what Kannapolis does, but we have no say-so,” Wally said.

Since they aren’t city residents, Wally said, he and his fellow plaintiffs, and their neighbors, are unable to vote for Kannapolis’ city leaders or run for office themselves to express another view.

In Wally’s words, the lawsuit was “unavoidable.”

“I can’t say what the Supreme Court will do, but we’ve been in this battle for seven years just with volunteers, and we’re still fighting,” Wally said.

He said he hopes that shows other residents how dedicated local citizens are to protecting their community.

“Kannapolis has no interest in the people out here, our well-being or the values of our property,” Wally said. “They are only interested in tax revenue, and that’s what it’s all about.”

But Kannapolis City Attorney Wally Safrit said the city was simply doing one of the many things cities do: applying zoning standards that a citizen requested, and defending that decision.

“Spot zoning is not illegal unless it is not reasonable,” Safrit said.

Safrit did not argue the case before the N.C. Supreme Court. Instead, the city retained attorneys from the firm of Hamilton Stephens Steele & Martin of Charlotte.

Speaking solely for himself, Safrit said he hopes the N.C. Supreme Court will uphold the current law, as the lower courts have done.

“Litigation over rezoning, spot zoning and procedural issues is a common event in the courts,” Safrit said. “But for the Supreme Court to overturn a long-tenured legal precedent is uncommon, especially if it declares invalid an act that was otherwise valid at the time it was taken.

“The Court of Appeals decided that because the tracts in this case were owned by two different owners, this could not be spot zoning by definition, much less illegal spot zoning,” Safrit said.

At the heart of the issue is this “single owner rule,” which the plaintiffs are challenging.

But Safrit said that even if the high court overturns that principle, the previous county zoning in place since 2005 would have allowed the same type of development.

The size of the property, adjacent property usage and building standards could also be considered, Safrit said.

And, according to Safrit, “several neighbors provided affidavits (to Kannapolis City Council) in support of the rezoning, apparently appreciating the shopping and employment opportunities of growth in the area.”

With regard to the procedural question, Safrit said the Kannapolis City Council approved the rezoning based upon the results of a public hearing and a staff report which stated that the rezoning complied with the city’s land use plan.

Taxpayer dollars

Meanwhile, Wally says Kannapolis residents should be unhappy that the city is spending taxpayers’ money to keep fighting the zoning issue.

He declined to say how much Stop Rezoning Now has spent on legal fees so far, or to name the group’s donors. But he said there had been substantial donations over the years, and claimed many of them come from people who live in Kannapolis and are displeased with the annexation and zoning.

“I don’t think the taxpayers understand how much taxpayers’ money is being spent to defend a situation where the city could have spent money inside the city limits, and spent it instead in the westernmost portion of Cabarrus where they annexed some land to help a developer,” Wally said.

Legg said the city would have preferred not to have to spend money on a legal battle, either.

“We felt strongly that we needed to defend our actions because we felt they were both justified and proper,” Legg said.

And he added that all of the courts so far have sided with the city in what he called “an appropriate policy decision.”

“The property was already zoned non-residential by Cabarrus County before it was annexed and it was already a different zoning district than all the properties surrounding it,” Legg said.

“We simply adjusted the zoning to the city’s non-residential district we felt was most appropriate to facilitate this project,” Legg said.

“The money spent in litigation could preferably have been spent on water and sewer for citizens in the area,” Safrit said.

Many residents in the area, Safrit added, were in favor of utility services being expanded — an assertion Wally said other taxpayers don’t agree with.

Finally, Legg said, the real cost to taxpayers has been the growth that hasn’t happened since the lawsuit began.

Legg said the project as originally envisioned could have generated almost $74,000 in new tax and utility revenues by the second year.

He said the city anticipated that revenue grow to over $900,000 within a decade.

And, Legg said, over 200 jobs might have been created by the project, in addition to the Wayne Brothers employees who would have been relocated there.

“This new economic development engine was the primary motivation to pursuing the project and the rezoning,” Legg said.

“Obviously the combination of the litigation and the overall slumping economy has slowed the project development,” Legg said. “... We hope that changes in the near future.”

No zoning at all?

Wally said he and his fellow plaintiffs hope the court will step in and overturn the lower courts’ rulings.

He and several fellow plaintiffs, along with area residents, attended the Jan. 9 hearing in Raleigh, and are now awaiting the court’s decision.

“Our hope would be that the Supreme Court comes back and says the appeals court is wrong when they said this was not a case of spot rezoning.”

He said their expectation is to go back to the zoning that was in place before Kannapolis rezoned the parcel, requiring the city to seek other alternatives in line with established procedure.

But Safrit gave a different interpretation of the possible outcomes.

Even if the court decides to change the ownership rule, Safrit said, it could decide that the rezoning was reasonable, and thus still valid.

Or, Safrit said, it could send the case back to the Court of Appeals.

But, Safrit said, if the Supreme Court agrees that Kannapolis did not follow proper procedures in its rezoning, the rezoning will be invalidated.

“In that case,” Safrit said, “the property in question would be deemed to have no zoning designation at all, because the county zoning expired 60 days after the property was annexed and the city’s rezoning was ineffective.”

And that, Safrit said, means that the city could restart the procedure.

Or, Kannapolis could choose to leave the property without zoning, “in which case the owners could build anything they want,” Safrit said.

“Both of which outcomes would be unfavorable to and unanticipated by the plaintiffs,” Safrit said. “The irony is staggering.”

Wally disagreed that the suit would backfire, and called Safrit’s contention “a veiled threat.”

“If the city chose to do that (leave property unzoned), that would be the most unethical way of doing business,” Wally said.

Still, although he is not a lawyer, Wally said he believes a parcel would have to have some zoning in force.

He said he expects the court would provide instructions on how the parcel would be zoned before allowing that to happen.

“I’d challenge Mr. Safrit to find any parcel in Kannapolis, or in Cabarrus County, either, that is unzoned,” Wally said.

If it came down to a fight with property owners over what could and couldn’t be built in the absence of zoning, Wally said, “I can say with certainty, we will seek every legal recourse in our power to fight it.”

But until a decision comes down from the Supreme Court, Wally said, “we don’t know what they’re going to do, and he (Safrit) doesn’t, either.”

Contact Hugh Fisher via the editor’s desk at 704-797-4244.