CORRECTION: A previous version of this article incorrectly stated that the rezoning approved by the Board of Commissioners in October 2020 passed unanimously. In fact, it passed in a 4-2 vote, with one abstention. The article has been updated to reflect this.
ROCKINGHAM — Richmond County has filed a motion to dismiss the lawsuit filed against them by Hamlet, Dobbins Heights and four local residents in December 2020 that seeks to nullify the county’s rezoning of a property along Marks Creek Church Road to Heavy Industrial in October.
The brief document was mailed Friday evening — the deadline for a response following a 30-day extension, according to Hal Kitchin, a partner with McGuireWoods, the law firm representing the county in the case — and a digital copy was provided to the Daily Journal Monday. In it, the defense argues that the lawsuit should be dismissed under Rule 12(b)(1) and Rule 12(b)(6) of the North Carolina Rules of Civil Procedure which refer to lack of jurisdiction over the subject matter and the failure to state a claim sufficient for the court to remedy.
The motion will warrant a hearing before a judge at an undetermined date.
The lawsuit, filed in North Carolina Superior Court by Hamlet, Dobbins Heights, Chad and Lisa Gardner, and Lonnie and Hope Norton, alleges that the county’s consistency statement adopted in order to make the rezoning official failed to comply with state law because it did not describe how the rezoning was consistent with the county’s land use plan and didn’t explain why the rezoning was reasonable and in the public interest, details which are required by law under N.C. General Statute 153A-341(b).
Additionally, the lawsuit alleges that the Board of Commissioners — who passed the rezoning in a 4-2 vote with then-Commissioner Ben Moss abstaining — only considered International Tie Disposal’s proposed biochar production facility as the future use of the property and thus failed to consider all of the uses allowed under Heavy Industrial, as required by law.
The defense argues that the county’s consistency statement does meet these requirements and that therefore, under N.C. General Statute 153A-341(b), the consistency statement is not subject to judicial review. Further, the motion states that the plaintiffs’ complaint fails to provide any “allegations of actual facts” and rather relies on “general allegations made upon information and belief.”
On the claim that the Board of Commissioners didn’t consider all the allowed uses of the land, the defense states that plaintiffs “do not — and cannot — allege that the Defendant, in rezoning the property, entered into a reciprocal agreement with the landowner of the would-be owner” of the property.
Finally, the defense argues that Hamlet and Dobbins Heights don’t have the standing to challenge the rezoning because they don’t meet a legal precedent of being a “person who has a specific personal and legal interest in the subject matter affect by the zoning ordinance and who is directly and adversely affected,” and that they haven’t established that their damages are “specific” and “distinct from the rest of the community.”
Hamlet City Manager Matthew Christian, in an email after this story was published online, said the county’s legal strategy was “hardly surprising.”
“These issues are incredibly important and we intend to hold Richmond County accountable,” he said. “We look forward to defending our claims in court.”
An emailed request for comment from County Manager Bryan Land Friday was not returned. Kitchin declined to comment.
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Reach Gavin Stone at 910-817-2673 or gstone@yourdailyjournal.com.
