Charlotte is asking the NC Circuit Court of Appeals to give more value as precedent to recent rezoning ruling | Panda Anku

Charlotte is asking the NC Court of Appeals to “release” a recent finding in a reclassification dispute. Publication would mean that the case could be used as a precedent in future court cases.

On August 16, the Court of Appeals issued a unanimous, unpublished judgment in Mozeley v. City of Charlotte.

“The Mozeley report has significant precedent value,” said Thomas Powers, Charlotte’s Senior Assistant City Attorney, in a filing Thursday.

Plaintiff Steven Mozeley objected in 2020 to Charlotte’s rezoning of an 80-acre lot adjacent to his property, a single-family home on 15 acres of land. According to court documents, the rededication would have changed the maximum number of buildings on the neighboring property from 240 single-family houses to 280 single-family terraced houses.

Charlotte City Council approved the rezoning in an online WebEx meeting. When Mozeley challenged the decision in court, his complaint included an argument that the city had violated its procedures for online meetings.

A trial judge ruled against Mozeley in May 2021. The Court of Appeal followed suit.

The request for published opinion cites the appeals court’s analysis of Charlotte’s online vote on the rezoning.

“The COVID-19 pandemic prompted an unprecedented response from the North Carolina General Assembly,” Powers wrote. “She passed Sessions Act 2020-3, amending Chapter 166A of the North Carolina General Bylaws to add authorization for ‘distance meetings’ for all government agencies.”

Charlotte “could not find another North Carolina opinion addressing the requirements of the laws for open gatherings when a government agency uses a video conferencing platform (i.e., WebEx, Zoom, Microsoft Teams) to conduct public business,” he added. “This Opinion provides exceptional guidance that the ‘Remote Meetings’ Act does not require the government agency to be able to see or have information on the number of people[s] watch online or be aware of the size, scope and intensity.”

Charlotte also highlights the Mozeley decision’s approach to plaintiff’s “novel theory” of illegal zoning. “This Opinion will set a precedent to guide future interactions between local governments and complainants about a reallocation that includes an option to purchase,” Powers wrote.

The case also helps Charlotte demonstrate that she didn’t make a zoning decision in an “arbitrary and capricious” manner, Powers explained. The controversial rededication included a “statement of consistency” explaining how the change aligned with existing city plans.

“This Opinion sets a precedent … that Charlotte’s reclassification process meets the statutory requirements for statements of consistency,” Powers wrote. “Otherwise, future plaintiffs will continue to . . . allege that respondent City failed to follow its procedures for accepting statements of consistency, while this case demonstrates that respondent City now conforms to the same procedures.”

Charlotte believes the Mozeley case also offers value as a precedent for future cases in which a plaintiff might allege violations of the right to due process.

The judges of the Court of Appeal can decide whether to publish an opinion or not to publish it.

“In order to minimize the cost of publishing and providing storage space for the published reports, the Court of Appeals is not required to publish an opinion in each case ruled,” according to court rule 30(e). “If the panel hearing the case finds that the complaint does not introduce new legal principles and that a published opinion would have no precedent, it may order that no opinion be published.”

“An unpublished decision by the North Carolina Court of Appeals does not constitute a controlling legal authority,” the rule states. “Accordingly, citation of unpublished opinions in briefs, memoranda and oral submissions is not desirable in the Trial and Appeals Divisions.”

Judge Jefferson Griffin wrote the opinion in Mozeley v. City of Charlotte. Justices Richard Dietz and Lucy Inman were also members of the three-person panel. Dietz and Inman are going head-to-head this fall for a vacant seat on the NC Supreme Court.

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