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Piland v. Hertford County Board of Commissioners12/29/2000
Appeal by plaintiffs and cross-appeal by defendant from judgment entered 10 June 1999 by Judge James E. Ragan, III, in Superior Court, Hertford County. Heard in the Court of Appeals 25 August 2000.
On 5 October 1998, the Hertford County Board of Commissioners held a public hearing following which it voted unanimously to rezone a 1,600 acre tract of undeveloped land located along the southern shore of the Chowan River east of Tunis. Before the rezoning, a portion of the property was zoned RA-20 (residential and agricultural use); and, the remainder of the property was zoned RR&C;(residential and recreational use).
At the public hearing, the Board of Commissioners voted to rezone the property from RA-20 and RR&C;to IH (heavy industrial use). The land lying to the west of the property is also zoned IH. At the same public hearing, the Board of Commissioners also voted to amend certain sections of the municipal zoning ordinance to allow steel mills and recycling facilities, in addition to related uses, within the IH zoning district.
On 4 December 1998, the plaintiffs brought an action against the Board of Commissioners challenging the rezoning of the property and the amending of the zoning ordinance. The Board of Commissioners answered the complaint on 7 January 1999; and on 5 February 1999, it moved to dismiss the action under Rules 12(b)(1), (2), (4), (6) and (7) on grounds that, among other things, the plaintiffs failed to name or serve Hertford County as a defendant. See N.C.R. Civ. P. 12(b)(1), (2), (4), (6) and (7) (1990). In its motion to dismiss, the Board of Commissioners asserted that it was not a proper defendant, that Hertford County was the proper defendant, and that the complaint could not be amended to add or substitute Hertford County as a defendant as the two- month statute of limitations by that time had run.
On 15 February 1999, the plaintiffs moved to amend the summons and complaint by substituting "Hertford County" as the named defendant in place of the Board of Commissioners. On 4 and 5 May 1999, the Board of Commissioners and plaintiffs, respectively, moved for summary judgment.
On 10 June 1999, Superior Court Judge James E. Ragan, III entered an order (1) denying the Board of Commissioners' motion to dismiss, (2) denying the plaintiffs' motion for summary judgment, and (3) granting the Board of Commissioners' motion for summary judgment. It does not appear from the record on appeal that the trial court ever ruled on the plaintiffs' motion to amend the summons and complaint. From the 10 June 1999 order, plaintiffs appeal and the Board of Commissioners cross- appeals.
On appeal, we consider only the Board of Commissioners' cross- appeal as its disposition precludes us from considering the plaintiffs' appeal.
The Board of Commissioners asserts that the trial court erred in denying its motion to dismiss under N.C.R. Civ. P. 12(b)(1), (2), (4), (6) and (7). It contends that Hertford County, rather than the Board of Commissioners, was the only proper defendant to this action, and that it was error for the plaintiffs to bring the action solely against the Board of Commissioners. Furthermore, the Board of Commissioners argues that the plaintiffs' attempts to amend the complaint to substitute the county as the named defendant were ineffective as they occurred after the statute of limitations had run. The Board of Commissioners contends that the amendment could not relate back to the original complaint so as to circumvent the statute of limitations. Because the cause of action against the county was time-barred, the Board of Commissioners argues that the trial court erred in denying its motion to dismiss. W
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