Posted by: Patricia Salkin | January 8, 2008

NC Appeals Court Dismisses Case Due to Lack Subject Matter Jurisdiction to Grant Requested Relief

The plaintiffs requested an injunction against further approval of subdivision developments, including the proposed project, pending adoption by the County of minimum criteria and the preparation of proper environmental impact assessments (EIS). The Court said that it was without power to require the County to adopt minimum criteria as required by state statute since this is a legislative function, and “Although courts are authorized to interpret and declare the law, the judicial branch has no authority to direct a legislative body to enact legislation. Therefore, the Court held that to grant the requested relief would be to violate the doctrine of separation of powers.   

At issue was a State statute that provides that municipalities may require a subdivider to submit and environmental impact statement with a preliminary plat if the development exceeds two acres and it the board deems it necessary for responsible review, and that once an ordinance is adopted pursuant to the statutory section, the municipality “shall establish minimum criteria to be used in determining whether a statement of environmental impact is required,” (see, N.C. Gen. State. §113A). Here, it was undisputed that the County has not enacted minimum criteria under its ordinance as required.  

While noting that the only remedy available to the plaintiffs if to have a court invalidate the provisions of the county subdivision ordinance that do not comply with the provisions of the State statute, the Court conceded that if this portion of the ordinance were to be invalidated, then there would be no requirement of an EIS and that the remedy would not redress the plaintiff’s alleged injuries.  As a result, the plaintiffs cannot satisfy the third element of standing (redressability of their injury by a favorable decision).     

Marriott v. Chatham County, 2007 WL 4232967 (N.C. App. 12/4/2007). 

The opinion can also be accessed at: http://www.aoc.state.nc.us/www/public/coa/opinions/2007/070326-1.htm


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