STATE OF NORTH CAROLNA
COLNTY OF BRLINSWICK
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIYISION
ll-cvS- [5()
|
THE ROYAL OAK CONCERNED
CITIZENS ASSOCIATION, CURTIS
MCMILLIAN and DENNIS
MCMILLIAN,
COMPLAINT FOR RELIEF
Plaintiffs
V.
BRLINSWICK COLNTY.
Defendant.
Plaintiffs, through the undersigned counsel, respectfully state the following for
their Complaint against Defendant:
NATURE OF THE ACTION
1.
This is a civil rights action for declaratory and injunctive relief and
damages to remedy Defendant's illegal rezoning and violation of the rights of African
American and other residents of a predominantly African American community outside
of Supply in Brunswick County, North Carolina. On April 4,201 l, Defendant rezoned
parcels in Plaintiffs' community from Rural Residential to Industrial General, with the
express intent of expanding the existing
landfill. The rezoning
was conducted without
considering all other possible uses for the parcel as required by law, is illegal "spot"
zoning, is not compatible with the comprehensive land use plan, and is arbitrary and
capricious and not based on a rational consideration of the general welfare of Plaintiffs or
the citizens of Brunswick County.
2.
This action also stems from Defendant's long-time racially discriminatory
pattern and practice of denying public water and sewer service to Plaintiffs because they
are African American and because they reside in a predominantly African American
neighborhood, and from Defendant's racially discriminatory pattern and practice
of
disproportionately and intentionally burdening Plaintiffs and their community with
hazardous and locally unwanted land uses
("LULUs"). The most recent manifestation of
this pattern and practice is Defendant's decision to rezone the parcels in Plaintiffs'
community to Industrial General to allow Defendant to double the size of the existing
landfill and permit even more numerous hazardous and unwanted land
uses in
Plaintiffs'
community.
3.
Unlike other County residents without access to water and sewer services,
Plaintiffs not only lack these basic services, but have already endured a disproportionate
number of environmental hazards and now face a significant increase in environmental
hazards due to the rezoning and the dramatically expanded
landfill. Thus, they
are in
essence "hostages" to an imperiled and contaminated water supply and mounting
environmental hazards, with no end in sight. They are ignored as a community in their
request for basic services, yet serve as the
priority location for virtually every foreseeable
environmental hazard in the county. Not only are the continual denial of services and
pattern and practice of locating LULUs a result of intentional discrimination by the
county against this community, these actions also have a disparate impact on this African
American community and have the effect of perpetuating segregation by discouraging
other residents from movins to Roval Oak.
4.
Plaintiffs bring this action pursuant to North Carolina's Declaratory
Judgment Act, N.C. Gen. Stat. $$ 1-253 -267, N.C. Gen. Stat. $$ 153,A.-340-349,the
North Carolina Fair Housing Act, as amended, N.C. Gen. Stat. $ 4lA-l et seq. (NCFHA),
and the Equal Protection Clause of the North Carolina Constitution, N.C. Const.
$
art.l,
1e.
PARTIES
5.
Plaintiff Royal Oak Concerned Citizens Association ("ROCCA") is an
unincorporated community association made up of citizens and residents of Brunswick
County, North Carolina, and exists for the purpose of protecting the quality of life and
environment of Royal Oak. ROCCA's membership, like the Royal Oak community
itself, is almost entirely African American.
6.
ROCCA was formed about four years ago for the above stated purpose
and has continued to advocate on behalf of the community in oppositiontohazardous and
unwanted land uses in Royal Oak, and for water and sewer service.
7
.
Lewis Dozier is the President of the Royal Oak Concerned Citizens
Association and resides in the Royal Oak Community at 1060 Green Swamp Road NW,
in Supply, North Carolina.
8.
The Royal Oak community is geographically defined as follows:
beginning at the intersection of N.C. Highway
2ll
and
Big Macedonia Road; west on Big
Macedonia Road (houses on both sides of road) to Makatoka Rd; north on Makatoka
Road to Little Macedonia Road (including Hankins Way off to the west); east on Little
Macedonia Road; across N.C. Hwy. 211 Little Macedonia Road becomes Middle River
Road and extending along Middle River Road to its termination; southeast in a straight
line to the intersection of Galloway and Landfill road; and southwest in a straight line to
the beginning point at the intersection of Big Macedonia Road and N.C. Hwy. 2111'
including all the side streets contained within these boundaries: Running Brook Trail,
Skyview Lane, Smith Rd, Zane Way, Pearl Wuy, Grant Wuy, Foxtrot Wuy, and Deerview
way.
9.
Plaintiff Curtis McMillian ("Rev. McMillian") is a citizen and resident of
Brunswick County, North Carolina. Rev. McMillian is African American, and has
resided at 412 Middle River Road, parcel 1370000802, in Supply, North Carolina, since
1964. Rev. McMillan owns his residence. and has never received water or sewer services
at this address.
10.
Rev. McMillian is also part owner of more than fifty acres of land
at40l
Smith Road East in Supply, North Carolina, parcel number 15200021, which abuts the
the landfill expansion parcels to the southeast.
1
I
.
Plaintiff Dennis McMillian is a citizen and resident of Brunswick County,
North Carolina. Plaintiff Dennis McMillian is African American, and has lived at 390
Middle River Road in Supply, North Carolina since 1995.
12.
Defendant Brunswick County is a political subdivision organized under
the laws of the State of North Carolina.
13.
Defendant includes each and every current Brunswick County
Commissioner in his or her official capacity.
JURISDICTION AND VENUB
14.
Defendant and its individual Commissioners are subject to the jurisdiction
of this Court pursuant to North Carolina's Declaratory Judgment Ac| N.C. Gen. Stat. $$
1-253 -267, N.C. Gen. Stat. $$
1534-340-349,the North Carolina Fair Housing Act,
amended, N.C. Gen. Stat. $ 4lA-I et seq. (NCFHA), and the Equal Protection Clause
the North Carolina Constitution, N.C. Const.
15.
as
of
art.I, $ 19.
Venue for this matter is properly in Brunswick County pursuant to N.C.
Gen. Stat. $ $ 1-77, l-82 and 41A- 1 0.
FACTUAL ALLEGATIONS
16.
Brunswick County has a long history of racial segregation and
discrimination. Upon information and belief, the County maintained racially segregated
public facilities prior to enforcement of federal desegregation laws.
17
.
only about
According to data from the 2010 Census, African Americans constitute
ll%
of the County population. The census blocks encompassing the Royal
Oak community, however, are nearly 100% African-American. See maps showing
demography and population density, attached hereto as Exhibits 1 and 2.
18.
The Royal Oak community has been predominantly African American
since the 1800s. Upon information and belief, the land in Royal Oak was available to
freed slaves, due to the fact that it was and continues to be mostly swamp, had to be
drained before it could be farmed, and was thus worth much less money than the land
owned by white people.
19.
Direct descendents of the freed slaves who owned parcels of land in Royal
Oak still reside in Royal Oak today, and are members of ROCCA.
20.
Brunswick County has experienced substantial residential development
and recreation, particularly along the coast. Upon information and belief, most of those
developments, as well as the residences within them, are owned by white people.
21.
Richmond Hills is a new housing development located adjacent to Royal
Oak, off Big Macedonia Road.
22.
Upon information and belief, most of the Richmond Hills properties
remain vacant due in large part to the location of the current landfill and other locally
unwanted land uses (LULUs) in the area.
23.
In 1981, members of ROCCA supported a bond referendum for the
extension of water and sewer infrastructure to the areawhich included Royal Oak.
24.
Due in large part to the efforts by African American residents, the bond
referendum passed.
25.
Brunswick County did not use that bond money to supply water and sewer
service to the Royal Oak community.
26.
An actual controversy exists between the Plaintiffs and Defendant with
respect to Plaintiffs' rights and other legal relations and obligations as alleged herein.
27
.
Prior to 1983 Defendant sited and began to operate an unlined municipal
solid waste landfill on Landfill Road in the Royal Oak community.
28.
Due to new regulations effective in 1983 the unlined landfill was no
longer allowed to accept municipal solid waste and could only operate as a construction
and debris
("C&D") landfill.
29.
On information and beliel Defendant continued to dump municipal waste
of all kinds into the landfill until 1997 .
30.
In
1999, Defendant commissioned a site evaluation for a new municipal
solid waste landfill which examined four tracts, all of which were located in the Royal
Oak community.
31.
Ln2007 , Defendant commissioned a feasibility study for the
C&D landfill
which considered various expansion options and hauling the waste out of county, but did
not consider any sites outside of the Royal Oak community.
32.
Brunswick County adopted a Unified Development Ordinance ("uDO")
effective Muy 1,2007
3
3.
.
On information and belief, Defendant had determined to expand the C&D
landfill, and its agents had met with representatives from the North Carolina Department
of Environment and Natural Resources ("NCDENR") to discuss whether the parcels
would be acceptable for a landfill expansion prior to April 15,2009,
34.
On October 19 2009, Defendant held a public workshop on the C&D
landfill and discussed expanding the landfill.
35.
1n2009, Defendant paid fines to the NCDENR for illegal dumping of
asbestos, creosote, and chemically treated lumber into the landfill.
36.
On or about June 3,2010, Brunswick County purchased parcels numbered
1370000806 ("806") and 15200058 ("058") from Tripp's Construction,
LLC.
Said
parcels abut the existing C&D landfill on parcel 15200045.
37
.
All three aforementioned parcels abut the Middle River, which divides
the
existing landfill, 15200045, from the newly acquired parcels 806 and 058.
38.
On information and belief, Brunswick County purchased said parcels for
the sole purpose of expanding the C&D landfill.
39.
On November 15,2010, the Brunswick County Commissioners discussed
the process to expand the
landfill.
Board Chair William Sue described the expansion as
"a long time coming." Plaintiff Curtis McMillian and other members of ROCCA
addressed the Board and spoke against expanding the landfill.
40.
On December 20,2010, Defendant held both a regular board meeting and
a special workshop on the
landfill expansion. At both meetings Plaintiffs spoke against
the landfill cxpansion.
41
.
On information and belief, no members of the public spoke in favor of the
expansion at either meeting.
42.
On January 24,2011, Defendant called a meeting to allow citizens to
express their opinions concerning the landfill expansion.
43.
County officials were present at the January 24,201 1 meeting to answer
questions and address concerns the community had about the landfill expansion.
44.
Plaintiffs raised concerns at the meeting about the disproportionate burden
of health hazards born by African American residents due to the fact that the landfill and
the animal shelter were located in their community.
45.
At the January 24,201 I meeting, ROCCA member and Royal Oak
property owner James Hardy specifically requested that Defendant extend the water lines
to the Royal Oak community.
46.
Mr. Hardy also raised concerns about the fact that the St. James
communrty, a relatively new, majority-White housing development, has access to water
and sewer services.
47.
The animal shelter used to be near the Winding River subdivision but was
relocated to the Royal Oak communitv in 2000.
48.
On March 1,2010, Defendant commissioned a siting study for the
proposed expansion from Dewberry and Davis, Inc. The study only considered the
parcels in Royal Oak (806 and 058) acquired by the county in June 2010.
49.
Prior to April 4,201 1, parcels numbered 806 and 058 had been zoned
Rural Residential, as described in the UDO and the attached Brunswisk County Zonrng
Map dated December 1 0, 2010. Exhibit 3.
50.
Rural Low Density Residential and Industrial General are general zoning
districts which each contain numerous uses as of right, as well as conditional uses,
as
outlined in Brunswick County's UDO sections 4.8.4.10. and 5.2.3.
51
.
Property owned by the Plaintiffs and the property owned and rezoned by
the Defendant to expand the landfill is primarily sunounded by a large area uniformly
zoned Rural Residential.
52.
On December 13,2010, the Brunswick County Planning Board considered
zoning amendment2-11-667 to rezone parcels numbered 806 and 058 from Rural
Residential to Industrial General. Plaintiffs spoke against the rezoning and the landfill
expansion. The rezoning was tabled until February
53.
7
,207I.
At the December 13,2010 meeting, County Attorney Berg warned the
Planning Board not to consider specific uses in their zoning decision.
54.
The expansion of the landfill was the only use considered by the Planning
Board at the December
55.
13
,2010 meeting.
On information and belief, at the December 13,2070 meeting no members
of the public requested to speak or spoke in favor of the rezoning.
667
56,
On February 7 ,201 1, the County Planning Board again considered Z-11-
.
The expansion of the landfill was the only use considered by the Planning
.
57
Board at the February
58.
7
.201
1
meetins.
At the February 7,201 1 meeting Plaintiffs again spoke against the
rezoning and the landfill expansion.
59.
On February 7,201 1, by a vote of 5-1, the Planning Board recommended
that Defendant approve the rezoning of portions of the two parcels from Rural
Residential to Industrial General.
60.
The Brunswick County Planning Department found that the rezoning was
not consistent with the comprehensive land use plan.
61.
The rezoning was not in accordance with the land use plan because the
parcels do not fit the requirements under the plan for Industrial General zoning,
including, among others, access to a major road, highway, or railroad; the prohibition
under Industrial General on residential uses which are prevalent in the area; and access to
needed emergency services, including fire protection.
62.
There have been no changed circumstances in the area since the adoption
of the 2007 plan which would justify the rezoning.
63.
On April4,201 1, Defendant approved the rezoning of both parcels, in
their entirety, from Rural Residential to Industrial General.
64.
Defendant failed to find, nor was there evidence presented at public
hearings, to find that the land was suitable for all Industrial General uses.
l0
65.
Defendant failed to consider whether the property was suitable for all the
Industrial General uses.
66.
Defendant gave no consideration to the objections raised and the public
oral and written comments submitted against the rezoning.
67
.
On information and belief, at no time have any members of the public
spoken at a Board of Commissioners meeting either in favor of the landfill, or of rezoning
the parcels to Industrial General.
68.
the
On April 18, 2011, Defendant passed a resolution in support of expanding
landfill onto the newly rezoned parcels.
69.
Members of ROCCA spoke during the public hearing process related to
the rezoning decision, as representatives of their own rights and interests as well as the
rights and interests of all members of ROCCA and of residents of Royal Oak.
70.
Parcels 806 and 058 are not appropriate for most uses allowed as of right
under Industrial General zoning because the parcels have neither water nor sewer service.
7l.
Parcels 806 and 058 are not appropriate for most uses allowed as of right
under Industrial General zoning because they do not have access to either a railroad or a
major road.
72.
a
Parcel 806 has road frontage only on Middle River Road NE, which is not
major road.
73.
Parcel number 058 has no road frontage.
74.
Both parcels are immediately adjacent to and contain wetlands.
75.
Both parcels are in the Royal Oak community, apredominantly low
income, majority African American residential community.
11
76.
On information and belief, there is sufficient other land in Brunswick
County that would be more appropriate for a landfill and Industrial General zoning than
the parcels Defendant selected because of the parcels' poor soil, proximity to wetlands,
disproportionate burden on an African American community, and lack of adequate road
access for trucks and emergency services.
77
.
On information and belief, a previous fire on Middle River Road led to the
death of a resident of Royal Oak because Middle River Road was inaccessible to
emergency vehicles.
78.
On information and belief, Defendant has conducted no siting study to
identify other potential locations for
a new
C&D landfill.
79.
Defendant is under no obligation to operate a C&D landfill.
80.
Defendant has no immediate need to operate a C&D landfill.
B
I
.
In Defendant' s 2007 CAMA Land Use Plan, Defendant asserted that the
C&D landfill facility had excess capacity to support the County and potential growth
throughout the planning period (2005-2012).
82.
Defbndant currently contracts with Sandlands C&D Landfill, LLC to
dispose of C&D waste outside of the county.
83.
On information and belief, Sandlands and other private parties have the
capacity to accommodate all C&D waste produced in Brunswick County.
84.
Most uses allowed as of right under Industrial General zoning are
incompatible with a residential community and would have an adverse effect on the
health, safety, quality of life, and property values of the surrounding community.
12
85.
Uses that would be allowed under Industrial General zoning as of right
include, among others, agricultural industry, boat repair and manufacturing, incinerators
for the disposal of animal remains, and both heavy and light industry.
86.
With approval by the planning board or board of adjustment, other uses
contemplated in an Industrial General zone include, among others, correctional facilities,
airports, major utilities, adult businesses, electronic gaming, racetracks, power plants,
junkyards, mining operations, landfills, and hazardous waste facilities.
87
.
The Royal Oak community has been subjected to increased heavy traffic
as a result of the location and operation
88.
of
the current landfill in the community.
The Royal Oak community has been subjected to increased exposure to
noise, including from trucks and heavy equipment as a result of the location and
operation of the current landfill in the community.
89.
The Royal Oak community has been subjected to increased pollution as a
result of the location and operation of the current landfill in the community.
90.
The Royal Oak community has been subjected to foul odors as a result of
the location and operation of the current landfill in the community.
91.
The Royal Oak community has been subjected to the diminution of
property values as a result of the location and operation of the current landfill in the
community.
92.
The Royal Oak community has been subjected to contaminated drinking
water as a result of the location and operation of the current landfill in the community.
93.
The Royal Oak community has been subjected to increased risk of fire as a
result of the location and operation of the current landfill in the community.
t3
94.
The Royal Oak community has been subjected to potential greater impact
on drinking water due to an increased propensity for sink holes near landfills as a result
of the location and operation of the current landfill in the community.
95.
The above-described adverse effects will be greatly increased with the
proposed landfill expansion, or with most uses allowed under Industrial General.
96.
The rezoned property is small relative to the thousands of acres of Rural
Residential property that almost surround it.
.
Defendant failed to provide a clear showing of a reasonable basis for the
100.
The proposed C&D landfill is not needed, as there are currently available
97
rezoning.
private alternatives, including recycling, and hauling the waste to another landfill, as is
already done with a portion of the C&D waste and with all other forms of waste
generated in the County.
I
0l
.
The proposed C&D landfill is of no direct benefit to Plaintiffs and other
residents living near the landfill, or the surrounding community.
102.
Defendant possesses the sole authority to approve and finance the
provision of water and sewer service to Plaintiffs and other residents of Royal Oak.
103.
Upon information and belief, Defendant has encouraged, authorrzed and
facilitated the construction and management of water and sewer projects which
disproportionately serve white residents of Brunswick County.
104.
Upon information and belief, Defendant has received, and continues to
receive, federal Community Development Block Grant ("CDBG") funds that are used for
water and sanitary sewer programs.
14
105.
Plaintiffs have repeatedly requested that Defendant provide them with
water and sewer services.
106.
Defendant has to this day failed to provide water and sewer service to
Plaintiffs.
107.
Within the last three years, ROCCA member Lewis Dozier asked
Defendant why it failed to provide water and sewer access to Royal Oak when it installed
water and sewer lines to the county animal shelter, which is located near the Royal Oak
community.
108.
Defendant did not provide any reasonable explanation for stopping the
water and sewer access at the border of Royal Oak.
109.
Upon information and belief, Defendant has been, and is, generally aware
of the demographic information of the Royal Oak community, and of the disparity in the
community's access to public water and sewer service.
I
10.
Defendant continues to deny access to public water and sewer service to
African American residents' homes, while providing that service to white residents'
homes.
1
I
1.
The contamination of ground water by the landfill and the animal shelter,
and the effect of the sand mines permitted by the Defendant on the quality and quantity
of
the groundwater, have made Defendant's denial of public water even more harmful and
damaging to Plaintiffs.
112.
Defendant provides different public services to the Royal Oak community
because of the race of the residents.
15
1
1
3.
Defendant has disproportionately burdened African American residents of
Brunswick County with the harms that flow from living near Industrial General zoning,
by repeatedly, and as part of a pattern and practice of discrimination, locating Industrial
General zoned parcels near African American communities.
114. Based on an odds ratio test using2010
Census block data, African
Americans have almost double the odds relative to Whites of living within a half mile of
a
LIJLL in Brunswick County. There is a one in
1000 chance that this result is due to
race-neutral decision-makins.
1
15.
The County is only
llyo African American, but 98% of residents living
within 2500 feet of the landfill are African American.
116.
Upon information and belief, Defendant's original siting of the solid waste
landfill and other LULUs in Plaintiffs' community was motivated by racially
discriminatory intent, has a disparate impact on African American residents, and
perpetuates residential segregation.
117.
The presence of a landfill in or near a community makes that communrty a
less desirable place to live.
I
18.
Since the original
landfill siting and the approval and installation of the
current LULIJs, Defendant has continued the pattern and practice of discrimination
against Plaintiffs by deciding, on April 4,201
and on
I to rezone
the parcels Industrial General
April 18,2011, to expand the current C&D landfill.
119.
In selecting the landfill expansion site, Defendant substantially deviated
from its usual decision-making process.
16
120.
Defendant purchased parcels 806 and 058 in June 2010 with the intent of
putting a landfill on the parcels.
121.
Defendant then began the process of rezoning the parcels Industrial
General with the goal of siting the landfill there, without considering all other Industrial
General uses.
122.
Within a few weeks of rezoning the parcel from Rural Residential to
Industrial General, Defendant passed a resolution to expand the current landfill site onto
the new parcels.
123. In selecting the landfill expansion site, Defendant overlooked
the fact that
the site is, for many reasons, not appropriate for such a purpose, or deliberately chose the
site without regard to its legal obligations.
124.
There are other locations, not near or in a predominantly Afncan
American communitv. which are better suited for a C&D landfill than this site.
125.
Defendant failed to consider other sites for the landfill before purchasing
the land.
126.
Defendant does not need to expand the landfill at all, as there are
alternative ways to dispose of future C&D waste which are more feasible than expanding
the landfill.
127.
In selecting the landfill expansion site, Defendant discriminated against
Plaintiffs because of their race, both in purpose and effect, and perpetuated residential
segregation.
128.
Defendant knew or should have known that residents of the predominantly
African American Royal Oak community disproportionately bear the harms that flow
t7
from living near the current landfill and other numerous LULUs near or in their
communitv.
129. Defendant has intentionally
and with discriminatory effect maintained a
pattern and practice of disproportionately burdening residents of the Royal Oak
communitv with LULUs.
130.
The pattern and practice of discrimination by Defendant, described above,
constitutes a continuing violation of the rights of Plaintiffs.
l3 I .
Defendant has denied and interfered with, and is continuing to deny and
interfere with, the availability, habitability, and enjoyment of privileges and conditions
use and ownership of
of
Plaintiffs' property by failing to provide water and sewer services,
the rezoning, the operation of the current landfill, and the landfill expansion.
132.
Because of the contamination from the
landfill and other LULUs located
in their communitv. Plaintiffs cannot make full or safe use of the water obtained from
their wells.
133.
Many ROCCA members, particularly those living closest to the landfill
and the animal shelter, and Plaintiffs Dennis and Rev.
McMillian are forced to purchase
bottled water for drinking and cooking, ffid must pay costs associated with damage to
their wells, hot water tanks, clothes and appliances resulting from contaminated water
and sand that flows into their water supply.
134.
Because of his well water's foul taste, color, odor and affect on his
laundry, since the late 1980s, Rev. McMillian has purchased bottled water for drinking
and cooking, and uses a water softener system. This causes him considerable expense
and inconvenience. These are expenses not borne by white residents with public water.
18
135.
Rev. McMillian also has problems with his septic system, resulting in
more expense and inconvenience. These are expenses not borne by white residents with
public sewer.
136.
The value of Rev. McMillian's property has been substantially and
negatively affected by the denial of water and sewer services, the rezoning, the operation
of the current landfill, and the landfill expansion.
137. Because of his well water's foul taste, color, odor, Plaintiff
Dennis
McMillian buys bottled water for drinking and cooking.
138.
Plaintiff Dennis McMillian had to replace his well several years ago when
his first well collapsed; however, he still frequently finds sand in the water pumped from
his well.
All of these issues have
caused him considerable expense and inconvenience.
For example, although Plaintiff Dennis McMillian has not purchased a water softener
system due to its costliness, he is preparing to purchase a whole-home water filtration
system due to the effect of his well water on laundry, as well as the water's foul taste,
color and odor.
139.
The above-described expenses and inconveniences are not borne by white
residents with public water.
140.
James Hardy is
African American. His family is from Royal Oak. He
lives in Brunswick County and owns substantial property in Royal Oak. Mr. Hardy's
wife, Jacqueline Hardy, is also African American, is from Royal Oak, and owns property
in the community, as does the Hardys' son, Mark Hardy.
l9
l4l.
Mark Hardy owns property at 613 Smith Road in Supply, North Carolina.
Mr. Hardy wants to move into the house at that address, but has not been able to do so
because of the unavailability of potable water from the well.
142. During the summer of 2010, the Hardys sought to put in a well in at 613
Smith Road, but Defendant would not permit the well bEcause the groundwater did not
pass the County's inspection criteria.
143.
The water from the current well at 613 Smith Road is so poor in quality,
including its color, taste and odor, that the house at that address is uninhabitable without
access to public water services.
144. Plaintiffs'
properties are significantly devalued due to the denial of water
and sewer service, and due to the presence of the landfill and the Industrial General
zoning.
145.
ROCCA includes members that own parcels in Royal Oak which, because
they are less than .46 acres in size, cannot be developed without water and sewer service.
146. By denying
water and sewer services to the Royal Oak community,
Defendant is denying and interfering with the availability, habitability, and enjoyment of
privileges of use and ownership of the property of several ROCCA members.
147
.
As a proximate result of Defendant's actions described above, Plaintiffs
have suffered and are continuing to suffer injuries including, but not limited to,
deprivation of their constitutional and statutory rights, economic loss, humiliation,
embarrassment, and emotional distress.
20
FIRST CLAIM FOR RELIEF
(North Carolina Declaratory Judgment Act,
N.C. Gen. Stat. $1-254 et seq,)
148.
The preceding allegations in this Complaint are realleged and incorporated
by reference as if fully set forth herein.
149.
The zoning ordinance Z-11-667 adopted on April 4,201
I
is unlawful,
invalid and void because Defendant failed to consider whether the targeted property was
suitable fbr all uses allowed under the new zoning.
150.
The zoning ordinance
Z-ll-667
adopted on
April 4,201 1 constitutes
spot
zoning, in that it rezones a relatively small area belonging to a single owner which is
largely surrounded by a much larger area uniformly zoned Rural Residential, and
imposes fewer restrictions on the smaller tract than the large area.
151.
The zoning ordinance Z-11-667 adopted on April 4,201 1 is unlawful,
invalid, and void spot zoning because Defendant made no clear showing of
a reasonable
basis for the rezoning.
152.
Parcels 806 and 058 are or contain areas of environmental concern as
defined by the Coastal Area Management Act, N.C. Gen. Stat. $ 113.{-100, et. seq.
153.
The zoning ordinance Z-11-667 adopted on April 4,201
I
is unlawful,
invalid, and void because it does not conform to Defendant's comprehensive land use
plan as required by North Carolina General Statute $ 153A-341 and the Coastal Area
Management Act, N.C. Gen. Stat. $ 1l3A-100, et. seq.
154.
The zoning ordinance
Z-ll-667
adopted on
April 4,201 I is unlawful,
invalid, and void because it was arbitrary and capricious and not based on a rational
consideration of the general welfare of Plaintiffs or the citizens of Brunswick County.
2l
155.
For the above reasons, Plaintiffs are entitled to declaratory judgment that
the rezoning was unlawful, invalid, and
void. Plaintiffs are also entitled to other legal
and equitable relief.
SECOND CLAIM FOR RELIEF
(Violations of the North Carolina Fair Housing Act (NCFHA)'
N.C. Gen. Stat. $ 4lA-l et seq.)
156.
The preceding allegations in this Complaint are realleged and incorporated
by reference as if fully set forth herein.
157.
By the actions described above, Defendant has violated, and continues to
violate, the rights of Plaintiffs under the NCFHA, $ 41A-I et seq.,by:
a. Making unavailable
or denying dwellings to persons because of race, in
violation of N.C. Gen. Stat. $ 41A-4(aX1);
b.
Discriminating on the basis of race in the terms, conditions, or privileges
cf the provision of services or facilities in connection with the sale or
rental of a dwelling, in violation of N.C. Gen. Stat. $ 41A-4(a)(2); and
c.
Interfering with Plaintiffs' exercise or enjoyment of their rights under the
NCFHA, in violation of N.C. Gen. Stat. $ alA-a(e).
158.
By the actions described above, Defendant has engaged in, and continues
to engage in a pattern and practice of discrimination against African American and other
residents of the Royal Oak community due to their race, or the racial composition of their
neighborhood, in violation of the NCFHA.
159.
The past and continuing acts and conduct of the Defendant, described
above, were and are intentional, had and have discriminatory effect, perpetuate residential
22
segregation, and have been carried out willfully and with reckless indifference to the
protected rights of Plaintiffs and to the spirit and purpose of the NCFHA.
160. As a result of the Defendant's
actions, Plaintiffs have suffered and are
continuing to suffer great harm and injury, including but not limited to economic loss,
humiliation, embarrassment, and the deprivation of the right to access, enjoy and use
housing on an equal basis with other persons regardless of race.
THIRD CLAIM FOR RELIEF
(Violations of the Equal Protection Clauseo
North Carolina Constitution Article I, S 19)
161
.
The preceding allegations in this Complaint are realleged and incorporated
by reference as if fully set forth herein.
162.
The above conduct of the Defendant has been taken under color of state
and local law.
163.
By the actions described above, Defendant has deprived, and continues to
deprive, Plaintiffs of the rights, privileges, and immunities secured by the North Carolina
Constitution and other laws.
164.
By the actions described above, Defendant has engaged in, and continues
to engage in a pattern and practice of discrimination against African American and other
residents of the Royal Oak community due to their race, or the racial composition of their
neighborhood, in violation of N.C. Const. Art. I, $ 19.
165.
The past and continuing acts and conduct of Defendant, described above,
were and are intentional, and have been canied out with malice and reckless indifference
to the protected rights of Plaintiffs.
23
166. Defendant has intentionally,
knowingly, and continuously engaged in the
practices described above, with the intent of denying equal housing opportunities and
equal protection of law to Plaintiffs.
PRAYER FOR RBLIEF
WHEREFORE, Plaintiffs request that this Court grant the following relief:
1.
That the Court declare the April 4,2011 rezoning void;
2.
That the Court perrnanently enjoin the Defendant from rezoning parcel 806 and
058 to Industrial General;
3.
That the Court permanently enjoin the Defendant from expanding or otherwise
intensiffing the use of the landfill in the Royal Oak community;
4.
That Plaintiffs have and recover of Defendants in excess of $10,000.00, plus
interest, and any and all other additional amounts as are due and owing at the time
of trial, as more fully described above;
5.
That Plaintiffs be awarded damages including, without limitation, compensatory,
consequential, exemplary, and punitive damages in an amount to be determined at
trial, plus interest, as allowed by law;
6.
That the costs of this action, including attorneys' fees, as allowed by law, be taxed
against Defendants;
7.
That the Court declare the actions of the Defendant complained of herein to be in
violation of the North Carolina Fair Housing Act;
8.
That the Court declare the actions of the Defendant complained of herein to be in
violation of the North Carolina Constitution;
24
9.
That the Defendant, their agents, employees, and successors be permanently
enjoined from discriminating on the basis of against any persons in violation of
the State Fair Housins Act or Article I Section I 9 of the North Carolina
Constitution;
10.
For such other and further relief as the Court deems just and proper.
JURY DEMAND
Pursuant to Rule 38 of the N.C. Rules of
Civil Procedure, Plaintiffs demand a juty
trial on all issues triable as of right.
This 3'd day of June 2011.
UNC CENTER FOR CIVIL RIGHTS
..
Elizabeth Mclaughlin Haddix
NC State Bar # 25818
E-mail : emclaugh@email.unc. edu
Telen\one: (91 9) 843-9807
NC State Bar # 40415
E-mail : pgilbert@emai l.unc.edu
Telephone: (9 1 9) 843 -8197
Facsimile: (91 9) 843-8784
1 01 East Weaver Street
Campus Box 3382
Carborro, NC 27 510
K&L GATES LLP
Ray
25
E Owens, Jr,
Bar # 8439
E,-mail : ray. owens@kl gates. com
Telephone: (704) 331-7 496
Facsimile: (704) 353-3 1 96
K&L GATES LLP
Hearst Tower, 47th Floor
214 North Tryon Street
Charlotte, NC 28202
Att o r n ey s fo r P I a i nt iffs
26
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