Hayes Barton Homeowners Sue Raleigh to Overturn Missing Middle Housing Reform
Six homeowners in the Hayes Barton neighborhood (“Plaintiffs”) filed a lawsuit on March 3, 2023, seeking to void Raleigh’s Missing Middle housing reforms. The Complaint can be read here (“Lawsuit”). The Plaintiffs own homes adjacent to or near the 18 townhomes being built on 2.3 acres approved by the City on December 30, 2023 (“Townhomes”). The approval was made possible because of Council’s Missing Middle text changes approved last year (TC-5-20, TC-20-21, and TC-3-22 (“Missing Middle Reforms”). These reforms allowed more housing types, including ADUs, duplexes, triplexes and townhouses in Raleigh’s low density residential districts (Residential-4 and Residential-6) and within or near the City’s designated High Frequency Transit Areas.
The Lawsuit seeks a permanent injunction that would void the Missing Middle Reforms. Though the Plaintiffs also named the owner and developer of the Townhomes, the lawsuit does not expressly ask to void the approved Townhomes permit. Depending on how far along the construction is, there could be an argument that voiding the Missing Middle Reforms also stops the construction of the Townhomes. The Plaintiffs may have sued the developer and owner of the Townhomes to put them on notice that the Missing Middle Reforms are being challenged so they can try to argue that further development / construction activity should stop until the validity of the Missing Middle Reforms has been settled by the court.
The Plaintiffs are essentially arguing that the Missing Middle Reforms were legally zoning map amendments (“Rezonings”) rather than text changes to the Unified Development Ordinance. This is the key to whether the Lawsuit succeeds. Because if the Missing Middle Reforms were Rezonings, the City was required to send mailed notice to every affected property owner, along with other procedural requirements for rezonings, including mandatory neighborhood meetings. Because the City treated the Missing Middle Reforms as text changes, it used published notice rather than mailed notice, which does not require neighborhood meetings. If the Court agrees with Plaintiffs’ assertions that the Missing Middle Reforms were rezonings, then all of the Missing Meeting Reforms would be void and the City would have to restart the Missing Middle Reforms and provide mailed notice to all affected property owners.
The fundamental issue at stake in the Lawsuit is whether ADUs, duplexes, triplexes and townhomes are fundamentally different land uses than single-family dwellings. If the Court decides they are, then the Plaintiffs are likely to prevail. If the Court decides that residential uses are all fundamentally the same, then the Lawsuit is likely to fail and the Missing Middle Reforms will survive. The Plaintiffs also allege that the proposed Townhomes will cause “special damages” to the Plaintiff’s property that are unique and would not damage other property owners in the City. The special damages alleged in the Lawsuit are increased stormwater runoff, increased traffic, decreased traffic safety and damage to the Plaintiff’s property values. Proving special damages will be a difficult hurdle to overcome because in order to prove special damages, the Plaintiffs will be required to hire expert witnesses to testify that the Townhomes will in fact cause the special damages asserted in the Lawsuit.
Filing the Lawsuit is only the first step in challenging the City’s Missing Middle Reforms. There is a long way to go before a decision is made by a judge. The next step in the litigation will be for the City and the other Defendants to file Answers to the Lawsuit, along with likely Motions to Dismiss and Motions for Summary Judgment. That is likely to occur in the next 30-60 days. This phase of any case is called “motion practice.”
The first substantive decision in the case will be a ruling on any Motions to Dismiss. Motions for Summary Judgment will likely be the next important motions the court is likely to consider. That is essentially a way for the parties to argue that there are no undisputed facts and that the legal arguments are so clear that there is no need for a trial. Trials in these kinds of cases occur only when there are factual disputes. Issues like whether the Missing Middle Reforms are rezonings or text changes are purely legal issues that a judge is likely to decide before trial through Summary Judgment. Determining whether Plaintiffs incurred special damages affecting them or their property will likely require a trial.
It will be easier to determine who is more likely to prevail in the Lawsuit once the City and the other Defendants file their Answers to the Complaint, along with Motions to Dismiss and Motions for Summary Judgment.
RaleighForward will follow this case closely and provide updates as it proceeds through the judicial process. In the meantime, please consider signing up for our newsletter.