The Latest on Missing Middle Litigation
If you have been a subscriber to the RaleighForward Newsletter, then you are aware of the pending litigation seeking to invalidate Raleigh’s Missing Middle Ordinance. Just before Thanksgiving, the City, the developer and the Hayes Barton Homeowners argued motions to dismiss the lawsuit filed by the Hayes Barton Homeowners. If you are interested in reading the arguments from each party to the lawsuit, you can read the City’s brief here, the developer’s brief here, the developer’s memorandum in support of its motion to dismiss here, and the Hayes Barton Homeowners brief here. Though there is no timetable for when the judge will issue a decision on the motion to dismiss, it could happen at any moment. However, here are a couple of interesting items of note from these recent filings:
The developer of the proposed townhomes is asking the judge to award it nearly $40,000 for attorneys’ fees. The basis for this request is that the Hayes Barton Homeowners included the developer in its lawsuit challenging the Missing Middle ordinances. Because only the City has the authority to enact ordinances, there was no legitimate reason for suing the developer in its effort to overturn the Missing Middle ordinance adoption. However, once it was sued, the developer had to expend legal fees answering the Complaint and arguing in court why it should not have been sued in the first place. The developer is likely to win this argument. If so, the Hayes Barton Homeowners will be required to reimburse the money spent by the developer to extricate itself from this lawsuit.
The Hayes Barton Homeowners may have pled themselves out of court by arguing that the Missing Middle ordinances are zoning map amendments rather than text changes. If the Court agrees with the Hayes Barton Homeowners, then a 60-day filing deadline applies. Because the Hayes Barton Homeowners waited more than 6 months to sue the City and the developer, the Court could side with the City and toss the entire lawsuit challenging the Missing Middle ordinances. If so, that would leave the Hayes Barton Homeowners with only its parallel lawsuit challenging the Board of Adjustment’s decision upholding the City’s approval of Developer’s preliminary subdivision application.