- Raleigh has asked the North Carolina Court of Appeals to consider the city's request to dismiss a lawsuit challenging "missing middle" development policies.
- Plaintiffs challenging a 17-townhouse development at the site of a single-family home in the Hayes Barton neighborhood already have appealed a trial court ruling in the case.
- A Superior Court judge dismissed a portion of the lawsuit targeting townhouse developers. The judge allowed the case to continue against Raleigh.
Raleigh is asking North Carolina’s second-highest court to take up a case involving a legal challenge to the city’s “missing middle” development policies. Plaintiffs challenge the city’s removal of development restrictions in 2021 and 2022 to permit more types of housing in residential neighborhoods.
A Wake Court Superior Court judge issued an order in March allowing the suit to proceed against Raleigh. A city petition to the state Court of Appeals Monday asks that court to consider Raleigh’s arguments for having the case dismissed.
“Plaintiffs’ lawsuit jeopardizes affordable housing development across the City of Raleigh, exacerbating the ongoing housing crisis, and for several reasons should have been dismissed from the start,” wrote Raleigh’s lawyers.
The legal dispute started with a plan to build 17 townhouses on the site of a single-family home in the Hayes Barton neighborhood. Raleigh officials approved the plan, but neighbors went to court to block it. A Superior Court judge rejected the original plan in September.
Along with targeting the specific plan for 908 Williamson Drive, plaintiffs sought a declaratory judgment “that the Missing Middle text amendments are invalid,” according to Raleigh’s court filing. Opponents sought an injunction to remove the missing middle text changes from Raleigh’s development ordinance.
Superior Court Judge Patrick Nadolski dismissed the portion of the complaint targeting the townhouse project’s developers but allowed the case to continue against the city.
“Raleigh is facing a housing crisis,” city lawyers wrote. “To provide more affordable housing and more housing choices, the City passed a series of ordinances that, among other things, increased the available ‘by-right’ building types to include what is known as ‘missing middle’ housing (such as townhouses, duplexes, and tiny homes).”
“Plaintiffs’ lawsuit challenged those ordinances in an attempt to prevent a new townhouse subdivision in their neighborhood. However, the impact of the lawsuit extends far beyond a single neighborhood and instead jeopardizes numerous missing middle housing projects throughout the City that are currently in development,” the Raleigh court filing continued.
“But at the same time, Plaintiffs failed to establish standing or exhaust their administrative remedies, and their substantive legal theories were unsupported by applicable law,” city lawyers argued. “The lawsuit should have been dismissed. Instead, the trial court denied the City’s motion to dismiss without explanation — casting doubt on current and future missing middle housing development across all of Raleigh.”
Taking the case now would allow the Appeals Court to address “critical issues” raised by the case, Raleigh lawyers argued.
The plaintiffs, three couples owning homes near the proposed Williamson Drive townhouses, already have appealed the order dismissing the case against the developers.
“Plaintiffs as owners of property either adjoining the Site or in the adjoining area to the Site will be uniquely and adversely affected, and will suffer special damages different than the rest of the community or the public at large, in the form of increased traffic and parking on Williamson and Iredell streets, the decreased safety of the intersection of Williamson and Iredell, … increases in the rate and flow of stormwater, and a diminution in the value of Plaintiffs’ properties,” critics of the missing middle policies wrote in their February 2023 complaint.
“The Plaintiffs have an expectation and right that the zoning of their properties and those of the adjoining area will not be materially altered to detrimentally affect the character of the district, the suitability of uses therein and the value of buildings and land without, at a minimum, notice of such proposed changes adequate enough to alert them that their rights might be affected,” the plaintiffs’ lawyers added.