The North Carolina Court of Appeals ruled Wednesday on a 2023 complaint involving Raleigh’s missing middle housing policy.
Six homeowners—residents of Raleigh’s Hayes Barton neighborhood—may proceed with their lawsuit against the city of Raleigh over its missing middle housing policy, which allows for diverse types of infill development such as townhouses, duplexes, and tiny homes. City leaders adopted the set of ordinances in 2021 and 2022 and city attorneys have warned in court filings that a challenge to the city’s missing middle policy could, if upheld, jeopardize projects across Raleigh.
A concurrent lawsuit against the developers behind a planned townhome project on Williamson Drive that was allowed under the policy cannot move forward, a panel of three judges on the court unanimously ruled. The judgement was first reported by the Carolina Journal.
In their original filing, the homeowners sought to invalidate the missing middle ordinances on the basis that they were illegally enacted and in violation of their rights to due process. The zoning changes should have been enacted as zoning map amendments rather than text changes, which would have involved an approval process with neighborhood meetings and more public engagement to pass, the lawsuit argued. As part of that complaint, the residents sought a permanent injunction against the 17-townhome proposal.
In March 2024, a Wake County Superior Court judge dismissed the part of the complaint against the townhome developers, but allowed the lawsuit against the city to proceed. The homeowners appealed that decision; this week’s judgement upholds it.
“Each of Plaintiffs’ causes of action, including their two requests for declaratory judgment and the alleged due process violation, are supported by one claim: Defendant-City’s adoption of the Missing Middle Ordinances was improper,” the judgement, authored by appellate court judge Jeffery Carpenter, states. “This claim is the basis for the actual controversy giving rise to the declarations and the alleged due process violation—all of which exclusively concern Defendant-City.”
The opinion noted that if the homeowners win their case against the city, it may entitle them to “declaratory or injunctive relief;” therefore, the outcome of the case against the developer depends entirely on “the claim and causes of action asserted” against the city.
In July, the developers, Johnny Chappel and 908 Williamson LLC, received approval from Raleigh’s Board of Adjustment, a quasi-judicial body that makes decisions on “appeals for variances, special exceptions, and interpretations in the zoning regulations” on a revised plan for the townhomes project.
In their petition to the appellate court requesting dismissal of the homeowners’ case against the city, attorneys for the city of Raleigh wrote that the homeowners’ lawsuit has far-reaching impacts on future homebuilding in Raleigh and that the lawsuit should have been dismissed.
“Raleigh is facing a housing crisis,” the petition states. “…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 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.”
The lawsuit against the city will now move to a trial court. According to data from the city, a total of 526 new housing units have been constructed under Raleigh’s missing middle policy. An additional 4,369 units have been approved or are under review.
Send an email to Wake County editor Jane Porter: [email protected]. Comment on this story at [email protected].