UYLV ULL IIS STATE OF NORTH CAROLINA (°}{.£ INTHE GENERAL COURT OF JUSTICE ; SUPERIOR COURT DIVISION COUNTY OF WAKE 15 09 CVs AMERICAN ASSET CORPORATION and” BRIER CREEK ASSOCIATE$ LIMITED | PARTNERSHIP, VERIFIED COMPLAINT FOR Plaintiffs, DECLARATORY JUDGMENT, v. MANDATORY INJUNCTI (WRIT OF MANDAMUS), CITY OF RALEIGH and the RALEIGH CITY ere COUNCIL, Defendants ‘NOW COMES Plaintiffs, complaining and alleges as follows PARTIES 1. Plaintiff Brier Creek Associates Limited Partnership (“Brier Creek Associates”) is a limited partnership duly organized under the laws of the State of Delaware, in good standing under the laws of the State of North Carolina, and doing business in Wake County, North Carolina, 2. Plaintiff American Asset Corporation is a corporation duly organized and existing under the laws of the State of North Carolina, doing business in Wake County, North Carolina 3. American Asset Corporation is the developer, broker and manager for Brier Creek Associates’ real property assets in Wake County, North Carolina (Brier Creek Associates and ‘American Asset Corporation may hereinafter be referred to collectively as “Plaintiffs") 4, Defendant City of Raleigh (“City”) is a municipal corporation, duly organized and existing under the laws of the State of North Carolina, 5. Defendant Raleigh City Council (“City Council”) is the governing body of the City,FACTS The Property 6. Brier Creek Associates owns certain real property (the “Property”) consisting of approximately 1.55 acres located in the southeast corner of the intersection of T. W. Alexander Drive and Sporting Club Drive, and identified by Wake County Parcel Identification Number 0768-08-4863. 7. The Property is located within the corporate limits and planning jurisdiction of the City, 8. The Property was zoned Thoroughfare District ~ Conditional Use District in 1996, by City of Raleigh rezoning case Z-65-96 (“Case Z-65-96") 9. The Thoroughfare District is one of the most flexible zoning districts in the City, and allows some of the most intense land uses. 10. Some of the land uses permitted in the Thoroughfare District include bars; taverns, lounges, nightclubs; the storing; sorting and breaking of bulk products; restaurants with drive-through windows; hotels, motels; manufacturing facilities; pawn shops; warehousing or distribution centers; car washes; landfills; shopping centers, adult establishments; kennels or catteries; heliports; and telecommunications towers ML. Case Z-65-96 rezoned approximately 1,999 acres of land, including the Property The entire 1,999 acres were rezoned to Thoroughfare District ~ Conditional Use District to permit the development of a large, integrated mixed-use development. 12, Case 2-65-96 included conditions intended to facilitate development of an integrated, mixed-use community13. Condition 1 and Exhibit C-1 to the conditions divide the 1,999 acres into four land areas, and allocates development intensities and types of land uses for each area 14, The Property is located within Area B. 15. The land use table, incorporated into Case 2-65-96, last revised September 2003, Provides that Area B can be developed with up to 670 acres of residential uses, 3,550 residential units, 187.5 acres of office/institution/civie/services uses, 125 acres of ‘commercial uses, and 100 acres of industrial uses. 1, The Proposed Use is a commercial use under the Raleigh City Code and applicable zoning conditions. 17. Pursuant to Case Z-65-96, this area has been planned as an integrated, mixed-use community consisting of residential, in tional, commercial and industrial uses since 1996 18. The 1,999-acre development is now known as the Brier Creek community, 19. American Asset Corporation is the master developer of the Brier Creek community. 20, As master developer of Brier Creek, zAmerican Asset Corporation’s vision for the Property has always been to develop it for commercial uses, 21. This vision is consistent with the recommendations of the adopted 1989 Raleigh Comprehensive Plan (“Comprehensive Plan”), which calls for a mixture of higher intensity uses for the Property. The Site Plan 22. On or about August 19, 2008, a site plan (the “Site Plan”) was filed with the City {0 permit the development of a Firestone automotive service and repair facility (the “Proposed Use”) on the Property,23. Site plans are reviewed and approved pursuant to Raleigh City Code section 10- 2132.2, “Site Plan” (the “Site Plan Standards”) 24 Once a site plan applicant makes a prima facie showing that the site plan meets ‘he applicable site plan standards, the applicant is entitled to site plan approval as a matter of law. 25. The Site Plan was prepared by a registered professional engineer 26. The Proposed Use is a permitted use on the Property pursuant to the Raleigh City Code and applicable zoning conditions. 27. ‘The City accepted and processed the Site Plan, and assigned the Site Plan case number SP-72-08, 28. Staff members from various City departments, including but not limited to the Planning Department, Public Works Department, Public Utilities Department, Inspections Department, and Parks & Recreation Department (collectively, the “City Staff’) extensively reviewed the Site Plan 29. In fact, the City Staff ultimately provided five (5) rounds of comments to the Site Plan, 30. After each review, Plaintiffs revised the Site Plan to address City Staff’ comments, Plaintiffs Work with Robert Eastmann 31. Once the Site Plan was filed with the City, Robert Eastman contacted Plaintiffs on behalf of people opposed to the Site Plan. 32. Upon information and belief, Robert Eastmann was the Chair of the Brier Creek Legislative Action Committee33. Upon information and belief, Mr, Eastmann’s role as Chair of the Legislative Action Committee included providing the community with information regarding the Site Plan 34. In an effort to provide transparency in the development process, Plaintiffs shared revised Site Plans with Mr. Eastmann 35. Upon information and belief, Mr, Eastmann shared this information with members of the community, including the opponents 36. Plaintiffs met with the opponents at least three times to discuss the Site Plan. 37, Mr. Eastman communicated frequently with Plaintiffs regarding the Site Plan 38. Upon information and belief, Mr. Eastmann’s communications to Plaintiffs were on behalf of the opponents. 39. Upon information and belief, Mr. Eastman, on behalf of the opponents, communicated frequently with City Staff regarding the Site Plan, received copies of City Staff Feview comments, provided City Staff with input related to the Site Plan, and communicated with staff’ members of the state Division of Water Quality regarding the Site Plan’s proposed stormwater control measures 40. Upon information and belief, Mr. Eastmann communicated with the opponents regarding the Site Plan and his communications with Plaintiffs and City Staff. 41. In response to comments and concerns expressed by Mr, Eastmann on behalf of the opponents, and in order to address the concerns of the opponents generally, Plaintiffs made ‘numerous changes to the Site Plan, including but not limited to the following 8) Reoriented the building, so that the service bays face away from the residences, b) Changed building exterior to all brick, with two colors of brick; ©) Moved dumpsters farther away from the residences;4) Enhanced landscaping throughout the Property, especially along Sporting Club Drive, along the back wall of the building facing the residences, and along the retaining wall facing the residences, such that landscaping exceeded the applicable standards by forty-seven percent (47%) e) Reduced amount of impervious surface and reoriented the impervious surface away from the residences; 1) Proposed dedication of .452 acres, instead merely reserving .397 acres, for a greenway; 8) Required servicing of dumpsters to be performed during weekday business hours, h) Provided an underground stormwater detention facility instead of a sand filter; i) Moved the interior office space to the other end of the building, closer to the residences; and i) Moved the Oil/Water Separator farther away from the residences. 42. Upon determining that the Site Plan complied with all of the Site Plan Standards, City Staff scheduled a public hearing on the Site Plan for July 28, 2009 (the “July 28 Hearing”) 43. Owners of property within one hundred (100) feet of the Property received proper notice of the July 28 Hearing as required by Raleigh City Code section 10-2132.2, “Site Plan.” 44. On Friday, July 24, 2009, four days prior to the July 28 Hearing, Mr. Eastman emailed Plaintiffs indicating that he no longer lived in the neighborhood and that John Voultos ‘would now be representing the opponents with regard to the Site Plan. 45. In response, Plaintiffs met with Mr. Voultos and other opponents the very next day, on Saturday, July 25, 2009, to discuss the Site Plan and the opponents’ questions and concerns related to the Site Plan.Planning Commission Hearing on the Site Plan 46. The Planning Commission has authority to review and approve the Site Plan Pursuant to Raleigh City Code section 10-2132.2, “Site Plan,” 47, Prior to approving the Site Plan, the Planning Commission ‘must find that the Site Plan complies with the Site Plan Standards 48. At the July 28 Hearing, City Staff provided the Planning Commission with a Staff Report for the Site Plan. ‘The Staff Report confirmed that the Site Plan met or exceeded the Site Plan Standards, *®- At the July 28 Hearing, City Staff gave a presentation on the Site Plan and the Staff Report, which confirmed that the Site Plan met or exceeded the Site Plan Standards, 50. Chapter 5, Part 12 of the Raleigh City Code, “Noise” (the “Noise Ordinance”) Provides that the maximum noise level in the Thoroughfare District zoning district is 70 d(B)A. SI. According to the Noise Ordinance, the maximum decibel level in a residential zoning district is 55 d(B)A. 52. At the July 28 Hearing, Plaintiffs offered-a condition of site plan approval “equiring that the Proposed Use comply with the more restrictive noise limitation of 55 d(BA instead of the otherwise applicable maximum noise level of 70 d(B)A. °3. Upon information and belief, the commercial uses located north of the Property, across T. W. Alexander Drive, are not required to meet the more restrictive residential decibel level limitation 54. The neighborhood located to the south of the Property is zoned Thoroughfare District ~ Conditional Use District (same as the Property), and is subject to the 70 d(BYAmaximum noise level, not the more restrictive 55 4(B)A maximum noise level for residential districts, 55. At the July 28 Hearing, Plaintifts Submitted into evidence testimony, expert testimony, and documentary evidence that the Site Plan complied with the Site Plan Standards, 56. The testimony, expert testimony, and documentary evidence submitted into evidence by Plaintiffs at the July 28 Hearing, constituted substantial, competent and material evidence that the Site Plan met and/or exceeded the Site Plan Standards, 57. At the July 28 Hearing, Victor Lebsock, the City’s Senior Greenway Planner, acknowledged that he worked carefully with Plaintiffs regarding a greenway to be located on the Property. 58 Mr. Lebsock stated that the proposed greenway dedication exceeded. the es se rrr important link in the Brier Creek greenway 59. No one speaking against the Site Plan during the July 28 Hearing presented any expert testimony with regard to the Site Plan’s compliance with any of the Site Plan Standards. 60. Instead, the testimony and documents provided by the opponents consisted of only speculative lay opinion and/or hearsay. 61. The lay opinion testimony and documents provided by the opponents at the July 28 Hearing did not constitute substantial, competent and material evidence that the Site Plan does not meet any of the Site Plan Standards 62, The Planning Commission continued the public hearing to the August 11, 2009 meeting (the “August 11 Hearing") to provide more time for the opponents to discuss the Site Plan with Plai63. A. Haeussler to discuss their request for Plaintiffs to undertake a noise study and to reduce the hours of operation for the Proposed Use. 64. At this meeting, Plaintiffs voluntarily agreed to limit the Sunday operating hours to 12:00 p.m. t0 6:00 pm 65. Mr. Voultos sent an email to all members of the Planning Commission asking for a deferral of the Site Plan so that the opponents could have Additional time to perform a noise study 66. In support of this request, Mr. Voultos attached a signed contract with Stewart Acoustical Consultants. The offer was signed by Noral Stewart on August 7, 2009, and the Contract was signed by Mr. Voultos in his individual capacity on August 8, 2009, 67. At the August 11 Hearing, City Staff again presented the Site Plan and the Staff 68 At the August 11 Hearing, Plaintiffs reiterated their agreement to restrict the hours of operation on Sundays to 12:00 noon to 6:00 pm, 6°. Upon information and belief, the proposed hours of operation for the Proposed Use were more restrictive than other commercial uses located in the immediate vicinity of the Property. The other commercial uses located in the immediate vicinity of the Property include Auto Bell Car Wash and Frankie’s Fun Park, which, upon information and belief, has multiple outdoor go-cart tracks, bumper boats, batting cages, amusement rides and a miniature golf course,70. At the August 11 Hearing, Mr. Voultos asked the Planning Commission to defer further action on the Site Plan until the opponents had an opportunity to undertake the noise study, 71. At the August 11 Hearing, based on the Staff Report and the testimony, expert ‘estimony and documentary evidence submitted into evidence by the Plaintiffs, the Planning Commission approved the Site Plan by an 8-2 vote (the “Site Plan Approval”), 72. The Planning Commission concluded that the Site Plan complied with the Site Plan Standards, 73. The testimony, expert testimony, and documentary evidence submitted into evidence by Plaintiffs atthe July 28 Hearing and the August 11 Hearing, constituted substantial, Competent and material evidence that the Site Plan met or exceeded the Site Plan Standards 74 The Staff Report and City Staff presentation of the Site Plan constituted Substantial, competent and material evidence that the Site Plan met or exceeded the Site Plan Standards. 7S. —The lay opinion testimony, hearsay and documents provided by the opponents at the July 28 Hearing and August 11 Hearing did not constitute substantial, competent and material evidence that the Site Plan did not comply with the Site Plan Standards. 76. The two Planning Commission members who voted against the Site Plan were both candidates for the District E seat on the City Council, the District in which the Property is located 77. ‘The municipal election was less than two months away when the Planning Commission approved the Site Plan on August 11, 2009. -10-80. On or about August 11, 2009, Mr. Haeussler (the “Site Plan Appellant”) Submitted a letter to the City Planning Director, attempting to appeal the Site Plan Approval (the 82. The appeal leter only states general concems related to the Site Plan, including hovse, traffic and safety, hours of operation, and property values : 83. The appeal letter fails to make any argument or state any basis for denying the Site Plan 84 The appeal letter fails to state any reason why the Site Plan does not meet any of the Site Plan Standards, but instead simply asserts: “I do not believe the land use and structure contained within this planning proposal ae in the best interests of the citizens of Raleigh.” 85, The appeal letter fails to identify any error made by the Planning Commission in approving the Site Plan, 86. Raleigh City Code section 10-2132.2, “Site Plan” Tequires the owner(s) of Property to file the appeal letter. -e87. Similar types of requests impacting a property owner’s ability to challenge a land use decision by the City or to encumber a property within the City requires all record owners of the property to sign the relevant form, such as a Rezoning Valid Statutory Protest Petition, a Street Name Change Petition, a Financial Responsibility Ownership Form, a Petition to Amend the Official Zoning Map, and a Petition for Annexation 88. Only Mr, Hacussler signed the letter appealing the Site Plan Approval. 89. However, Mr. Haeussler is only a partial owner of the property located at 9300 Palm Bay Circle, Raleigh, NC 27617, as evidenced by the deed recorded in Book 13182, Pages 2541-2544 in the Wake County Registry. 90. Plaintiffs’ legal counsel objected to the appeal letter. City Council Hearing on the Appeal of the Site Plan 91. The City Code grants City Council the authority to hear properly filed appeals of site plan decisions by the Planning Commission, 92. Ignoring Plaintiffs’ objection to the appeal letter, a hearing on the appeal of the Site Plan Approval was placed on the agenda for the September 1, 2009 meeting of the City Council (the “September 1 Hearing”) 93. On August 27, 2009, Plaintiffs’ legal counsel provided Mayor Charles C. Meeker (“Mayor Meeker”), all members of the City Council and the City Attorney’s Office a ‘memorandum describing the legal standard for site plan approval 94, The City Council and City Attorney’s Office accepted the memorandum and never objected to the substance or conclusions thereof 95, At the September 1 Hearing, Planning Commissioner Tom Bartholomew and the City Planning Director presented the Certified Recommendation of the Planning Commission -12-OT sc oh a 7 6. The Certified Recommendation confi Site Plan Standards testimony and/or hearsay 99. The Site Plan Appellant failed to Provide any expert testimony related to the Site Plan Standards, 100. The Site Plan Appellant never submitted a noise study into evidence. 101. The Site Plan Appellant did not provide any substantial, competent and material evidence that the Site Plan did not comply with the Site Plan Standards 102. At the September I Hearing, Plaintifs’ legal counsel objected to the nature of | the hearing, 103. At the September 1 Hearing, Plaintiffs’ legal counsel objected to the testimony Provided by the Site Plan Appellant on the basis that the testimony consisted of only lay opinion ‘estimony and/or hearsay, and failed to include any expert testimony related to the Site Plan's compliance with the Site Plan Standards. 104. At the September 1 Hearing, Plaintiffs submitted into evidence testimony, expert testimony and documentary evidence that the Site Plan complied with the Site Plan Standards 105. The testimony, expert testimony and documentary evidence submitted into evidence by Plaintiffs at the September | Hearing constituted substantial, competent and material evidence that the Site Plan met or exceeded the Site Plan Standards -13-documents to the City Council. 108. The additional written documents included information from a new witness, Donald d’ Ambrosi 109. Mr. d’Ambrosi had not p: and even stated that the entire Property might have been previously dedicated or reserved as greenway 111. The supplemental written documents provided by the Site Plan Appellant do not include any expert testimony regarding the Site Plan’s compliance with the Site Plan Standards 112. The information provided by the Site Plan Appellant and Mr. d’ Ambrosi failed to establish any foundation to qualify the Site Plan Appellant or Mr. d’ Ambrosi as expert witnesses, 113. The written document from Mr. d’ Ambrosi does not constitute expert testimony. 114. The supplemental written documents provided by the Site Plan Appellant do not constitute substantial, competent and material evidence that the Site Plan does not comply with the Site Plan Standards 115, The testimony provided by the Site Plan Appellant at the September 1 Hearing and in the supplemental written document provided on September 10, 2009 does not constitute substantial, competent and material evidence that the Site Plan does not meet the Site Plan Standards, -14-EEE 116. On September 10, 2009, Plaintifts submitted into evidence additional written ‘estimony and documentary evidence, supplementing the testimony and evidence submitted into ‘he record by Plaintiffs at the September 1 Hearing 117. The additional material submitted into evidence by Plaintifis did not include information from any new witnesses 118. All of Plaintiffs’ witnesses testified at the September 1 Hearing 119. The ite Plan Appellant did not attempt to cross-examine any of Plaintiffs” witnesses during the September 1 Hearing 120, The testimony, expert testimony and documentary evidence submitted into the record by PlaintiffS at the September 1 Hearing constituted substantial, competent and material evidence that the Site Plan met or exceeded the Plan Standards 121. The supplemental evidence submitted into the record by Plaintiffs on September 10, 2009 constituted substantial, competent and material evidence that the Site Plan met or exceeded the Site Plan Standards, 122. At no time did the Site Plan Appellant object to any testimony or evidence submitted by Plaintiffs into the official record of the hearing on the Site Plan 123, On September 14, 2009, Plaintiffs’ legal counsel submitted a written objection to the City Attorney's Office, objecting to the additional material submitted by the Site Plan Appellant on September 10, 2009, 124. On the same day, the City Attorney’s Office responded to Plaintiffs’ objection by stating, “The City Council can decide the ground rules for processing the responses.” ese127, 129. On September 16, 2009, the City Attomey’s Office asked Chad Essick, Attomey with Poyner & Spruill in Raleigh, to re of law. 130. Mr. Bssick never appeared Publicly before the Planning Commission or City Council on behalf of any party to this matter 131. Mr. Essick prepared draft findings of fact and conclusions of law 132. The City Attomey's Office and Mr Essick exchanged several drafts of the findings of fact and conclusions of law. 133. In one draft, Mr. Essick was asked to “contact Don” to gather additional information to supplement the information Provided to City Council on September 10, 2009. 154. Upon further information and belief, “Don” refers to Donald d’ Ambrosi. 135. In that same draft, the City Attomey’s Office stated, “I think there are facts not ‘Yet in evidence which should be included,” -16-137, lan, 138. The drat Findings of Fact and Conclusions of Law did not Tefer to whether the City has an interest in the Property, 139, 141 -17-SEE!" 143, Plaintiffs objected to Finding of Fact 5 because the Site Plan Standards provided the City Council with unfettered discretion and permitted decisions based on novel, ad hoc Procedures not set forth in the Raleigh City Code 144, Plait S objected to Findings of Fact 7, 9, 10, 13, 14, 15, 19, 20, 21 and 22 because they were not supported by substantial, competent, and material evidence; they were not Supported by expert testimony; they were contrary tothe expert testimony provided by Plaintiffs; and they were inconsistent with City Staff's recommendation and the Planning Commission’s Certified Recommendation, 145. Plaintiffs objected to Findings of Fact 8 and 16 because they were not supported by substantial, competent, and material evidence; they were not supported by expert testimony; they were contrary to the expert testimony provided by Plaintiffs; they misconstrued the Site Plan Standards, and they were inconsistent with City Staf’s recommendation and the Planning Commission’ s Certified Recommendation. 146. Plaintiffs objected to Finding of Fact 17 because it was not supported by substantial, competent, and material evidenc ; it misconstrued the Site Plan Standards; it was inconsistent with City Staff's recommendation and the Planning Commission’s Certified Recommendation; and it contained factually erroneous information and directly contradicted evidence in the record 147. Plaintiffs objected to Finding of Fact 18 because it was not supported by substantial, competent, and material evidence; it was not supported by expert testimony; it was contrary to expert testimony provided by Plaintiffs, it misconstrued the evidence in the record; and it was inconsistent with the City Staff's recommendation and the Planning Commission’s Certified Recommendation. -18-148. Plaintiffs objected to Finding of Fact 23 because it was not supported by substantial, competent, and material evidence; and it was inconsistent with City Staff's recommendation and the Planning Commission’ s Certified Recommendation. 149. Plaintiffs objected to the Conclusions of Law because they were based on the Findings of Fact that were not supported by substantial, competent and material evidence, and include misstatements and mischaracterizations of evidence in the record 150. The municipal election was held on October 6, 2009, the day before the October 7, 2009 City Council meeting. 151, All City Council members were candidates for re-election, except for Councilor Isley. 152. Councilor Isley was the lone vote against denying the Site Plan 153. Upon information and belief, a campaign flyer paid for by the Committee to Elect. Russ Stephenson was circulated at the Brier Creek voting precinct and in the Brier Creek area on the day of the election, which was one day prior to the City Council’s official denial of the Site Plan. 154, This campaign flyer prominently displays an endorsement from the Site Plan Appellant of City Councilor Russ Stephenson as “a strong advocate for our neighborhood during the Firestone case.” 155. At the October 7, 2009 City Council meeting, Mayor Meeker acknowledged the receipt of the objection letter provided by Plaintiffs’ legal counsel 156. Despite the numerous objections raised by Plaintiffs, the City Council did not discuss the objections or the proposed Findings of Fact and Conclusions of Law -19-157. Instead, without any discussion, the City Council adopted the Findings of Fact and Conclusions of Law as supplied by the City Attomey’s Office by a 7-1 vote, thereby officially denying the Site Plan 158. The City Council’s denial of the Site Plan on October 7, 2009 was the official action of the City. 159. The City Council’s decision to deny the Site Plan was not supported by substantial, competent and material evidence in the record. 160. Soon after the vote to deny the Site Plan, Mayor Meeker asked if the City Attorney had any report other than a closed session item, 161. Shortly thereafter, the City Council went into closed session. 162. According to Mayor Meeker, the City Council went into closed session to discuss matters concerning the MacGregor Development proposal and potential litigation 163. It was unclear for what purposes the City Council went into closed session. 164. Upon information and belief, the City Council discussed matters related to the ~-Site Plan and/or the Property. 165. Upon information and belief, the discussion by the City Council regarding matters related to the Site Plan and/or the Property affect or will affect Plai iffs’ interests. 166. The motion to close the meeting did not contain a cite or reference to one or more of the permissible purposes for going into closed session, as required by N.C. Gen. Stat. § 143- 318.11 167. ‘The motion to go into closed session failed to state the name or citation of the law that renders the information to be discussed privileged or confidential, as required by N.C. Gen. Stat. § 143-318.11 -20-—————— l— 168. The motion to go into closed session failed to identify the parties to the litigation on which the City Council expected to receive advice during the closed session, as required by NC. Gen, Stat. § 143-318.11 169. Upon conclusion of the closed session, Mayor Pro-Tem James West provided a report on the closed session 170. In the report, Mayor Pro-Tem James West only referenced the MacGregor Development proposal 171, No reference was made to the City Attorney’s report or the potential litigation, 172. Upon information and belief, the City has waived its immunity from claims for damages by the purchase of insurance. FIRST CLAIM FOR RELIEF (Declaratory Judgment) 173, Plaintiffs reallege and incorporate by reference the foregoing allegations as if fully set forth herein. 174. Plaintiffs are aggrieved by the City Council’s denial of the Site Plan, in that the Plaintiffs have suffered and will continue to suffer the loss of a right to receive approval of the Site Plan pursuant to the City Code 175. Plaintiffs have suffered and will continue to suffer pecuniary loss as a result of the Council's denial of the Site Plan. 176, ‘Thus, an actual case or controversy has arisen among the parties thet gives the Cour jurisdiction to issue a declaratory judgment pursuant to NC. Gen, Stat. § 1-253 et seq. 177. The City Council acted arbitrarily and capriciously in making its decision to deny the Site Plan, eo178. ‘The City Council’s Findings of Fact are not supported by substantial, competent and material evidence. 179. The City Council's Conclusions of Law are based on Findings of Fact that are not supported by substantial, competent and material evidence. 180, By denying the Site Plan, the City Council exceeded the scope of its review and acted in excess of its authority 181. Based upon the foregoing, Plaintiffs are entitled to a judgment declaring that: a) Plaintiffs submitted substantial, competent and material evidence that the Site Plan met or exceeded the Site Plan Standards, b) the Site Plan Appellant did not submit substantial, competent and material evidence that the Site Plan did not meet the Site Plan Standards, c) the City Council’s denial of the Site Plan is not based on substantial, competent and material evidence in the record; and, 4) the City Council’s denial of the Plan is unlawful, invalid and void SECOND CLAIM FOR RELIEF (Declaratory Judgment that the Site Plan Appeal is Invalid and the Site Plan is Approved) 182. Plaintiffs reallege and incorporate by reference the foregoing allegations as if fully set forth herein 183, The Site Plan Appellant failed to comply with the City Code in filing his appeal 184, The appeal letter is signed by less than all of the owners of the property. 185. The appeal letter does not provide reasons and merits as to the foundation of the appeal 186, Based upon the foregoing, Plaintifis are entitled to a judgment declaring the following -22-@) the appeal letter does not contain the signatures of the owners of the property within 100 feet of the Property in violation of Raleigh City Code section 10- 2132.2, “Site Plan”; b) the appeal letter does not provide reasons and merits as to the foundation of the appeal in violation of Raleigh City Code section 10-2132 2, “Site Plan”; c) the appeal of the Site Plan is invalid; 4) the Certified Recommendation of the Planning Commission was not properly appealed, ©) __ the Certified Recommendation of the Planning Commission is the final, official action of the City; 1) the Site Plan was not properly before the City Council; and therefore, 8) the Site Plan Approval is approved as of August 11, 2009, the date of the Planning Commission vote approving the Site Plan THIRD CLAIM FOR RELIEF (Permanent Mandatory Injunction or Writ of Mandamus) 187. Plaintiffs reallege and incorporate by reference the foregoing allegations as if fully set forth herein, 188, Plaintiffs have a clearly established right under City Code section 10-2132.2, “Site Plan” to the approval of the Site Plan, 189. The Plaintiffs have suffered and will continue to suffer the loss of a right to receive approval of the Site Plan. Further, the Plaintiffs have suffered and will continue to suffer pecuniary loss as a result of the City’s denial of the Site Plan. 190. Based on the foregoing, the Plaintiffs are entitled to a permanent mandatory injunction or writ of mandamus ordering the City Council to approve the Site Plan aaFOURTH CLAIM FOR RELIEF the City’s Actions Deprived Plaintiff's of their Constitutional Rights to Procedural Due Process) (Declaratory Judgment that 191. Plaintiffs reallege and incorporate by reference the foregoing allegations as if fally set forth herein, 192. The character of the City’s actions taken in relation to the Property, including without limitation those described above, were arbitrary, capricious and malicious, and were not Consistent with the procedural requirements of applicable local, state or federal law. 193. The City refused to allow Plaintiffs to challenge the additional material provided by the Site Plan Appellant to the City on September 10, 2009. 194. The City refuused to allow Plaintiffs to challenge and cross-examine the written testimony and documentary evidence provided to the City by the Site Plan Appellant’s new witness, Donald d’ Ambrosi 195. The City’s denial of the Site Plan was arbitrary, capricious and malicious, and ‘was not in furtherance of any legitimate governmental purpose. 196, Plaintiffs are entitled to a declaration that the actions of the City in relation to the Plaintiffs and Property constitute a violation of the Plaintiffs’ rights to procedural due process Pursuant to Article I, Section 19 of the North Carolina Constitution and the Fourteenth Amendment to the United States Constitution. FIFTH CLAIM FOR RELIEF (Declaratory Judgment that the City’s Actions Deprived Plaintiffs of their Constitutional Rights to Substantive Due Process) 197. Plaintiffs reallege and incorporate by reference the foregoing allegations as if fully set forth herein -24-EEE SS'=SCSSSSSSS rr 198. The character of the City’s actions taken in relation to the Property, including without limitation those described above, were arbitrary, capricious, malicious, without a rational basis and were notin furtherance of any legitimate governmental Purpose. 199. The City’s denial of the Site Plan was arbitrary, capricious and malicious, and ‘was notin furtherance of any legitimate governmental purpose 200. Plaintiffs are entitled to a declaration that the actions of the City in relation to the PlaintiffS and Property constitute a violation of the Plaintiffs’ rights to substantive due Process Pursuant to Article I, Section 19 of the North Carolina Constitution and the Fourteenth Amendment to the United States Constitution. SIXTH CLAIM FOR RELIEF Declaratory Judgment that the City’s Actions Deprived Plaintiffs of their Constitutional Rights to Equal Protection under the United States Constitution) 201. Plaintiffs reallege and incorporate by reference the foregoing allegations as if fully set forth herein. 202. At the September 1 Hearing and in the supplemental material provided to the City Council on September 10, 2009, Plaintiffs established that the City, pursuant to approved site plan SP-84-08 (“SP-84-08”), approved a use similar to the Proposed Use. 203. _SP-84-08 was approved by the City on December 9, 2008, approximately ten (10) months prior to the date the City denied the Site Plan. 204, The auto service and repair facility proposed by SP-84-08 is located in the same planning district as the Proposed Use. 205. The auto service and repair facility proposed by SP-84-08 is in close proximity to residences, similar to the proximity of the Proposed Use to the nearby residences mse206. The Site Plan Appellant did not provide any testimony or documentary evidence to justify a decision inconsistent with the City’s approval of SP-84-08 207. The character of the City’s actions taken in relation to the Property, including without limitation those described above, were arbitrary, capricious, malicious, without a rational basis and were not in furtherance of any legitimate governmental purpose. 208. The character of the City’s actions taken in relation to the Property, including without limitation those described above, were arbitrary, capricious, malicious, and subjected Plaintiffs to disparate treatment under the law without a rational basis and in derogation of Plaintiffs’ fundamental rights 209. Plaintiffs are entitled to a declaration that the actions of the City in relation to the Plaintiffs and Property constitute a violation of the Plaintiffs’ rights to equal protection under the law pursuant to the Fourteenth Amendment to the United States Constitution. SEVENTH CLAIM FOR RELIEF (Declaratory Judgment that the City’s Actions Deprived Plaintiffs of their Constitutional Rights to Equal Protection under the North Carolina Constitution) 210. Plaintiffs reallege and incorporate-by reference the foregoing allegations as if fully set forth herein 211. At the September 1 Hearing and in the supplemental material provided to the City Council on September 10, 2009, Plaintiffs established that the City approved SP-84-08. 212. The auto service and repair facility proposed by SP-84-08 is located in the same planning district as the Proposed Use. 213. The auto service and repair facility proposed by SP-84-08 is in close proximity to residences, similar to the proximity of the Proposed Use to the nearby residences. -26-rr 214. The Site Plan Appellant did not provide any testimony or documentary evidence to justify a decision inconsistent with the City's approval of SP-84-08, 215. The character of the City’s actions taken in relation to the Property, including without limitation those described above, were arbitrary, capricious, malicious, without a rational basis and were not in furtherance of any legitimate governmental purpose 216. The character of the City’s actions taken in relation to the Property, including, without limitation those described above, were arbitrary, capricious, malicious, and subjected Plaintiffs to disparate treatment under the law without a rational basis and in derogation of Plaintiffs’ fundamental rights, 217. Plaintiffs are entitled to a declaration that the actions of the City in relation to the Plaintiffs and Property constitute a violation of the Plaintiffs” rights to equal protection under the law pursuant to Article I, Section 19 of the North Carolina Constitution, EIGHTH CLAIM FOR RELIEF (Regulatory Taking in Violation of the United States and North Carolina Constitutions) 218. Plaintiff's reallege and incorporate by reference the foregoing allegations as i fully set forth herein, 219. The City’s actions in relation to the Property, including without limitation those described above, deprived the Plaintiffs of their rights, privileges, and immunities secured by the Fifth and Fourteenth Amendments of the United States Constitution, and Article I, Section 19 of the North Carolina Constitution, 220. The City’s actions in relation to the Property, including without limitation those described above, were arbitrary, capricious and malicious, and were not in furtherance of any legitimate governmental purpose. OTS221. The City’s actions in relation to the Property, including without limitation those described above, have caused a tremendous decrease in the value of the Property. 222. The City’s actions in relation to the Property, including without limitation those described above, substantially interfered with the Plaintiffs’ reasonable and legitimate investment-backed expectations with regard to the Property. 223. The character of the City’s actions in relation to the Property, including without limitation those described above, were arbitrary, capricious, malicious and without a rational basis 224. The City’s actions in relation to the Property, including without limitation those described above, constitute a taking of the Plaintiffs’ Property without just compensation in violation of the United States Constitution and other applicable law. 225. The Plaintiffs have suffered actual damages in an amount in excess of $10,000.00 as a result of the City’s taking of the Property. 226. Plaintiffs are entitled to recover their actual damages in an amount in excess of $10,000 from the City as a result of the City’s taking of the Property. NINTH CLAIM FOR RELIEF (Violation of 42 U.S.C. § 1983) 227. Plaintiffs reallege and incorporate by reference the foregoing allegations as if fully set forth herein. 228. As shown by the facts alleged in this Complaint, as well as additional facts and evidence Plaintiffs will develop through further investigation and discovery, the City acted under color of state law in accordance with the official policies of the City to deprive Plaintiffs of their rights, privileges, and immunities secured by the Fifth and Fourteenth Amendments of the United States Constitution and under the Civil Rights Act of 1871, 42 U.S.C. § 1983, -28-229, Plaintiffs have suffered actual damages in an amount in excess of $10,000.00 as a result of the violations of their civil and constitutional rights by the City as described in this Complaint, and therefore Plaintiffs are entitled to recover those damages pursuant to 42 U.S.C. § 1983 230. Plaintiffs are entitled to recover their actual costs and attorneys’ fees expended as a result of the violations of their I and constitutional rights by the City, as described above, pursuant to 42 U.S.C. § 1983 TENTH CLAIM FOR RELIEF (Violation of the N.C. Gen. Stat. 143-318.9 et seq.) 231, Plaintiffs reallege and incorporate by reference the foregoing allegations as if fully set forth herein, 232. Soon after the vote to deny the Site Plan, Mayor Meeker asked if the City Attorney had any report other than a closed session item. 233. Shortly thereafter, the City Council went into closed session. 234. According to Mayor Meeker, the City Council went into closed session to discuss matters concerning the MacGregor Development proposal and potential litigation. 235. It was unclear for what potential litigation or other matters the City Council intended to discuss in closed session. 236. Upon information and belief, the City Council discussed matters related to the Site Plan and/or the Property 237. Upon information and belief, the discussion by the City Council on matters related to the Site Plan and/or the Property affects or will affect Plaintiffs’ interests. 238. The motion to go into closed session did not contain a cite or reference to one or more of the permissible purposes for going into closed session. -29-239. The motion to go into closed session failed to state the name or citation of the law that renders the information to be discussed privileged or confidential 240. ‘The motion to go into closed session failed to identify the parties to the litigation on which the City Council expected to receive advice during the closed session. 241. Upon conclusion of the closed session, Mayor Pro-Tem James West provided a report on the closed session, 242, In the report, Mayor Pro-Tem James West only referenced the MacGregor Development proposal 243. No reference was made to the City Attorney’s report or the potential litigation, 244, Based on the foregoing, Plaintiffs are entitled to a mandatory or prohibitory injunction to enjoin the recurrence of past violations of N.C. Gen. Stat. § 143-318.9 et seq 245. Based on the foregoing, Plaintiffs are entitled to a judgment declaring that action of the City Council was taken, considered, discussed or deliberated in violation of N.C. Gen Stat. § 143-318.9 et seq 246. Based on the foregoing, Plaintiffs are entitled to-attorney’s fees expended as a result of the violations of N.C. Gen. Stat. § 143-318,9 et seq. pursuant to N.C. Gen, Stat. § 143- 318.16B. WHEREFORE, Plaintiffs respectfully pray that the Court A. Enter a judgment declaring that: 1, the Certified Recommendation of the Planning Commission is the final, official action of the City; 2. the Site Plan is approved as of August 11, 2009, the date of the Planning Commission’s vote to approve the Site Plan, -30-3. the City’s denial of the Site Plan is unlawful, invalid and void; 4, the appeal of the Site Plan is unlawful, invalid and void; 5. the Certified Recommendation of the Planning Commi properly appealed; 6. the actions of the City in relation to Plaintiffs and the Property constitute a violation of PI ffs’ rights to procedural due process pursuant to Article 1, Section 19 of the North Carolina Constitution and the Fourteenth Amendment of the United States Constitution; 7. the actions of the City in relation to Plaintiffs and the Property constitute a violation of Plaintiffs" rights to substantive due process pursuant to Article I, Section 19 of the North Carolina Constitution and the Fourteenth Amendment of the United States Constitution; 8, the actions of the City in relation to Plaintiffs and the Property constitute a violation of Plaintiffs’ rights to equal protection under the law pursuant to the Fourteenth Amendment of the United States Constitution; 9. the actions of the City in relation to Plaintiffs and the Property constitute a violation of Plaintiffs’ rights to equal protection under the law pursuant to Article I, Section 19 of the North Carolina Constitution; and 10, the City Council violated N.C. Gen, Stat. § 143-318.9 et seq B. Issue a Mandatory Injunction or Writ of Mandamus ordering the Raleigh City Council to approve the Site Plan, C. Award damages to Plaintiffs in an amount in excess of $10,000.00, to be specifically determined at trial, as a result of the City’s taking of the Property; -31-D. Award damages to Plaintiffs, in an amount in excess of $10,000.00, to be specifically determined at trial, as a result of the City’s violation of the Plaintiffs’ rights under the United States and North Carolina Constitutions and pursuant to 42 U.S.C. § 1983; E. _ Award Plaintiffs their actual costs incurred pursuant to 42 U.S.C. § 1983; F Award Plai fs their actual attorney's fees pursuant to 42 U.S.C. § 1988; G. Issue a Mandatory or Prohibitory Injunction to enjoin the recurrence of past violations of N.C. Gen, Stat. § 143-318.9 et seq.; H. Award Plaintiffs their actual attorney’s fees expended as a result of the City’s violations of N.C. Gen, Stat. § 143-318.9 et seq. pursuant to N.C. Gen, Stat. § 143-318. 16B. 1, Tax the costs of this action against the City; and J. Order such other and further relief as the Court deems just and proper [signature page to follow] -32-This the |S day of October, 2009. NCSB # 19845 CSB# 28419 Chukic Robert Michael Birch, JF NCSB# 37598 K&L Gates, LLP. P.O. Box 14210 Research Triangle Park, NC 27709 Telephone: (919) 466-1261 Attorneys for Plaintiffs aa