Appeals Court decision breathes new life into suit against Berger casino deal
A lot of arms have been twisted in an attempt to shut up critics of the deal to bring multiple new casinos to North Carolina. “The Boss” has got a tough primary facing him in 2026. He already has plenty of heat on him.
But this month, The North Carolina Court of Appeals may have turned up the temperature a wee bit more on state senate president pro tem Phil Berger. A lawsuit filed by Rockingham County-based Camp Carefree, a charitable organization working with chronically ill kids, against the casino deal spearheaded by Phil Berger and his team had been dismissed by a lower court.
(Check out who dismissed it. *Surely, just a coincidence.*)
This month, however, a three judge panel reversed that decision and gave the camp and its supporters the green light to press forward with their fight:
[…] N.C. Gen. Stat. § 1-254 (2023) (emphasis added). Under the Act, so long as a plaintiff
sufficiently alleges it was “affected by” a defendant’s decision to rezone property, the
plaintiff “is within the class of persons upon whom the [Act] confers a cause of action,”
and the plaintiff is “‘guarantee[d] standing to sue’ and seek a declaratory judgment to clarify its legal rights and relations.”[…]Indeed, our Supreme Court has stated, “The plaintiffs, owners of property in the adjoining area affected by the ordinance, are parties in interest entitled to maintain the action.”[…]
The Act does not require a plaintiff to allege an “injury in fact” to have standing to challenge a statute or ordinance.[…] […]Furthermore, a plaintiff challenging a legislative zoning decision in a declaratory judgment action is not required to allege special damages in its complaint. Id. at 768 (“[C]hallenges to quasi-judicial zoning decisions require a pleading of special damages, but challenges to legislative zoning decisions do not.” […]
Here, Defendant Rockingham County’s rezoning amendments were a legislative act decided by its Board of Commissioners. Because these amendments were “legislative, not quasi-judicial, Plaintiff[s] w[ere] not required to allege special damages within [their] complaint, separate and distinct from the general community.”[…]
Accordingly, so long as Plaintiffs in this case sufficiently alleged that they were “affected by” Defendant Rockingham County’s decision to rezone the Property, Plaintiffs have standing to seek a declaratory judgment to clarify their legal rights and relations.[…]
Defendants’ argument that “Plaintiffs lack the special and distinct damages
required for standing” is precluded by this Court’s opinion in Gardner, and the North
Carolina Supreme Court decisions relied on and synthesized therein, which was
issued after the trial court dismissed this action and the parties had submitted their
briefs to this Court. Upon our invitation, the parties submitted supplemental briefs
addressing the effect of Gardner on the issues on appeal. In their supplemental brief,
Defendants abandon their argument that Plaintiffs were required to plead special
damages and instead essentially argue that Plaintiffs’ alleged “generic adverse
effects” are insufficient to meet their burden under the Act.This argument was not
properly preserved—appearing for the first time in Defendants’ supplemental brief—
and is nonetheless without merit.
[…]
Joining the camp in filing the complaint were nine individuals and one business all owning property adjacent to the parcel rezoned by Rockingham County for the proposed casino. (Senator Berger’s son, Kevin, is chairman of the county board of commissioners and has been a passionate advocate for the casino deal within the county.)
A defamation suit filed against the younger Berger and some Berger-allied political operatives by a former county commissioner may have hit a speed bump.
THIS matter, however, is sure to be back in court very soon.
