Thomas v. Vill. of Bald Head Island ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-242
Filed 3 October 2023
Brunswick County, No. 22CVS835
SCOTT THOMAS, AMY ELIZABETH DUNN, JAMES BRIAN DUNN, DAVE
EMONSON, PENNY EMONSON, and JOHN FARABOW, Plaintiffs,
v.
VILLAGE OF BALD HEAD ISLAND; PETER QUINN, MAYOR of VILLAGE OF
BALD HEAD ISLAND; VILLAGE COUNCIL MEMBERS of the VILLAGE OF BALD
HEAD ISLAND, Each in their Representative capacity as Council Members of the
VILLAGE OF BALD HEAD ISLAND; to wit: Scott Gardner, Mayor Pro Tem; Ginnie
White, Councilor; Emily Hill, Councilor; and Jerry Maggio, Councilor, Defendants.
Appeal by plaintiffs from order entered 16 September 2022 by Judge Jason C.
Disbrow in Brunswick County Superior Court. Heard in the Court of Appeals 22
August 2023.
John M. Kirby for plaintiffs-appellants.
Brooks Pierce McLendon Humphrey & Leonard, L.L.P., by S. Wilson Quick and
Jimmy C. Chang, for defendants-appellees.
FLOOD, Judge.
Scott Thomas, Amy Elizabeth Dunn, James Brian Dunn, Dave Emonson,
Penny Emonson, and John Farabow (collectively “Plaintiffs”) appeal from the trial
court’s order granting Defendants’ motion to dismiss pursuant to Rule 12(b)(6) of the
North Carolina Rules of Civil Procedure. Plaintiffs allege the trial court erred in: (1)
finding Plaintiffs lacked standing to challenge the decision to close a portion of
Lighthouse Wynd; (2) concluding Plaintiffs did not have standing to bring this action
THOMAS V. VILL. OF BALD HEAD ISLAND
Opinion of the Court
where the relevant statute allows “any person” to be heard prior to the closure of a
road; and (3) rejecting the doctrine of relation back as to John Farabow (“Farabow”)
and Dave and Penny Emonson (the “Emonsons”). As we explain in further detail
below, the trial court did not err.
I. Factual and Procedural Background
On 3 May 2021, Defendant Village of Bald Head Island (the “Village”) received
a petition and request from Mark and Robin Prak; Old Ballast Stone, LLC; the Old
Baldy Foundation, Inc.; the Village Chapel; Bald Head Limited, LLC; and the Bald
Head Island Association, seeking closure of a portion of Lighthouse Wynd (the “Road”)
that is near Old Bay lighthouse—specifically, the west end of the Road between where
it intersects with Ballast Stone Alley and where it intersects with Timber Bridge. On
18 February 2022, these petitioners renewed their request for closure of the Road.
On 18 March 2022, the Village adopted resolution number 2022-0304 (the
“Resolution”), whereby the Village declared its intent to consider closing the Road. In
the Resolution, the Village also set the public hearing on the considered Road closing
to be held “at 10:00 [a.m.], or shortly thereafter, on Thursday,” 14 April 2022.
On or about 30 March 2022, the Village filed a Certification of Mailing and
Sign Posting, which read, in relevant part:
I, Darcy Sperry, Village Clerk, with the Village of Bald
Head Island, DO HEREBY CERTIFY that in accordance
with [N.C. Gen. Stat. §] 160A-299(a), I mailed, or caused to
be mailed, via USPS certified mail a Notice of Public
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Opinion of the Court
Hearing being held by the Village Council on [14 April]
2022.
This notice informed the abutting property owners of the
subject property that the applicant is seeking to close a
portion of the subject property. The mailed notice included
the date, time, place, and subject of the meeting. The notice
also included the process by which interested parties can
participate in the public hearing (in person or via email).
The notice was mailed on [29 March] 2022.
Staff has also posted the subject parcel with two [] signs
indicating that the property is subject to a Public Hearing
with instructions to contact the Development Services
Department via phone or email.
The Village also filed a copy of the notice that was published in the local newspaper,
The State Port Pilot. This notice was published in the 23 March 2022, 30 March 2022,
6 April 2022, and 13 April 2022 editions of the newspaper. On 5 April 2022, the
Village issued by email a notice where they changed the start time of the 14 April
2022 Village Council “regular scheduled meeting” from 10:00 [a.m.] to 9:00 [a.m.].
Plaintiff Scott Thomas (“Thomas”) was a recipient of this email. The same day, the
Village posted notice of this time change.
On 13 April 2022, Thomas sent an email to Village Clerk—Darcy Sperry—and
several other people, requesting the Village not close the Road. In the email, Thomas
asserted closure of the Road would be detrimental to the “island community because
of [Old Bay’s] historical significance, aesthetic appeal and environmental
sensitivity[;]” not closing the Road would be in “the public’s best interest[;]” and the
Village did not provide proper notice prior the 14 April 2022 hearing.
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Opinion of the Court
On 14 April 2022, during the Village Council’s regularly scheduled meeting,
the Village Council held a hearing on the closure of the Road. The Record shows
Thomas phoned in to the hearing to speak remotely, and he expressed several
concerns regarding closure of the Road “including but not limited to fire and
emergency services, on[-]street parking, tree scape, pedestrian safety, lack of site
plan, and Island infrastructure[.]” Thereafter, the Village Council unanimously voted
to adopt order number 2022-0402 (the “Order”) to permanently close the Road.
On 12 May 2022, Thomas, Amy Elizabeth Dunn, and James Brian Dunn (the
“Dunns”) filed a Petition to Vacate and Notice of Appeal from the Order (the “Initial
Petition”). On 29 June 2022, Thomas and the Dunns filed an Amended Petition (the
“Amended Petition”), which added Farabow and the Emonsons as petitioners. The
Amended Petition did not add any allegations or circumstances unique to any
Plaintiffs. On 2 August 2022, Defendants filed a Motion to Dismiss the Amended
Petition pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. On
12 September 2022, the trial court held a hearing on Defendants’ motion to dismiss.
At the hearing, Plaintiffs made an oral motion to amend the Amended Petition via
affidavits by each of the Plaintiffs, to “give further specifics about the individual
positions of each” Plaintiff. The trial court denied Plaintiffs’ motion and declined to
consider the affidavits.
On 16 September 2022, the trial court entered an order granting Defendants’
motion to dismiss, for Plaintiffs’ “failure to establish standing pursuant to the
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requirements of [N.C. Gen. Stat. §] 160A-299” and, as to Farabow and the Emonsons,
for “failure to file an appeal [to the trial court] within [thirty] days from the adoption
of the Order . . . as required by [N.C. Gen. Stat. §] 160A-299.” On 17 October 2022,
Plaintiffs filed written notice of appeal.
II. Jurisdiction
Plaintiffs’ appeal is properly before this Court pursuant to N.C. Gen. Stat. §§
7A-27(a)(1), and 1-277, and Rule 3(a) of the North Carolina Rules of Appellate
Procedure. See N.C. Gen. Stat. §§ 7A-27(a)(1), and 1-277 (2021); see N.C.R. App. P.
3(a).
III. Standard of Review
“A ruling on a motion to dismiss for want of standing is reviewed de novo.”
Ring v. Moore Cnty., 257 N.C. App. 168, 170, 809 S.E.2d 11, 12 (2017). This Court’s
review of an order granting a Rule 12(b)(6) motion to dismiss does not entail review
of the trial court’s reasoning; rather, this Court “affirms or reverses the disposition of
the trial court—the granting of the Rule 12(b)(6) motion to dismiss—based on the
appellate court’s review of whether the allegations of the complaint are sufficient to
state a claim.” Taylor v. Bank of America, N.A., 382 N.C. 677, 679, 878 S.E.2d 798,
800 (2022).
Dismissal under Rule 12(b)(6) is proper when one of the
following three conditions is satisfied: (1) the complaint on
its face reveals that no law supports the plaintiff’s claim;
(2) the complaint on its face reveals the absence of facts
sufficient to make a good claim; or (3) the complaint
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discloses some fact that necessarily defeats the plaintiff’s
claim.
Wood v. Guilford Cnty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002).
“Standing is jurisdictional in nature and consequently, standing is a threshold
issue that must be addressed, and found to exist, before the merits of the case are
judicially resolved.” In re Miller, 162 N.C. App. 355, 357, 590 S.E.2d 864, 865 (2004).
“For the purpose of the motion [to dismiss under Rule 12(b)(6)], the well-pleaded
material allegations of the complaint are taken as admitted; but conclusions of law
or unwarranted deductions of fact are not admitted.” Lloyd v. Babb, 296 N.C. 416,
427, 251 S.E.2d 843, 851 (1979).1
IV. Analysis
Plaintiffs argue on appeal: (A) the trial court erred in concluding Plaintiffs did
not have standing to bring this action where Plaintiffs were “persons aggrieved”
under N.C. Gen. Stat. § 160A-299; (B) even if Plaintiffs were not persons aggrieved
under N.C. Gen. Stat. § 160A-299, they were still persons entitled to be heard prior
1 Although standing presents an issue of subject matter jurisdiction under Rule
12(b)(1), standing is sometimes addressed under Rule 12(b)(6). Defendant’s motion
to dismiss was based only upon Rule 12(b)(6). Plaintiffs’ brief on appeal also
addresses the argument regarding standing under Rule 12(b)(6), so we have limited
our analysis to address the arguments under Rule 12(b)(6) as well. The standard of
review of de novo is the same either way, although the information the Court may
consider is different. See United Daughters of the Confederacy v. City of Winston-
Salem, 383 N.C. 612, 624, 881 S.E.2d 32, 43–44 (2022).
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to a road closure; and (C) the trial court erroneously found Farabow and the
Emonsons failed to timely file their claims.
A. Standing as “Persons Aggrieved”
We first address whether Plaintiffs had standing as “person[s] aggrieved”
pursuant to N.C. Gen. Stat. § 160A-299. As we explain below, Plaintiffs did not have
standing.
Plaintiffs argue, pursuant to N.C. Gen. Stat. § 160A-299(b), they are “persons
aggrieved” by the closure of the Road, and therefore, the trial court erred in
dismissing their amended complaint for lack of standing. We disagree.
N.C. Gen. Stat. § 160A-299(b) provides, in pertinent part:
Any person aggrieved by the closing of any street or alley .
. . may appeal the council’s order to the General Court of
Justice within [thirty] days after its adoption. . . . In
addition to determining whether procedural requirements
were complied with, the court shall determine whether, on
the record as presented to the city council, the council’s
decision to close the street was in accordance with the
statutory standards of subsection (a) of this section and any
other applicable requirements of local law or ordinance.
No cause of action or defense founded upon the invalidity
of any proceedings taken in closing any street or alley may
be asserted, nor shall the validity of the order be open to
question[,] . . . except in an action or proceeding begun
within [thirty] days after the order is adopted.
N.C. Gen. Stat. § 160A-299(b) (2021). To show standing to challenge a road closing
under N.C. Gen. Stat. § 160A-299, a plaintiff must provide a “factual basis to support
the argument that he is an aggrieved person in this case.” Cox v. Town of Oriental,
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234 N.C. App. 675, 680, 759 S.E.2d 388, 391 (2014). This Court has defined an
“aggrieved party” under N.C. Gen. Stat. § 160A-299 as “one who can either show an
interest in the property affected, or if the party is a nearby property owner, some
special damage, distinct from the rest of the community, amounting to a reduction in
the value of his property.” In re Granting of Variance by Town of Franklin, 131 N.C.
App. 846, 849, 508 S.E.2d 841, 843 (1998) (citation omitted).
In Cox, the plaintiff, who appealed to the trial court the Town of Oriental’s
decision to close a street under N.C. Gen. Stat. § 160A-299, argued he is a person
aggrieved as “a member of the public and a taxpaying resident of the Town” and as a
“successor in interest to these public rights of way, which were designed and
dedicated to provide access to the citizens of the Town.” 234 N.C. App. at 679, 759
S.E.2d at 391 (cleaned up). We held, “as [the plaintiff’s] property is not adjacent to”
the street closure and the plaintiff “has not alleged any personal injury . . . [nor
alleged] some special connection to [the street] distinct from the rest of the
community[,]” the plaintiff was not an “aggrieved person” under N.C. Gen. Stat. §
160A-299, and he lacked standing to bring his claim. Id. at 680, 759 S.E.2d at 391
(emphasis in original).
1. Affidavits
Here, Plaintiffs provide as a factual basis, in support of the argument they are
aggrieved persons, the contents of the Amended Petition and affidavits from each
individual Plaintiff. As to the affidavits, Plaintiffs first presented them at the 16
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September 2022 hearing as a means to amend the Amended Petition. The trial court
denied Plaintiffs’ oral motion to amend and, as such, never considered the contents
of the affidavits. Plaintiffs again present the affidavits in the Record on appeal, but
in their brief allege no error on part of the trial court in denying their oral motion and
posit no reason as to why this Court should consider these affidavits for the first time
on appeal. “[A] party’s failure to brief a question on appeal ordinarily constitutes a
waiver of the issue.” In re N.R.M., 165 N.C. App. 294, 296, 598 S.E.2d 147, 148 (2004)
(citation omitted); see N.C.R. App. P. 28(b)(6) (“Issues not presented in a party’s brief,
or in support of which no reason or argument is stated, will be taken as abandoned.”).
Plaintiffs, therefore, have abandoned any argument concerning the trial court’s
denial of their motion to amend the Amended Complaint, and we will not consider
the contents of the affidavits for the first time on appeal.
We note that, in their reply brief, Plaintiffs contend we may consider the
affidavits in our review of the trial court’s decision to grant Defendants’ motion to
dismiss for lack of standing, as our Supreme Court has provided, “[a]n appellate court
considering a challenge to a trial court’s decision to grant or deny a motion to dismiss
for lack of subject matter jurisdiction may consider information outside the scope of
the pleadings in addition to the allegations set out in the complaint[,]” and may make
findings of fact to that effect. United Daughters, 383 N.C. at 624, 881 S.E.2d at 43
(emphasis added); see Hammond v. Hammond, 209 N.C. App. 616, 631, 708 S.E.2d
74, 84 (2011).
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Our Supreme Court’s articulated scope of consideration concerns review of a
trial court’s decision to grant or deny a 12(b)(1) motion and, here, the trial court made
no findings of fact that we may review, nor did Plaintiffs request the court make
findings. See United Daughters, 383 N.C. at 624, 881 S.E.2d at 43. Moreover, the
current appeal concerns the trial court’s granting of Defendants’ 12(b)(6) motion, not
a 12(b)(1) motion, and, as articulated above, Plaintiffs have not argued on appeal that
the trial court erred in refusing to consider the affidavits. Additionally, a “reply brief
is not an avenue to correct the deficiencies contained in the original brief.” State v.
Dinan, 233 N.C. App. 694, 698–99, 757 S.E.2d 481, 485 (2014). Plaintiffs’ argument
in their reply brief on this Court’s consideration of the affidavits is not sufficient for
us to consider the affidavits’ contents on appeal.
2. “Persons Aggrieved”
As we do not consider the contents of Plaintiffs’ affidavits, per our standard of
review we look to only the allegations set forth in the Amended Petition. See Taylor,
382 N.C. at 679, 878 S.E.2d at 800. Plaintiffs allege in the Amended Petition that
they are statutory “aggrieved persons” as “nearby property owners” and allege that
closure of the Road would “contravene the proof of clear public interests in public
safety, traffic calming, pedestrian access, historical preservation and conservation.”
Per Cox, where we provided a plaintiff must demonstrate he is an adjacent property
owner who has suffered some unique personal injury distinct from the rest of the
community, none of these contentions are sufficient to establish standing as an
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“aggrieved person.” 234 N.C. App. at 680, 759 S.E.2d at 391. A “nearby” property
owner is not necessarily the same as an “adjacent” property owner, and Plaintiffs’
assertions regarding public interests do not demonstrate “some special damage,
distinct from the rest of the community, amounting to a reduction in the value of
[their properties].” See id. at 679, 759 S.E.2d at 390–91; see Franklin, 131 N.C. App.
at 849, 508 S.E.2d at 843. As such, Plaintiffs have not provided a factual basis
demonstrating they are “persons aggrieved” pursuant to N.C. Gen. Stat. § 160A-299,
and the Amended Petition “on its face reveals the absence of facts sufficient to make
a good claim.” See Cox, 234 N.C. App. at 680, 759 S.E.2d at 391; see Wood, 355 N.C.
at 166, 558 S.E.2d at 494. The trial court, therefore, did not err.
As we have determined Plaintiffs had no standing to file the Amended Petition,
we need not address Plaintiffs’ argument concerning whether Farabow’s and the
Emonsons’ claims “relate back” to the initial Petition under Baldwin v. Wilkie, 179
N.C. App. 567, 635 S.E.2d 431 (2006), and N.C. R. Civ. P. 15(c). See Coderre v. Futrell,
224 N.C. App. 454, 457, 736 S.E.2d 784, 786 (2012) (“[The p]laintiffs contend that,
under this Court’s holding in Baldwin[,] . . . Rule 15(c) allows a plaintiff to add an
additional party plaintiff to an already filed action and have the new plaintiff’s claims
relate back to the original filing. However, since we have determined that [the
plaintiffs] had no standing to file the original complaint, we need not address [the]
plaintiffs’ Rule 15(c) argument.”).
B. Standing as “Any Persons”
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Plaintiffs argue that, even if this Court were to determine that Plaintiffs did
not have standing as “persons aggrieved”’ under N.C. Gen. Stat. § 160A-299(b),
Plaintiffs nevertheless had a “right to be heard” before the Village and have standing
under N.C. Gen. Stat. § 160A-299(a) to challenge Defendants’ allegedly deficient
notice for the hearing on closure of the Road. We disagree.
Under N.C. Gen. Stat. § 160A-299(a),
When a city proposes to permanently close any street or
public alley, the council shall first adopt a resolution
declaring its intent to close the street or alley and calling a
public hearing on the question. . . . At the hearing, any
person may be heard on the question of whether or not the
closing would be detrimental to public interest, or the
property rights of any individual.
N.C. Gen. Stat. § 160A-299(a) (2021). As provided in N.C. Gen. Stat. § 160A-299(b),
however, “[a]ny person aggrieved by the closing of any street . . . may appeal the
council’s order . . . . [On appeal] the court shall determine whether . . . the council’s
decision to close the street was in accordance with the statutory standards of
subsection (a)[.]” N.C. Gen. Stat. § 160A-299(b) (emphasis added).
Per the plain language of N.C. Gen. Stat. § 160A-299(b), and as articulated
above, to have standing to appeal a council’s decision to close a street or alley under
N.C. Gen. Stat. § 160A-299 a plaintiff must provide a factual basis demonstrating he
is a “person aggrieved[.]” N.C. Gen. Stat. § 160A-299(b); see Cox, 234 N.C. App. at
680, 759 S.E.2d at 391; see Wood, 355 N.C. at 166, 558 S.E.2d at 494. Plaintiffs, here,
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have failed to do so, and we will not consider the alleged deficiencies in Defendants’
notice for a public hearing under N.C. Gen. Stat. § 160A-299(a).
V. Conclusion
Plaintiffs have failed to establish a factual basis demonstrating they are
“person[s] aggrieved” under N.C. Gen. Stat. § 160A-299, and therefore have failed to
establish standing to contest Defendants’ decision to close the Road. We affirm the
trial court’s decision to grant Defendants’ motion to dismiss.
AFFIRMED.
Chief Judge STROUD and Judge STADING concur.
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