LeTendre v. Currituck Cty.Â

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1108
Filed: 15 May 2018
Currituck County, No. 17-CVS-146
ELIZABETH E. LETENDRE, Plaintiff,
v.
CURRITUCK COUNTY, NORTH CAROLINA, Defendant.
Appeal by Defendant from order entered 9 June 2017 by Judge Walter H.
Godwin, Jr. in Superior Court, Currituck County. Heard in the Court of Appeals 21
March 2018.
Parker Poe Adams & Bernstein LLP, by Jonathan E. Hall, Michael J. Crook,
and Jamie Schwedler, for plaintiff-appellee.
Currituck County Attorney Donald I. McRee, Jr., for Defendant-appellant.
STROUD, Judge.
I. Introduction
This case arises from this Court’s prior opinion issued on 21 June 2016 in Long
v. Currituck County, ___ N.C. App. ___, 787 S.E.2d 835 (2016), which held that under
Currituck County’s Unified Development Ordinance § 10.51, Plaintiff’s proposed
“project does not fit within the plain language of the definition of Single Family
Dwelling, and thus is not appropriate in the SF District.” Id. at ___, 787 S.E.2d at
841. While Long was pending before this Court, Plaintiff was warned of the possible
LETENDRE V. CURRITUCK CTY.
Opinion of the Court
consequences of proceeding with construction of the project if the trial court’s order
in that case was reversed on appeal, but she decided to build the project anyway.
After Defendant took action to comply with this Court’s ruling in Long, issued on 21
June 2016, Plaintiff sought and obtained a preliminary injunction issued on 9 June
2017 which required Defendant to “deem the home approved by the County building
permit issued in March 2015 to be a single-family detached dwelling for purposes of
the Currituck County Unified Development Ordinance” and to allow her to complete
construction and occupancy of the project. Defendant appealed the preliminary
injunction. Although Plaintiff’s complaint includes many claims in her attempt to
prevent Defendant from enforcing the Unified Development Ordinance in accordance
with this Court’s opinion in Long, ___ N.C. App. ___, 787 S.E.2d 835, Plaintiff has not
demonstrated that she is likely to prevail on any of her claims, and therefore the
preliminary injunction must be reversed.
II. Background
On 27 March 2017, Plaintiff filed this action seeking a declaratory judgment,
preliminary injunction, permanent injunction, monetary damages, and attorney fees.
On 9 June 2017, the trial court entered a preliminary injunction ordering Defendant
to “deem the home approved by the County Building permit issued in March 2015 to
be a single-family detached dwelling for purposes of the Currituck County Unified
Development Ordinance;” to rescind the Stop Work Order issued in September 2016
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and the Notice of Violation issued in February 2017; and to permit Plaintiff to
complete construction of her project and then allow occupancy.
Plaintiff sought the preliminary injunction and other relief to prevent
Defendant from complying with this Court’s ruling issued on 21 June 2016 in Long,
___ N.C. App. ___, 787 S.E.2d 835. Plaintiff was a party to Long and that case dealt
with the same project and the same provisions of the Currituck County Unified
Development Ordinance (“UDO”) as this case. See generally id. In Long, the
petitioner-plaintiffs appealed
a Superior Court (1) DECISION AND ORDER affirming
the Currituck County Board of Adjustment’s decision that
a structure proposed for construction on property owned by
Respondent Elizabeth Letendre is a single family detached
dwelling under the Currituck County Unified Development
Ordinance and a permitted use in the Single Family
Residential Outer Banks Remote Zoning District and
dismissing petitioners’ petition for writ of certiorari and (2)
ORDER denying petitioners’ petition for review of the
Currituck County Board of Adjustment’s decision and
again affirming the Currituck County Board of
Adjustment's decision.
Id. at ___, 787 S.E.2d at 836 (quotation marks omitted). In other words, the
preliminary injunction on appeal ordered Defendant to “deem” Plaintiff’s project
which was under construction during the pendency of the appeal of Long “to be a
single-family detached dwelling” under the Currituck County UDO, although this
Court held in Long that her house is not a single-family detached dwelling as defined
by the Currituck County UDO. See id., ___ N.C. App. ___, 787 S.E.2d 835.
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Plaintiff described her plan to build the house which is the subject of this case,
and was the subject of Long, in her complaint as follows:
4. LeTendre bought the Lot on the open market
in April 2012 for a purchase price of $530,000.00.
5. From the time that LeTendre bought the Lot
in April 2012, through the present time, the Lot has had a
Single Family Residential Outer Banks Remote (“SFR”)
zoning classification assigned to it by Currituck County.
6. Under Currituck County’s Unified
Development Ordinance (“UDO”), developments that are
permitted on properties with a SFR zoning classification
include single-family detached dwellings.
7. Section 10.51 of the UDO defines a “single-
family detached dwelling” as a “residential building
containing not more than one dwelling unit to be occupied
by one family, not physically attached to any other
principal structure. For regulatory purposes, this term
does not include manufactured homes, recreational
vehicles, or other forms of temporary or portable housing.
Manufactured buildings constructed for use as single-
family dwelling units (manufactured home dwellings) are
treated similar [sic] to single-family detached dwellings.”
8. Neither Section 10.51 of the Currituck County
UDO, nor any other provision of the Currituck County
UDO, limits the square footage that a single family
detached dwelling may have.
9. Neither Section 10.51 of the Currituck County
UDO, nor any other provision of the Currituck County
UDO, limits the number of bedrooms that a single-family
detached dwelling may have.
10. Neither Section 10.51 of the Currituck County
UDO, nor any other provision of the Currituck County
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UDO, limits the number of rooms that a single family
detached dwelling may have.
11. After buying the Lot in April 2012, LeTendre
engaged an architect to develop plans for a home to be built
on the Lot. LeTendre’s architect first developed plans for a
home (“Disconnected Home”) with one central wing and
two side wings. The two side wings would not be connected
to the central wing, and instead unenclosed decking would
run between the central wing and each side wing, such that
a person would have to step outside of the Disconnected
Home in order to travel from wing to wing. The three wings
would not have connected rooflines. On the plans for the
Disconnected Home, because the three wings were not
connected, the architect labeled each of the three wings as
a separate “building.” Those plans were never utilized, and
the Disconnected Home was never built.
12. LeTendre’s representatives later sought
guidance from the County regarding what type of
development on the Lot would qualify as a single-family
detached dwelling under the Currituck County UDO.
LeTendre’s representatives met with the County Planning
Director and the County Attorney in 2013. At that
meeting, the County Planning Director advised LeTendre’s
representatives that, if the three wings had a connected
roof and were connected by air-conditioned hallways that
allowed for the free flow of heating and air conditioning,
the resulting home would qualify as a single-family
detached dwelling under the UDO. The County Planning
Director did not claim that the three wings would need to
have a common foundation in order for the home to qualify
as a single-family detached dwelling.
13. Based on this guidance from the County
Planning Director, LeTendre’s architect developed a new
set of plans for a different home for the Lot. This home
(“Home”) would also have a central wing and two side
wings. But unlike in the Disconnected Home, the Home’s
side wings would be connected with the central wing by two
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enclosed, air-conditioned hallways. These hallways would
allow for the free flow of heating and air conditioning, and
they also would allow a person to walk throughout the
Home, including all three wings, without ever stepping
outside. The three wings in the Home would have a
common, integrated roofline.
14. Although the plans for the Home showed that
the three wings would be interconnected and would have a
connected roofline, through inadvertence these plans
continued the practice from the Disconnected Home’s plans
of labeling each wing as a separate “building.”
15. In October 2013, LeTendre submitted the
plans (“Plans”) for this Home to Currituck County for the
County to formally confirm that the Home would be a
permissible single-family detached dwelling that would be
permitted on the Lot under the County’s UDO.
16. The Plans showed that each wing would be
slightly less than 5,000 square feet in size, and they showed
that the Home would also have a detached pavilion as an
accessory structure.
17. The Plans showed that the foundation of each
enclosed, air-conditioned hallway would be connected to
the foundation of the side wing to which that hallway was
attached.
18. The Plans showed that the foundations for the
enclosed, air-conditioned hallways would not be connected
to the foundation of the Home’s central wing.
19. The Plans showed that each of the three
wings would have its own separate foundation and that the
foundations for the three wings would not connect together.
20. The Plans showed that the Home would not
have a single common foundation.
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21. The Plans that were submitted to Currituck
County in October 2013 disclosed the square footage of
each of the three wings of the Home as well as the total
square footage of the Home.
In November of 2013, the Currituck County Planning Director, Mr. Ben E. Woody,
issued a Letter of Determination “confirming that the Home as proposed in the Plans
would be a single-family detached dwelling and would be permitted on the Lot
pursuant to the Currituck County UDO.”
Besides approval by the Currituck County BOA, Plaintiff’s house required a
permit from the N.C. Department of Environment and Natural Resources (“DENR”)
allowing “[m]ajor [d]evelopment in an [a]rea of [e]nvironmental [c]oncern pursuant
to NCGS 113-118[.]” Plaintiff planned to build close to the water, in a location “set
back a minimum of 60 feet from the first line of stable natural vegetation[.]” Plaintiff
had hired George Wood, of Environmental Professionals, as a consultant to “assist
her in obtaining state and federal approvals for construction of a home on the
oceanfront property she bought in April 2012.” Plaintiff’s representatives, including
Mr. Wood, her architect, and her contractor, worked with the North Carolina
Division of Coastal Management to develop a plan for the house which would meet
Coastal Area Management Act (“CAMA”) requirements. The requirement which has
created most of this controversy was that no building could be larger than 5,000
square feet; Plaintiff planned for the project to be approximately 15,000 square feet.
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The trial court’s order made several findings of fact regarding the CAMA
regulations:
3. Construction on LeTendre’s lot would also
have to satisfy regulation under North Carolina’s Coastal
Area Management Act (“CAMA”). CAMA regulations
impose setbacks that developments must satisfy that are
based on the size of the developments proposed. LeTendre
wanted her home to use a CAMA setback known as the “60
foot” setback, which requires a development to be set back
from the waterfront a minimum of 60 feet or 30 times the
property’s shoreline erosion rate. That setback is for
developments less than 5,000 square feet in size. However,
CAMA regulations allow a larger development to use the
60-foot setback if that development is composed of separate
components that are each less than 5,000 square feet and
that are structurally independent of each other. LeTendre
therefore intended to design her home so that each of the
three wings would be less than 5,000 square feet and would
be structurally independent from each other. Designing
homes that are larger than 5,000 square feet so that they
have structurally independent components and can use the
60-foot CAMA setback is permitted by the Division of
Coastal Management and is common along the North
Carolina Coast and in Currituck County. LeTendre’s
representatives explained to the Division of Coastal
Management and to Currituck County her desire for the
wings of her home to be structurally independent so that
the 60-foot setback could be used.
4. After consultation with the North Carolina
Division of Coastal Management, which administers
CAMA regulations, and with the Currituck County
Planning Department, LeTendre’s architect prepared a set
of plans that proposed to connect the three wings of her
home using uncovered, unenclosed decking. Although this
would satisfy CAMA’s requirement for structural
independence, the Currituck County Planning Director
would not accept those plans. The Planning Director
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determined that connecting the wings with unenclosed
decking would not make the wings a single structure in
order for the home to qualify as a single-family detached
dwelling under the County UDO.
5. During subsequent discussions between
LeTendre’s design professionals and the County Planning
Department, the County Planning Director proposed that
the wings be connected with enclosed, air conditioned
hallways. The Planning Director determined that
connecting the wings in this way would allow the home to
qualify as a single-family detached dwelling because the
wings would be sufficiently integrated to constitute a single
structure. There was no language in the UDO that
expressly contradicted this determination by the Planning
Director.1
6. LeTendre’s architect therefore prepared a set
of plans that proposed to connect the three wings using
enclosed, air conditioned hallways. After reviewing these
plans, the County Planning Director issued a November
2013 Letter of Determination providing that the home
proposed on those plans would qualify as a single-family
detached dwelling under the UDO. The Division of Coastal
Management also concluded that those plans satisfied
CAMA’s setback regulations so that the 60-foot setback
could be used for LeTendre’s home.
After these consultations and plan revisions seeking to comply with both CAMA
regulations and the UDO, the CAMA permit was “issued on March 17th, 2014, four
days after the hearing before the Currituck County Board of Adjustment on March
13, 2014” where Mr. Wood testified as Plaintiff’s CAMA expert.
1 Section 10.51 of the UDO does not permit the principal structure to be “physically attached”
to any other principal structure, so the last sentence of this finding is not entirely accurate; this Court
interpreted the UDO in Long and determined otherwise. Long, __ N.C. App. at ___, 787 S.E.2d at 838.
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In December of 2013, landowners adjacent to Plaintiff’s lot, Mr. and Mrs. Long,
appealed the November 2013 Letter of Determination to the Currituck County BOA,
which upheld the Letter of Determination in May of 2014. The Longs then sought
review of the BOA’s determination by the Superior Court, which upheld the BOA’s
ruling in December of 2014; on 31 December 2014, the Longs appealed.
In March of 2015, after the Longs filed their notice of appeal and before the
record on appeal had even been submitted to this Court, Plaintiff sought a Building
Permit “permitting construction of the Home on the Lot.” Our record shows that both
the Currituck County Planning Director, Mr. Woody, and counsel for the Longs
warned Plaintiff about beginning construction before this Court had issued its
opinion in Long. On 2 April 2015, counsel for the Longs sent a letter to Plaintiff’s
counsel warning:
I want to emphasize that this litigation is not over and you
and your client are on notice that construction of the
project while the litigation is ongoing is done with the risk
that the appellate court will reverse the Superior Court,
and that such reversal would result in the revocation of the
building permit. While it may be true that your client can
begin construction (provided there is no other prohibition
from the Department of Insurance) your client will
nonetheless be required to tear down, dismantle or
otherwise remove such construction if the Court of Appeals
reverses the Superior Court and revokes the zoning
approval and attendant building permit. I understand that
your client has elected to proceed with construction despite
knowledge of the aforementioned risks.
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Despite these warnings, Plaintiff proceeded with construction. Plaintiff
described her decision to proceed in her affidavit filed in this case:
14. In March 2015, Currituck County issued a
building permit for my home to me and to my general
contractor. Although the Longs’ appeal wasn’t over, after
carefully considering all options, I decided to proceed with
construction of the home. I made this decision for several
reasons.
15. First, over the course of a year, three different
authorities had considered the 2013 plans for my home and
had agreed that the home would be permitted under the
County UDO. The Currituck County Planning Director
had made that determination, the Currituck County Board
of Adjustment had made that determination, and then a
superior court judge had made that determination. All of
them had considered the Longs’ arguments for why my
home shouldn’t be allowed, and all of them had rejected the
Longs’ arguments.
16. Additionally, the plans for my home had been
reviewed and approved by a number of other agencies . . . .
These agencies all had reviewed the plans because a CAMA
Major Development was required for my home.
17. Meanwhile, the Longs hadn’t filed any appeal
to the Board of Adjustment from the building permit issued
to me in March 2015. No challenge to that permit existed
when I decided to begin construction. In fact, to date, no
one has appealed the issuance of my building permit, and
the County Building Inspector has never withdrawn that
permit. The Longs also had not appealed the Division of
Coastal Management’s issuance of a CAMA permit for my
home.
On 21 June 2016, this Court issued its opinion in Long, reversing the superior
court’s order and holding that Plaintiff’s project as proposed was not a single family
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detached dwelling as defined by the Currituck County UDO, Section 10.51. See Long,
___ N.C. App. ___, 787 S.E.2d 835. Plaintiff alleges in her complaint in this action
that construction on the project was about 95% complete at that point. Plaintiff’s
representatives met with county officials and they discussed various ways of bringing
Plaintiff’s house into compliance with the UDO in a manner within the CAMA permit
but could not reach an agreement. In September 2016, Defendant issued a Stop Work
Order. In January 2017, Plaintiff proposed an amendment to the UDO which would
allow her project to be permitted as a single family detached dwelling, but the
Currituck County Board of Commissioners rejected it. On 1 February 2017, the
Currituck County Planning Director issued a Notice of Violation based upon the
house’s failure to qualify as a single family detached dwelling under the UDO, in
accordance with Long. Plaintiff made no changes to the house but filed this action
seeking injunctions and a declaratory judgment preventing Defendant from
complying with this Court’s ruling in Long and compensation for Defendant’s
attempts to enforce Long.
III. Preliminary Matters
Before addressing the substance of Defendant’s appeal, we first address a few
preliminary matters.
A. Plaintiff’s Claims
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Plaintiff’s complaint presents many claims which she alleges support issuance
of a preliminary injunction, permanent injunction, and ultimately a declaratory
judgment preventing Defendant from enforcing its UDO in accord with this Court’s
opinion in Long. To avoid confusion, we will address Plaintiff’s claims mostly in the
order as presented in her complaint, although we will group the claims of
constitutional violations together since the analysis is similar for each. Plaintiff
labeled her claims as follows:
FIRST CAUSE OF ACTION
(Section 10.51 of the Currituck County UDO Violates
North Carolina’s Zoning Enabling Statutes)
(Section 10.51’s Requirement That the Home Have a Single
Common Foundation Does Not Promote Health, Safety,
Morals, or the General Welfare)
(Section 10.51’s Requirement That a Single-Family
Detached Dwelling Be Contained Within a Single Building
Does Not Promote Health, Safety, Morals, or the General
Welfare)
(Section 10.51 Otherwise Imposes Pointless Restrictions)
SECOND CAUSE OF ACTION
(Section 10.51 of the Currituck County UDO Violates the
United States and North Carolina Constitutions Because
It Is Arbitrary and Capricious)
THIRD CAUSE OF ACTION
(Section 10.51 of the Currituck County UDO Attempts To
Regulate “Building Design Elements” In Violation of North
Carolina Law)
FOURTH CAUSE OF ACTION
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(Section 10.51 of the Currituck County UDO Is Preempted
By the North Carolina Building Code)
FIFTH CAUSE OF ACTION
(Section 10.51 of the Currituck County UDO Is
Unconstitutionally Vague)
SIXTH CAUSE OF ACTION
(Currituck County Has Taken LeTendre’s Property)
SEVENTH CAUSE OF ACTION
(Currituck County Has Violated LeTendre’s Right to Equal
Protection Under the North Carolina Constitution and the
United States Constitution)
EIGHTH CAUSE OF ACTION
(Currituck County’s Attempts to Enforce Section 10.51 of
the UDO Against the Home are Barred by Laches)
NINTH CAUSE OF ACTION
(LeTendre Has Vested Rights To Complete the Home and
To Use the Home)2
In this appeal, we will consider only whether the trial court erred in issuing
the preliminary injunction. We will consider only whether the trial court erred in
issuing the preliminary injunction based upon the conclusion that Plaintiff is likely
to prevail on the merits of any of the other claims and will suffer irreparable harm
without issuance of the injunction.
B. Interlocutory Appeal
Because the preliminary injunction is not a final order, this appeal is
2 Plaintiff’s complaint has 69 pages with 372 paragraphs of allegations. The record includes
651 pages of exhibits. In comparison, this opinion is relatively short.
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interlocutory. See Rockford-Cohen Grp., LLC v. N.C. Dep’t of Ins., 230 N.C. App. 317,
318, 749 S.E.2d 469, 471 (2013) (“It is well-established that a preliminary injunction
is an interlocutory order.”) “There is no immediate right of appeal from an
interlocutory order unless the order affects a substantial right.” Id. Defendant
alleges that it has a substantial right that will be impaired if review is delayed
because it has a right to exercise its police power to enforce its ordinances. Defendant
is correct as clarified by Judge, now Justice, Ervin’s dissent, which was adopted by
the Supreme Court in Sandhill Amusements, Inc. v. Sheriff of Onslow Cnty.: “[T]his
Court has recognized that the entry of a preliminary injunction precluding a state or
local agency from enforcing the law affects a substantial right and is immediately
appealable.” 236 N.C. App. 340, 360, 762 S.E.2d 666, 680 (2014) (Ervin, J.
dissenting), rev'd and remanded, 368 N.C. 91, 773 S.E.2d 55 (2015). Adoption and
enforcement of zoning ordinances is an exercise of the police power. See Raleigh v.
Fisher, 232 N.C. 629, 635, 61 S.E.2d 897, 902 (1950) (“In enacting and enforcing
zoning regulations, a municipality acts as a governmental agency and exercises the
police power of the State.”) This Court therefore “has jurisdiction over Defendant’s
appeal from the issuance of the preliminary injunction” and we will “proceed to
address the validity of Defendant’s challenge to . . . the trial court’s order on the
merits.” Sandhill, 236 N.C. App. at 361, 762 S.E.2d at 681.
C. Plaintiff’s Motion to Dismiss as Moot
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Plaintiff has moved to dismiss this appeal as moot because the preliminary
injunction on appeal allowed her to complete the construction of the project and begin
using it. Plaintiff argues that the “[c]onstruction cannot be undone, the County’s
determination that the Home was constructed in accordance with the building code
cannot be unmade, and the [Certificate of Occupancy] cannot rightfully be rescinded.”
Defendant responds that even though the project is complete, the preliminary
injunction continues to have effect because it “prevents the County from requiring
Letendre to cease use of the multiple buildings on her property until she complies
with the UDO and this Court’s Long decision and the County’s use of civil and
criminal remedies to enforce the county’s ordinance.”
“A case is considered moot when a determination is sought on a matter
which, when rendered, cannot have any practical effect on the existing
controversy.” Lange v. Lange, 357 N.C. 645, 647, 588 S.E.2d 877, 879 (2003)
(citation and quotation marks omitted). Plaintiff’s assertions that “construction
cannot be undone” and “the [Certificate of Occupancy] cannot rightfully be rescinded”
are not supported by law and are incorrect. Construction can be undone and
structures can be moved. Plaintiff’s assertion regarding “the County’s determination
that the Home was constructed in accordance with the building code” is irrelevant.
There has never been any contention in this case that Plaintiff’s project was in
violation of the building code; the dispute arises from the UDO. Because the
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preliminary injunction continues to keep Defendant from enforcing the UDO as
required by this Court’s opinion in Long, this appeal is not moot, see generally id.,
and Plaintiff’s motion to dismiss is denied.
IV. Analysis
Defendant appealed the trial court’s ORDER GRANTING PLAINTIFF’S
MOTION FOR PRELIMINARY INJUNCTION which orders Defendant to “deem the
home approved by the building permit issued in March 2015 to be a single-family
detached dwelling for purposes of the Currituck County Unified Development
Ordinance” and to allow Plaintiff to complete construction of the home and to grant
a certificate of occupancy when complete. The trial court determined Plaintiff was
likely to succeed on the merits of several claims in her complaint, and Plaintiff argues
on appeal that even if a legal basis found by the trial court was in error, the order
must be affirmed if there is any legal basis to support the result. Therefore, if just
one of Plaintiff’s claims is likely to succeed on the merits, the injunction must be
affirmed. See generally Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989)
(“If the correct result has been reached, the judgment will not be disturbed even
though the trial court may not have assigned the correct reason for the judgment
entered.”) Because we have determined that Plaintiff is not likely to succeed on any
of her claims, we must address each of them.
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A. Standard of Review
In review of a trial court's ruling on a motion for a preliminary injunction, we
begin with the “presumption that the lower court’s decision was correct, and the
burden is on the appellant to show error.” A.E.P. Industries v. McClure, 308 N.C.
393, 414, 302 S.E.2d 754, 767 (1983). But “on appeal from an order of superior court
granting or denying a preliminary injunction, an appellate court is not bound by the
findings, but may review and weigh the evidence and find facts for itself.” Id. at 402,
302 S.E.2d at 760. “The scope of appellate review in the granting or denying of a
preliminary injunction is essentially de novo.” Robins & Weill v. Mason, 70 N.C. App.
537, 540, 320 S.E.2d 693, 696 (1984).
A preliminary injunction is an extraordinary measure normally intended only
to preserve the status quo during litigation,
[i]t will be issued only (1) if a plaintiff is able
to show likelihood of success on the merits of
his case and (2) if a plaintiff is likely to sustain
irreparable loss unless the injunction is
issued, or if, in the opinion of the Court,
issuance is necessary for the protection of a
plaintiff’s rights during the course of
litigation.
A.E.P., 308 N.C. at 401, 302 S.E.2d at 759–60 (citations omitted).
In this action, there is no challenge to the trial court’s underlying findings of
fact. Also, the preliminary injunction was not intended “to preserve the status quo[,]”
see id., but to change it, by requiring Defendant to disregard the UDO’s plain
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language as interpreted by Long and remove Defendant’s ability to enforce the law.
See generally Long, ___ N.C. App. ___, 787 S.E.2d 835. But in any event, the first
question in determining whether a preliminary injunction should have been granted
is the likelihood of success on the merits. See id. If the Plaintiff is unable to show
likelihood of success on the merits of her legal claims, the Court need not reach the
second question of whether the Plaintiff “is likely to sustain irreparable loss unless
the injunction is issued, or if, in the opinion of the Court, issuance is necessary for
the protection of a plaintiff’s rights during the course of litigation.” Id.
We will next consider whether Defendant has met its burden of showing that
Plaintiff does not have a likelihood of success on the merits for each claim.
Defendant’s brief addresses why Plaintiff’s claims will likely not succeed, and
Plaintiff’s brief addresses why they will. Thus, while Defendant is the appellant, the
focus of our analysis is on Plaintiff’s claims and their “likelihood of success on the
merits[.]” Id. We consider “essentially de novo[,]” Robin, 70 N.C. App. at 540, 320
S.E.2d at 696, whether the trial court erred in taking this “extraordinary measure”
and determining “plaintiff is able to show likelihood of success on the merits[.]”
A.E.P., 308 N.C. at 401, 302 S.E.2d at 759. Because many of Plaintiff’s claims are
similar and her arguments tend to overlap, and because Plaintiff’s brief does not
address the issues in the same order as Defendant’s brief, we will address the claims
in the order as set forth in the complaint.
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We also note that while Plaintiff has presented nine claims, including
constitutional claims, Plaintiff is actually challenging a definition of a single family
detached dwelling. Six out of Plaintiff’s nine claim headings specifically reference
Section 10.51 and the other three implicitly rely upon it. As noted by Long, Section
10.51 simply defines a single family detached dwelling as “[a] residential building
containing not more than one dwelling unit to be occupied by one family, not
physically attached to any other principal structure. UDO § 10.51.” Long, __ N.C.
App. at ___, 787 S.E.2d at 838. While it is easy to lose the forest for the trees amidst
Plaintiff’s many claims, Plaintiff is simply challenging the definition of a single family
detached dwelling as interpreted by Long and as applied to her project. See Id. ___
N.C. App. ___, 787 S.E.2d 835.
B. Claim I: UDO Section 10.51 Violates North Carolina’s Zoning Enabling
Statutes
Plaintiff raises two claims under the Zoning Enabling Statutes.
1. North Carolina General Statute § 153A-340(a)
Plaintiff alleges that Section 10.51 of the UDO violates North Carolina
General Statute § 153A-340(a), which is the grant of power to counties to enact
zoning ordinances:
For the purpose of promoting health, safety, morals, or the
general welfare, a county may adopt zoning and
development regulation ordinances. These ordinances may
be adopted as part of a unified development ordinance or
as a separate ordinance. A zoning ordinance may regulate
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and restrict the height, number of stories and size of
buildings and other structures, the percentage of lots that
may be occupied, the size of yards, courts and other open
spaces, the density of population, and the location and use
of buildings, structures, and land for trade, industry,
residence, or other purposes.
N.C. Gen. Stat. § 153A-340(a) (2017).
The trial court made this conclusion of law on the zoning enabling statute:
4. LeTendre is likely to prevail on her claim that
the provisions of the UDO that are barring her home from
being a single-family detached dwelling are unenforceable
because those provisions violate the zoning enabling
statutes. They constitute an arbitrary restriction on her
ability to use her property in that they do not promote
health, safety, morals, or the general welfare.
(Emphasis added.) Plaintiff contends that Section 10.51 of Currituck County’s UDO
violates North Carolina General Statute § 153A-340(a) because it does not promote
“health, safety, morals, or the general welfare[.]” Id. Plaintiff argues that Section
10.51’s “requirements” of “a Single Common Foundation” and “that a Single-Family
Detached Dwelling Be Contained Within a Single Building” do not “Promote Health,
Safety, Morals, or the General Welfare[.]”
“The presumption is that the zoning ordinance as a whole is a proper exercise
of the police power[.] The burden to show otherwise rests upon a property owner who
asserts its invalidity.” Durham County. v. Addison, 262 N.C. 280, 282, 136 S.E.2d
600, 602 (1964) (citations, quotation marks, and ellipses omitted). In asserting
Section 10.51’s “invalidity[,]” see id., Plaintiff focuses on her alleged “requirements”
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of UDO Section 10.51 and the lack of a substantial relation between the regulation
and the promotion of general welfare. Plaintiff argues,
Our courts have confirmed that zoning regulations are
valid only if they substantially promote one of the four
stated goals. ‘Zoning ordinances are upheld when, but only
when, they bear a substantial relation to the public
health, safety, morals, or general welfare.’ Schloss v.
Jamison, 262 N.C. 108, 114, 136 S.E.2d 691, 695 (1964)
(emphasis added); see also Covington v. Town of Apex, 108
N.C. App. 231, 234-35, 423 S.E.2d 537, 539 (1992) (striking
down a town’s rezoning ordinance in part because the
rezoning would create only aesthetic improvements, which
were a minimal public benefit); Wenco Mgmt. Co. Town of
Carrboro, 53 N.C. App. 480, 281 S.E.2d 74 (1981) (finding
zoning ordinances that barred drive-thru restaurants but
allowed other types of businesses to have drive-thru
windows as not being reasonably related to any legitimate
governmental objective).
(Emphasis in original.) Plaintiff claims, and the trial court found, that Section 10.51
of the UDO is an “arbitrary restriction on her ability to use her property” because it
does “not promote health, safety, morals, or the general welfare” so it is in violation
of the zoning enabling statutes. Plaintiff argues that “the UDO’s requirement of
structural dependence does not bear substantial relation to the zoning enabling
statute because this statute does not authorize a County to regulate the design or
function of structural elements.”
The most basic problem with Plaintiff’s argument is that UDO Section 10.51
does not require “a Single Common Foundation” or that “a Single-Family Detached
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Opinion of the Court
Dwelling Be Contained Within a Single Building[,]” nor does it “regulate the design
or function of structural elements.” As explained in Long,
The UDO defines “DWELLING, SINGLE-FAMILY
DETACHED” as follows: “A residential building
containing not more than one dwelling unit to be occupied
by one family, not physically attached to any other
principal structure.” UDO § 10.51. Thus, the definition of
a Single Family Dwelling has five elements: (1) A building,
(2) for residential use, (3) containing not more than one
dwelling unit, (4) to be occupied by one family, and (5) not
physically attached to any other “principal structure.” The
definition of a Single Family Dwelling includes portions
that address the physical structure of the proposed
dwelling: “a building,” “containing not more than one
dwelling unit,” and “not physically attached to any other
principal structure.” . . .
....
Yet the definition of Single Family Dwelling clearly
allows more than one “building” or “structure” to be
constructed on the same lot, so the presence of three
“buildings” alone does not disqualify the project.
___ N.C. App. at ___, 787 S.E.2d at 838-40 (citation and footnotes omitted).
Plaintiff argues because the UDO would allow a 15,000 square foot house on
Plaintiff’s lot there is no practical difference between her project and a 15,000 square
foot house of a more traditional configuration. Plaintiff’s argument, and some of the
trial court’s findings, also focus on a “structural dependence” requirement allegedly
imposed by Defendant. But the UDO does not address structural dependency nor
does it require any particular type or design of foundation. The type or design of
foundation was also not a factor in this Court’s decision in Long. See Long, ___ N.C.
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App. ___, 787 S.E.2d 835. Section 10.51 addresses the types of structures allowed but
says nothing about their construction or design. See generally id. at ___, 787 S.E.2d
at 838. Section 10.51 is directly within the types of restrictions listed by North
Carolina General Statute § 153A-340(a); Defendant
may regulate and restrict the height, number of stories and
size of buildings and other structures, the percentage of
lots that may be occupied, the size of yards, courts and
other open spaces, the density of population, and the
location and use of buildings, structures, and land for
trade, industry, residence, or other purposes.
N.C. Gen. Stat. § 153A-340(a).
Plaintiff’s focus on a requirement of “structural dependence” is simply misplaced.
The only specific requirements as to the design or size of the house or type of
foundation are imposed by the CAMA permit which will not allow any single building
to be over 5,000 square feet. As the trial court found, “CAMA regulations allow a
larger development to use the 60-foot setback if that development is composed of
separate components that are each less than 5,000 square feet and that are structurally
independent of each other.” (Emphasis added). And the need for a CAMA permit was
created by Plaintiff’s decision to build the house so close to the shore. Plaintiff’s lot
is approximately 3.5 acres, and the project could have been constructed in another
location where a CAMA permit would not be needed. The unique characteristics of
Plaintiff’s lot and her desired project location do not mean that Defendant acted
beyond the authority granted by North Carolina General Statute § 153A-340(a) to
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Opinion of the Court
enact ordinances which in their legislative judgment “promote health, safety, morals,
or the general welfare[.]” N.C. Gen. Stat. § 153A-340(a).
In addition, Long also noted the substantial relation between Section 10.51
and the general welfare:
The UDO provides that the SF District
is established to accommodate very low
density residential development on the
portion of the outer banks north of Currituck
Milepost 13. The district is intended to
accommodate limited amounts of
development in a manner that preserves
sensitive natural resources, protects wildlife
habitat, recognizes the inherent limitations
on development due to the lack of
infrastructure, and seeks to minimize damage
from flooding and catastrophic weather
events. The district accommodates single-
family detached homes. Public safety and
utility uses are allowed, while commercial,
office, and industrial uses are prohibited.
Long, ___ N.C. App. at ___, 787 S.E.2d at 838 (citation, ellipses, and brackets
omitted). “The UDO defines DWELLING, SINGLE–FAMILY DETACHED as follows:
A residential building containing not more than one dwelling unit to be occupied by
one family, not physically attached to any other principal structure. UDO § 10.51.”
Id. at ___, 787 S.E.2d at 838 (quotation marks omitted). Thus, allowing only
residential buildings that do not contain “more than one dwelling unit to be occupied
by one family” and are “not physically attached to any other principal structure”
ensures there is “limited amounts of development in a manner that preserves
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Opinion of the Court
sensitive natural resources, protects wildlife habitat, recognizes the inherent
limitations on development due to the lack of infrastructure, and seeks to minimize
damage from flooding and catastrophic weather events[;]” id., the UDO’s goals would
promote “the public health, safety, morals, or general welfare.” N.C. Gen. Stat. §
153A-340(a). And while we find Plaintiff’s argument to be without merit, even
assuming arguendo there was weight to her contention that UDO Section 10.51 does
not promote “public health, safety, morals, or general welfare[,]” Plaintiff’s own cited
case law states that
[w]hen the most that can be said against such ordinances
is that whether it was an unreasonable, arbitrary or
unequal exercise of power is fairly debatable, the courts
will not interfere. In such circumstances the settled rule
seems to be that the court will not substitute its judgment
for that of the legislative body charged with the primary
duty and responsibility of determining whether its action
is in the interest of the public health, safety, morals or
general welfare.
Schloss v. Jamison, 262 N.C. 108, 115, 136 S.E.2d 691, 696 (1964) (citations and
quotation marks omitted).
Plaintiff is asking this Court to conclude she is likely to prevail on a claim that
a UDO definition of a single family detached dwelling is beyond the legislative
authority granted by North Carolina General Statute § 153A-340(a). If we were to
determine that Plaintiff is likely to prevail on such a claim, our ruling would cast
serious doubt on nearly every common provision of all municipal ordinances in the
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Opinion of the Court
State of North Carolina, including definitions of single family detached dwellings and
other common uses. Plaintiff has presented no authority that Defendant’s definition
of a single family detached dwelling is beyond the County’s statutory power. Plaintiff
is unlikely to prevail on her claim that UDO Section 10.51 is not authorized by North
Carolina General Statute § 153A-340(a), and thus that is not a proper basis for a
preliminary injunction.
2. North Carolina General Statute § 153A-340(l)
North Carolina General Statute § 153A-340(l) provides, in part,
Any zoning and development regulation ordinance relating
to building design elements adopted under this Part, under
Part 2 of this Article, or under any recommendation made
under G.S. 160A-452(6)c. may not be applied to any
structures subject to regulation under the North Carolina
Residential Code for One- and Two-Family Dwellings . . . .
....
. . . For the purposes of this subsection, the phrase “building
design elements” means exterior building color; type or
style of exterior cladding material; style or materials of roof
structures or porches; exterior nonstructural architectural
ornamentation; location or architectural styling of
windows and doors, including garage doors; the number
and types of rooms; and the interior layout of rooms. The
phrase “building design elements” does not include any of
the following: (i) the height, bulk, orientation, or location of
a structure on a zoning lot; (ii) the use of buffering or
screening to minimize visual impacts, to mitigate the
impacts of light and noise, or to protect the privacy of
neighbors; or (iii) regulations adopted pursuant to this
Article governing the permitted uses of land or structures
subject to the North Carolina Residential Code for One-
and Two-Family Dwellings.
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N.C. Gen. Stat. § 153A-340(l) (2017).
Plaintiff also argues that “Section 10.51 of the Currituck County UDO
[a]ttempts [t]o [r]egulate “[b]uilding [d]esign [e]lements” [i]n [v]iolation of North
Carolina [l]aw[,]” specifically North Carolina General Statute § 153A-340(l). Plaintiff
essentially alleges in her complaint that because multiple principal structures are
not allowed on her lot, the UDO impermissibly attempts “to regulate the interior
layout of rooms[.]” The trial court did not make a specific conclusion as to North
Carolina General Statute § 153A-340(l) and its conclusion regarding the zoning
enabling statute focuses on the “public welfare” portion of subsection (a). Plaintiff
also does not make any arguments specifically regarding North Carolina General
Statute § 153A-340(l) in her brief.
But just as we discussed above, Plaintiff’s argument seeks to impose imaginary
“requirements” upon Section 10.51. Section 10.51 does not address the “interior
layout of rooms” any more than it addresses foundations or “structural dependence[.]”
Plaintiff is unlikely to prevail on a claim that Defendant wrongfully regulated the
interior layout of her rooms, and thus that could not be a proper basis for a
preliminary injunction.
C. Constitutional Claims
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Plaintiff’s second, fifth, and seventh claims all raise constitutional issues.
Each of the constitutional issues again focuses on Section 10.51. It is not entirely
clear if Plaintiff’s claims are facial or as-applied challenges to Section 10.51.
[T]here is a difference between a challenge to the facial
validity of an ordinance as opposed to a challenge to the
ordinance as applied to a specific party. The basic
distinction is that an as-applied challenge represents a
plaintiff’s protest against how a statute was applied in the
particular context in which plaintiff acted or proposed to
act, while a facial challenge represents a plaintiff’s
contention that a statute is incapable of constitutional
application in any context. In an as-applied case, the
plaintiff is contending that the defendant municipal agency
violated his or her constitutional rights in the manner in
which an ordinance was applied to his or her property.
Only in as-applied challenges are facts surrounding the
plaintiff’s particular circumstances relevant.
. . . And in the context of a zoning action involving
property, it must be clear that the state’s action has no
foundation in reason and is a mere arbitrary or irrational
exercise of power having no substantial relation to the
public health, the public morals, the public safety or the
public welfare in its proper sense. Further, in making this
determination we may consider, among other factors,
whether: (1) the zoning decision is tainted with
fundamental procedural irregularity; (2) the action is
targeted at a single party; and (3) the action deviates from
or is inconsistent with regular practice.
Town of Beech Mountain v. Genesis Wildlife, ___ N.C. App. ___, ___, 786 S.E.2d 335,
347 (2016) (citations, quotation marks, and brackets omitted), aff’d per curiam, 369
N.C. 722, 799 S.E.2d 611 (2017). The complaint uses the phrase “on its face” several
times, but Plaintiff cites no authority and makes no real argument that the UDO is
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Opinion of the Court
unconstitutional on its face. Because “a facial challenge represents a Plaintiff’s
contention that a statute is incapable of constitutional application in any context[,]”
if we determine the ordinance is constitutional as-applied to Plaintiff, we have
necessarily also determined it is facially constitutional as her case is the “context”
where it is capable “of constitutional application[.]” Id. (emphasis added). Plaintiff’s
real argument is that UDO Section 10.5 is unconstitutional as applied to her project,
so we will address her contentions accordingly.
Again, it is also important to remember the history of this case. Defendant
initially approved Plaintiff’s plans and the Longs challenged that approval in Long.
See generally Long, ___ N.C. App. ___, 787 S.E.2d 835. Defendant did not apply UDO
Section 10.51 to Plaintiff in the manner she claims to be unconstitutional in this case
until after Long was issued and Defendant sought to comply with the ruling in Long.
So Plaintiff’s as-applied constitutional challenges are based upon Defendant’s efforts
to enforce the UDO as interpreted by Long.
While our standard of review remains “essentially de novo[,]” Robin, 70 N.C.
App. at 540, 320 S.E.2d at 696, for purposes of whether the trial court should have
issued a preliminary injunction, we also consider constitutional issues de novo:
The standard of review for questions concerning
constitutional rights is de novo. Furthermore, when
considering the constitutionality of a statute or act there is
a presumption in favor of constitutionality, and all doubts
must be resolved in favor of the act. In passing upon the
constitutionality of a statute there is a presumption that it
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Opinion of the Court
is constitutional, and it must be so held by the courts,
unless it is in conflict with some constitutional provision.
State v. Fryou, 244 N.C. App. 112, 125, 780 S.E.2d 152, 161 (2015), disc. review
dismissed, 368 N.C. 689, 781 S.E.2d 479, disc. review denied, 368 N.C. 689, 781 S.E.2d
483 (2016).
1. Arbitrary and Capricious
Plaintiff argues that application of Section 10.51 violates the state and federal
constitutions because it arbitrarily and capriciously distinguishes between building
characteristics and her constitutional due process rights have been violated. To a
large extent, Plaintiff’s argument repeats her contentions from her arguments
regarding North Carolina General Statute § 153A-340(a). The trial court’s only
conclusion which appears to address this claim is: “They constitute an arbitrary
restriction on her ability to use her property in that they do not promote health,
safety, morals, or the general welfare.”3
Plaintiff contends
Section 10.51 violates the federal and state constitutions
because it is arbitrary and capricious in three respects: (1)
its distinction of permissible buildings based on common,
versus separate, foundations; (2) its requirement that a
‘dwelling’ be a single building; and (3) the County’s
interpretation that labeling within plans as opposed to
actual building characteristics, is determinative.
3 It appears this conclusion was actually addressing the zoning enabling statutes since that is
the only legal basis the trial court mentions along with the “health, safety, morals, or the general
welfare” language, but it is the only conclusion which uses the word “arbitrary[.]”
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Plaintiff only cites one case in this section of her brief: “‘Governmental action in the
zoning or land use context violates due process principles if it is arbitrary or
capricious, lacks a rational basis, or is undertaken with improper motives.’
Browning-Ferris Industs. Of South Atlantic, Inc. v. Wake Cty., 905 F. Supp. 312, 319
(E.D.N.C. 1995).”4 Plaintiff uses Browning-Ferris only to support this general
proposition, which is correct, but Plaintiff cites no cases to show how her enumerated
three contentions would likely violate her rights to due process.
In Responsible Citizens, our Supreme Court set out the analysis to be used in
“due process challenges to governmental regulations of private property claimed to
be an invalid exercise of the police power.” See generally Responsible Citizens v. City
of Asheville, 308 N.C. 255, 261, 302 S.E.2d 204, 208 (1983).
Several principles must be borne in mind
when considering a due process challenge to
governmental regulation of private property
on grounds that it is an invalid exercise of the
police power. First, is the object of the
legislation within the scope of the police
power? Second, considering all the
surrounding circumstances and particular
facts of the case is the means by which the
governmental entity has chosen to regulate
reasonable?
In short, then, the court is to engage in an ends-
means analysis in deciding whether a particular exercise
of the police power is legitimate. The court first determines
4 As a federal district court case, Browning-Ferris is from a federal trial court, and is not
binding upon this Court.
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Opinion of the Court
whether the ends sought, i.e., the object of the legislation,
is within the scope of the power. The court then determines
whether the means chosen to regulate are reasonable.
Justice Brock stated that this second inquiry is really a
two-pronged test. That is, in determining if the means
chosen are reasonable the court must answer the following:
(1) Is the statute in its application reasonably necessary to
promote the accomplishment of a public good and (2) is the
interference with the owner’s right to use his property as
he deems appropriate reasonable in degree?
Id. at 255, 261–62, 302 S.E.2d at 208 (1983) (citations and quotation marks omitted).
As directed by our Supreme Court in Responsible Citizens, see id., we must first
consider whether “the object of the ordinance is within the scope of the police power[.]”
Id. at 261, 302 S.E.2d at 208. It is well-established that zoning ordinances such as
Section 10.51 are within Defendant’s police power:
In enacting and enforcing zoning regulations, a
municipality acts as a governmental agency and exercises
the police power of the State. The police power is that
inherent and plenary power in the state which enables it to
govern, and to prohibit things hurtful to the health, morals,
safety, and welfare of society.
Raleigh v. Fisher, 232 N.C. 629, 635, 61 S.E.2d 897, 902 (1950). In addition, Section
10.51 is specifically within the authority granted by North Carolina General Statute
§ 153A-340(a). See N.C. Gen. Stat. § 153A-340(a).
Next, we must address whether “considering all the surrounding
circumstances and particular facts of the case is the means by which the
governmental entity has chosen to regulate reasonable?” Responsible Citizens, 308
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Opinion of the Court
N.C. at 261, 302 S.E.2d at 208. This question includes a “two-pronged test”: “(1) Is
the statute in its application reasonably necessary to promote the accomplishment of
a public good and (2) is the interference with the owner’s right to use his property as
he deems appropriate reasonable in degree?” Id. at 261–62, 302 S.E.2d at 208.
The first question is whether Section 10.51 of the UDO is “in its application
reasonably necessary to promote the accomplishment of a public good[.]” Id.
Defendant has chosen to adopt a zoning ordinance which limits development in the
Single Family Residential Outer Banks Remote District. See generally Long, ___ N.C.
App. at ___, 787 S.E.2d at 838. The “public good” which the ordinance seeks to
accomplish is provided by the ordinance itself:
The UDO provides that the [Single Family Residential
Outer Banks Remote] District
is established to accommodate very low
density residential development on the
portion of the outer banks north of Currituck
Milepost 13. The district is intended to
accommodate limited amounts of
development in a manner that preserves
sensitive natural resources, protects wildlife
habitat, recognizes the inherent limitations
on development due to the lack of
infrastructure, and seeks to minimize damage
from flooding and catastrophic weather
events. The district accommodates single-
family detached homes. Public safety and
utility uses are allowed, while commercial,
office, and industrial uses are prohibited.
Id.
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Part of the “surrounding circumstances[,]” Responsible Citizens, 308 N.C. at
261, 302 S.E.2d at 208, is the natural environment of the Single Family Residential
Outer Banks Remote District. The location of Plaintiff’s project is so environmentally
sensitive that her house also required a CAMA permit and approval by other
agencies. Plaintiff’s project is in exactly the type of location which justifies
limitations on development. The limitations are intended both to protect the natural
environment and to protect the people who live in or visit the area. As the UDO
notes, there is a “lack of infrastructure,” making access by emergency personnel more
difficult. See generally Long, ___ N.C. App. at ___, 787 S.E.2d at 838. In addition,
the area is subject to “flooding and catastrophic weather events” so there is a greater
risk of a need for emergency evacuation. Id.
The risk from flooding and erosion is also one of the stated reasons for the
structural limitations of the CAMA permit: “Any structure authorized by this permit
shall be relocated or dismantled when it becomes imminently threatened by changes
in shoreline configuration.” Plaintiff’s environmental expert, Mr. Woody, described
the reasons for the 5,000 square foot limitation in his affidavit:
The goal in determining structure setbacks under CAMA
is articulated in a January 17, 1992 memorandum to the
Implementation & Standards Committee (CRAC) from
Charles Jones of the DCM staff. That memorandum states
that the “objective [of determining the size of a structure] is
to limit the total size of a structure so that it can be readily
relocated if threatened by erosion.” If a home is larger than
5,000 square feet but consists of structurally independent
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Opinion of the Court
components that are each less than 5,000 square feet, that
would facilitate relocation of the structure if it is threatened
by erosion.
(Emphasis added.)
Defendant’s ordinances are “reasonably necessary to promote the
accomplishment of a public good” and Defendant is applying them reasonably and
consistently with that purpose. “[I]t is this Court’s duty to apply the ordinance
irrespective of any opinion we may have as to its wisdom, for it is our duty to declare
what the law is not what the law ought to be.” Town of Pine Knoll Shores v. Evans,
104 N.C. App. 79, 83, 407 S.E.2d 895, 897 (1991) (citation, quotation marks, and
brackets omitted), aff'd as modified, 331 N.C. 361, 416 S.E.2d 4 (1992). Although
there may be other ways to accomplish the UDO’s purposes and it could be worded
differently, we cannot substitute our judgment for that of the Currituck County Board
of Commissioners.5 See id. The specific application of Section 10.51 of the UDO to
Plaintiff’s project which Plaintiff challenges is based upon Defendant’s Notice of
Violation and Stop Work order issued after, and based directly upon, this Court’s
opinion in Long. Plaintiff cannot show that Defendant has acted unreasonably or
arbitrarily by seeking to comply with this Court’s mandate. See Battle v. City of Rocky
Mount, 156 N.C. 329, 337, 72 S.E. 354, 357 (1911) (“The law will not countenance or
5 Again, Plaintiff proposed an amendment to the UDO which would allow her project to be
permitted as a single family detached dwelling, but the Currituck County Board of Commissioners
rejected it.
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Opinion of the Court
condone any attempt to defy its mandate. The private citizen must obey the law, and
the public officer is not exempt from this duty by any special privilege appertaining
to his office. He is not wiser than the law, nor is he above it.”)
The second prong of the test “is [whether] the interference with the owner’s
right to use his property as he deems appropriate [is] reasonable in degree?”
Responsible Citizens, 308 N.C. at 255, 262, 302 S.E.2d at 208. In Wenco Management
Co. v. Town of Carrboro, this Court addressed whether a zoning ordinance was a
reasonable interference with the landowner’s right to use its property. 53 N.C. App.
480, 281 S.E.2d 74 (1981). Carrboro had adopted an amendment to its zoning
ordinances which barred drive-through windows for restaurants in all of the business
zoning districts in town except one, the B-4 district. See id. at 482, 281 S.E.2d at 75.
But Carrboro designated no area in the town as B-4, so there was nowhere in town
where Wenco could operate a restaurant with drive-through service. See id. In
addition, Carrboro had adopted the amendment to its zoning ordinance “in direct
response to plaintiffs’ proposed construction of a restaurant with drive-in service after
plaintiffs had obtained a valid conditional use permit.” Id. at 483, 281 S.E.2d at 76.
This Court determined the amendment was not reasonably related to any legitimate
governmental interest because of the timing of the ordinance in response to plaintiff’s
permit and the fact that no area was designated as a B-4 district, holding that “[t]he
B-4 district amendment was unlawful as an arbitrary and unduly discriminatory
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Opinion of the Court
interference with plaintiffs’ property rights which lacked any rational relation to
valid police power objectives.” Id. at 484, 281 S.E.2d at 76.
Here, there is no indication that Defendant has adopted or applied any zoning
ordinance in a discriminatory, arbitrary, or retaliatory manner. Nor does the
ordinance prevent Plaintiff from using her lot for its intended purpose, a single family
detached dwelling. The UDO does not limit plaintiff’s right to build a house on her
property; it does not limit the square footage of the house, or as relevant for this case,
where on the lot she may build. Once again, plaintiff’s issue is created by a
combination of her decision to build in a certain location on her property, the CAMA
permit based upon that location, and the requirements of the UDO. Any “interference
with [Plaintiff’s] right to use her property as [she] deems appropriate” imposed by the
UDO is secondary to the other factors and is “reasonable in degree[.]” Responsible
Citizens, 308 N.C. at 262, 302 S.E.2d at 208.
Plaintiff also argues that the UDO is arbitrary and capricious as applied to her
because of (1) a distinction of permissible buildings based on common versus separate
foundations; (2) a requirement that a dwelling be a single building; and (3)
Defendant’s interpretation that labeling within the plans, as opposed to actual
building characteristics, is determinative.
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Plaintiff’s argument regarding the foundation of the project is based primarily
upon the Letter of Determination from the Planning Director, of 27 March 2017. In
that letter, Mr. Woody stated:
In response to the Notice of Violation dated
February 1, 2017, you have submitted for review
construction plans dated January 20, 2017. The
construction plans dated January 20, 2017 depict the same
three structurally separate and independent buildings
illustrated on construction plans dated November 22, 2013
that were the subject of the Letter of Determination
reversed by the Court of Appeals. Other than modification
of language on the construction plan sheets, there appears
to be no material difference between the plans used to
construct the three structurally separate and independent
buildings and the construction plans dated January 20,
2017. It is also noteworthy that to acquire a permit from
the North Carolina Division of Coastal Management it is
represented to that agency that the buildings located on
your property are structurally separate and independent
buildings. In a January 27, 2017 North Carolina Division
of Coastal Management memorandum from Doug Hugget,
Major Permits Coordinator, to Ron Reinaldi, Field
Representative, Mr. Hugget writes, “The original major
permit authorized the construction of three single-family
dwellings connected via a structurally detached roofed two
story deck . . . .” Mr. Hugget’s memorandum further shows
that the only changes on construction plan sheets are (1)
“[c]hanges nomenclature on the Title Sheet to refer to the
dwelling as a ‘Single-Family Dwelling’” and “depicts a
smaller constructed size of the permitted gazebo building”
and (2) “that a girder system that would connect the
separate buildings is no longer being considered and is not
incorporated into the submitted construction plans.”
The February 1, 2017 Notice of Violation requires
compliance by structurally modifying separate and
independent buildings on your property into one
structurally dependent building. The construction plans
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Opinion of the Court
dated January 20, 2017 do not show one structurally
dependent building. It is therefore my determination that
plans dated January 20, 2017 do not show a building that
complies with the UDO definition for single-family
detached dwelling and a modified zoning compliance
permit is denied.
This letter was part of Defendant’s efforts to comply with this Court’s decision
in Long. After Long, plaintiff and Defendant sought to find an acceptable revision to
the project to make it fit within the UDO requirements as set forth by Long. Several
possible changes were discussed, such as moving the three buildings out of the CAMA
setback area so they could be connected as one principal structure or reconfiguring
the side buildings to be smaller accessory buildings, with the middle building as the
principal structure. Plaintiff declined to make any changes, and ultimately Mr.
Woody issued the 27 March 2017 letter. But Defendant was not requiring any
particular revision to Plaintiff’s project. Defendant has no duty to tell Plaintiff what
she must do to comply with the UDO, although Defendant has worked extensively
with Plaintiff and her representatives to consider alternatives. It is not the job of
Defendant’s Planning Department to direct the details of how to bring the project into
compliance with the UDO; their job is to determine if Plaintiff’s proposed plans
comply with the UDO. Section 10.51 does not regulate plaintiff’s “foundation[.]” The
fact that Defendant may have suggested changes to plaintiff’s foundation as one way
to comply with both the UDO and CAMA, does not mean the UDO regulates
foundations.
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Nor does the UDO require that a single family detached dwelling be “a single
building[.]” As explained by Long, the dwelling may include “accessory structures”
which are
“subordinate in use and square footage” to a principal
structure. UDO § 10.34. Even assuming that the two side
“buildings” or “structures” are subordinate in use to the
center “building,” it is uncontested that all of the buildings
are approximately 5,000 square feet. No building is
subordinate in square footage to another so none can meet
the definition of an “accessory structure.”
Id. at ___, 787 S.E.2d at 840 (citations and footnote omitted).
And if labeling on plans, instead of actual building characteristics, were
controlling, there would be no dispute here. Plaintiff could simply re-label the
structures on the plans as whatever she likes that would comply with the UDO.
According to Mr. Woody’s letter, that is what she attempted to do.6 Although in Long,
___ N.C. App. ___, 787 S.E.2d 835, the parties were dealing with plans on paper, when
Plaintiff filed her complaint, the buildings were nearly complete so Defendant is
dealing with actual structures. Giving a structure a new name on paper changes
nothing; it is what it is. See, e.g., Pine Knoll Shores, 104 N.C. App. 79 at 80-81, 407
S.E.2d at 895-96. ( The defendant landowners called their structure a “ground cover,”
not a “deck,” where zoning ordinance forbade construction of “other separate
6 Mr. Woody’s letter provides, “Other than modification of language on the construction plan
sheets, there appears to be no material difference between the plans used to construct the three
structurally separate and independent buildings and the construction plans dated January 20, 2017.”
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structures” on single-family residential lot; Court determined name of structure was
not controlling and landowner had violated the ordinance by construction of a
structure of “precisely sized wooden boards connected to one another so as to form a
level, continuous surface covering a substantial area of the lot between the canal and
house.”). Plaintiff has failed to show she is likely to prevail on her claim that Section
10.51 of the UDO is unconstitutionally arbitrary or capricious as applied to her, and
thus that is not a proper basis for the issuance of a preliminary injunction.
2. Vagueness
Plaintiff argues that “[t]he UDO is unconstitutionally vague to the extent it
requires the wings of the home to be structurally dependent.”
[A] statute is unconstitutionally vague if it either: (1) fails
to give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited; or (2) fails to
provide explicit standards for those who apply the law. A
statute which either forbids or requires the doing of an act
in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its
application violates the first essential of due process of law.
Fryou, 244 N.C. App. at 125, 780 S.E.2d at 161 (citation omitted).
The trial court determined that Plaintiff is likely to prevail on her claim that
Section 10.51 is unconstitutionally vague:
LeTendre is likely to prevail on her claim that those
provisions in the UDO that are barring her home from
being a single-family detached dwelling are
unconstitutionally vague. The UDO as written does not
provide reasonable notice that a home like LeTendre’s, in
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Opinion of the Court
which the wings connected by enclosed, air conditioned
hallways and have connected rooflines, would not meet the
definition of a single-family detached dwelling. Those UDO
provisions therefore fail to reasonably apprise property
owners concerning what conduct they prohibit.
Again, Plaintiff’s argument is based upon an assumption that the UDO
requires “structural dependency[,]” although it does not. In fact, even Plaintiff notes
that “Section 10.51 of the UDO does not expressly include a requirement that the
wings of a building be structurally dependent on one another in order for the building
to be considered a dwelling.” As explained in Long,
The UDO defines “DWELLING, SINGLE-FAMILY
DETACHED” as follows: “A residential building
containing not more than one dwelling unit to be occupied
by one family, not physically attached to any other
principal structure.” UDO § 10.51. Thus, the definition of
a Single Family Dwelling has five elements: (1) A building,
(2) for residential use, (3) containing not more than one
dwelling unit, (4) to be occupied by one family, and (5) not
physically attached to any other “principal structure.” The
definition of a Single Family Dwelling includes portions
that address the physical structure of the proposed
dwelling: “a building,” “containing not more than one
dwelling unit,” and “not physically attached to any other
principal structure.” . . .
....
Yet the definition of Single Family Dwelling clearly
allows more than one “building” or “structure” to be
constructed on the same lot, so the presence of three
“buildings” alone does not disqualify the project. However,
the remainder of the definition does disqualify the project.
The last element in the definition of a Single Family
Dwelling is “not physically attached to any other principal
structure.” UDO § 10.51. In other words, the Single Family
Dwelling is “detached,” which is part of the title. The UDO
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provides that “words used in the singular number include
the plural number and the plural number includes the
singular number, unless the context of the particular usage
clearly indicates otherwise.” UDO § 10.1.11. In the
definition of Single Family Dwelling, the context does
clearly indicate otherwise. We cannot substitute the word
“buildings” for “a building” without rendering the last
phrase of the definition, “not physically attached to any
other principal structure” either useless or illogical. The
Planning Director determined that the multiple buildings
together function as a principal structure, but even if they
are functionally used as one dwelling unit, each individual
building is itself a “structure.” See §§ 10.43, .83. Thus,
each building is necessarily either an “accessory structure”
or a principal structure. And respondents do not argue
that the side buildings are “accessory structures;” they
argue only that the entire project functions as one
“principal structure.” Although the ordinance does not
define principal structure, it does define “accessory
structures” as “subordinate in use and square footage” to a
principal structure. UDO § 10.34. Even assuming that the
two side “buildings” or “structures” are subordinate in use
to the center “building,” it is uncontested that all of the
buildings are approximately 5,000 square feet. No building
is subordinate in square footage to another so none can
meet the definition of an “accessory structure.” This would
mean that each building is a principal structure, however
a Single Family Dwelling only allows for one. In addition,
the ordinary meaning of “principal” is in accord. See
Webster’s Seventh New Collegiate Dictionary 676 (1969).
“Principal” is defined as “most important.” Id. There can be
only one “principal structure” on a lot in the SF District
and that principal structure can be attached only to
“accessory structures.”
Long, ___ N.C. App. at ___, 787 S.E.2d at 838-40 (citations, brackets, and footnotes
omitted).
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The UDO defines a single family detached dwelling as “[a] residential building
containing not more than one dwelling unit to be occupied by one family, not
physically attached to any other principal structure. UDO § 10.51.” Id. at ___, 787
S.E.2d at 838 (emphasis added). Plaintiff is again arguing, as she did in Long, see id.
at ___ 787 S.E.2d at 840, that if the structures are connected, they function as and
should be deemed as one “building” under the UDO.7 But “connection” does not make
three building into one, despite the function. As explained in Long,
Perhaps a more “absurd” result would be if we were to read
the ordinances to focus only upon the “use” portion of
Single Family Dwelling definition, as respondents argue,
while ignoring the structural portion, since it would not
matter how many “buildings” are connected by
“conditioned hallways” if they are functioning as one
dwelling for one family. Were we to adopt respondent
Currituck County’s interpretation, a project including ten
5,000 square foot buildings, all attached by conditioned
hallways, which will be used as a residential dwelling for
one family with a kitchen facility in only one of the
buildings would qualify as a Single Family Dwelling.
Respondents’ interpretation would also be contrary to the
stated purpose of the zoning, which calls for “very low
density residential development” and “is intended to
accommodate limited amounts of development in a manner
that preserves sensitive natural resources, protects wildlife
habitat, recognizes the inherent limitations on
development due to the lack of infrastructure, and seeks to
minimize damage from flooding and catastrophic weather
events.”
7 For example, the affidavit from Plaintiff’s architect states that “[o]n the October 10, 2013
plans, because the wings were connected with air conditioned hallways and their roof lines were
connected, the wings were integrated and connected such that the entire home would be considered a
single building and a single dwelling in the design and construction industry.”
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Id. at ___, 787 S.E.2d at 840-41 (citation omitted).
The words “physically attached” are not vague or difficult to understand; they
mean the same thing as “connected.” Id. at ___, 787 S.E.2d at 838. However the
structures are “physically attached” – whether by the foundation or by “air
conditioned hallways” – Plaintiff’s project includes three separate buildings which
are physically attached to one another. The importance of the foundation of the
structures comes only from the CAMA requirements, not the UDO. The CAMA
permit will allow no building larger than 5,000 square feet and will not allow the
three buildings to be structurally dependent upon one another. Plaintiff’s project
included three separate buildings from the beginning; it was intentionally designed
this way to comply with CAMA requirements.
The Long case answered the question of vagueness. Id. at ___, 787 S.E.2d at
840-41. Although the UDO provisions can be difficult to read, as many ordinances
and statutes are, they are not unconstitutionally vague. Section 10.51 “give[s] the
person of ordinary intelligence a reasonable opportunity to know what is prohibited”
and “provide[s] explicit standards for those who apply the law[,]” Fryou, 244 N.C.
App. at 125, 780 S.E.2d at 161, by plainly prohibiting more than one principal
structure per lot, although allowing accessory structures. See Long, ___ N.C. App. at
___, 787 S.E.2d at 838-40. Plaintiff understood this also; the negotiations and plan
revisions have been caused by Plaintiff’s insistence on fitting a square peg into a
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Opinion of the Court
round hole. The problem was created by the CAMA regulations and Plaintiff’s
decision to build within the CAMA setback area; these factors do not make the
ordinance vague. Plaintiff is unlikely to prevail on her claim of unconstitutional
vagueness, and thus that is not a proper basis for the issuance of a preliminary
injunction.
3. Equal Protection
Plaintiff’s final constitutional claim was regarding equal protection. The trial
court’s order did not address whether plaintiff was likely to prevail on her equal
protection claim. Neither Plaintiff nor Defendant have addressed equal protection in
their briefs on appeal.8
An equal protection violation would require Plaintiff to show that Defendant
treated her differently from other similarly situated property owners in its
application of the UDO because in order
[t]o establish an equal protection violation,
[plaintiff] must identify a class of similarly situated
persons who are treated dissimilarly. . . . Thus, in order to
properly assert an equal protection violation, Petitioner
was required to allege and demonstrate that she was
treated differently than other similarly situated
individuals in some relevant way.
8 Because a trial court’s order must be affirmed if there is any legal basis for the order, even
one other than stated in the order, see generally Shore, 324 N.C. at 428, 378 S.E.2d at 779, we are
briefly addressing equal protection. In addition, plaintiff was unwilling to concede at oral argument
that any one of the nine claims may not support the preliminary injunction.
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Yan-Min Wang v. UNC-CH Sch. Of Med., 216 N.C. App. 185, 204–05, 716 S.E.2d 646,
658–59 (2011) (citation and quotation marks omitted). There has been no forecast of
evidence that Defendant has applied its zoning ordinance in a manner that treats
Plaintiff differently from other property owners in the SF District. Plaintiff is not
likely to prevail on a claim for violation of her equal protection rights so it may not
serve as the reason a preliminary injunction may issue.
D. Preemption by North Carolina Building Code
Plaintiff’s fourth cause of action is that “Section 10.51 of the Currituck County
UDO [i]s [p]reempted [b]y the North Carolina Building Code[.]” The trial court’s
order agreed with Plaintiff and found:
The provisions in the UDO that prevent LeTendre’s home
from qualifying as a single-family detached dwelling also
attempt to regulate matters already regulated by the North
Carolina Building Code. Ms. LeTendre’s home is governed
[by] the Building Code, and the Building Code contains
detailed provisions governing such matters as how the
foundations of her home should be constructed and
whether the wings of her home should be structurally
dependent. Nothing in the Building Code requires the
foundations of LeTendre’s home to be structurally
integrated, and nothing in the Building Code requires the
wings of her home to be structurally dependent. The UDO
provisions that bar her home from being a single family
detached dwelling therefore require her home to be
constructed in a way that the Building Code does not
require.
The trial court concluded:
LeTendre is likely to prevail on her claim that the
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Opinion of the Court
provisions of the UDO that are barring her home from
being a single-family detached dwelling are preempted by
the North Carolina Building Code because those provisions
attempt to regulate matters of construction that are
already comprehensively and exclusively regulated by the
Building Code.
We first note that neither Plaintiff’s brief nor the trial court’s order identifies
which provisions of the North Carolina Building Code preempt Defendant’s zoning
ordinance, but Plaintiff’s complaint identified the statutory basis for her claim as
North Carolina General Statute § 143-138(e), which provides:
Effect upon Local Codes. -- Except as otherwise provided in
this section, the North Carolina State Building Code shall
apply throughout the State, from the time of its adoption.
Approved rules shall become effective in accordance with
G.S. 150B-21.3. However, any political subdivision of the
State may adopt a fire prevention code and floodplain
management regulations within its jurisdiction. The
territorial jurisdiction of any municipality or county for
this purpose, unless otherwise specified by the General
Assembly, shall be as follows: Municipal jurisdiction shall
include all areas within the corporate limits of the
municipality and extraterritorial jurisdiction areas
established as provided in G.S. 160A-360 or a local act;
county jurisdiction shall include all other areas of the
county. No such code or regulations, other than floodplain
management regulations and those permitted by G.S.
160A-436, shall be effective until they have been officially
approved by the Building Code Council as providing
adequate minimum standards to preserve and protect
health and safety, in accordance with the provisions of
subsection (c) above. Local floodplain regulations may
regulate all types and uses of buildings or structures
located in flood hazard areas identified by local, State, and
federal agencies, and include provisions governing
substantial improvements, substantial damage,
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Opinion of the Court
cumulative substantial improvements, lowest floor
elevation, protection of mechanical and electrical systems,
foundation construction, anchorage, acceptable flood
resistant materials, and other measures the political
subdivision deems necessary considering the
characteristics of its flood hazards and vulnerability. In the
absence of approval by the Building Code Council, or in the
event that approval is withdrawn, local fire prevention
codes and regulations shall have no force and effect.
Provided any local regulations approved by the local
governing body which are found by the Council to be more
stringent than the adopted statewide fire prevention code
and which are found to regulate only activities and
conditions in buildings, structures, and premises that pose
dangers of fire, explosion or related hazards, and are not
matters in conflict with the State Building Code, shall be
approved. Local governments may enforce the fire
prevention code of the State Building Code using civil
remedies authorized under G.S. 143-139, 153A-123, and
160A-175. If the Commissioner of Insurance or other State
official with responsibility for enforcement of the Code
institutes a civil action pursuant to G.S. 143-139, a local
government may not institute a civil action under G.S. 143-
139, 153A-123, or 160A-175 based upon the same violation.
Appeals from the assessment or imposition of such civil
remedies shall be as provided in G.S. 160A-434.
A local government may not adopt any ordinance in
conflict with the exemption provided by subsection (c1) of
this section. No local ordinance or regulation shall be
construed to limit the exemption provided by subsection
(c1) of this section.9
N.C. Gen. Stat. § 143-138(e) (2017). North Carolina General Statute § 143-138(e)
merely sets forth the authority of the State to adopt building codes which apply
throughout the state. Plaintiff’s house is governed by the North Carolina Residential
9 Subsection (c1) deals with elevators in private clubs and religious organizations, so it is not
relevant to this case. See N.C. Gen. Stat. § 143-138(c1) (2017).
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Code.
Plaintiff again focuses her argument on her contention that the UDO requires
“structurally dependent foundations[.]” Plaintiff submitted the affidavit of her
contractor, Mr. Mancuso, who averred:
80. The Building Code contains a chapter on
foundations. I have reviewed and relied upon that chapter
of the Building Code many times over the years and am
personally familiar with it. An accurate copy of that
chapter is attached as Exhibit 13. The Building Code’s
chapter on foundations applies to and governs the
foundations in Ms. LeTendre’s home. That chapter of the
Building Code states that it “shall control the design and
the construction of the foundation and foundation spaces
for all buildings.” That chapter comprehensively regulates
the foundations of one and two family dwellings, and it has
provisions governing matters like what materials must be
used in a home’s foundation, how the different components
in a home’s foundation must connect together and connect
to other parts of the home, and what standards the
components of a home’s foundation must meet.
81. Neither the Building Code’s chapter on
foundations, nor any other provision in the Building Code,
requires the foundations of the three wings in Ms.
LeTendre’s home to be connected or requires Ms.
LeTendre’s home to have a single common foundation.
82. Simply put, Ms. LeTendre’s home is one
building and one dwelling. It is one building for purposes
of the Building Code, and it is considered one building as
[that] term is understood and used in the local design and
construction industry.
Plaintiff also relies upon a determination by the North Carolina Building Code
Council issued in August 2015. Plaintiff’s project came under consideration by the
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Building Code Council based upon Plaintiff’s appeal from the North Carolina
Department of Insurance (“NCDOI”). A staff member of NCDOI determined, after
his review of the building plans, coupled with his review of
the Coastal Area Management Agency (“CAMA”) permit
application for the project, led him to conclude that the
proposed occupancy more closely resembles a “hotel” and
should be constructed in compliance with R-l type
occupancy as mandated in the North Carolina Building
Code (“NCBC”).
After discussion among Plaintiff’s contractor, members of Defendant’s staff,
and NCDOI staff,
an agreement was reached wherein Mr. Newns issued a
residential building permit for the project with various
modifications to construction standards and methods
normally called for only in projects meeting R-3 occupancy
standards found in the [North Carolina Building Code], but
not in the [North Carolina Residential Code.] The
additional requirements included sprinkler systems,
handicap access, increased fire protection, emergency exits
and the like.
Plaintiff’s contractor agreed to these requirements with the “express
understanding that . . . [Plaintiff] would solicit a formal interpretation from NCDOI
regarding the occupancy classification and petition the County to remove all
additional requirements not expressly mandated by the NCRC” if the NCDOI’s
determination that the building closely resembled a hotel” was reversed. On 28 May,
2015, a deputy commissioner of the NCDOI approved the determination that “if the
property is ‘used as a house,’ it can be built according to NCRC standards, but if it
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Opinion of the Court
were rented out as a '’vacation rental,’ as shown in the CAMA application, it most
closely resembles a Group R-l Occupancy and must be constructed in accordance with
the NCBC.” Plaintiff appealed this determination to the North Carolina Building
Code Council, and the Council reversed the NCDOI ruling and concluded that “[t]his
project meets the definition of a one family dwelling not more than three stories above
grade plane in height with a separate means of egress, as required in NCRC section
R101.2. Accordingly, the NCRC applies to this project.”
Plaintiff argues that
Currituck County’s application of the UDO attempts
to regulate a home’s foundations in a manner different
from that prescribed by the Building Code. (See Doc. Ex.
116 ¶¶80–81) The construction of a home’s foundation(s) is
regulated by the Building Code, and nowhere in the Code
is there a requirement that various wings of a home must
be structurally dependent or share a common foundation.
Plaintiff then footnotes that
[t]hese conclusions are supported by the August 2015
ruling of the Building Code Council, which determined that
the home depicted in the October 2013 plans is a “single-
family dwelling.” (Doc. Ex. 94-95, Ex. 11) Two building
inspectors, including the County’s Chief Building
Inspector, have confirmed that the home is a single
building for purposes of the Building Code. (Doc. Ex. 115
¶78)
The first problem with plaintiff’s preemption argument is that the Currituck
County UDO does not regulate the construction of foundations. Plaintiff is arguing
only that the definition of a single family detached dwelling in the UDO somehow
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Opinion of the Court
addresses the construction of foundations. The Planning Director’s letter of 17
March 2017 also did not address any of the technical requirements of foundations. In
addition, the determination by the North Carolina Building Code Council does not in
any way control Defendant’s application of its UDO.
In Duggins v. Town of Walnut Cove, this Court rejected a similar argument
that the town ordinance’s definitions of “mobile home,” “modular home,” and “site-
built home” were an “impermissible attempt to regulate construction practices.” 63
N.C. App. 684, 687, 306 S.E.2d 186, 188 (1983). The plaintiffs contended that they
should be allowed to install a mobile home in an area which allowed only modular
and site-built homes. See id. Prior to purchasing the mobile home, “the plaintiffs
described to Defendant’s town clerk/zoning administrator the type of manufactured
home they intended to erect on their property and were assured this home complied
with local ordinances. Defendant issued a building permit to plaintiffs and accepted
their payment of $200 as a water tap fee.” Id. at 685, 306 S.E.2d at 187. But when
the plaintiffs tried to install the mobile home on their lot, they were informed that it
was not allowed in that zoning district. Id. One of the plaintiffs’ arguments on appeal
was that
[d]efendant’s attempt to “zone out” mobile homes as
defined in the ordinance exceeds Defendant town’s
statutory authority both because the zoning enabling act
does not authorize Defendant to regulate the types of
structures used for single-family residential purposes and
because Defendant's ordinance constitutes a back door
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Opinion of the Court
attempt to intrude into a field preempted by state and
federal law.
63 N.C. App. at 686, 306 S.E.2d at 188. Regarding building codes, the plaintiffs
argued that because mobile homes and modular or site-built homes are governed by
different building codes, “the zoning ordinance . . . [has] the effect of distinguishing
between structures used for the same purpose--single-family residences--based solely
on the construction methods and materials used.” Id. at 687, 306 S.E.2d at 188. But
this Court determined,
We do not agree with plaintiffs’ interpretation of the
ordinance. It is obvious from the definitions in the
ordinance that the different applicable building codes is not
the only factor differentiating mobile homes from modular
homes. Therefore, the ordinance does not have the effect
suggested by plaintiffs. Defendant is clearly authorized by
G.S. 160A-381 to regulate and restrict the location and use
of any buildings or structures for residential and other
purposes, and that is exactly what defendant has done in
restricting the location of mobile homes.
Similarly, plaintiffs attack the ordinance on the
grounds it is an impermissible attempt to regulate
construction practices. Defendant’s ordinance was not
intended to and does not have the effect of regulating
construction practices in any way. Rather, the ordinance
deals solely with the location and use of buildings and
structures as the statute expressly authorizes. Plaintiffs’
attempt to read more into defendant’s enactment of the
ordinance is not warranted. Accordingly, we hold both
aspects of plaintiffs’ first argument are meritless.
Id. at 687, 306 S.E.2d at 188–89 (emphasis added).
Defendant’s UDO also “deals solely with the location and use of buildings and
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structures as the statute expressly authorizes. Plaintiff[’]s[] attempt to read more into
defendant’s enactment of the ordinance is not warranted.” Id. The trial court erred
in concluding that Plaintiff is likely to prevail on her claim that UDO Section 10.51
impermissibly regulates construction practices and is preempted by the North
Carolina Building Code. Plaintiff is unlikely to prevail on this claim so it is not a
proper basis for a preliminary injunction.
E. Inverse Condemnation
Plaintiff’s sixth cause of action is that “Currituck County [h]as [t]aken
LeTendre’s [p]roperty[.]” The trial court did not conclude and Plaintiff does not argue
that the preliminary injuction could be based upon her alternative claim for inverse
condemnation. Plaintiff’s complaint alleges that “Section 10.51 of the Currituck
County UDO, by itself and in combination with those County actions, assurances,
and representations . . . induced [her] to build” the project which now is deprived “of
all economic value, market value, and utility.” But since inverse condemnation is a
claim for monetary compensation and not a claim to restrain the Defendant from
taking some action, a preliminary injunction could not logically be based on inverse
condemnation. We also note that under North Carolina General Statute § 40A-51, a
Memorandum of Action must be filed for an inverse condemnation claim, and plaintiff
has failed to do so. See N.C. Gen. Stat. § 40A-51(b) (2017); see also Cape Fear Pub.
Util. Auth. v. Costa, 205 N.C. App. 589, 596, 697 S.E.2d 338, 342 (2010) (“Defendant’s
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counterclaim for inverse condemnation was thus subject to dismissal for its failure to
comply with N.C. Gen. Stat. § 40A–51.”) Since the preliminary injunction could not
be based upon this claim, we will not speculate on it further, but we note Plaintiff
would not be entitled to a preliminary injunction on this basis.
F. Laches
Plaintiff’s eighth cause of action is that “Currituck County’s [a]ttempts to
[e]nforce Section 10.51 of the UDO [a]gainst the Home are [b]arred by [l]aches[.]”
This claim is based upon her allegation that Currituck County had notice “that the
Home as described in the Plans might not comply with the UDO” in December of 2013
when the Longs appealed the BOA’s determination. In other words, Defendant has
taken too long to oppose Plaintiff’s plans; Defendant should have known better than
to approve her plans in November 2013 and should have changed its position right
away to join in the Longs’ challenge.10 The trial court did not rely upon laches in its
issuance of the preliminary injunction, and Plaintiff has not addressed laches on
appeal. But we do note that “a municipality cannot be estopped to enforce a zoning
ordinance against a violator by the conduct of its officials in encouraging or
permitting such violator to violate such ordinance in times past.” Fisher, 232 N.C. at
635, 61 S.E.2d at 902. Therefore, plaintiff is not entitled to a preliminary injunction
on the basis of a likelihood of success of her claim of laches.
10In Long, Plaintiff and Defendant were in agreement. See Long, ___ N.C. App. ___, 787 S.E.2d
835. Defendant is now carrying out this Court’s mandate in Long, in opposition to Plaintiff.
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G. Common Law Vested Right
Plaintiff’s last claim is that even if she is not likely to prevail on any of her
other claims, she still has a common law vested right to use the project. The trial
court concluded that Plaintiff was likely to prevail on her vested right claim:
LeTendre is likely to prevail on her claim that she has a
vested right to complete and use her home as approved by
the County in November 2013. At the time that LeTendre
constructed her home, starting in the spring of 2015, she
had valid approvals from Currituck County for that home’s
construction. This Court had ruled in December 2014 that
the County’s approval of her home was valid, and there was
no stay in place to prevent this Court’s order from taking
effect. As a result, when LeTendre spent substantial sums
in reliance on her approvals from the County to construct
her home, she was relying on valid governmental
approvals. Her reliance on those approvals was also
reasonable and in good faith.
Plaintiff argues that
[t]o establish a common law vested right, an owner must
obtain an approval for the development and make
substantial expenditures in good faith reliance on that
approval. River Birch Assocs. v. City of Raleigh, 326 N.C.
100, 112, 388 S.E.2d 538, 544–45 (1990). LeTendre
received approval of her home’s construction in the
County’s November 2013 Letter of Determination and
March 2015 building permit. She then spent over $4
million building her home in reliance on those approvals.
(See Doc. Ex. 10 ¶32) Thus, she made substantial
expenditures in good faith reliance on governmental
approvals.
This Court described how a landowner may acquire a vested right to use her
land in a certain way in Browning-Ferris Industries v. Guilford County Bd. of Adj.:
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The common law vested rights doctrine is rooted in
the due process of law and the law of the land clauses of
the federal and state constitutions and has evolved as a
constitutional limitation on the state’s exercise of its police
powers. A party’s common law right to develop and/or
construct vests when: (1) the party has made, prior to the
amendment of a zoning ordinance, expenditures or
incurred contractual obligations substantial in amount,
incidental to or as part of the acquisition of the building
site or the construction or equipment of the proposed
building; (2) the obligations and/or expenditures are
incurred in good faith; (3) the obligations and/or
expenditures were made in reasonable reliance on and
after the issuance of a valid building permit, if such permit
is required, authorizing the use requested by the party; and
(4) the amended ordinance is a detriment to the party. The
burden is on the landowner to prove each of the above four
elements.
126 N.C. App. 168, 171–72, 484 S.E.2d 411, 414 (1997) (citations, quotation marks,
and brackets omitted).
As described in Browning-Ferris, the first element of a vested rights claim is
that “the party has made, prior to the amendment of a zoning ordinance, expenditures
or incurred contractual obligations substantial in amount, incidental to or as part of
the acquisition of the building site or the construction or equipment of the proposed
building[.]” Id. at 171, 484 S.E.2d at 414 (emphasis added). Here, the zoning
ordinance has not been amended; the only question from the beginning has been
whether Plaintiff’s house is a “single-family detached dwelling” as defined by Section
10.51 of the UDO. Long, ___ N.C. App. at ___, 787 S.E.2d at 836 (“On appeal, there
is no real factual issue presented but only an issue of the interpretation of the UDO.
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The parties have made many different arguments, with petitioners focusing upon the
applicable definitions and provisions of the UDO, and respondents focusing upon the
intended use and function of the project. This case ultimately turns upon the
definition of a single family detached dwelling.” (citations, quotation marks, and
brackets omitted)). Plaintiff is correct in noting that her project was initially
approved by Defendant:
The 22 November 2013, LETTER OF DETERMINATION
from the Planning Director describes the project as follows:
“The plans indicate a three-story main building that
includes cooking, sleeping, and sanitary facilities; as well
as two-story side buildings that include sleeping and
sanitary facilities. The building plans also show two
conditioned hallways connecting rooms within the
proposed single family detached dwelling.” This is an
accurate and undisputed description of the project. The
BOA affirmed the Planning Director’s description, and the
Superior Court affirmed the BOA’s decision.
Id. at ___, 787 S.E.2d at 839.
But the Longs appealed and that case proceeded on appeal to this Court, where
it was resolved by issuance of Long in favor of the petitioner-plaintiffs who argued
against plaintiff LeTendre. See id., ___ N.C. App. ___, 787 S.E.2d 835. Thus, as to
Plaintiff’s argument that she relied upon “the County’s November 2013 Letter of
Determination and March 2015 building permit[,]” Plaintiff knew the Letter of
Determination as affirmed by the BOA and then the Superior Court was on appeal
and was specifically warned that this Court may not find in her favor Plaintiff did
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Opinion of the Court
not get her building permit and begin construction until after the appeal. See
generally id. But Plaintiff argues that unless someone took additional legal action to
stop her, she was still entitled to proceed to build: “With a valid building permit in
hand, and without any injunction in place, proceeding with her home was a
reasonable decision made in good faith.” Thus, Plaintiff’s vested rights theory is that
she could acquire a common law vested right to build and occupy her house simply by
proceeding with construction quickly, even while aware that her right to do so was on
appeal and could be reversed.
Plaintiff’s interpretation of vested rights is simply not supported by the law.
See generally Fisher, 232 N.C. 629, 61 S.E.2d 897. First, Plaintiff’s interpretation
would deprive Defendant of its right and duty to exercise the police power if a
landowner building a structure in violation of its zoning ordinance simply acts fast
enough to complete the work before a legal challenge to the landowner’s project can
be completed. Although Fisher did not specifically address vested rights, the
situation presented is very similar to this case. See generally id. In Fisher, the City
of Raleigh sued to enjoin the Defendant “landowners from carrying on business in a
residential zoning district in violation of a zoning ordinance.” Id. at 630, 61 S.E.2d
at 898. The Defendants had been “operating a bakery and sandwich company” at an
address within a residential zoning district. Id. at 631, 61 S.E.2d at 899 (quotation
marks omitted). The property had been zoned as residential since 1923, and in 1936
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Opinion of the Court
the Defendants acquired the land and constructed the house in which the business
operated. See id. at 632, 61 S.E.2d at 900. Defendants operated the business from
this location “with the full approval and consent of the officials of the City of Raleigh”
“for at least ten years.” Id. The Defendants also “increased their facilities from the
operation of the business” during this time, investing “at least $75,000.00, which
[would] be lost in case they are precluded from continuing their commercial
operations[.]11 Id. (quotation marks omitted). But in 1948, the City of Raleigh notified
Defendants they must “discontinue their business operations within said residential
district[;]” the Defendants refused to comply, leading to the lawsuit to enjoin them
from continuing operation of the business. Id. at 631, 61 S.E.2d. at 899-900 (quotation
marks omitted),
The Supreme Court determined that the City of Raleigh could not be estopped
from enforcing “its zoning ordinance against the defendants” despite “the fact that its
officials have encouraged or permitted them to violate it for at least ten years.” Id.
at 634, 61 S.E.2d at 900. While the Court recognized Defendants’ good faith reliance
upon the City’s acquiescence, and even encouragement, of the operation of the
business for many years and their substantial expenditures based upon that reliance,
11 To put the investment of $75,000.00 in context, according to the United States Department
of Labor, Bureau of Labor Statistics’ Consumer Price Index calculator, this expenditure in 1940 would
be equivalent to over $1,300,000.00 today. See United States Department of Labor, Bureau of Labor
Statistics, Databases, Tables & Calculators by Subject, CPI Inflation Calculator -
https://www.bls.gov/data/inflation_calculator.htm.
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it determined that because enforcement of the zoning ordinances is within the police
power of the City, the City could change its position and require the business to cease
operation in that location:
In enacting and enforcing zoning regulations, a
municipality acts as a governmental agency and exercises
the police power of the State. The police power is that
inherent and plenary power in the state which enables it to
govern, and to prohibit things hurtful to the health, morals,
safety, and welfare of society. In the very nature of things,
the police power of the State cannot be bartered away by
contract, or lost by any other mode.
This being true, a municipality cannot be estopped
to enforce a zoning ordinance against a violator by the
conduct of its officials in encouraging or permitting such
violator to violate such ordinance in times past.
Undoubtedly this conclusion entails much hardship
to the defendants. Nevertheless, the law must be so
written; for a contrary decision would require an
acceptance of the paradoxical proposition that a citizen can
acquire immunity to the law of his country by habitually
violating such law with the consent of unfaithful public
officials charged with the duty of enforcing it.
Id. at 635, 61 S.E.2d at 902 (citations omitted). The November 2013 Letter of
Determination could not create a vested right for Plaintiff to build the project as
planned, particularly since that letter was immediately challenged, and she did not
even begin construction until much later. See generally id. We have no doubt that
Defendant’s Planning Director was acting in good faith in approving Plaintiff’s plans,
but Plaintiff could not in good faith rely upon the November 2013 letter to build the
house, where a legal challenge to the project was pending.
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Our Supreme Court has also recognized that a landowner cannot in good faith
acquire a vested right if the landowner knows of a pending amendment to a zoning
ordinance which would change the use of the land:
The “good faith” which is requisite under the rule of
Warner v. W & O, Inc., supra, is not present when the
landowner, with knowledge that the adoption of a zoning
ordinance is imminent and that, if adopted, it will forbid
his proposed construction and use of the land, hastens, in
a race with the town commissioners, to make expenditures
or incur obligations before the town can take its
contemplated action so as to avoid what would otherwise
be the effect of the ordinance upon him.
Town of Hillsborough v. Smith, 276 N.C. 48, 56, 170 S.E.2d 904, 910 (1969).
In Finch v. City of Durham, the plaintiffs planned to build a hotel on a tract of
land zoned as Office-Institutional, which would allow hotels. See Finch, 325 N.C.
352, 355-56, 384 S.E.2d 8, 10 (1989). The plaintiffs worked on planning the motel for
several years and leased the property with an option to purchase it at the end of the
lease. See id. at 356-60, 384 S.E.2d at 10-12. In 1984, the plaintiffs entered into an
agreement with Red Roof Inns providing for Red Roof Inns to construct the motel and
lease the property from plaintiffs. See id. The plaintiffs had to exercise their option
to purchase by giving notice by 1 May 1985; if they did not, the lease would end in
June 1985. See id. The plaintiffs exercised the option, but a rezoning request for the
property was under consideration during April 1985, and on 6 May 1985, the Durham
City County adopted an amendment to the zoning, changing it back to R-10,
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Opinion of the Court
residential. See id. at 355-60, 384 S.E.2d at 10-12. Therefore, when the plaintiffs
exercised the option to purchase, they knew that a proposed change to the zoning was
pending, although it had not yet been approved. See generally id. at 356-57, 384
S.E.2d at 10-11.
The plaintiffs brought a declaratory judgment and damages lawsuit against
Durham with claims quite similar to this case which included
six claims: (1) that the zoning ordinance be invalidated as
arbitrary, capricious, discriminatory and unreasonable; (2)
that the zoning ordinance be invalidated as a “taking”
under the state and federal Constitutions; (3) that the City
of Durham be found liable for inverse condemnation under
N.C.G.S. § 40A-51, and pay damages of $700,000; (4) that
the City of Durham be estopped from enforcing the zoning
ordinance and the subsequent general ordinance requiring
a use permit; (5) that should the zoning ordinance be
invalidated, the City of Durham be found liable for a
“temporary taking” and plaintiffs be compensated under
N.C.G.S. § 40A-51 in the amount of $100,000; and (6) that
the City of Durham be found liable under 42 U.S.C. § 1983
for a taking and compensate plaintiffs in the amount of
$700,000 and costs and attorney’s fees.
Id. at 358, 384 S.E.2d at 11.
Some of the plaintiffs’ claims were dismissed by summary judgment but some
proceeded to a jury trial. See id. at 358, 384 S.E.2d at 11-12. But on appeal of various
issues and rulings, the Supreme Court ruled in favor of the City of Durham on all
claims. See id., 325 N.C. 352, 384 S.E.2d 8. Regarding the plaintiffs’ decision to
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Opinion of the Court
exercise their option to purchase despite knowledge of a pending proposal to change
the zoning, the Court stated:
[W]here an investor knows of a pending ordinance change
proposed by a city planning board to the city council, the
investor has no valid claim that he relied upon the prior
ordinance in guiding his investment decision. An investor
may speculate on regulatory changes, but the purchase
price is irrelevant to the reasonableness of the current
restriction. To hold otherwise would constitute a windfall
to the investor at taxpayer expense.
In analyzing the distinct investment-backed
expectations of plaintiffs, we note the City Council enacted
the zoning change on 6 May 1985, seven days after
plaintiffs were under an equitable obligation to perform the
purchase contract. However, the undisputed evidence
shows that plaintiffs chose to exercise their option to
purchase the property on 29 April 1985. This was some
twenty-seven days after plaintiffs knew of the
recommendation by the Durham Planning and Zoning
Commission to rezone the property to R-10. Plaintiffs’
expectations of investment return were in fact based on a
speculative risk that the Durham City Council would not
rezone the property to prohibit the proposed Red Roof Inn
project.
Plaintiffs argue that exercise of the option was
necessary to protect prior financial investment in the
property. It is axiomatic, however, that the purpose of an
option contract is to minimize investment exposure to
adverse changes in the business environment by
postponing for an extended period the decision to accept or
reject an offer. When such changes threatened, plaintiffs
chose to ignore the warning clouds. They cannot now say
that they reasonably expected an investment return
untroubled by zoning changes.
Finch v. City of Durham, 325 N.C. 352, 366–67, 384 S.E.2d 8, 16–17 (1989) (emphasis
added) (citations omitted).
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As noted above, vested rights cases are normally based upon an actual or
pending amendment to a zoning ordinance after a landowner has made substantial
expenditures or entered into contractual obligations as part of developing the land.
Here, there was no change in zoning and Defendant’s action which Plaintiff seeks to
permanently enjoin is its enforcement of this Court’s mandate from litigation
challenging Plaintiff’s project which was pending before a building permit was issued
or any construction occurred. Although we are not aware of a North Carolina case
which has directly held that a landowner may not acquire a vested right to develop
land in a certain way where there is pending litigation directly challenging the
proposed development, we conclude that actual litigation challenging the plan is a far
stronger factor in eliminating the landowner’s reasonable expectations than the
landowner’s knowledge of a pending rezoning proposal, as in Finch. See generally id.,
325 N.C. 352, 384 S.E.2d 8. In addition, although in dicta, our Supreme Court has
cited with approval several cases from other states which do address whether vested
rights may accrue when the landowner knows of a pending lawsuit which may affect
use of the land:
In Omaha Fish & Wildlife Club, Inc. v. Community
Refuse Disposal, Inc., 213 Neb. 234, 329 N.W.2d 335 (1983),
the Nebraska Supreme Court refused to apply the doctrine
of “vested rights” for the benefit of defendant landowner.
That court found that expenditures made by defendant
with knowledge that a lawsuit had been filed challenging
his proposed use were not made in good faith.
In an analogous situation, the Supreme Court of
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Opinion of the Court
Hawaii held that a resort developer proceeded at his own
risk where he made expenditures despite notice that a
petition had been certified for a public referendum which
would (and, when passed, did) prohibit the proposed use.
The court refused to apply the “vested rights” or “equitable
estoppel” doctrines to allow property rights to vest. County
of Kauai v. Pacific Std. Life Ins., 65 Haw. 318, 653 P.2d 766
(1982), appeal dismissed, 460 U.S. 1077, 103 S. Ct. 1762, 76
L. Ed. 2d 338 (1983).
In Bosse v. City of Portsmouth, 107 N.H. 523, 226
A.2d 99 (1967), the Pace Industrial Corporation had
successfully persuaded the local administrative body to
rezone its particular tract from residential to light
industrial. Adjoining landowners had sought two
injunctions to prevent the proposed use, and during the
hearings, the trial court had twice warned Pace that it
proceeded with construction at its own peril. The New
Hampshire Supreme Court held that the designation
change procured by Pace constituted unlawful “spot
zoning” and stated that Pace had taken a “calculated risk”
in proceeding with construction after plaintiffs had twice
instituted legal proceedings seeking to enjoin the
construction. Quoting from the Master’s order below, the
court went on to note:
“‘Under the circumstances, and
considering the fact that the Pace Industrial
Corporation was aware that this was a
Residential Zone at the time the purchase was
made, and was aware shortly after the
passage of the ordinance that the validity of
this particular zone would be attacked, the
Master finds that no vested interest accrued
to Pace Industrial Corporation.’”
Id. at 532, 226 A.2d at 107.
Finally, in an often-cited Florida Supreme Court
case, Sakolsky v. City of Coral Gables, 151 So. 2d 433 (Fla.
1963), that court held that knowledge by a developer that
a political contest in which the success of certain
candidates might alter the voting pattern of the municipal
body did not prevent good faith reliance on an act of the
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Opinion of the Court
current governing body. However, the court was careful to
point out that
“[t]he effect of pending litigation directly
attacking the validity of a permit or zoning
ordinance, or the effect of an eventual
determination that such permit was invalid,
may present a very different problem. The
decision in the instant case was not rested on
any showing that petitioner, at the time he
acted in reliance on the permit granted him,
was a party defendant in legal action directly
attacking its validity, that he had any notice
that his permit might have been invalid in its
inception, or that its revocation was in fact
required in the public interest.”
Id. at 436 (footnote omitted). See generally Heeter, Zoning
Estoppel: Application of the Principles of Equitable
Estoppel and Vested Rights to Zoning Disputes, 1971 Urban
L. Ann. 63, 80.
A trial court could conclude that application of the
“vested rights” doctrine is inappropriate on the facts of this
case and hold that when the landowner here incurred
expenses with the knowledge that a lawsuit had been filed
challenging the validity of the zoning ordinance
amendment under which the landowner had obtained his
building permit, he proceeded at his peril and thereby
acquired no vested rights in the use of the property which
is prohibited as a result of a judicial declaration that the
ordinance amendment was invalid. In such a situation, it
could not be said that the landowner had expended funds
in good faith and in reasonable reliance upon a building
permit issued pursuant to the challenged amendment.
Godfrey v. Zoning Bd. of Adjustment, 317 N.C. 51, 64 n.2, 344 S.E.2d 272, 280 n.2
(1986).
Here, Plaintiff also took a calculated risk to proceed with construction while
litigation challenging her project’s approval was pending. Plaintiff could not accrue a
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Opinion of the Court
vested right to construct or occupy the project where she knew of the potential effect
of pending litigation – particularly since the Plaintiff herself was a party to that
litigation. The litigation in Long challenged Defendant’s approval of Plaintiff’s plans,
but Plaintiff decided, upon consideration of many factors as described in her affidavit,
she would proceed with construction. See generally Long ___ N.C. App. ___, 787
S.E.2d 835. Plaintiff believed she would prevail on the Long appeal because her plans
had been approved by the BOA and by the Superior Court, so she demanded a
building permit and sought to complete construction before the Long appeal was
concluded. After issuance of the Long opinion, Plaintiff sought the preliminary
injunction at issue here so she could continue to build and use the project. Plaintiff
even moved to dismiss this appeal as moot because she had completed the project in
spite of the issuance of the opinion in Long.
Plaintiff also argues that since no one stopped her, she could continue to build.
Defendant issued the building permit, which it had a duty to do based upon the
Superior Court’s approval of the BOA’s ruling. Plaintiff argues that either Defendant
or the Longs should have sought injunctive relief against her to stop her construction.
But in Godfrey, our Supreme Court rejected a similar argument:
We disagree with the suggestion of the panel below
that plaintiffs and others similarly situated must resort to
obtaining or attempting to obtain injunctive relief in order
to protect their property interests against unlawful actions
of a zoning board. Plaintiffs were well within their rights
in electing to challenge the 1980 amendment through a
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Opinion of the Court
declaratory judgment action rather than attempting,
possibly in vain, to raise sufficient bond in order to procure
an injunction.
A suit to determine the validity of a city
zoning ordinance is a proper case for a
declaratory judgment. The plaintiffs, owners
of property in the adjoining area affected by
the ordinance, are parties in interest entitled
to maintain the action. Jackson v. Board of
Adjustment, 275 N.C. 155, 166 S.E.2d 78;
Zopfi v. City of Wilmington, 273 N.C. 430, 160
S.E.2d 325.
The adjoining property owners should not be called
upon to suffer to protect the financial investment of one
who acts at his own peril with forewarning of the possible
consequences. If the law were otherwise, there would be no
protection from a zoning board which, unlike the situation
before us, might act from purely corrupt motives. If one, in
a situation such as the one at bar, could be assured that a
major investment would be protected regardless of the
outcome of his gamble, a comprehensive zoning ordinance
would offer little or no protection to those who have relied
upon that ordinance.
Godrey, 317 N.C. at 67, 344 S.E.2d at 281 (citations omitted).
Just as in Godfrey, neither Defendant nor adjacent property owners were
required to take additional legal action “to protect the financial investment of one
who acts at his own peril with forewarning of the possible consequences.” Id.
Plaintiff knew of the potential consequences of her decision to construct the home as
it is designed and in the location she chose. She did not even begin construction until
after the Superior Court order in Long was on appeal, so if she did not know before
then, she knew about the potential for reversal when that appeal was taken. Both
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Opinion of the Court
the Long’s counsel and Defendant specifically warned Plaintiff of the risks of
proceeding with construction. Plaintiff knowingly chose to gamble that the order in
Long would not be reversed, and she lost that gamble. The consequences of delaying
construction may have also been harsh, and Plaintiff had to make a difficult choice,
but the choice was hers to make:
The ultimate result in cases such as this may indeed
be harsh. As this Court said in City of Raleigh v. Fisher,
232 N.C. 629, 61 S.E.2d 879 (1950):
Undoubtedly this conclusion entails
much hardship to the Defendants.
Nevertheless, the law must be so written; for
a contrary decision would require an
acceptance of the paradoxical proposition that
a citizen can acquire immunity to the law of
his country by habitually violating such law
with the consent of unfaithful public officials
charged with the duty of enforcing it.
Id. at 67, 344 S.E.2d at 281–82. Plaintiff is not likely to prevail on her vested rights
claim, and thus it is not a proper basis for a preliminary injunction.
V. Conclusion
We have examined each of Plaintiff’s causes of action and determined that
none have a likelihood of success for the purposes of entering a preliminary
injunction. Because the order below must be reversed, we need not address
Defendant’s other contentions of why Plaintiff’s preliminary injunction should be
reversed, including arguments that Plaintiff failed to properly appeal the March 2017
determination letter from Mr. Woody; that Plaintiff’s claims are barred by the statute
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Opinion of the Court
of limitations; that Plaintiff has unclean hands; and that Plaintiff has an adequate
remedy at law.
On de novo review, Defendant has borne its burden of showing that the trial
court’s preliminary injunction was erroneous. Even if Plaintiff has demonstrated the
potential for harm and substantial financial loss, she has not demonstrated a
likelihood of success on any of her causes of action. The preliminary injunction is
hereby reversed. “[T]he mandate of an appellate court is binding on the trial court,
which must strictly adhere to its holdings.” Campbell v. Church, 51 N.C. App. 393,
394, 276 S.E.2d 712, 713 (1981). This matter is remanded to the trial court for further
proceedings consistent with this Court’s opinion in Long and this opinion.
REVERSED and REMANDED.
Judges DAVIS and ARROWOOD concur.
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