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N.C. Supreme Court Cases

Article Date: Wednesday, February 20, 2013

Written By: Chelly Pennington

Zoning | Lanvale Properties, LLC v. County of Cabarrus, (No. 438PA10), Aug. 24, 2012 | This case raised the question of whether Cabarrus County had the authority pursuant to its general zoning powers to adopt an Adequate Public Facilities Ordinance (“APFO”) conditioning approval of new residential construction projects upon the payment of a fee by developers in order to subsidize new school construction for the purpose of preventing overcrowding in the County’s public schools.  The County was concerned that the public schools would not be able to handle the explosive population growth and therefore adopted an initial APFO in January 1998.  Over the course of several years the APFO was modified a number of times.  

The Plaintiff sought to construct a residential development and alleged that Cabarrus County refused to issue a building permit for its development until it complied with the APFO.  Both parties entered Motions for Summary Judgment.  The trial court granted the Plaintiff’s motion but denied the Defendant’s motion.  Upon appeal, the Court of Appeals affirmed the trial court’s decision. The Supreme Court reviewed this matter de novo.  

The County argued that they were authorized to adopt the APFO pursuant to their “general zoning power.”  The court held that county zoning ordinances enjoy a presumption of validity, and that the challenging party has the burden of rebutting the presumption. Orange County v. Heath, 278 N.C. 688, 691-92, 180 S.E. 2d 810, 812 (1971).  The court further held that the Plaintiff had rebutted the APFO’s presumption of validity, and therefore the County lacked statutory authority to enact the ordinance.  The court held that counties can restrict the use of real property where there is a “reasonable basis to believe that the restrictions will promote the general welfare by conserving” property values and promoting the “most appropriate use” of land. Blades v. City of Raleigh, 280 N.C. 531, 546, 187 S.E. 2d 35, 43 (1972).  They do not possess unlimited zoning authority.

After reviewing the substance of the APFO, the court concluded that the APFO was not a zoning ordinance but rather it placed the burden of funding public school construction on developers by using a revenue generating mechanism disguised as a zoning ordinance.  Because the APFO was not a zoning ordinance, plaintiff’s action was not time barred.

The court affirmed the decision of the Court of Appeals, holding that the County did not have statutory authority to adopt the APFO; Session Law 2004-39 did not authorize enactment of the APFO; and Plaintiff’s cause of action was not time barred.  

Wally v. City of Kannapolis, (No. 111PA11), March 9, 2012 | Defendant, City of Kannapolis, rezoned rural land to promote commercial development, to the objection of neighboring land owners.  The property in dispute consisted of 75.9 acres.  Until 2007 the property was subject to Cabarrus County zoning ordinances, in September of 2007 the City annexed the property at the request of the owners, thereby subjecting it to the City’s Unified Development Ordinance and 2015 Land Use Plan. 

A month later the owners submitted a zoning request for a more permissive zoning classification to permit them to develop a neighborhood office and light industrial and retail business park.  The City’s Zoning Commission approved the request and the Plaintiffs appealed to the City Council. The council received a staff report that ultimately concluded that the zoning request was “consistent with the long range goals of the City, and reasonable in light of existing and approved infrastructure.”  Council approved the request, adopting a resolution to designate the property as Campus Development-Conditional Zoning.

The Plaintiffs challenged the resolution, contending that the City did not approve a statement of reasonableness pursuant to N.C.G.S. Section 160A-383 upon the adoption of the zoning amendment, thereby invalidating the amendment; and that the rezoning constituted illegal spot zoning. The Plaintiffs asked the court to declare the zoning amendment void and to rezone the property to its previous classification.    The parties each filed Motions for Summary Judgment and stipulated there was no genuine issue of material fact.  The trial court granted the City’s Motion for Summary Judgment on all claims and dismissed the Plaintiffs’ declaratory judgment action.

The City contended that N.C.G.S. Section 160A-383 prohibits judicial review of the council’s statement; that the council approved a statement in satisfaction of N.C.G.S. Section 160A-383 by adopting the zoning amendment with the staff report that was submitted; and that the council complied with the statute by adopting the following statement:  “[T]he Council’s final vote conforms to the guidelines under which they are granted final authority to act upon a rezoning petition.”  

The NC Supreme Court allowed Plaintiffs’ subsequent Petition for Discretionary Review of two issues: whether the City complied with N.C.G.S. Section 160A-383 when adopting the zoning amendment, and whether the rezoning of a property with more than one owner can constitute spot zoning.
In determining whether the City complied with N.C.G.S. Section 160A-383 when it adopted the subject zoning amendment, the court recognized that the amendment was presumed valid “and the burden [is] upon [plaintiffs] to show otherwise.” Raleigh v. Morand, 247 N.C. 363, 368, 100 S.E.2d 870, 874 (1957) (citations omitted), appeal dismissed, 357 U.S. 343, 2 L. Ed. 2d 1367 (1958).  The court concluded that the Plaintiffs met their burden and held that the zoning amendment was invalid.  Because the amendment was invalid, the court did not address the spot zoning issue.

The plain language of N.C.G.S. Section 160A-383 mandates that when the council adopts a zoning amendment, it “shall also” approve a statement, thereby requiring two actions by the council: first, adopt or reject the zoning amendment, and second approve a statement.  The statement must describe whether the action is consistent with the controlling comprehensive plan and explain why the action is “reasonable and in the public interest.” Only when such a statement is made, is it not subject to judicial review.  The court found that the council did not approve a statement.  That finding was consistent with the trial court’s uncontested finding of fact that “there was no per se written statement of reasonableness.” The court also found that the staff report was not an approved statement since the City did not provide any authority to that effect and the report stated that the “staff” found the action reasonable.  Finally, the court found that the council’s general declaration that the amendment was adopted within its zoning authority was insufficient as N.C.G.S. Section 160A-383 required that an approved statement describe whether the zoning amendment is consistent with any controlling land use plan and explain why it is reasonable and in the public interest.  

The held that the zoning amendment was invalid due to the City’s failure to abide by the approved statement requirements set forth in N.C.G.S. Section 160A-383, reversing the Court of Appeals and remanding the matter.  The court did not address the spot zoning issue as it was unnecessary.

Public Duty Doctrine | Ray v. N.C. Dep’t of Transportation (No. 28A12), June 14, 2012 | Plaintiffs alleged that on Aug. 31, 2002 Mickela S. Nicholson was driving on a state-maintained road in Johnston County. Nicholson was operating her automobile within the posted speed limit and with a proper lookout when she lawfully entered an eroded section of the highway near the shoulder.  The eroded condition of the road caused the vehicle to veer off the roadway.  When Nicholson tried to return to the highway, the erosion caused her to overcorrect, causing her to lose control of the car, crossing the center line and striking an oncoming automobile head-on.  Nicholson and all three passengers of her were killed.  

The estates of Nicholson and her passengers sued the DOT for negligence pursuant to the State Tort Claims Act (“STCA”). The Plaintiffs claim that DOT was negligent in the design and execution of the narrowing of the highway from three lanes to two and that the erosion “had existed for a substantial period of time prior to” the wreck such that DOT personnel knew or should have known of its existence and “failed to make appropriate repairs.”  The DOT responded that the public duty doctrine barred the Plaintiffs’ claims and filed a Motion to Dismiss for failure to state a claim upon which relief can be granted.

The question before the court was whether the public duty doctrine barred the Plaintiff’s claims against Defendant pursuant to the STCA.  The court, to answer the question considered the impact of the limitations placed on the use of the public duty by the 2008 amendment to the STCA. See N.C.G.S. §143-299.1A (2011).  The STCA provides a limited waiver of sovereign immunity for the

[N]egligence of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office,  employment, service, agency or  authority, under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina.

N.C.G.S. § 143-291 (2011).  The STCA as enacted did not specifically address the public duty doctrine; therefore, the courts relied upon the common law application thereof. “The general common law rule, known as the public duty doctrine, is that a municipality and its agents act for the benefit of the public, and therefore, there is no liability for the failure to furnish police protection to specific individuals.” Braswell v. Braswell, 330 N.C. 363, 370, 410 S.E.2d 897, 901 (1991).  The doctrine operated to eliminate the first element for a cause of action for negligence, duty to an individual.  However, the court recognized two exceptions, noting that the public duty doctrine does not bar a claim
 
(1) where there is a special relationship between the injured party and the police…; and (2) “when a municipality . . . creates a special duty by promising protection to an individual, the protection is not forthcoming, and the individual’s reliance on the promise of protection is causally related to the injury suffered.”

Braswell, 330 N.C. at 371, 410 S.E.2d at 902.  The court later expanded the application of the doctrine from law enforcement to state agencies. Stone v. N.C. Dep’t of Labor, 347 N.C. 473, 495 S.E.2d 711 (1998).

In 2008 the legislature added N.C.G.S. § 143-299.1A to the STCA, which states:

(a)  Except as provided in subsection (b) of this section, the public duty doctrine is an affirmative defense on the part of the State department, institution, or agency against which a claim is asserted if and only if the injury of the claimant is the result of any of the following:

    (1) The alleged negligent failure to protect the claimant from the action of others or from an act of God by a law enforcement officer as defined in subsection (d) of this section.
    
    (2) The alleged negligent failure of an officer, employee, involuntary servant or agent of the State to perform a health or safety inspection required by statute.
    
        (b)  Notwithstanding subsection (a) of this section, the affirmative defense of the public duty doctrine may not be asserted in any of the following instances:

    (1) Where there is a special relationship between the claimant and the officer, employee, involuntary servant or agent of the State.
    
    (2)   When the State, through its officers, employees, involuntary servants or agents, has created a special duty owed to the claimant and the claimant’s reliance on that duty is causally related to the injury suffered by the claimant.
    
    (3) Where the alleged failure to perform a health or safety inspection required by statute was the result of gross negligence.

N.C.G.S. § 143-299.1A.  The court held that N.C.G.S. Section 143-299 clarified the legislature’s intent as to the role of the public duty doctrine under the STCA, thereby limiting the application of the public duty doctrine. Clarifying amendments are do not “change the substance of” the original law, in this situation the common law and jurisprudence applicable to the doctrine.  The amendment in essence codified the court’s public duty doctrine jurisprudence, suggesting that the amendment was a clarifying one. The clarifying nature of the amendment combined with the plain language of the statute stating that the public duty doctrine is a defense only if the injury alleged is the result of a law enforcement officer’s negligent failure to protect the plaintiff from actions of others or an act of God, or a State officer’s or agent’s negligent failure to perform a health or safety inspection required by statute, thereby resulted in the court’s conclusion that the public duty doctrine did not apply to the Plaintiffs’ claims.  The court affirmed the Court of Appeals.

N.C. Court of Appeals Cases

Standard of Review | City of Rockingham v.  N.C. Dep’t of Env’t & Natural Res., Div. of Water Quality, (12-763), Dec. 18, 2012 | Appeal by Petitioner City of Rockingham from an order affirming the final agency decision of Respondent Environmental Management Commission (EMC).  The Court of Appeals affirmed the trial court’s decision.  

Progress Energy Carolinas (PENC) operated a hydroelectric power-generating facility on the Yadkin-Pee-Dee River. They were licensed through the Federal Energy Regulatory Commission.  When their license expired, PENC began the relicensing process by soliciting information from Federal and State agencies. One of the State agencies that took part in the relicensing process was the Petitioner, City of Rockingham.  Originally, the City supported PENC’s application but later withdrew its support.  PENC was re-certified as a result of the relicensing process.  After PENC was recertified, the City filed a Petition for a Contested Case Hearing with the Office of Administrative Hearings to challenge the certification. The Administrative Law Judge (ALJ) upheld the certification.  Thereafter, the City filed a petition for judicial review of final agency decision with the EMC.  The decision was affirmed by the Richmond County Superior Court and an order was filed.

The appellate court, in reviewing an agency’s decision, examines whether the trial court applied the correct standard of review and whether the trial court’s review was proper.  Holly Ridge Associates, LLC v. N.C. Dep’t of Env’t & Natural Res., 361 N.C. 531, 535, 648 S.E. 2d 830, 834 (2007).  The applicable standard of review for a challenge under N.C.G.S. Section 150B-51(b)(5)-(6) is the whole record test.  N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 659, 599 S.E. 2d 888, 895 (2004).  “The ‘whole record’ test does not allow the reviewing court to replace the [agency’s] judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo.” Thompson v. Wake County Bd. of Ed., 292 N.C. 406, 410, 233 S.E. 2d 538, 541 (1977).

The City first argued that EMC failed to assess whether biological integrity was attained.  The court reviewed this issue de novo.  Next, the City asserted that the record as a whole showed that the minimum flow rate would not attain biological integrity.  The court reviewed this second issue under the whole record test.  The court rejected both arguments.  The court held that there was no legal error because “[t]he ALJ’s findings demonstrate[d] a comparison of the effects of that Certification and the ‘habitats that would be available to aquatic organisms if the Tillery Dam was not present and the flows were unaltered by the hydro project operations.’”   The court also held that by looking at the whole record it showed that biological integrity would be maintained and not degraded. The court held that the trial court’s error in stating that there was no evidence of any discharge was harmless since their interpretation was reasonable and supported by the evidence that no existing uses were degraded or removed.  

The court further held that the City’s argument that the agency did not properly evaluate the practical alternatives and assess the impacts on recreation and aquatic life was moot since the ALJ found that the activity did not remove or degrade existing uses. The court further held that City’s argument for land preservation as mitigation was moot given their interpretation that mitigation was unnecessary.

Immunity | Doe v. Charlotte-Mecklenburg Bd. Of Educ. (11-1466), Aug. 21, 2012 | Appeal by Defendant from an order denying its Motion to Dismiss Plaintiff’s complaint for failing to state a claim upon which relief could be granted.

Plaintiff filed a complaint seeking to recover damages from Defendant stemming from sexual abuse that she suffered at the hands of her band teacher at South Mecklenburg High School.  Plaintiff asserted claims of negligent hiring, supervision, and retention; negligent infliction of emotional distress; violation of Plaintiff’s rights to an education and to proper educational opportunities as guaranteed by the North Carolina constitution Article I, Section 15 and Article IX, Section 1; and violation of her right to obtain a safe education as guaranteed by North Carolina constitution Article I, Section 19.  

The Defendant board filed a partial Motion to Dismiss on the grounds that Plaintiff’s complaint failed to allege facts which tended to establish their liability to Plaintiff.  The Defendant board filed a second partial Motion to Dismiss Plaintiff’s negligent hiring, supervision, and retention and negligent infliction of emotional distress claims on the grounds that the board enjoyed full governmental immunity.

The trial court entered an order granting the board’s Motion to Dismiss Plaintiff’s claims for negligent hiring, supervision, and retention and negligent infliction of emotional distress.  However, the trial court denied the board’s Motion to Dismiss Plaintiff’s constitutional claims in reliance on Craig v. New Hanover County Bd. of Educ., 363 N.C. 334, 678 S.E. 2d 351 (2009).  

The issues before the court were whether the board’s appeal, although interlocutory, was properly before the court because the trial court’s order amounted to a rejection of the Board’s governmental immunity claim; if pursuant to Craig, state constitutional claims could rest solely upon allegations of negligence; and whether the Plaintiff had asserted a viable state constitutional claims against the board in her complaint.

The court previously had held that denial of dispositive motions grounded on governmental immunity affect a substantial right and are immediately appealable. Mabrey v. Smith, 144 N.C. App. 119, 121, 548 S.E. 2d 183, 185, disc. review denied, 354 N.C. 219, 554 S.E. 2d 340 (2001) (internal citations omitted); see also, Craig, 363 N.C. at 337, 678 S.E. 2d at 354 (stating that although the “[d]enial of a summary judgment motion is interlocutory and ordinarily cannot be immediately appealed…the appeal [before the Court] is proper because the Board raises the complete defense of governmental immunity, and as such, denial of its summary judgment motion affects a substantial right”); Meherrin Indian Tribe v. Lewis,  197 N.C. App. 380, 385, 677 S.E. 2d, 203, 207 (2009), disc. review denied, 363 N.C. 806, 690 S.E. 2d 705 (2010) (recognizing that the denial of a dismissal motion lodged pursuant to N.C.G.S. Section 1A-1, Rule 12(b) (6), based on a claim of sovereign or governmental immunity is immediately appealable because it affects a substantial right).

The court held that it could not determine the extent to which the board was entitled to appeal the trial court’s order on an interlocutory basis without addressing the merits of its challenge to the trial court’s determination that Plaintiff stated a claim for relief under the constitutional provisions upon which she relied.

The court held that in the event that they were to hold that the “Board cannot immediately appeal, then they would have to litigate [Plaintiff]’s negligence allegations,” thereby forfeiting their substantial right to rely, in appropriate instances, on the doctrine of sovereign immunity in response to Plaintiff’s claims.  As a result, the court concluded that the board’s appeal from the trial court’s order was properly before the court.

The ultimate issue raised by the board’s appeal was whether Plaintiff had stated a claim for relief based upon the relevant provisions of the North Carolina constitution.  The court concluded that the question must be answered in the negative.  The court applied the de novo standard of review, taking into consideration the applicability of Craig.  The trial court concluded that the allegations underlying the constitutional claims the Plaintiff asserted were identical to those at issue in Craig.  In Craig, the plaintiff sought to obtain a damage recovery against the New Hanover County Board of Education based upon its failure to protect him from sexual abuse that he allegedly suffered at the hands of one of the defendant’s employees.  363 N.C. at 335, 678 S.E. 2d at 352. The court in Craig unanimously reversed the trial court’s decision with respect to the plaintiff’s common law claims on governmental immunity grounds.  Id. at 355-36, 678 S.E. 2d at 353.   The court held that the trial court’s decision rested upon a misapprehension of the Supreme Court’s decision in Craig; Craig did not control the substantive issue before them in this case, resulting in the need for them to independently determine whether the Plaintiff had stated a claim for which relief could be granted under a constitutionally based legal theory.

The court held that the board’s appeal from the trial court’s order denying its Motion to Dismiss Plaintiff’s constitutional claims was properly before the court and that Plaintiff had failed to state claims arising under various provisions of the North Carolina constitution for which relief could be granted.  As a result, the trial court’s order was reversed and the case remanded to the Mecklenburg County Superior Court for further proceedings not inconsistent with the opinion.

Horne v. Town of Blowing Rock, (12-196), Oct. 2, 2012 | The Town of Blowing Rock appealed an order of the trial court converting its Rule 12(c) Motion to Dismiss into a Motion for Summary Judgment and denying its Motion to Dismiss Plaintiff’s action on the basis of governmental immunity.

A minor child was injured at Blowing Rock Park when he fell into a drainage hole that was completely obscured from his view by overgrown grass and grass clippings.  Plaintiff sued Defendant for medical bills and pain and suffering.  Plaintiff alleged that Defendant Town of Blowing Rock had waived immunity by the purchase of insurance. Defendant filed a Motion to Dismiss asserting that they were entitled to governmental immunity and that Plaintiff’s claims were barred.  Defendant had a sovereign immunity non-waiver endorsement clause in its insurance contract.  At trial, the court relied upon an affidavit from the Defendant’s insurance adjuster.  The court converted Defendant’s Motion to Dismiss into a Motion for Summary Judgment.  The trial court granted partial summary judgment in favor of Defendant as to Plaintiff’s claim that Defendant had waived governmental immunity by the purchase of liability insurance.

The first issue on appeal was whether the Court of Appeals could even hear the case.  The court held it could review the Motions to Dismiss based upon Rule 12(b)(6) and Rule 12(c), but that they could not review the 12(b)(1) Motion to Dismiss as the court had consistently allowed immediate appellate review of “orders denying dispositive motions grounded on the defense of governmental immunity,” as they affect a substantial right.  Hedrick v. Rains, 121 N.C. App. 466, 468,  466 S.E. 2d 281, 283 (1996).  The court allowed the case to be reviewed because the trial court converted the motion to a Motion for Summary Judgment.

The next issue was whether the trial court erred by converting the Motion to Dismiss into a Motion for Summary Judgment.  The court disagreed, holding that if matters outside the pleadings came in as evidence then it was a Motion for Summary Judgment.  The court further held that the submission of affidavits had been consistently treated as a matter outside the pleadings.  

The final issue was whether a park was a governmental function protected by governmental immunity or a proprietary function.  The trial court ruled that there was not enough evidence presented to make that determination.  The court held that the trial court properly found that there remained issues of fact as to whether revenue or income was derived from Defendant’s operation of the park; accordingly summary judgment was not proper.

Martinez v. University of North Carolina (12-396), Nov. 20, 2012 | Plaintiff appealed from an order granting a Motion to Dismiss in favor of Defendant, University of North Carolina.  In 2008, the Plaintiff was employed as Provost of Winston Salem State University (WSSU), a constituent institution of Defendant.  The Plaintiff was approached by the Chancellor of WSSU and asked to resign from his position; and to accept a full-time faculty position.  Plaintiff agreed and entered into a written contract with WSSU.  The contract stated that Plaintiff would continue to be paid his current salary until the end of the school year at which time his salary would change to a salary comparable of senior faculty in the School of Education as determined at that time.  In May of 2008, WSSU notified Plaintiff that he would receive a pay decrease of nearly $100,000 per year.  Plaintiff was not satisfied with that salary.  Plaintiff did not feel that his new salary was commensurate with salaries paid to other senior tenured faculty members therefore he initiated a grievance with the Grievance Committee.  The committee determined that Plaintiff’s salary was appropriate and Plaintiff appealed the decision to the new provost of WSSU.  The new provost affirmed the decision; Plaintiff continued his appeal to the chancellor of WSSU, who also affirmed the decision.

Plaintiff filed suit against defendant for breach of contract and violation of the Wage and Hour Act.  Plaintiff later amended his complaint to allege only breach of contract.  Defendant filed a Motion to Dismiss pursuant to Rules 12(b)(1) and (2) of the North Carolina Rules of Civil Procedure under the theory of sovereign immunity and Rule 12(b)(6) of the North Carolina Rules of Civil Procedure for failure to state a claim upon which relief can be granted.  The trial court granted Defendant’s motion, Plaintiff appealed.

Plaintiff first argued that the trial court erred in dismissing his amended complaint pursuant to Rules 12(b)(1) and (2) due to waiver of sovereign immunity by the Defendant.  The Court of Appeals agreed. The court first reviewed Rule 12(b)(2).  “An appeal of a motion to dismiss based on sovereign immunity present a question of personal jurisdiction rather than subject matter jurisdiction.”  Data Gen. Corp. v. County of Durham, 143 N.C. App. 97, 100, 545 S.E. 2d 243, 245-46 (2001).  The court reviewed the record to determine whether there was evidence to support the trial court’s determination that exercising its jurisdiction would be appropriate.  The State cannot be sued in its own courts or elsewhere unless it has expressly consented to such suits. However, our Supreme Court has held

[W]henever the State of North Carolina, through its authorized officers and agencies, enters into a valid contract, the State implicitly consents to be sued for damages on the contract in the event it breaches the contract.  Thus, in this case and in causes of action on contract arising after the filing date of this opinion, 2 March 1976, the doctrine of sovereign immunity will not be a defense to the State.  The State will occupy the same position as any other litigant.

Smith v. State, 289 N.C. 303, 320, 222 S.E.2d 412, 423-24 (1976).

 Here, Defendant University of North Carolina, an agency of the State, entered into a contract with Plaintiff regarding employment and salary.  Therefore, Defendant waived sovereign immunity to suit based on a claim for breach of that contract.  Accordingly, the court held the trial court erred in dismissing Plaintiff’s complaint pursuant to Rule 12(b)(2).

Next, the court reviewed Rule 12(b)(1) and also concluded that the trial court erred in dismissing Plaintiff’s complaint pursuant to Rule 12(b)(1).  “An action is properly dismissed under Rule 12(b)(1) for lack for subject matter jurisdiction where the plaintiff has failed to exhaust administrative remedies.  An appellate court’s review of such a dismissal is de novo.”  Johnson v. University of North Carolina, 202 N.C. App. 355, 357, 688 S.E.2d 546, 548 (2010).  The court found that it was clear from the record that Plaintiff exhausted the administrative remedies available to him.  Before filing suit, Plaintiff initiated a grievance with the Faculty Grievance Committee, an appeal with the Provost, and a further appeal with the Chancellor.

Plaintiff next argued that the trial court erred in dismissing his amended complaint pursuant to Rule 12(b)(6) since the amended complaint adequately pled all elements of a cause of action for breach of contract.  The court agreed.  “The motion to dismiss under N.C.R. Civ. P. 12(b)(6) tests the legal sufficiency of the complaint.  In ruling on the motion the allegations of the complaint must viewed as admitted, and on that basis the court must determine as a matter of law whether the allegations stat e a claim for which relief may be granted.” Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979).  “The elements of breach of contract are (1) the existence of a valid contract and (2) breach of the terms of the contract.” Long v. Long, 160 N.C. App. 664, 668, 588 S.E.2d 1, 4 (2003).  Plaintiff alleged that he contracted with Defendant to receive, upon his return to a full time tenured faculty position, a salary commensurate with salaries paid to other senior tenured faculty members who have retreated from an administrative position and that Defendant breached the contract with Plaintiff by failing and refusing to pay Plaintiff a salary commensurate with comparable salaries of senior faculty.  The court held that when viewed as admitted, these allegations stated a valid claim for breach of contract.  Therefore, the court concluded that the trial court erred in dismissing Plaintiff’s complaint pursuant to Rule 12(b)(6).

Bullard v. Wake County, (11-1022), July 17, 2012 | Plaintiff appealed from the trial court’s grant of Summary Judgment in favor of Defendant on the grounds of sovereign immunity and statute of limitations.  The court held that because the County did not, during the pertinent time frame, have insurance that would cover the claims of the case, there was no waiver of sovereign immunity under N.C.G.S. Section 153A-435; the trial court, therefore, properly granted the Motion for Summary Judgment.
Plaintiff purchased five acres of land in North Raleigh on which they built a home.  The Plaintiff contracted with Tall House Building Company to serve as the general contractor.  During construction, the County performed inspections of the property.  The Certificate of Occupancy issued for the house stated, “all required building code inspections [had] been completed” and that “code violations discovered during such inspections [had] been duly noted, ordered corrected and [had] been re-inspected.”  After moving into the home, Plaintiff began to notice problems with the construction.  Plaintiff arbitrated their claims against Tall House, and an arbitration panel issued an award in Plaintiff’s favor.  The Plaintiff continued to discover structural deficiencies after the arbitration so severe that the house had been deemed Unfit for Human Habitation.  The Plaintiff returned to arbitration with Tall House where they received a second award.

In 2009, the Plaintiff filed suit against the County, asserting claims for negligent inspection and negligent misrepresentation in connection with the County’s inspection of the Plaintiff’s house.  The County filed an answer including, among other affirmative defenses, the statute of limitations and sovereign immunity.  In 2010, the County filed a Motion for Summary Judgment which the trial court granted.  The Plaintiff appealed to the Court of Appeals.

Summary judgment is properly granted “if the pleadings, dispositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled a judgment as a matter of law.” N.C.R. Civ. P. 56(c).  The court first considered whether the trial court erred in granting summary judgment based upon sovereign immunity.  Counties are entitled to sovereign immunity unless the county waives immunity or otherwise consents to be sued. Dawes v. Nash County, 357 N.C. 442, 445, 584 S.E.2d 760, 762 (2003).  A county may waive immunity by the purchase of insurance.  Plaintiff argued that the County failed to properly plead the affirmative defense of sovereign immunity because the answer did not set out the specific policy language on which the County was relying.  The court relied on Patrick v. Wake County Dep’t of Human Services, 188 N.C. App. 592, 593, 655 S.E.2d 920 (2008), in reviewing this issue.  In Patrick, the defendant asserted as an affirmative defense that “[a]ll claims of plaintiff against all defendants are barred by sovereign immunity as there has been no waiver of immunity by the purchase of insurance.”  The Court of Appeals in Patrick affirmed the trial court’s order granting summary judgment based on sovereign immunity through the purchase of the policy and properly asserted the affirmative defense in their answer.  Here, the court held that since there was no meaningful distinction between the articulation of the affirmative defense in Patrick and the affirmative defense in this case, therefore the County sufficiently pled the affirmative defense of sovereign immunity.

Next, the court examined whether the Defendant’s affirmative defense of sovereign immunity was with merit.  The mere purchase of insurance standing alone does not waive a county’s sovereign immunity.  The County, in this instance, did have insurance coverage continuously.  The insurance policy that the County held had a governmental immunity endorsement which stated that it did not waive its governmental immunity.  The Court of Appeals addressed the impact of this specific endorsement on sovereign immunity in Patrick. In Patrick, the court held that defendants did not waive sovereign immunity through the purchase of their insurance policy and properly asserted their affirmative defense in their answer.  Here, the court held that the County did not waive its sovereign immunity as to the Plaintiff’s claims.

The court did not address the parties’ contentions regarding the statute of limitations since the court had held that the County did not waive its sovereign immunity as to the Plaintiff’s claims.

Public Official Immunity | Wilcox v. City of Asheville, (12-12), Aug. 7, 2012 | Plaintiff Wilcox was shot by Asheville Police Department (“APD”) officers during APD’s pursuit of a vehicle in which Wilcox was a passenger.  The pursuit began when the driver of the vehicle sped away during a traffic stop.  At several points during the pursuit, APD officers attempted to stop the vehicle by shooting at the vehicle and its driver.  A total of 27 bullets were fired.   Later investigation revealed that the vehicle was hit with sixteen bullets, Wilcox was hit by two bullets, and the driver was not hit by any.  Wilcox filed an action against Defendant City of Asheville, APD Chief William Hogan and the individual officers in both their official and individual capacities, asserting claims for “negligence, gross negligence, recklessness, wilfull [sic] and wanton conduct” by the officers in shooting Wilcox; “imputed liability” of  the  City of Asheville for the officers’ actions; “negligence, gross negligence, recklessness, willful and wanton conduct” by  the City of Asheville and Chief Hogan in failing to adequately train and supervise the officers; “violation of [Wilcox’s]  state constitutional rights” by all Defendants; and punitive damages for the “egregiously wrongful, malicious, willful and/or wanton” conduct of the officers.

The City of Asheville and the individual defendants in their official capacities filed a Motion to Dismiss. The trial court dismissed all claims against those Defendants as barred by governmental immunity.  The Defendants later filed a Motion for Summary Judgment seeking dismissal of Wilcox’s remaining claims as follows based upon: public official immunity barring all claims against the individual defendants in their individual capacities; and the existence of an adequate state remedy barring the claims arising under the North Carolina Constitution.  The trial court partially granted the motion, dismissing the North Carolina constitutional claims and leaving only the claims against the individual defendants in their individual capacities.

The Defendants appealed from the portion of the trial court’s order denying summary judgment for Wilcox’s claims against the individual defendants in their individual capacities.  Wilcox appealed the portion of the trial court’s order granting summary judgment and dismissing her North Carolina constitutional claims.  

A public official is immune from suit unless the challenged action was (1) outside the scope of official authority, (2) done with malice, or (3) corrupt. Smith v. State, 289 N.C. 303, 331, 222 S.E.2d 412, 430 (1976).  The court found that Wilcox had not alleged that the officers’ actions were corrupt or outside the scope of their authority, therefore the only relevant exception to public official immunity remaining was malice. A malicious act is an act (1) done wantonly, (2) contrary to the actor’s duty, and (3) intended to be injurious to another.  In re Grad v. Kaasa, 312 N.C. 310, 313, 321 S.E.2d 888, 890 (1984).

The debate between the Parties lied within the third element of the definition of a malicious act.  Wilcox contended that the intent to injure could be implied by the actor’s conduct such that direct evidence of a defendant’s actual intent to injure the plaintiff was unnecessary; the Defendants contended that only direct evidence of a defendant’s actual intent to injure the plaintiff was sufficient.  While there are no decisions in  North Carolina addressing the sufficiency of evidence of an implied intent to injure, specifically in the public official immunity context, the Supreme Court has held that “the intention to inflict injury may be constructive as well as actual” and that constructive intent to injure exists where the actor’s conduct “is so reckless or so manifestly indifferent to the consequences, where the safety of life or limb is involved, as to justify a finding of  [willfulness] and wantonness equivalent in spirit to an actual intent.”  Foster v. Hyman, 197 N.C. 189, 192, 148 S.E. 36, 38 (1929).

The court continued that officials have been granted this immunity in order to promote (1) the primary goal of allowing public officials to perform their duties vigorously without undue hampering and deterrence, and (2) the secondary goal of ensuring effective democratic government; the application of a constructive, rather than actual, intent to injure does not hinder the promotion of either of goal.  However, the General Assembly has shown a clear intent to hamper and deter officers from the use of deadly force in apprehending criminal suspects, particularly as set forth in N.C.G.S. Section 15A-401(d) which states that “nothing in this subdivision constitutes justification for willful, malicious or criminally negligent conduct by any person which injures or endangers any person.”  
The court concluded that because the legislature established that law enforcement may be liable for reckless conduct that is short of being intentionally injurious, allowing constructive intent to satisfy the malice exception to public official immunity would not unduly hamper officials’ use of deadly force or undermine effective democratic government in the State; therefore evidence of constructive intent to injure may be allowed to support the malice exception to public official immunity.  A showing of mere reckless indifference is insufficient; a plaintiff seeking to prove malice based on constructive intent to injure must show that the level of recklessness of the officer’s action was so great as to warrant a finding equivalent in spirit to actual intent.

The court affirmed the trial court’s denial of summary judgment against the individual defendants in their individual capacities, finding that the evidence against each individual defendant was sufficient to raise a genuine issue as to whether their actions were reckless in such a way as to support a finding of intent to injure.  The court also found that since the Plaintiff therefore had an adequate state remedy, the claims against the individual defendants in their individual capacities, the North Carolina constitutional claims were precluded, affirming the trial court’s granting summary judgment and dismissal of the North Carolina constitutional claims.

Zoning | Morgan v. Nash County, (11-1544), Aug. 21, 2012 | Plaintiff, City of Wilson appealed from the trial court’s order granting Nash County’s Motion to Dismiss as to the City and its claims after concluding the City lacked standing to maintain its claims against Nash County. The City asked the court to review an advisory opinion and award for attorney fees.

Sanderson Farms, Inc. (“Sanderson”) was interested in building a plant in Nash County.  A parcel of property was chosen for Sanderson to locate the plant.  The property was zoned commercial and residential.  Coastal LLC filed a rezoning application to have the property rezoned to General Industrial District.  The Nash County Board of County Commissioners voted to rezone the property. 

The City of Wilson and thirty-three plaintiffs challenged the rezoning.  They alleged that the board failed to comply with statutory and administrative requirements when rezoning and that the rezoning constituted an illegal “contract zoning.”  The County filed a Motion to Dismiss the City’s claims, alleging that the City lacked standing. The trial court granted the County’s motion.  The purchase of the land was postponed and the property had to be rezoned again.  The City filed another action challenging the second rezoning.  The County sought summary judgment and filed a Motion to Dismiss again for lack of standing.  The trial court again dismissed the City and all of its claims with prejudice.  The trial court, however, denied the County’s Motion to Dismiss for the remaining plaintiffs concluding that they had standing.  The trial court granted the County’s summary judgment on all claims by all plaintiffs.

 “Standing is a necessary prerequisite to a court’s proper exercise of subject matter jurisdiction.” Neuse River Foundation, Inc. v. Smithfield Foods, Inc., 155 N.C.App. 113, 574 S.E. 2d 48, 51 (2002). (quoting Aubin v. Susi, 149 N.C. App. 320, 324, 560 S.E. 2d 875, 878 (2002)).  The party invoking the trial court’s jurisdiction bears the burden of establishing that it has standing to maintain its action. Id.  The City alleged that they had standing because Sanderson would disperse wastewater into the Toisnot Watershed.  The City draws approximately one-half of its water supply from that watershed.  The issue before the court was that the land where the spray fields were to be located was not the same land that was rezoned by the County and the Plaintiffs did not challenge the zoning of that land.  

During the pendency of the appeal Plaintiffs filed a Rule 60(b) Motion for Relief with the trial court, seeking relief from the trial court’s order granting the County’s Motion to Dismiss the City and its claims.  The basis for the motion was new evidence, allegedly was a survey plat indicative of Sanderson’s intention to build a hatchery.  The Plaintiffs alleged that this plat gave them standing.  An advisory opinion was issued which stated that the trial court would have denied Plaintiffs’ motion had the court retained jurisdiction over the matter.  The trial court noted that the plat did not describe the subject property, which was rezoned by Nash County. Rather, it described a separate tract of land located approximately one mile from the subject property.  The court concluded that it was not new evidence, but instead was merely cumulative and corroborative. The trial court awarded Nash County reasonable attorney’s fees and expenses because there was a complete lack of a justiciable issue supporting the motion.

The court held that the City could not establish standing, as Nash County’s rezoning of the subject property did not enable the land use from which the City alleged it would suffer harm.  Since the trial court did not err in concluding the City failed to establish standing to maintain its legal challenge to the rezoning of the subject property, the court did not reach the City’s additional argument that the trial court erred in granting the County’s Motion for Summary Judgment regarding all claims.  The trial court’s order was affirmed.  

Additionally, the court found no abuse of discretion in the trial court’s advisory opinion, indicating that it would be inclined to deny Plaintiffs’ Rule 60(b) motion.  The court concluded that the trial court was without jurisdiction to enter its order granting Nash County’s motion for attorney’s fees and expenses, therefore that order was vacated.

Orange County, v. Town of Hillsborough, (11-375) and (11-386), Feb. 21, 2012 | The issues in this case arose from the Orange County Justice Center Expansion Project.  Orange County built a 38,000 square foot expansion to their pre-existing Justice Center.  When the expansion was approved it was conditioned upon remote parking facilities being made available pursuant to the zoning ordinance.  The original parking plan changed, resulting in a deficit of 168 parking spaces.  Orange County was issued a Notice of Violation for occupying the Justice Center without a Certificate of Occupancy. 

Orange County filed a complaint against the Town of Hillsborough requesting a Declaratory Judgment: compelling Hillsborough to issue a Compliance Permit for the Justice Center; declaring the failure to issue the Compliance Permit as unconstitutional, unlawful, and unenforceable; and declaring that Hillsborough was without authority to deny Orange County’s Compliance Permit, requiring Orange County to comply with the parking provisions in the zoning ordinance, conditioning approval of the Certificate of Occupancy upon its compliance with the parking provisions within the zoning ordinance, and interfering in any other way with Orange County’s duty to provide adequate court facilities pursuant to N.C.G.S. Section 7A-302.

Hillsborough filed a Motion for Summary Judgment arguing that Orange County was required to comply with the off-street parking requirements of the zoning ordinance.  Orange County also filed a Motion for Summary Judgment seeking a determination that the zoning ordinance was not, in its entirety, applicable to the State and its counties and therefore Hillsborough had attempted to unlawfully expand their authority.

The trial court issued an order denying Orange County’s Motion for Summary Judgment and granting Hillsborough’s Motion for Summary Judgment.  Orange County filed a Petition for Review in the Nature of Certiorari in Orange County Superior Court to reverse the order denying a Zoning Compliance Permit.  The trial court granted Orange County’s petition and issued a Writ of Certiorari reversing and remanding the denial of Orange County’s application for a Zoning Compliance permit with direction to approve the application.  From this order, the Town of Hillsborough and the Hillsborough Board of Adjustment appealed.

Appellants first argued that the trial court erred by concluding that their decision and order to deny issuance of a Zoning Compliance Permit was arbitrary and capricious.  The court disagreed.  N.C.G.S. Section 160A-381 grants the Hillsborough Board of Adjustment (“the board”) the power to issue special use permits or conditional use permits in particular circumstances.  It also allows the board to impose “reasonable and appropriate conditions and safeguards upon these permits.” N.C.G.S. § 160A-381(c).  Orange County contended that the Appellants were without authority to regulate parking, because parking was not a building within the meaning of N.C.G.S. Section 160A-392. 

N.C.G.S. Section 160A-392 granted Appellants the authority to apply zoning ordinances to the construction or use of the addition to the courthouse. The court held that the trial court did not err in finding that Orange County had to be in compliance with the applicable zoning ordinances, particularly Zoning Ordinance Section 6.6 which required this type of facility to provide a specific number of parking spaces based on the number of employees and the size of the facility.  

The next issue was the approval of the site plan and issuance of the Zoning Compliance Permit. 

The trial court noted that it had “considered the full record” in determining whether Orange County had satisfied the special conditions attached to the site plan approval.  The trial court applied the appropriate scope of review, the whole record test.  The court held that the trial court properly applied that scope of review in finding and concluding that the board’s denial of Orange County’s application for zoning approval was not supported by substantial evidence.  The court held that the trial court did not err by remanding to Appellants for approval of the 2006 site plan and ordering thata Zoning Compliance Permit be issued to Orange County.

Appellants further argued that Orange County should be stopped from challenging the validity of the zoning ordinance.  The court rejected Appellants’ argument because enforcing the doctrine of estoppel upon Orange County would impair Orange County’s mandated government function of providing courtrooms, office space for juvenile court counselors and support staff, and related judicial facilities for each county where a district court has been established. N.C.G.S. § 7A-302.

Fort v. County of Cumberland, (11-758) Feb. 7, 2012 | TigerSwan planned to build a firearms training facility in Cumberland County, the property where the facility was to be located needed to be rezoned.  The county of Cumberland approved the rezoning. Petitioners appealed the approval because they feared the noise and lead contamination would decrease the value of their properties. 

The Board of Adjustment held that the Petitioners had standing but there were not enough votes to overturn the zoning approval.  Petitioners appealed to the trial court.  The trial court held that Petitioners had standing but that the firing range was permitted on the property.  Petitioners appealed the trial court’s decision.

The court held that the trial court did not err in concluding Petitioners had standing to maintain their appeal of the decision of the board. Jackson v. Guilford Co. Bd. of Adjustment, 275 N.C. 155, 161, 166 S.E.2d 78, 82 (1969).  Where the challenged land use is “prohibited by a valid zoning ordinance, the owner of adjoining or nearby lands, who will sustain special damage from the proposed use through a reduction in the value of his own property, does have a standing” to maintain an action to prevent the use. Id.  Here Petitioners testified as to their concerns that the alleged unlawful approval of the training facility would increase noise levels, had the potential to result in groundwater and soil contamination, and threatened the safety of anyone on their property due to stray bullets.  The Petitioners’ contended that these problems would result in a decrease in their property values.  The court concluded that this evidence was sufficient to establish standing to challenge TigerSwan’s proposed land use.

The court further held that the trial court erred in concluding the TigerSwan Training Facility was a permitted use within the A1 Agricultural District under the Cumberland County Zoning Ordinance.  The court concluded that the inclusion of “elementary or secondary” in the ordinance description of permissible schools was intended to exclude other types of “schools,” whether they be private or public.  The court further concluded that the Training Facility was not a permitted use as it was not a public or private, elementary or secondary school.

MNC Holdings, LLC v. Town of Matthews, (12-703), Nov. 20, 2012 | Respondent, Town of Matthews appealed the Mecklenburg County Superior Court’s review pursuant to a writ of certiorari, and subsequent reversal, of the denial of a variance petition by the Town of Matthews.

Petitioner MNC operated a medical waste incineration facility in the Town of Matthews.  In  1991, the Town annexed the subject property and rezoned the land from Heavy Industrial to Single-Family Residential use.   The rezoning made the existing facility a “nonconforming use,” requiring MNC to seek permission from the Town by a variance petition before making any physical alterations to the facility. Changes in regulations governing medical waste incinerators required MNC’s air pollution equipment to be upgraded. The Town previously allowed MNC to make alterations to the facility.  In 2009, the Environmental Protection Agency and the North Carolina Department of Environment and Natural Resources adopted more stringent air quality regulations. Although the regulations were not to take effect until 2014, the Town petitioned DENR’s Mecklenburg County Air Quality Division to shorten the time frame for MNC’s compliance to 2012.  MNC promptly requested a variance from the Town, explaining that extensive and accelerated modifications to its facility would be to comply with the new regulations in the shortened timeframe requested by the Town.  The Town zoning administrator held that Section 153.224(D) of the Town of Matthews’ Zoning Ordinance would not permit MNC to make the necessary alterations.   His interpretation of the ordinance would limit modifications to the plant to only those required by law to ensure the safety of the structure. MNC appealed to the Town’s zoning board, which unanimously upheld the zoning administrator’s decision denying the variance.   MNC then filed a petition for writ of certiorari.

The court’s review of a trial court’s zoning board determination is limited to whether the trial court applied the correct standard of review and whether it correctly applied that standard.   Bailey & Assoc., Inc. v. Wilmington Bd. of Adjustment, 202 N.C. App. 177, 190, 689 S.E.2d 576, 586 (2010). Since the court determined from the evidence that the trial court did employ the correct standard of review, de novo, the issue in this matter was whether the trial court’s legal interpretation of the ordinance was correct.

The parties present two different interpretations of the ordinance. The Town argued that the ordinance allows only alterations to nonconforming uses required by law to ensure the safety of the structure; therefore, because the EPA regulations were not directed at ensuring the safety of the structure, MNC was not permitted to make the alterations.    The Town further argued that the plain meaning and purpose of the ordinance was to regulate building safety, and that combined with North Carolina law’s disfavoring of nonconforming uses, warranted reversal of the trial court.   On the other hand, MNC contended that the ordinance allowed any alteration required by law; therefore, the alteration should be allowed because the EPA regulation is a law requiring alterations to the structure.  The trial court agreed with MNC, explaining that “the intent of [the Ordinance] is to allow property owners of buildings that house a nonconforming use to make structural alterations that are required by law,” and reversed the Town’s construction of the ordinance.

The court agreed with the trial court, that the plain meaning of the ordinance suggested that it allowed structural alterations when “required by law” in general. The court found that a plain reading of the ordinance would apply the phrase “to ensure the safety of the structure” only to the phrase immediately preceding it, “an order from the office or agent authorized by the Board of Commissioners to issue building permits,” and not to the prior phrase “those required by law.”  
The court further addressed the intent of the ordinance, finding that the intent was to allow property owners to make alterations when such alterations are “required by law.” The court held that because MNC was compelled by law to make the alteration, the ordinance should be interpreted liberally, the provision of the ordinance allowing for alterations “required by law” being placed there by the legislators specifically for the purpose of “providing flexibility  and  ‘preventing practical difficulties and unnecessary hardships.’”  See Morris Comm. Corp. v. City of Bessemer, 365 N.C. 152, 159, 712 S.E.2d 868, 873 (2011).

Other issues addressed by the court but not related to the issue of zoning included erroneous findings of fact and service of Notice of Appeal.

Special Use Permit | American Towers, Inc. v. Town of Morrisville, (11-1455), Sept. 4, 2012 | Petitioner, American Towers, Inc. appealed the Wake County Superior Court’s review pursuant to a writ of certiorari based upon the denial of an application for a Special Use Permit by Respondent, Town of Morrisville.

In 2010, Petitioner submitted an application for a Special Use Permit to erect a telecommunications tower.  The application contained materials in support of the required findings, including an analysis by a real estate appraiser to address the requirement that the proposed development would not substantially injure the value of adjoining property. While it was determined that the Petitioner made a prima facie showing that the proposed use was in harmony with the neighborhood and that it was in conformity with the Comprehensive Plan of the town, they failed to make a prima facie case that the proposed use would not substantially injure the value of adjoining property.  

The Morrisville Planning and Zoning Board held a hearing on the application and thereafter forwarded the permit application to the Town Council with a recommendation that it be approved.  A series of public hearings were held, where Petitioner agreed to make some changes to the development to appease the concerns of property owners.  Ultimately, the board denied Petitioner’s application for a Special Use Permit.  The board found that the applicant did not carry its burden to demonstrate three of the six general findings required by the Morrisville Zoning Ordinance: that the tower would not substantially injure the value of adjoining property; that the tower would be in harmony with the character of the neighborhood; and that the tower would conform to the town’s comprehensive plan.  The board found that the Petitioner had demonstrated the other three requirements.

The first issue was whether Petitioner presented a prima facie case.  An applicant for a Special Use Permit must make out a prima facie case by competent, material, and subsequent evidence, meeting all the conditions in the zoning ordinance. Humble Oil & Refining Co. v. Bd. of Aldermen, 284 N.C. 458, 468, 202 S.E. 2d, 129, 136 (1974).  An applicant who has made a prima facie case is entitled to a special use permit, unless there is also competent, material, and substantial evidence in the record to support denial. Mann Media, Inc. v. Randolph County Planning Bd., 356 N.C. 1, 12, 565 S.E. 2d 9, 16 (2002).

A petitioner seeking a special use permit in the Town of Morrisville must show:

A. Proposed development will not materially endanger the public health or safety;
B. Proposed development will not substantially injure the value of adjoining property;
C. Proposed development will be in harmony with the neighborhood in which it is located;
D. Proposed development will generally conform with the Comprehensive plan adopted by the Town;
E. Proposed development is appropriately located with respect to transportation facilities, water and sewer…etc.; and
F. Proposed use will not cause undue traffic congestion or hazard.

A telecommunications tower permit must also meet twenty additional requirements.

The court held that there was no dispute that Petitioner’s evidence satisfied items, A, E, and F under the ordinance, so the court did not specifically address those concerns.  Instead the court reviewed items B, C and D.

The court first reviewed Item C, harmony with the neighborhood in the neighborhood in which it is located.  The land in question was zoned IM; the ordinance provided that, if an applicant obtained a special use permit, a telecommunication tower may be constructed in an IM zoning district.  The court found that the language of the zoning ordinance established a prima facie case of harmony with the surrounding neighborhood.

Next, the court reviewed Item D, conformity with the Comprehensive Plan.  The inclusion of a use in a zoning district, even where a special use permit is required, establishes a prima facie case that that the use conforms with the comprehensive plan. Woodhouse v. Bd. of Commissioners, 299 N.C. 211, 216, 261 S.E. 2d 882, 886 (1980); Vulcan Materials Co. v. Guilford County Bd. of County Commissioners, 115 N.C. App. 319, 324, 444 S.E. 2d 639, 643 (1994) (holding that the inclusion of a use as a conditional use established a prima facie case of “harmony with the general zoning plan,” but further holding that there was sufficient evidence to rebut the prima facie case).  The Town contended that the proposed use did not conform with its Land Use Plan as it suggested that the subject property may be rezoned to residential in the future.  The applicable zoning ordinance specified that, with a special use permit, a tower may be constructed in the IM zoning district.  Petitioner demonstrated that the proposed tower complied with zoning requirements as enacted at the time of its application.  The court found that Petitioner therefore established a prima facie case of conformity with the Comprehensive Plan.  As of the date of Respondent’s decision, the subject property was still zoned IM, with no indication as to when or it would ever be rezoned, therefore Respondent’s contention that a telecommunication tower was inconsistent with the land use plan’s goal to rezone the area eventually, was without merit.

Finally, the court reviewed Item B, injury to the value of adjoining property.  Respondent found Petitioner’s evidence relating to Item B to be deficient in the following areas: the report was not benchmarked against other developments or against the market in general; in the two subdivisions studied by the appraiser, the cell tower was in place before the neighboring homes were built; the report did not attempt to study the effect of possible devaluation of property; and  the report did not take into account any potential loss of value due to the loss of “curb appeal” with the tower rising above the adjoining residential neighborhood.  The court was faced with a virtually identical fact situation as in the case of SBA v. City of Asheville City Council.  141 N.C. App. 19, 539 S.E.2d 18 (2000).  In SBA, one of the bases for rejecting the application for a conditional use permit to erect a telecommunications tower was the failure of the petitioner to establish a prima facie case that the value of adjoining properties would not be adversely affect.  The court in SBA noted that the city code required a showing that the value of properties adjoining the subject property would be adversely affect by the proposed land use.  The report submitted to the respondent expressed concern that the petitioner’s impact study did not address properties in the vicinity of the subject property but instead focused on towers and properties in other parts of the city.  Based upon the holding of SBA, Respondent was permitted to find that Petitioner failed to present a prima facie case based upon perceived inadequacies in the methodology of its expert.  The court felt that they were bound by this ruling, therefore affirming the decision of the trial court.

Certificate of Need | WakeMed v. N.C. Dep’t of Health (11-1558), Sept. 4, 2012 | Petitioners-appellants WakeMed and Rex Hospital, Inc. appealed the final agency decision of the NC Dept. of Health.  In that decision, the agency concluded that a Certificate of Need to develop three operating rooms in Wake County was properly awarded by the agency’s Certificate of Need Section to the Holly Springs Surgery Center, LLC (“HSSC”), rather than to WakeMed or to Rex Hospital.  WakeMed and Rex Hospital asked the court to reverse the final agency decision and to direct the agency to issue the Certificate of Need to WakeMed or Rex Hospital.  The court affirmed the agency decision.

In 2010, three new operating rooms were needed.  WakeMed, Rex Hospital, Duke Hospital and HSSC all filed separate applications seeking a Certificate of Need to develop the operating rooms.  The applications were reviewed and HSSC was chosen.  The agency conditionally approved HSSC’s Certificate of Need application and denied the other applications.  WakeMed, Rex Hospital and Duke Hospital filed Petitions for Contested Case Hearings, which were consolidated.  Duke Hospital voluntarily dismissed its petition prior to the hearing.  Following the hearing, the Administrative Law Judge issued a recommended decision that the agency reverse the approval of HSSC’s application and approve WakeMed’s application.  The agency issued its final decision rejecting the ALJ’s recommended decision and affirming the Certificate of Need Section’s conditional approval of HSSC’s application.  WakeMed and Rex Hospital appealed.  

The first issue was in regard to the amendment of the application.  Rex Hospital argued that HSSC’s Certificate of Need application could not be approved because it had been amended.  The court in this case concluded that the proper standard for determining whether a Certificate of Need application was impermissibly amended was the standard utilized by the court in Presbyterian-Orthopaedic Hospital v. N.C. Dep't of Human Res., 122 N.C. App. 529, 537, 470 S.E. 2d 831, 836 (1996). In the Presbyterian-Orthopaedic Hospital matter the Certificate of Need applicant amended its application when it decided to change the management company it intended to use to oversee its operations at the facility it proposed in its application.  The court concluded that the substitution of the management was a “material amendment to its application” because “the entire applicant’s] logistical and financial data in its completed certificate of need was based” on utilizing the original management company. Id.  In the present matter, the court found that HSSC had not made a material amendment to its Certificate of Need application as the only change was to add a Letter of Support to the application; the signatories on the letter were identical to the surgeons identified by name in the original application.

Second, an applicant for a Certificate of Need must comply with all review criteria provided in N.C.G.S. Section 131E-183(a)(3). Presbyterian-Orthopaedic Hospital at 534, 470 S.E. 2d at 834.  WakeMed contended that the agency erred as a matter of law by not concluding that the Certificate of Need Section failed to adhere to its statutory obligation to determine the type of operating rooms, shared versus ambulatory, which would best meet the needs of Wake County.  The court disagreed and held that there was no legal requirement that the Certificate of Need Section determine whether shared versus ambulatory operating rooms were required to meet the needs of the target population.
The court found that the agency did not err in rejecting the recommended decision of the ALJ and affirmed the agency’s final decision.

Nuisance | Town of Nags Head v. Cherry, Inc. (11-931), Feb. 21, 2012 | Defendant owned a piece of property in Nags Head that was declared Unsafe for Human Habitation.  The Town Manager declared the dwelling to be a public nuisance and gave the Defendant eighteen days to demolish the dwelling.  The Plaintiff requested an Order of Abatement.  Defendant filed a Motion to Dismiss and counterclaimed for inverse condemnation.  Plaintiff filed a Motion to Dismiss the Defendant’s counterclaims; the Defendant subsequently dismissed his counterclaim.  Plaintiff later filed a Motion for Summary Judgment.  The trial court denied the Defendant’s Motion to Dismiss but granted Plaintiff’s Motion for Summary Judgment for the claim for abatement, Defendant appealed.

Defendant first contended that the trial court erred in denying its Motion to Dismiss pursuant to Rule 12(b)(1).  In deciding this issue, the court first considered Plaintiff’s standing to enforce the public trust rights of the State.  Plaintiff claimed that it was not seeking to enforce the State’s public trust rights.  Plaintiff claimed that it was merely addressing a public nuisance.  The court disagreed.  The court held that this was a case where a government agency was attempting to take private property from an individual, destroy the dwelling, and claim the land on the basis that it currently lays within a public trust area.  The court held that only the State, acting through the Attorney General, has standing to bring an action to enforce the State’s public trust rights in accord with N.C.G.S. Section 113-131. The court concluded that the claim must be dismissed, therefore reversing the order of the trial court denying Defendant’s Motion to Dismiss pursuant to Rule 12(b)(1).

Defendant also contended that the trial court erred in granting partial summary judgment in favor of the Plaintiff based upon Town Ordinance 16-31(6)(b).  Viewing the evidence in the light most favorable to Defendant, the court found that it appeared that the main defects in the dwelling were the lack of connections to a septic tank, electricity and water, and some exterior damage to stairs, but that the dwelling was structurally sound and in need of relatively minor repairs, which Defendant would have promptly performed if Plaintiff had not refused to issue the required permits.  Therefore, the court held that the trial court erred in granting summary judgment in favor of the Plaintiff.

Termination of Employment | Poarch v. N.C. Dep’t of Crime Control & Public Safety, (11-1501), Oct. 16, 2012 | Petitioner appealed the trial court’s decision to affirm his dismissal from the N.C. Highway Patrol.  Petitioner was accused of having an extramarital affair for fifteen years while on duty.  The affair was alleged to have taken place in the Petitioner’s patrol car, behind his patrol car and at the patrol station.  Petitioner was dismissed from his position, which he appealed.  

The first issue on appeal was whether the trial court erred in determining that the Petitioner’s employment was terminated for just cause.  The State Personnel Commission requires that just cause exist for termination of a career State employee.  There are two bases for termination of employees for just cause, unsatisfactory job performance and unacceptable personal conduct.  In this case the court addressed unacceptable personal conduct.  Petitioner admitted to having an on-again/off-again extramarital affair and admitted to specific instances of sexual relations.  The only dispute was whether the Petitioner was on duty at the time of the sexual relations.  The court held that if any member of the public would have witnessed Petitioner’s misconduct they would have assumed that Petitioner was on duty to the detriment of the N.C. Highway Patrol’s reputation.  Therefore, Petitioner engaged in the alleged acts while on duty, qualifying as unacceptable personal conduct.

Petitioner also contended that the trial court erred as a matter of law in failing to address, and correctly decide, his claim of arbitrary and capricious personnel actions.  The court held that after determining that petitioner committed the alleged acts of misconduct, that the misconduct qualified as unacceptable personal conduct, and that the misconduct amounted to just cause for termination, it followed that Petitioner’s termination was not arbitrary or capricious.

Petitioner’s third contention was that the trial court erred in failing to credit Petitioner with undisputed facts warranting relief by adopting erroneous findings of fact that were not supported by substantial evidence. The court disagreed, finding that a review of the record revealed that the contested findings of fact were supported by the evidence.

Petitioner’s final argument was that the trial court erred in failing to award a just and equitable remedy.  The court found that the trial court committed no error, and therefore did not err in failing to impose a just and equitable remedy.

More at Four | Hoke County Bd. of Educ. v. State, (11-1545), Aug. 21, 2012 | The State appealed from an order titled “Memorandum of Decision and Order Re: Pre-Kindergarten Services of At-Risk Four Year Olds” mandating, in sum, that the State not deny any eligible at-risk four year old admission to the NC Pre-kindergarten program and not enforce specific provisions of the 2011 Budget Bill.  The court affirmed in part and dismissed in part.

The dispute at the heart of the appeal began on May 4, 2011 when the N.C. House of Representatives adopted a budget bill mandating the Division of Child Development and Early Education (DCDEE) to continue to serve “at risk children identified through…methods in which at-risk children are currently served” and to “serve at-risk children regardless of income.”  2011 N.C. Session Law 145 §10.7(f).  However, the bill also mandated that “the total number of at-risk children served shall constitute no more than twenty percent (20%) of the four-year olds served within the pre-kindergarten program.” Id.

Plaintiff filed a motion requesting a hearing to address how the reduction in pre-kindergarten services for at-risk children in the House Budget would affect the children’s rights under the North Carolina constitution to “a sound basic education.”  Even though the bill became law, the trial court proceeded with the hearing.  The trial court issued an order mandating that the State not deny any eligible at-risk four year old admission to the N.C. Pre-Kindergarten program, not implement or enforce any portion of the Budget Bill that limits, restricts, bars, or otherwise interferes, in any manner, with the admission of all eligible at risk four year olds, or implement or enforce any barrier that denies any eligible at-risk four year old admission to the Pre-kindergarten program.  

The State presented three arguments upon appeal: that the trial court exceeded its authority when it ordered the State to provide pre-kindergarten services to all at-risk four year olds in N.C.; that the trial court erroneously enjoined the implementation or enforcement of properly enacted legislative provisions regarding N.C.’s Pre-kindergarten program; and that the trial court’s order could not be upheld because it did not contain any appropriate findings of fact or conclusions of law.

In Leandro II, the trial court had concluded that “[i]t was ultimately the State’s responsibility to meet the needs of ‘at-risk’ students in order for such students to avail themselves of their right to the opportunity to obtain a sound basic education” and “that State efforts towards providing remedial aid to ‘at-risk’ prospective enrollees were inadequate.” Hoke County Bd. of Educ. v. State (Leandro II) 358 N.C. 605, 640 and 642, 599 S.E. 2d 365, 392-393(2004).  Under Leandro II, the State has a duty to prepare all “at-risk” students to avail themselves of an opportunity to obtain a sound basic education.  Pre-kindergarten is the method in which the State had decided to effectuate its duty, and the State had not produced or developed any alternative plan or method. Pursuant to Leandro II, the court affirmed the trial court’s order.

The court also denied the State’s jurisdictional argument.  The court found that the State mischaracterized the mandate of the Order.  The trial court did not order the State to provide Pre-kindergarten programs for all “at risk” four year old prospective enrollees in N.C.; rather, the trial court’s decree sought to keep the State from erecting “artificial barriers or any other barriers” that would deny any “at-risk” four year old prospective enrollee throughout the State his or her constitutional right to obtain a sound basic education.” The court further held that the trial court did not err because both the executive and legislative branches have evidenced their selection and endorsement of this remedy to address to the State’s constitutional failings identified in Leandro II.

The court found the second argument of enjoinment of legislation to be moot and therefore dismissed that argument.   On May 17, 2012, the House of Representatives introduced a bill titled “An Act to Repeal the Prohibition on Teacher Prepayment, Clarify Eligibility for the N.C. Pre-K Program, and Enact 2012-2013 Salary Schedules for Teacher and School Administrators.  That bill, in part, entirely rewrote the language of 2011 N.C. Session Law 145, Section 10.7(f) at issue in this case.  In June, 2012, the bill was signed into law; as such Section 10.7(f) was no longer in effect.  The court held that if an issue before the court or administrative body becomes moot at any timeduring the course of proceedings, the usual response should be to dismiss the action.

Finally, on the issue of sufficiency of findings of fact and conclusions of law, the State argued that the trial court’s order must be vacated and remanded because it lacked findings of fact and conclusions of law as required by the Rules of Civil Procedure.  The court disagreed.  The court found that the trial court issued a detailed, twenty-four page order which very clearly articulated its chain of reasoning.  The court concluded that the trial court’s rationale in reaching its decision was specifically articulated in the order.  

Jurisdiction of Commission of Indian Affairs | Meherrin Tribe of N.C. v N.C. Commission of Indian Affairs, (11-885), April 3, 2012 | Respondent appealed from an order entered by the trial court reversing the commission’s decision, by an order issued by the Office of Administrative Hearings granting summary judgment in favor of Petitioner.  The ultimate issue in dispute between the parties was the extent, if any, to which the commission erred by declining to seat a representative favored by the leadership of the Meherrin Indian Tribe as the representative on the Commission.  The court reversed the trial court’s order and remanded the case.

The Meherrin Indian Tribe is composed of the descendants of indigenous peoples who formerly resided at the mouth of the Meherrin River Valley who now reside in small communities in Hertford, Bertie, Gates and Northampton Counties.  In 2007, the Meherrin held a duly noticed and regularly scheduled meeting of its general body.  At the meeting, those in attendance voted to remove the sitting Chief (Lewis) and scheduled the next meeting.  Prior to the next meeting the Chief Lewis announced that the meeting had been moved to another location.  As a result, two meetings were conducted on the same day.  The group supporting the removal of Chief Lewis met and voted to replace Mr. Patterson with Ms. Hall as the Meherrin representative to the commission.  Based on these events, the members of the Meherrin which represented the anti-Chief Lewis faction contended that Chief Lewis was properly removed from his position, that Ms. Hall replaced Mr. Patterson as the Meherrin’s representative to the Commission, and that the Commission was obliged to seat Ms. Hall as the Meherrin representative.  The pro-Chief Lewis faction contended, on the other hand, that Chief Lewis was not properly removed as Chief; that Mr. Patterson was not properly replaced by Ms. Hall as the Meherrin representative on the commission, and that Mr. Patterson should be seated as the Meherrin representative to the commission.

In May 2008, Chief Lewis wrote the commission for the purpose of asserting that Mr. Patterson was the duly elected Meherrin representative to that body.  Then in September 2008, the Meherrin filed a Petition for a Contested Case Hearing alleging that the commission had improperly refused to seat Ms. Hall as the Meherrin representative.  In October 2008, the commission moved to dismiss the Meherrin’s petition on the grounds that there “existed an internal dispute within the [Meherrin] as to the actual and proper leadership of the tribe which resulted in the commencement of litigation.”  In addition, Respondent asserted that since it had received two names to fill the Meherrin seat, it had decided to allow the seat to remain vacant until the internal tribal controversy had been resolved.
In March 2009, the Meherrin sought partial summary judgment with respect to its claim that Ms. Hall had been properly elected as the Meherrin representative to the commission.  The commission submitted a brief in opposition to the Meherrin’s partial summary judgment motion in which it argued that, Chief Lewis was never properly removed.  In June 2009, the Administrative Law Judge entered an order granting summary judgment in favor of the Meherrin.

In November 2009, the Meherrin filed a Petition for Judicial Review in which it argued that, because the commission had not yet filed a final agency decision, the ALJ’s decision had become final by operation of law.  Then the Meherrin filed Motions for Summary Judgment and Judgment on the Pleadings; however, the trial court denied the motions.  The trial court ruled that the record developed before the OAH had not been properly delivered to the commission; that the commission was required to render its final decision; and that the commission must issue a written decision.  After conducting a hearing, the commission determined that the record disclosed the existence of genuine issues of material fact, all of which pertained to the tribal leadership dispute and the validity of various actions that had been taken by the competing factions, and remanded the case to the ALJ for further proceedings.

In March 2010, the Meherrin filed a Petition for Judicial Review.  They alleged that the previous hearing had not been held in a timely manner and that “the hearing was held in violation of state law and due process.”  The commission filed an answer to the petition in which it requested the trial court to affirm its decision to reverse the ALJ’s order.  The trial court conducted a hearing in which it entered orders denying several motions filed by the Meherrin for the purpose of seeking reconsideration of earlier rulings, including their Motion for Summary Judgment.  The commission appealed to the Court of Appeals from the trial court’s order.

The first issue reviewed was the issue of jurisdiction over internal tribunal disputes.  The fundamental issue around which the case resolved was the extent, if any, to which the commission acted appropriately by failing to determine that Ms. Hall should be seated as the Meherrin representative.  The initial question was whether the Commission had the authority to resolve disputes over its own membership arising from intra-tribunal controversies.  The commission was established by N.C.G.S. Section 143B-404 and “administered under the direction and supervision of the Department of Administration.”  N.C.G.S. § 143B-407.  A careful examination of the relevant statutory provisions clearly demonstrates that the General Assembly intended for the commission to primarily serve an advocacy and resource provision function and that the legislature did not appear to contemplate that the commission would function as an administrative or judicial body vested with substantial decision-making authority, including the authority to resolve-intra-tribunal disputes.  In order to grant the relief requested by Petitioner, the commission would be required to resolve the underlying intra-tribunal dispute, a decision well outside the scope of its explicit or implicit statutory authority.  As a result of the fact that the court had identified no statutory provision that would authorize the commission to adjudicate intra-tribunal controversies such as the one underlying the present dispute, the court held that the commission had no authority to decide which of the two competing Meherrin representatives should be seated on the commission and that the Meherrin’s petitions ultimately sought relief which the Commission was not empowered to provide.

The court further held that the commission’s challenge to the trial court’s order, which erroneously assumed that the Commission had the authority to resolve the issue of whether Ms. Hall or Mr. Peterson should serve as the Commission’s representative to the Commission, was well founded.  As a result, the trial court’s order was reversed and the case was remanded to the trial court for further remand to the Commission with instructions that the petition be dismissed for lack of jurisdiction.   •


Chelly Pennington is a third-year law student at North Carolina Central University School of Law.
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