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LCC v. Town of Holden Beach

Court of Appeals of North Carolina

December 31, 2014

SIX AT 109, LCC, a North Carolina limited liability company, Petitioner,
v.
TOWN OF HOLDEN BEACH, North Carolina, Respondent

Heard in the Court of Appeals: October 8, 2014.

Page 401

Appeal by petitioner from order entered 1 July 2013 by Judge Gary E. Trawick in Brunswick County Superior Court, No. 12 CVS 1986.

Shanklin & Nichols, LLP, by Kenneth A. Shanklin and Matthew A. Nichols, for petitioner-appellant.

Crossley, McIntosh, Collier, Hanley & Edes, PLLC, by Clay Allen Collier and Jarrett W. McGowan, and H. Mac Tyson II, for respondent-appellee Town of Holden Beach.

BRYANT, Judge. Judges ELMORE and ERVIN concur.

OPINION

Page 402

BRYANT, Judge.

Because the Superior Court utilized the appropriate standard of review applicable to an appeal from an order of the Town of Holden Beach Board of Commissioners and did not err in affirming the order of the Board which affirmed an order condemning petitioner's ocean-side motel and authorizing its demolition, we affirm the Superior Court's order.

Petitioner Six at 109, LLC (" petitioner" ), owns a building known as Captain Jack's Motel (" the motel" ), located in the Town of Holden Beach (" the Town" ). The structure is an oceanfront, four-unit motel built in 1989.

In 2008, petitioner received a building permit from the Town authorizing the making of non-structural improvements to the interior of the motel, including replacing exterior doors, door trim, baseboards, windows, cabinets, plumbing, an HVAC system, and electric wiring. Petitioner also received a Coastal Area Management Act (" CAMA" ) permit authorizing the making of the proposed improvements.[1] Work commenced pursuant to the building permit. On 8 December 2009, the Town Building Inspector issued a Certificate of Compliance relating to the work completed on the motel up to that time. The Certificate of Compliance stated that three of the four units in the motel were in compliance with the Town Building Code and that occupancy would be permitted.

On 3 August 2010, a new town building inspector, Timothy Evans, issued a stop work order relating to petitioner's motel property in response to a report that work was taking place on the motel that was not authorized by the building permit. The stop work order remained in place until the end of the year when Inspector Evans determined that all work done on the property had been performed

Page 403

in compliance with the building permit.

In early 2011, petitioner submitted an application for another building permit authorizing continued work on the motel, including: demolition and replacement of exterior siding, existing plumbing, electrical and heating fixtures, and non-load bearing walls. In August 2011, Inspector Evans notified petitioner that because the motel met the criteria for an unsafe building pursuant to North Carolina General Statutes, section 160A-426, it had been condemned.[2] On 17 November 2011, petitioner's permit application was denied and a condemnation notice was posted at the building site.[3] Afterwards, Inspector Evans provided petitioner with a memorandum outlining the basis for the notice and condemnation (citing violations of specific provisions of the N.C. Building Code) and advised petitioner that a hearing on the matter would be conducted before him as the Town Building Inspector.

In January 2012, a hearing was conducted before Inspector Evans in his capacity as Director of the Inspections Department for the Town of Holden Beach. Petitioner submitted documentary evidence in the form of exhibits and offered testimonial evidence through witnesses. Furthermore, Inspector Evans granted petitioner's request for additional time to supplement the record with further evidence, exhibits, arguments and authorities. On 12 March 2012, following the January hearing, Inspector Evans, on behalf of the Inspections Department, entered an order making the following ultimate findings of fact:

[T]he structure is a hazard to the surrounding properties, that its current condition constitutes (among other things) a fire hazard, that the structure has attracted a criminal activity and other activities which constitutes a nuisance, that the structure is likely to contribute to vagrancy and presents a threat of disease and is a danger to children and that the only option available under N.C.G.S. § 160A-429 is to order the demolition of the structure . . . .

Accordingly, Inspector Evans ordered that the motel be demolished, pursuant to N.C. Gen. Stat. § 160A-429.[4]

Petitioner appealed the inspector's order to the Town of Holden Beach Board of Commissioners pursuant to N.C. Gen. Stat. § 160A-430.[5] A hearing before the Board of Commissioners was conducted on 11-13 June 2012. Petitioner presented evidence by way of exhibits and witnesses and made arguments supported by authorities submitted to the Commissioners. The Commissioners also conducted a site visit as part of the hearing. By order dated 7 September 2012, the Board of Commissioners found that, viewed in the light most favorable to petitioner, the evidence supported the following factual finding:

[T]he ocean side structure of the property is a hazard; that the structure has attracted criminal activity and other activities which constitute a nuisance; and, that the structure is likely to contribute to vagrancy and ...

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