TOWN OF MATTHEWS, a North Carolina municipal corporation, Plaintiff,
LESTER E. WRIGHT and wife, VIRGINIA J. WRIGHT, Defendants
Heard in the Court of Appeals January 20, 2015
Mecklenburg County, No. 13 CVS 9071.
Benjamin R. Sullivan, Parker Poe Adams & Bernstein, for plaintiff-appellant.
Peter J. Juran, for defendant-appellees.
Judges BRYANT and STROUD
Appeal by Plaintiff from judgment entered on 11
March 2014 by Judge F. Donald Bridges in Mecklenburg County Superior Court.
HUNTER, JR., Robert N., Judge.
The Town of Matthews appeals from a judgment dismissing its condemnation claim taking the road fronting Lester and Virginia Wright's home. The Town contends the trial court misapplied the " public use or benefit" test set forth in N.C. Gen. Stat. § 40A-3(b). We affirm the dismissal.
I. Factual & Procedural History
The Wrights own a home in a subdivision in Matthews. Their 1984 warranty deed contains a thirty-foot street easement known as " Home Place" which extends the full length of the North side and a part of the East side of their lot. One end of the street is a dead end. The Wrights' lot is near the dead end. At the other end of the street is an outlet which all landowners use to connect to Reveredy Lane. The Wrights and five other landowners have built homes along Home Place.
Who Owns Home Place?
A. Wright v. Town of Matthews (" Wright I"
), 177 N.C.App. 1, 627 S.E.2d 650 (2006).
In 2004, the Wrights challenged the Town's Zoning Board of Adjustment's (" Zoning Board" ) determination that Home Place was a public street. The Zoning Board's 2004 decision was based upon a 1985 resolution declaring Home Place to be a public street, and the fact that in 1991 the town paved the street. The Wrights appealed by petition for writ of certiorari the determination to the superior court, which affirmed the decision of the Board. The Wrights appealed to this Court.
On 4 April 2006, in Wright I, this Court held that " the findings made by the Board and the trial court do not support the conclusion that Home Place is a public street." Wright I, 177 N.C.App. at 16, 627 S.E.2d at 661. A private street or right-of-way may only become a public street by one of three methods: " (1) in regular proceedings before a proper tribunal . . . ; (2) by prescription; or (3) through action by the owner, such as a dedication, gift, or sale." Id. at 10, 627 S.E.2d at 658. This Court held that there was no evidence that Home Place was adjudicated a public street through a condemnation proceeding or before a proper tribunal. Id. at 10--11, 627 S.E.2d at 658. Additionally, there was no evidence that Home Place was ever the subject of a gift or sale by the property owners. Id. at 11, 627 S.E.2d at 658. Therefore, " Home Place could only have become a public street by way of dedication or prescription." Id. Because the Town had not maintained Home Place for the requisite twenty-year time period to establish prescription, we held that the only way Home Place could have become a public street would be through prior dedication--either express or implied. Id. at 15, 627 S.E.2d at 661. We reversed the order of the trial court, and remanded for " further findings detailing whether or not Home Place became a public street by means of implied dedication." Id. at 14, 627 S.E.2d at 661.
Based on the decision of this Court in Wright I, the trial court vacated its order, and remanded the case back to the Zoning Board. Town of Matthews v. Wright, 194 N.C.App. 552, 553, 669 S.E.2d 841, 842 (2008). At a subsequent hearing on 10 August 2006, the Zoning Board determined " the issue of Implied Dedication was no longer an issue." Id.
B. Town of Matthews v. Wright (" Wright II"
), 194 N.C.App. 552, 669 S.E.2d 841 (2008).
On 9 October 2006, without notice to the Wrights, the Town Board of Commissioners (" the Board" ) adopted a " Resolution Adding Streets To The Matthews Street System ( NUNC PRO TUNC  [25 March 1985])." Id. at 554, 669 S.E.2d at 842. This resolution purportedly transformed Home Place into a " public street" retroactively, effective as of 1985. Id.
On 19 April 2007, the Town filed a complaint alleging the Wrights had erected two signs and a fence on a public street. Id. at 553, 669 S.E.2d at 841. The complaint alleged the Town ordered the Wrights to remove the obstructions within twenty days and they failed to comply. Id. The Wrights counterclaimed alleging trespass and raised, inter alia, the defense of res judicata. Id. at 553, 669 S.E.2d at 841--42. The trial court granted summary judgment in favor of the Wrights, finding that " Home Place is a private road," and dismissing the Town's complaint. Id. at 554, 669 S.E.2d at 842. The Town appealed that decision of the trial court to this Court, arguing that the nunc pro tunc resolution by the Board precluded the trial court's finding that Home Place is a private street. Id. at 555, 669 S.E.2d at 843.
In Wright II, this Court invalidated the Board's nunc pro tunc resolution. Id. at 556, 669 S.E.2d at 843. However, we declined to agree with the trial court's finding that " Home Place is a private road" without the requisite findings which we ordered in Wright I. Id. Therefore, in Wright II, we again reversed the trial court and remanded the matter for further findings to determine if Home Place was impliedly dedicated as a public street. Id. at 556, 669 S.E.2d at 844.
Town of Matthews v. Wright (" Wright III" ), 214 N.C.App. 563, 714 S.E.2d 867, 2011 WL 3570212 (2011) ...