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Letendre v. Currituck County

Court of Appeals of North Carolina

May 15, 2018

ELIZABETH E. LETENDRE, Plaintiff,
v.
CURRITUCK COUNTY, NORTH CAROLINA, Defendant.

          Heard in the Court of Appeals 21 March 2018.

          Appeal by Defendant from order entered 9 June 2017 by Judge Walter H. Godwin, Jr. in Superior Court, Currituck County No. 17-CVS-146

          Parker Poe Adams & Bernstein LLP, by Jonathan E. Hall, Michael J. Crook, and Jamie Schwedler, for plaintiff-appellee.

          Currituck County Attorney Donald I. McRee, Jr., for Defendant-appellant.

          STROUD, Judge.

         I. Introduction

         This case arises from this Court's prior opinion issued on 21 June 2016 in Long v. Currituck County, __ N.C.App. __, 787 S.E.2d 835 (2016), which held that under Currituck County's Unified Development Ordinance § 10.51, Plaintiff's proposed "project does not fit within the plain language of the definition of Single Family Dwelling, and thus is not appropriate in the SF District." Id. at, 787 S.E.2d at 841. While Long was pending before this Court, Plaintiff was warned of the possible consequences of proceeding with construction of the project if the trial court's order in that case was reversed on appeal, but she decided to build the project anyway. After Defendant took action to comply with this Court's ruling in Long, issued on 21 June 2016, Plaintiff sought and obtained a preliminary injunction issued on 9 June 2017 which required Defendant to "deem the home approved by the County building permit issued in March 2015 to be a single-family detached dwelling for purposes of the Currituck County Unified Development Ordinance" and to allow her to complete construction and occupancy of the project. Defendant appealed the preliminary injunction. Although Plaintiff's complaint includes many claims in her attempt to prevent Defendant from enforcing the Unified Development Ordinance in accordance with this Court's opinion in Long, __ N.C.App. __, 787 S.E.2d 835, Plaintiff has not demonstrated that she is likely to prevail on any of her claims, and therefore the preliminary injunction must be reversed.

         II. Background

         On 27 March 2017, Plaintiff filed this action seeking a declaratory judgment, preliminary injunction, permanent injunction, monetary damages, and attorney fees. On 9 June 2017, the trial court entered a preliminary injunction ordering Defendant to "deem the home approved by the County Building permit issued in March 2015 to be a single-family detached dwelling for purposes of the Currituck County Unified Development Ordinance;" to rescind the Stop Work Order issued in September 2016 and the Notice of Violation issued in February 2017; and to permit Plaintiff to complete construction of her project and then allow occupancy.

         Plaintiff sought the preliminary injunction and other relief to prevent Defendant from complying with this Court's ruling issued on 21 June 2016 in Long, __ N.C.App. __, 787 S.E.2d 835. Plaintiff was a party to Long and that case dealt with the same project and the same provisions of the Currituck County Unified Development Ordinance ("UDO") as this case. See generally id. In Long, the petitioner-plaintiffs appealed

a Superior Court (1) DECISION AND ORDER affirming the Currituck County Board of Adjustment's decision that a structure proposed for construction on property owned by Respondent Elizabeth Letendre is a single family detached dwelling under the Currituck County Unified Development Ordinance and a permitted use in the Single Family Residential Outer Banks Remote Zoning District and dismissing petitioners' petition for writ of certiorari and (2) ORDER denying petitioners' petition for review of the Currituck County Board of Adjustment's decision and again affirming the Currituck County Board of Adjustment's decision.

Id. at __, 787 S.E.2d at 836 (quotation marks omitted). In other words, the preliminary injunction on appeal ordered Defendant to "deem" Plaintiff's project which was under construction during the pendency of the appeal of Long "to be a single-family detached dwelling" under the Currituck County UDO, although this Court held in Long that her house is not a single-family detached dwelling as defined by the Currituck County UDO. See id., __ N.C.App. __, 787 S.E.2d 835.

          Plaintiff described her plan to build the house which is the subject of this case, and was the subject of Long, in her complaint as follows:

4. LeTendre bought the Lot on the open market in April 2012 for a purchase price of $530, 000.00.
5. From the time that LeTendre bought the Lot in April 2012, through the present time, the Lot has had a Single Family Residential Outer Banks Remote ("SFR") zoning classification assigned to it by Currituck County.
6. Under Currituck County's Unified Development Ordinance ("UDO"), developments that are permitted on properties with a SFR zoning classification include single-family detached dwellings.
7. Section 10.51 of the UDO defines a "single-family detached dwelling" as a "residential building containing not more than one dwelling unit to be occupied by one family, not physically attached to any other principal structure. For regulatory purposes, this term does not include manufactured homes, recreational vehicles, or other forms of temporary or portable housing. Manufactured buildings constructed for use as single-family dwelling units (manufactured home dwellings) are treated similar [sic] to single-family detached dwellings."
8. Neither Section 10.51 of the Currituck County UDO, nor any other provision of the Currituck County UDO, limits the square footage that a single family detached dwelling may have.
9. Neither Section 10.51 of the Currituck County UDO, nor any other provision of the Currituck County UDO, limits the number of bedrooms that a single-family detached dwelling may have.
10. Neither Section 10.51 of the Currituck County UDO, nor any other provision of the Currituck County UDO, limits the number of rooms that a single family detached dwelling may have.
11. After buying the Lot in April 2012, LeTendre engaged an architect to develop plans for a home to be built on the Lot. LeTendre's architect first developed plans for a home ("Disconnected Home") with one central wing and two side wings. The two side wings would not be connected to the central wing, and instead unenclosed decking would run between the central wing and each side wing, such that a person would have to step outside of the Disconnected Home in order to travel from wing to wing. The three wings would not have connected rooflines. On the plans for the Disconnected Home, because the three wings were not connected, the architect labeled each of the three wings as a separate "building." Those plans were never utilized, and the Disconnected Home was never built.
12. LeTendre's representatives later sought guidance from the County regarding what type of development on the Lot would qualify as a single-family detached dwelling under the Currituck County UDO. LeTendre's representatives met with the County Planning Director and the County Attorney in 2013. At that meeting, the County Planning Director advised LeTendre's representatives that, if the three wings had a connected roof and were connected by air-conditioned hallways that allowed for the free flow of heating and air conditioning, the resulting home would qualify as a single-family detached dwelling under the UDO. The County Planning Director did not claim that the three wings would need to have a common foundation in order for the home to qualify as a single-family detached dwelling.
13. Based on this guidance from the County Planning Director, LeTendre's architect developed a new set of plans for a different home for the Lot. This home ("Home") would also have a central wing and two side wings. But unlike in the Disconnected Home, the Home's side wings would be connected with the central wing by two enclosed, air-conditioned hallways. These hallways would allow for the free flow of heating and air conditioning, and they also would allow a person to walk throughout the Home, including all three wings, without ever stepping outside. The three wings in the Home would have a common, integrated roofline.
14. Although the plans for the Home showed that the three wings would be interconnected and would have a connected roofline, through inadvertence these plans continued the practice from the Disconnected Home's plans of labeling each wing as a separate "building."
15. In October 2013, LeTendre submitted the plans ("Plans") for this Home to Currituck County for the County to formally confirm that the Home would be a permissible single-family detached dwelling that would be permitted on the Lot under the County's UDO.
16. The Plans showed that each wing would be slightly less than 5, 000 square feet in size, and they showed that the Home would also have a detached pavilion as an accessory structure.
17. The Plans showed that the foundation of each enclosed, air-conditioned hallway would be connected to the foundation of the side wing to which that hallway was attached.
18. The Plans showed that the foundations for the enclosed, air-conditioned hallways would not be connected to the foundation of the Home's central wing.
19. The Plans showed that each of the three wings would have its own separate foundation and that the foundations for the three wings would not connect together.
20. The Plans showed that the Home would not have a single common foundation.
21. The Plans that were submitted to Currituck County in October 2013 disclosed the square footage of each of the three wings of the Home as well as the total square footage of the Home.

         In November of 2013, the Currituck County Planning Director, Mr. Ben E. Woody, issued a Letter of Determination "confirming that the Home as proposed in the Plans would be a single-family detached dwelling and would be permitted on the Lot pursuant to the Currituck County UDO."

         Besides approval by the Currituck County BOA, Plaintiff's house required a permit from the N.C. Department of Environment and Natural Resources ("DENR") allowing "[m]ajor [d]evelopment in an [a]rea of [e]nvironmental [c]oncern pursuant to NCGS 113-118[.]" Plaintiff planned to build close to the water, in a location "set back a minimum of 60 feet from the first line of stable natural vegetation[.]" Plaintiff had hired George Wood, of Environmental Professionals, as a consultant to "assist her in obtaining state and federal approvals for construction of a home on the oceanfront property she bought in April 2012." Plaintiff's representatives, including Mr. Wood, her architect, and her contractor, worked with the North Carolina Division of Coastal Management to develop a plan for the house which would meet Coastal Area Management Act ("CAMA") requirements. The requirement which has created most of this controversy was that no building could be larger than 5, 000 square feet; Plaintiff planned for the project to be approximately 15, 000 square feet.

          The trial court's order made several findings of fact regarding the CAMA regulations:

3. Construction on LeTendre's lot would also have to satisfy regulation under North Carolina's Coastal Area Management Act ("CAMA"). CAMA regulations impose setbacks that developments must satisfy that are based on the size of the developments proposed. LeTendre wanted her home to use a CAMA setback known as the "60 foot" setback, which requires a development to be set back from the waterfront a minimum of 60 feet or 30 times the property's shoreline erosion rate. That setback is for developments less than 5, 000 square feet in size. However, CAMA regulations allow a larger development to use the 60-foot setback if that development is composed of separate components that are each less than 5, 000 square feet and that are structurally independent of each other. LeTendre therefore intended to design her home so that each of the three wings would be less than 5, 000 square feet and would be structurally independent from each other. Designing homes that are larger than 5, 000 square feet so that they have structurally independent components and can use the 60-foot CAMA setback is permitted by the Division of Coastal Management and is common along the North Carolina Coast and in Currituck County. LeTendre's representatives explained to the Division of Coastal Management and to Currituck County her desire for the wings of her home to be structurally independent so that the 60-foot setback could be used.
4. After consultation with the North Carolina Division of Coastal Management, which administers CAMA regulations, and with the Currituck County Planning Department, LeTendre's architect prepared a set of plans that proposed to connect the three wings of her home using uncovered, unenclosed decking. Although this would satisfy CAMA's requirement for structural independence, the Currituck County Planning Director would not accept those plans. The Planning Director determined that connecting the wings with unenclosed decking would not make the wings a single structure in order for the home to qualify as a single-family detached dwelling under the County UDO.
5. During subsequent discussions between LeTendre's design professionals and the County Planning Department, the County Planning Director proposed that the wings be connected with enclosed, air conditioned hallways. The Planning Director determined that connecting the wings in this way would allow the home to qualify as a single-family detached dwelling because the wings would be sufficiently integrated to constitute a single structure. There was no language in the UDO that expressly contradicted this determination by the Planning Director.[1]
6. LeTendre's architect therefore prepared a set of plans that proposed to connect the three wings using enclosed, air conditioned hallways. After reviewing these plans, the County Planning Director issued a November 2013 Letter of Determination providing that the home proposed on those plans would qualify as a single-family detached dwelling under the UDO. The Division of Coastal Management also concluded that those plans satisfied CAMA's setback regulations so that the 60-foot setback could be used for LeTendre's home.

         After these consultations and plan revisions seeking to comply with both CAMA regulations and the UDO, the CAMA permit was "issued on March 17th, 2014, four days after the hearing before the Currituck County Board of Adjustment on March 13, 2014" where Mr. Wood testified as Plaintiff's CAMA expert.

          In December of 2013, landowners adjacent to Plaintiff's lot, Mr. and Mrs. Long, appealed the November 2013 Letter of Determination to the Currituck County BOA, which upheld the Letter of Determination in May of 2014. The Longs then sought review of the BOA's determination by the Superior Court, which upheld the BOA's ruling in December of 2014; on 31 December 2014, the Longs appealed.

         In March of 2015, after the Longs filed their notice of appeal and before the record on appeal had even been submitted to this Court, Plaintiff sought a Building Permit "permitting construction of the Home on the Lot." Our record shows that both the Currituck County Planning Director, Mr. Woody, and counsel for the Longs warned Plaintiff about beginning construction before this Court had issued its opinion in Long. On 2 April 2015, counsel for the Longs sent a letter to Plaintiff's counsel warning:

I want to emphasize that this litigation is not over and you and your client are on notice that construction of the project while the litigation is ongoing is done with the risk that the appellate court will reverse the Superior Court, and that such reversal would result in the revocation of the building permit. While it may be true that your client can begin construction (provided there is no other prohibition from the Department of Insurance) your client will nonetheless be required to tear down, dismantle or otherwise remove such construction if the Court of Appeals reverses the Superior Court and revokes the zoning approval and attendant building permit. I understand that your client has elected to proceed with construction despite knowledge of the aforementioned risks.

         Despite these warnings, Plaintiff proceeded with construction. Plaintiff described her decision to proceed in her affidavit filed in this case:

14. In March 2015, Currituck County issued a building permit for my home to me and to my general contractor. Although the Longs' appeal wasn't over, after carefully considering all options, I decided to proceed with construction of the home. I made this decision for several reasons.
15. First, over the course of a year, three different authorities had considered the 2013 plans for my home and had agreed that the home would be permitted under the County UDO. The Currituck County Planning Director had made that determination, the Currituck County Board of Adjustment had made that determination, and then a superior court judge had made that determination. All of them had considered the Longs' arguments for why my home shouldn't be allowed, and all of them had rejected the Longs' arguments.
16. Additionally, the plans for my home had been reviewed and approved by a number of other agencies . . . . These agencies all had reviewed the plans because a CAMA Major Development was required for my home.
17. Meanwhile, the Longs hadn't filed any appeal to the Board of Adjustment from the building permit issued to me in March 2015. No challenge to that permit existed when I decided to begin construction. In fact, to date, no one has appealed the issuance of my building permit, and the County Building Inspector has never withdrawn that permit. The Longs also had not appealed the Division of Coastal Management's issuance of a CAMA permit for my home.

         On 21 June 2016, this Court issued its opinion in Long, reversing the superior court's order and holding that Plaintiff's project as proposed was not a single family detached dwelling as defined by the Currituck County UDO, Section 10.51. See Long, __ N.C. App.__, 787 S.E.2d 835. Plaintiff alleges in her complaint in this action that construction on the project was about 95% complete at that point. Plaintiff's representatives met with county officials and they discussed various ways of bringing Plaintiff's house into compliance with the UDO in a manner within the CAMA permit but could not reach an agreement. In September 2016, Defendant issued a Stop Work Order. In January 2017, Plaintiff proposed an amendment to the UDO which would allow her project to be permitted as a single family detached dwelling, but the Currituck County Board of Commissioners rejected it. On 1 February 2017, the Currituck County Planning Director issued a Notice of Violation based upon the house's failure to qualify as a single family detached dwelling under the UDO, in accordance with Long. Plaintiff made no changes to the house but filed this action seeking injunctions and a declaratory judgment preventing Defendant from complying with this Court's ruling in Long and compensation for Defendant's attempts to enforce Long.

         III. Preliminary Matters

         Before addressing the substance of Defendant's appeal, we first address a few preliminary matters.

         A. Plaintiff's Claims

          Plaintiff's complaint presents many claims which she alleges support issuance of a preliminary injunction, permanent injunction, and ultimately a declaratory judgment preventing Defendant from enforcing its UDO in accord with this Court's opinion in Long. To avoid confusion, we will address Plaintiff's claims mostly in the order as presented in her complaint, although we will group the claims of constitutional violations together since the analysis is similar for each. Plaintiff labeled her claims as follows:

         FIRST CAUSE OF ACTION

(Section 10.51 of the Currituck County UDO Violates North Carolina's Zoning Enabling Statutes)
(Section 10.51's Requirement That the Home Have a Single Common Foundation Does Not Promote Health, Safety, Morals, or the General Welfare)
(Section 10.51's Requirement That a Single-Family Detached Dwelling Be Contained Within a Single Building Does Not Promote Health, Safety, Morals, or the General Welfare)
(Section 10.51 Otherwise Imposes Pointless Restrictions)
SECOND CAUSE OF ACTION
(Section 10.51 of the Currituck County UDO Violates the United States and North Carolina Constitutions Because It Is Arbitrary and Capricious)
THIRD CAUSE OF ACTION
(Section 10.51 of the Currituck County UDO Attempts To Regulate "Building Design Elements" In Violation of North Carolina Law)
FOURTH CAUSE OF ACTION
(Section 10.51 of the Currituck County UDO Is Preempted By the North Carolina Building Code)
FIFTH CAUSE OF ACTION
(Section 10.51 of the Currituck County UDO Is Unconstitutionally Vague)
SIXTH CAUSE OF ACTION
(Currituck County Has Taken LeTendre's Property)
SEVENTH CAUSE OF ACTION
(Currituck County Has Violated LeTendre's Right to Equal Protection Under the North Carolina Constitution and the United States Constitution)
EIGHTH CAUSE OF ACTION
(Currituck County's Attempts to Enforce Section 10.51 of the UDO Against the Home are Barred by Laches)
NINTH CAUSE OF ACTION
(LeTendre Has Vested Rights To Complete the Home and To Use the Home)[2]

         In this appeal, we will consider only whether the trial court erred in issuing the preliminary injunction. We will consider only whether the trial court erred in issuing the preliminary injunction based upon the conclusion that Plaintiff is likely to prevail on the merits of any of the other claims and will suffer irreparable harm without issuance of the injunction.

         B. Interlocutory Appeal

         Because the preliminary injunction is not a final order, this appeal is interlocutory. See Rockford-Cohen Grp., LLC v. N.C. Dep't of Ins., 230 N.C.App. 317, 318, 749 S.E.2d 469, 471 (2013) ("It is well-established that a preliminary injunction is an interlocutory order.") "There is no immediate right of appeal from an interlocutory order unless the order affects a substantial right." Id. Defendant alleges that it has a substantial right that will be impaired if review is delayed because it has a right to exercise its police power to enforce its ordinances. Defendant is correct as clarified by Judge, now Justice, Ervin's dissent, which was adopted by the Supreme Court in Sandhill Amusements, Inc. v. Sheriff of Onslow Cnty.: "[T]his Court has recognized that the entry of a preliminary injunction precluding a state or local agency from enforcing the law affects a substantial right and is immediately appealable." 236 N.C.App. 340, 360, 762 S.E.2d 666, 680 (2014) (Ervin, J. dissenting), rev'd and remanded, 368 N.C. 91, 773 S.E.2d 55 (2015). Adoption and enforcement of zoning ordinances is an exercise of the police power. See Raleigh v. Fisher, 232 N.C. 629, 635, 61 S.E.2d 897, 902 (1950) ("In enacting and enforcing zoning regulations, a municipality acts as a governmental agency and exercises the police power of the State.") This Court therefore "has jurisdiction over Defendant's appeal from the issuance of the preliminary injunction" and we will "proceed to address the validity of Defendant's challenge to . . . the trial court's order on the merits." Sandhill, 236 N.C.App. at 361, 762 S.E.2d at 681.

         C. Plaintiff's Motion to Dismiss as Moot

          Plaintiff has moved to dismiss this appeal as moot because the preliminary injunction on appeal allowed her to complete the construction of the project and begin using it. Plaintiff argues that the "[c]onstruction cannot be undone, the County's determination that the Home was constructed in accordance with the building code cannot be unmade, and the [Certificate of Occupancy] cannot rightfully be rescinded." Defendant responds that even though the project is complete, the preliminary injunction continues to have effect because it "prevents the County from requiring Letendre to cease use of the multiple buildings on her property until she complies with the UDO and this Court's Long decision and the County's use of civil and criminal remedies to enforce the county's ordinance."

         "A case is considered moot when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy." Lange v. Lange, 357 N.C. 645, 647, 588 S.E.2d 877, 879 (2003) (citation and quotation marks omitted). Plaintiff's assertions that "construction cannot be undone" and "the [Certificate of Occupancy] cannot rightfully be rescinded" are not supported by law and are incorrect. Construction can be undone and structures can be moved. Plaintiff's assertion regarding "the County's determination that the Home was constructed in accordance with the building code" is irrelevant. There has never been any contention in this case that Plaintiff's project was in violation of the building code; the dispute arises from the UDO. Because the preliminary injunction continues to keep Defendant from enforcing the UDO as required by this Court's opinion in Long, this appeal is not moot, see generally id., and Plaintiff's motion to dismiss is denied.

         IV. Analysis

         Defendant appealed the trial court's ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION which orders Defendant to "deem the home approved by the building permit issued in March 2015 to be a single-family detached dwelling for purposes of the Currituck County Unified Development Ordinance" and to allow Plaintiff to complete construction of the home and to grant a certificate of occupancy when complete. The trial court determined Plaintiff was likely to succeed on the merits of several claims in her complaint, and Plaintiff argues on appeal that even if a legal basis found by the trial court was in error, the order must be affirmed if there is any legal basis to support the result. Therefore, if just one of Plaintiff's claims is likely to succeed on the merits, the injunction must be affirmed. See generally Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989) ("If the correct result has been reached, the judgment will not be disturbed even though the trial court may not have assigned the correct reason for the judgment entered.") Because we have determined that Plaintiff is not likely to succeed on any of her claims, we must address each of them.

          A. Standard of Review

         In review of a trial court's ruling on a motion for a preliminary injunction, we begin with the "presumption that the lower court's decision was correct, and the burden is on the appellant to show error." A.E.P. Industries v. McClure, 308 N.C. 393, 414, 302 S.E.2d 754, 767 (1983). But "on appeal from an order of superior court granting or denying a preliminary injunction, an appellate court is not bound by the findings, but may review and weigh the evidence and find facts for itself." Id. at 402, 302 S.E.2d at 760. "The scope of appellate review in the granting or denying of a preliminary injunction is essentially de novo." Robins & Weill v. Mason, 70 N.C.App. 537, 540, 320 S.E.2d 693, 696 (1984).

         A preliminary injunction is an extraordinary measure normally intended only to preserve the status quo during litigation,

[i]t will be issued only (1) if a plaintiff is able to show likelihood of success on the merits of his case and (2) if a plaintiff is likely to sustain irreparable loss unless the injunction is issued, or if, in the opinion of the Court, issuance is necessary for the ...

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