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Jubilee Carolina, LLC v. Town of Carolina Beach

Court of Appeals of North Carolina

October 15, 2019

JUBILEE CAROLINA, LLC, Petitioner,
v.
TOWN OF CAROLINA BEACH, NORTH CAROLINA, CAROLINA BEACH DEVELOPMENT COMPANY 1, LLC, and WILMINGTON HOLDING COMPANY, Respondents.

          Heard in the Court of Appeals 10 April 2019.

          Appeal by petitioner from order entered 3 May 2018 by Judge R. Kent Harrell in New Hanover County No. 18 CVS 429 Superior Court.

          Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Daniel F. E. Smith and S. Leigh Rodenbough IV, for petitioner-appellant.

          Craige & Fox, PLLC, by Charlotte Noel Fox, for respondent-appellee Town of Carolina Beach.

          Fox Rothschild LLP, by Kip D. Nelson and Thomas E. Terrell, Jr., for respondent-appellee Carolina Beach Development Company 1, LLC.

          Ward and Smith, P.A., by Thomas S. Babel, for respondent-appellee Wilmington Holding Company.

          BRYANT, JUDGE.

         Where the superior court properly reviewed and determined that the Town Council's decision was based on competent, material, and substantial evidence in the record, we affirm the superior court's ruling.

         This matter involves a zoning decision by respondent Town of Carolina Beach ("the Town"), approving a conditional use permit for respondent Carolina Beach Development Company 1, LLC ("CBDC") to develop a Publix grocery store in a shopping center owned by respondent Wilmington Holding Company ("WHC") (collectively referred to as "respondents"), which affected the adjacent commercial parcel owned by petitioner Jubilee Carolina, LLC ("Jubilee").

         On 15 February 2017, Jubilee applied for a conditional use permit to construct a Harris Teeter grocery store on its property at Carolina Beach, North Carolina. Jubilee's application included a proposed site plan with respect to the Harris Teeter and provided interconnectivity to common access points between WHC's property and Jubilee's property for vehicular traffic. A hearing was held on Jubilee's request for a conditional use permit on 11 April 2017. A representative of WHC was present and spoke in support of Jubilee's application. The Town Council approved Jubilee's site plan with interconnectivity and granted a conditional use permit ("Jubilee Permit"). As a condition of the Jubilee Permit, Jubilee entered an easement agreement with the Town, which allowed the Town to construct and maintain a storm water facility on Jubilee's property.

         Meanwhile, CBDC entered into a contract with WHC to purchase WHC's property, adjacent to Jubilee's proposed Harris Teeter site, and redevelop that property for a Publix grocery store. On 6 November 2017, CBDC applied for a conditional use permit with a proposed site plan that excluded interconnectivity to Jubilee's property. The Town's planning and zoning commission, after reviewing CBDC's application and proposed site plan in advance of the public hearing, recommended approval of CBDC's application on the condition that CBDC provide interconnectivity or a "stub out" to Jubilee's property once it was developed.

         On 9 January 2018, the Town Council held a public hearing for consideration of CBDC's application. At the hearing, Jubilee stated its approval of CBDC's application for a conditional use permit provided that interconnectivity was required to Jubilee's property. However, CBDC indicated that it did not intend to provide interconnectivity as the proposed Harris Teeter was "an economic competitor" and, if such interconnectivity was required, CBDC would withdraw the application.

         The Town Council approved CBDC's conditional use permit but did not adopt the recommendation to include interconnectivity to Jubilee's property ("CBDC Permit")--finding that "interconnectivity [was] not required under the Town's ordinance."

         On 8 February 2018, Jubilee filed a petition for writ of certiorari before the New Hanover County Superior Court seeking review of the decision to grant the CBDC Permit--specifically, asserting that the Town acted arbitrarily and capriciously, that the decision was not supported by substantial evidence, and that ...


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