Shell Island Homeowners Ass'n v. Tomlinson
Decision Date | 20 July 1999 |
Docket Number | No. COA98-961.,COA98-961. |
Citation | 517 S.E.2d 406,134 NC App. 217 |
Parties | SHELL ISLAND HOMEOWNERS ASSOCIATION, INC., a North Carolina non-profit corporation; Charles B. Casteen and wife Barbara M. Casteen; and Richard R. Schnabel and wife Dorothy L. Schnabel, Plaintiffs, v. Eugene B. TOMLINSON, Chairman North Carolina Coastal Resources Commission; North Carolina Coastal Resources Commission; Department of Environment and Natural Resources for the State of North Carolina; Wayne McDevitt, Secretary of the Department of Environment and Natural Resources; and the State of North Carolina, Defendants, and North Carolina Coastal Federation, Inc., Intervenor-Defendant. |
Court | North Carolina Court of Appeals |
Shanklin & McDaniel, L.L.P., by Kenneth A. Shanklin and Susan J. McDaniel, Wilmington; Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by C.C. Harness, III, Charleston, for plaintiff-appellants.
Attorney General Michael F. Easley, by Special Deputy Attorney General J. Allen Jernigan, Special Deputy Attorney General Robin W. Smith, and Associate Attorney General Mary Penny Thompson, for defendant-appellees.
Southern Environmental Law Center, by Donnell Van Noppen, III, and Derb S. Carter, Jr., Chapel Hill, for intervenor-appellee.
Plaintiffs Casteen and Schnabel are owners of units at the Shell Island Resort Hotel Condominium ("Shell Island Resort"); plaintiff Shell Island Homeowners Association, Inc., is an association of all unit owners at Shell Island Resort, which is located at the north end of Wrightsville Beach, North Carolina, just south of Mason's Inlet. Plaintiffs filed this action on 7 January 1998 against Eugene B. Tomlinson, Chairman of the North Carolina Coastal Resources Commission, the North Carolina Coastal Resources Commission ("CRC"), the Department of Environment and Natural Resources for the State of North Carolina ("DENR"), Wayne DcDevitt, Secretary of DENR, and the State of North Carolina (hereinafter "defendants"), challenging the "hardened structure rule" and variance provision adopted by the CRC and codified at 15A NCAC 7H.0308 and 7H.0301. The rule provides:
Permanent erosion control structures may cause significant adverse impacts on the value and enjoyment of adjacent properties or public access to and use of the ocean beach, and, therefore, are prohibited. Such structures include, but are not limited to: bulkheads; seawalls; revetments; jetties; groins and breakwaters.
15A NCAC 7H.0308(a)(1)(B) (Specific Use Standards for Ocean Hazard Areas); see also 15A NCAC 7H.0310(a)(2) ("Permanent structures shall be permitted at a density of no more than one commercial or residential unit per 15,000 square feet of land area on lots subdivided or created after July 23, 1981").
The factual history giving rise to this controversy is summarized in our opinion in Shell Island Homeowners Assoc., Inc. v. Tomlinson, ___ N.C.App. ___, 517 S.E.2d 401 (1999). Briefly, plaintiffs have sought permits to construct various hardened erosion control structures to protect Shell Island Resort from the southward migration of Mason's Inlet; defendants, enforcing the "hardened structure rule," have denied those applications and refused plaintiffs' requests for variances. Plaintiffs did not seek administrative review of any of defendants' decisions enforcing the hardened structure rules, and they have not applied for a permit for a permanent erosion control structure since their application for a variance was originally denied on 6 February 1996. Instead, on 7 January 1998, over two years after plaintiffs submitted their original permit request, plaintiffs filed the complaint in this action alleging twelve claims for declaratory and injunctive relief by which they (1) challenge the validity and enforcement of the hardened structure rules; (2) seek a declaration that plaintiffs have the right to build a permanent hardened erosion control structure of unspecified design; and (3) seek damages for a taking of their property without just compensation by reason of defendants' denial of their application for a CAMA permit for construction of a permanent erosion control structure.
The North Carolina Coastal Federation ("intervenor-defendant") was permitted to intervene as a party defendant on 4 March 1998. Defendants moved to dismiss plaintiff's complaint pursuant to G.S. § 1A-1, Rules 12(b)(1), 12(b)(2), and 12(b)(6). On 14 July 1998, the trial court entered an order dismissing plaintiffs' complaint pursuant to Rule 12(b)(1) because plaintiffs "lack standing to claim that the Court has jurisdiction of the subject matter and the person because they have not made a showing of futility as to seeking full administrative remedy as provided by law," and pursuant to Rule 12(b)(6) for failure of the complaint to state a claim upon which relief may be granted. Plaintiffs appeal.
We must first consider whether the trial court had subject matter jurisdiction to consider the claims alleged in plaintiffs' complaint. Subject matter jurisdiction is a prerequisite for the exercise of judicial authority over any case or controversy, Harris v. Pembaur, 84 N.C.App. 666, 353 S.E.2d 673 (1987).
N.C. Gen.Stat. § 150B-43 (1998).
Leeuwenburg v. Waterway Inv. Ltd. Partnership, 115 N.C.App. 541, 545, 445 S.E.2d 614, 617 (1994) (citations omitted).
N.C. Gen.Stat. § 113A-123(b). If it were determined, upon such review, that the hardened structure rules effect an unconstitutional taking of plaintiffs' property, plaintiffs would be granted relief from application of the rules. Id. Plaintiffs could have also sought a declaratory ruling from the CRC applying and interpreting its rules. N.C. Gen.Stat. § 113A-124(c)(7); N.C. Gen.Stat. § 150B-4. Indeed, plaintiffs have not even applied for a permit for the erosion control structure requested in their...
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