Bailey and Associates v. Bd. of Adjustment

• Decision Date: 02 February 2010
• Docket Number: No. COA09-18.,COA09-18.
• Citation: 689 S.E.2d 576
• Parties: BAILEY AND ASSOCIATES, INC., Petitioner, v. WILMINGTON BOARD OF ADJUSTMENT and City of Wilmington, Respondents, and John Blackwell and wife, Eliza Blackwell; Victor Byrd and wife, Carolyn Byrd; Vishak Das and wife, Tracy Das; Bill Dobo and wife, Barbie Dobo; Bob Dobo and wife, Jean Dobo; Barbie Dobo; Butch Dobo and wife, Shelly Dobo; Patrick Edwards and wife, Kim Edwards; Matt Epstein and Nina Brown; Earl Galleher and wife, Lauren Galleher; Barbara Guard and husband, Ron Guard; Glenda Flynn; Jane Hardwick; L.T. Hines and wife, Joy Hines; Wright Holman and Susan Keyes; Jim Long and wife, Bess Long; Ann McCrary; Kenyata McCrary and wife, Grace McCrary; Pem Nash and wife, Gretchen Nash; Donna Noland; Pat Patterson and wife, Mary Patterson; Drew Pierson and wife, Knox Pierson; David Powell and wife, Janice Powell; Allen Riggan and wife, Pam Riggan; Nancy Rose; Rolf Sass and wife, Janis Sass; Ben Spradley and wife, Sandee Spradley; Charles Sweeny and wife, June Sweeny; Susan Swinson; George Turner and wife, Sue Turner; Joyce Zimmerman; Noah Zimmerman and wife, Kathryn Zimmerman; Robert Smith and wife, Mary Smith, Intervenor-Respondents.
• Court: North Carolina Court of Appeals

689 S.E.2d 576

BAILEY AND ASSOCIATES, INC., Petitioner, v. WILMINGTON BOARD OF ADJUSTMENT and City of Wilmington, Respondents, and John Blackwell and wife, Eliza Blackwell; Victor Byrd and wife, Carolyn Byrd; Vishak Das and wife, Tracy Das; Bill Dobo and wife, Barbie Dobo; Bob Dobo and wife, Jean Dobo; Barbie Dobo; Butch Dobo and wife, Shelly Dobo; Patrick Edwards and wife, Kim Edwards; Matt Epstein and Nina Brown; Earl Galleher and wife, Lauren Galleher; Barbara Guard and husband, Ron Guard; Glenda Flynn; Jane Hardwick; L.T. Hines and wife, Joy Hines; Wright Holman and Susan Keyes; Jim Long and wife, Bess Long; Ann McCrary; Kenyata McCrary and wife, Grace McCrary; Pem Nash and wife, Gretchen Nash; Donna Noland; Pat Patterson and wife, Mary Patterson; Drew Pierson and wife, Knox Pierson; David Powell and wife, Janice Powell; Allen Riggan and wife, Pam Riggan; Nancy Rose; Rolf Sass and wife, Janis Sass; Ben Spradley and wife, Sandee Spradley; Charles Sweeny and wife, June Sweeny; Susan Swinson; George Turner and wife, Sue Turner; Joyce Zimmerman; Noah Zimmerman and wife, Kathryn Zimmerman; Robert Smith and wife, Mary Smith, Intervenor-Respondents.

No. COA09-18.

Court of Appeals of North Carolina.

February 2, 2010.

Appeals by Intervenor-Respondents and Petitioner from order entered 26 July 2008 by Judge John E. Nobles, Jr., in New Hanover County Superior Court. Heard in the Court of Appeals 10 June 2009.

Shanklin & Nichols, LLP, by Matthew A. Nichols and Kenneth A. Shanklin, Wilmington, for Petitioner-Appellant and Appellee.

Law Office of G. Grady Richardson, Jr., P.C., by G. Grady Richardson, Jr., Wilmington, for Intervenor-Appellants and Appellees.

ERVIN, Judge.

Bailey and Associates, Inc., (Petitioner) owns a 4.5 acre tract of property located at 201 Summer Rest Road in Wilmington, North Carolina, which is locally know as the "old Babies Hospital" (the Property). Intervenor-Respondents (Intervenors) own property that is located contiguous to or near the Property. Intervenors appeal from an order entered 26 July 2008 (1) allowing their motion to intervene, (2) denying their motion pursuant to N.C. Gen.Stat. § 1A-1, Rule 60, to remand this matter to the Board of Adjustment of the City of Wilmington (Board of Adjustment) and declining to hold that Petitioner was judicially estopped from challenging the Board of Adjustment's decision, (3) denying their motion to dismiss Petitioner's appeal as untimely, (4) reversing the 29 January 2008 decision of the Board of Adjustment denying Petitioner's appeal from the 7 August 2007 determination of Senior Environmental Planner Phillip Prete (Planner Prete) specifying that the Property was subject to the City of Wilmington's (City) Conservation Overlay District "performance controls," and (5) remanding the matter to the Board of Adjustment for the entry of an order reversing Planner Prete's 7 August 2007 determination that the Property was subject to the City's Conservation Overlay District "performance controls." Petitioner cross-appealed on the sole issue of whether the trial court erred by allowing Intervenors' motion to intervene on the grounds that Intervenors lack standing to intervene because they are not "aggrieved" persons pursuant to N.C. Gen.Stat. § 160A-388(e2). After careful consideration of the record in light of the applicable law, we affirm the trial court's order.

I. Factual Background

Motts Creek, a saltwater marsh and stream, is located immediately before the bridge that crosses the Intracoastal Waterway and provides access to the Town of Wrightsville Beach. The Property adjoins Motts Creek. Prior to 24 March 2009, Section § 18-215 of the City's Land Development Code¹ designated certain areas as Conservation Overlay Districts in order "to protect important environmental and cultural resources within the City[.]" The City deemed such protection necessary "to maintain the City's diverse and ecologically important natural systems; to preserve the City's estuarine systems important for fin fishing and shell fishing; to provide open space; and to retain the City's archaeological and historical heritages." The development rules applicable to property located in or "associated with" Conservation Overlay Districts as of 2 February 1999 included stringent building setbacks, buffers, stormwater runoff controls, and other limitations on land use within protected areas. Intervenors argued before the Board of Adjustment that Motts Creek was located in a Conservation Overlay District, making the Property subject to these "performance controls." Petitioner, on the other hand, denied that Motts Creek was in a Conservation Overlay District.

In 2005, Petitioner began working on "The Sidbury," a development to be located on the Property. On 8 February 2005, Petitioner and various City planning staff members, including Kaye Graybeal (Graybeal), who then served as the Planning Manager, convened a "concept meeting" to review matters related to the proposed development. Although Planner Prete did not attend the 8 February 2005 "concept meeting," Ms. Graybeal consulted him after the meeting.

At that time, Ms. Graybeal and Planner Prete reviewed the Property using a Conservation Overlay Map and determined that Motts Creek was classified as "tidal waters," which "are not regulated as conservation resources by Section 18-215 of the Wilmington City Code," on that map. Ms. Graybeal e-mailed Petitioner on 8 February 2005, with a copy to Planner Prete, stating that "[n]o portion of the site is located within a conservation overlay district and is therefore not subject to the COD setback." Ms. Graybeal forwarded the email to Frank Smith (Smith), Petitioner's architect, with the additional indication that "the COD maps on file in the Planning Division indicate the adjacent water body designated as WTW² which is not listed as a protected resource in the ordinance."

After receiving this information, Petitioner continued to plan for the development of the Property. The City's Technical Review Committee (TRC) reviewed Petitioner's plans on 23 October 2006. After Petitioner requested confirmation of this determination in writing, Planner Prete e-mailed Petitioner on 7 August 2007 stating that the TRC had determined that the Property "is within the COD and subject to COD setbacks." In essence, the TRC determined that Motts Creek "is brackish tidal marsh" and "subject to the City COD controls[,]" which meant that all structures on the Property were "required to be setback 100 feet from the edge of the resource for non-residential development or 75 feet for residential development" and that "[a] vegetated buffer zone of 35 feet from the edge of the resource" would be necessary. Petitioner appealed this determination to the Board of Adjustment on 8 August 2007.

The Board of Adjustment heard Petitioner's appeal at a public hearing held on 18 October 2007. On 29 January 2008, the Board of Adjustment issued an order affirming the determination made by Planner Prete and the TRC. Petitioner sought review of the Board of Adjustment's order in the New Hanover County Superior Court by filing a petition for writ of certiorari on 17 April 2008. Judge Allen W. Cobb issued the requested writ of certiorari on 17 April 2008 in order to allow consideration of Petitioner's contentions on the merits.

On 24 April 2008, Intervenors filed their proposed motion to intervene and a response to Petitioner's petition for writ of certiorari, which contended, among other things, that Petitioner's "appeal is time-barred." On 26 July 2008, the trial court entered an order allowing Intervenors' motion to intervene; denying Intervenors' motion for relief pursuant to N.C. Gen.Stat. § 1A-1, Rule 60, or the doctrine of judicial estoppel; denying Intervenors' motion to dismiss Petitioner's appeal as untimely; reversing the 29 January 2008 order of the Board of Adjustment affirming the determination of Planner Prete and the TRC; and remanding the Board of Adjustment's 29 January 2008 order "for entry of an Order reversing ... Planner Prete's ... determination letter." From this order, both Petitioner and Intervenors appeal.

II. Motion to Dismiss

Before we address Intervenors' and Petitioner's substantive arguments on appeal, we must address Petitioner's motion to dismiss Intervenors' appeal on mootness grounds. We conclude that Intervenors' appeal is not moot.

On 24 March 2009, the City of Wilmington repealed former Section 18-215 and enacted a new ordinance entitled "Division III Conservation Resource Regulations" (Conservation Resource Regulations). The new ordinance includes the following "Savings provision:"

(f) Savings provision. The Conservation Resource Regulations in this Division shall not affect any pending litigation or appeals involving the City's former Conservation Overlay District regulations (prior LDC Section 18-215 et seq.). The Conservation Resource Regulations shall not apply to any site plan application accepted by the City at the time of the adoption of this Division; provided, however, the applicant submits all documentation required for approval within two (2) years of the date of the completion of any pending litigation or the date of the site plan acceptance, whichever is the later date.

Wilmington, NC, Division III Conservation Resource Regulations (24 March 2009). Petitioner contends in its dismissal motion that the repeal of former Section 18-215 and its replacement with Section 18-341 moots Intervenors' appeal.

"Jurisdiction in North Carolina depends on the existence of a justiciable case or controversy." Creek Pointe Homeowner's Ass'n v. Happ, 146 N.C.App. 159, 164, 552 S.E.2d 220, 225 (2001), disc. review denied, 356 N.C. 161, 568 S.E.2d 191 (2002) (quoting Town of Ayden v. Town of Winterville, 143 N.C.App. 136, 544 S.E.2d 821 (2001); Town of Pine Knoll Shores v. Carolina Water Serv., 128 N.C.App. 321, 494 S.E.2d 618 (1998)). "`To satisfy the jurisdictional requirement of an...