Coates v. Durham Cnty.

• Decision Date: 15 March 2022
• Docket Number: COA21-281
• Court: North Carolina Court of Appeals
• Parties: RHONDA COATES, TIMOTHY ELLIS, PATRICK and MARIE MAHONEY, KENNETH PRICE, BRYAN and ANGELA SARVIS, JAMES VENTRILLA, and JAMES WOLAK, Petitioners, v. DURHAM COUNTY, a North Carolina County, and HUBRICH CONTRACTING, INC., a North Carolina Corporation, Respondents.

2022-NCCOA-171

RHONDA COATES, TIMOTHY ELLIS, PATRICK and MARIE MAHONEY, KENNETH PRICE, BRYAN and ANGELA SARVIS, JAMES VENTRILLA, and JAMES WOLAK, Petitioners,
v.
DURHAM COUNTY, a North Carolina County, and HUBRICH CONTRACTING, INC., a North Carolina Corporation, Respondents.

No. COA21-281

Court of Appeals of North Carolina

March 15, 2022

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Heard in the Court of Appeals 21 September 2021.

Appeal by Respondent Durham County from Orders entered 28 August 2018 by Judge G. Bryan Collins and 30 November 2020 by Judge Michael J. O'Foghludha in Durham County Superior Court, Durham County, No. 17 CVS 2906

Brown & Bunch, PLLC, by LeAnn Nease Brown, for petitioners-appellees.

Bryan E. Wardell, Senior Assistant County Attorney, for respondent-appellant.

HAMPSON, Judge.

¶ 1 Durham County (the County) appeals from (1) the Durham County Superior Court's (Superior Court) 28 August 2018 Order (2018 Remand Order) reversing and remanding the Durham City-County Board of Adjustment's (Board of Adjustment)

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approval of Hubrich Contracting, Inc.'s (Hubrich) application for a Minor Special Use Permit (mSUP) and (2) the Superior Court's 30 November 2020 Order (2020 Fee Order) awarding Rhonda Coates, Timothy Ellis, Patrick and Marie Mahoney, Kenneth Price, Bryan and Angela Sarvis, James Ventrilla, and James Wolak (Petitioners) attorneys' fees pursuant to N.C. Gen. Stat. § 6-21.7 (2018).

¶ 2 This case-along with the companion case Sarvis v. Durham Cnty.^[1] COA21-282-requires us to review proceedings on an application for a Special Use Permit and subsequent appeal by certiorari to the Superior Court occurring in 2017 and 2018 under statutes which were then in effect and which have since been amended or repealed and superseded. In particular, this includes review of the Superior Court's 2020 Fee Order awarding attorneys' fees under N.C. Gen. Stat. § 6-21.7 as it existed prior to the 2019 amendment. See 2019 N.C. Sess. Law 111, § 1.11 (N.C. 2019). It bears mentioning that in our own review of 2019 N.C. Sess. Law 111, we observe that the Session Law reflects the General Assembly provided the amendment to Section 6-21.7 to "clarify and restate the intent of existing law and apply to ordinances adopted before, on, and after the effective date." 2019 N.C. Sess. Law 111, § 3.1. The Superior Court, in its 2020 Fee Order-with the apparent assent of the parties- however, applied the prior version of the statute which was still in place when this

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matter was first heard by the Superior Court in 2018. Indeed, on appeal the parties continue to agree the prior version of Section 6-21.7 controls, and no party has briefed the impact the effective date of the 2019 amendment has on this case. Consequently, whether the 2019 amendment to Section 6-21.7 operates retroactively to the case at bar-and if so, what impact it might otherwise have-is not before this Court, and we do not decide it. We further express no opinion on the impact, if any, of subsequent legislative amendments to the statutes involved in this case and limit our analysis solely to the arguments in this case.

¶ 3 Having said that, the Record in this case tends to reflect the following:

Factual and Procedural Background

¶ 4 On 7 November 2016, Hubrich submitted an application for the mSUP with the Durham City-County Planning Department in order to allow construction of a school. The Board of Adjustment held a quasi-judicial hearing on 28 February 2017. On 28 March 2017, the Board of Adjustment issued an order granting the mSUP. On 25 April 2017, Petitioners petitioned the Durham County Superior Court for review by way of a Writ of Certiorari.^[2] On 28 August 2018, the Superior Court entered the 2018 Remand Order captioned "Final Order and Judgment". In the 2018 Remand

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Order, the Superior Court reversed the Board of Adjustment's issuance of the mSUP to Hubrich and remanded the matter to the Board of Adjustment with instructions to, inter alia, reopen the public hearing on Hubrich's application for the mSUP. The Superior Court further indicated it was retaining "jurisdiction to consider Petitioners' prayer for costs and attorneys' fees pursuant to the provisions of N.C. G.S. §6-21.7."

¶ 5 Hubrich appealed the 2018 Remand Order to this Court, and we dismissed that appeal as interlocutory. Coates v. Durham Cnty., 266 N.C.App. 271, 272, 831 S.E.2d 392, 393 (2019) (Coates I). We concluded the appeal was interlocutory because the Superior...