Hyatt v. Town of Lake Lure

• Decision Date: 18 December 2003
• Docket Number: No. CIV. 1:02CV94.,CIV. 1:02CV94.
• Citation: 314 F.Supp.2d 562
• Court: U.S. District Court — Western District of North Carolina
• Parties: Patricia HYATT, Plaintiff, v. TOWN OF LAKE LURE; H.M. (Chuck) Place, III; Terri Potts; Blaine Cox; George Pressley; and Lea Hullinger, Defendants.

314 F.Supp.2d 562

Patricia HYATT, Plaintiff, v. TOWN OF LAKE LURE; H.M. (Chuck) Place, III; Terri Potts; Blaine Cox; George Pressley; and Lea Hullinger, Defendants.

No. CIV. 1:02CV94.

United States District Court, W.D. North Carolina, Asheville Division.

December 18, 2003.

William R. White, White & Dalton, Brevard, NC, J. Thomas Davis, Forest City, NC, for plaintiff.

Sandra M. King, Russell, King, & Johnson, P.A., Asheville, NC, for defendants.

MEMORANDUM OF OPINION

THORNBURG, District Judge.

THIS MATTER is before the Court on the parties' timely filed objections to the Memorandum and Recommendation of United States Magistrate Judge Max O. Cogburn, Jr. Pursuant to standing orders of designation and 28 U.S.C. § 636, the undersigned referred the parties' cross-motions for summary judgment to the Magistrate Judge for a recommendation as to disposition. Having conducted a de novo review to those portions of the recommendation to which specific objections were filed, the Court grants the Defendants' motion. 28 U.S.C. § 636(b); Fed.R.Civ.P. 72.

I. PROCEDURAL HISTORY

Plaintiff (Hyatt) initiated this action on April 24, 2002, alleging diversity and federal question jurisdiction in a dispute involving the erection of a seawall and boathouse on her property in Lake Lure, North Carolina. Complaint, filed April 24, 2002. On May 7, 2002, Hyatt's motion for a temporary restraining order was denied. Order, filed May 7, 2002. On August 27, 2002, the undersigned granted Hyatt's motion to amend her complaint but dismissed, on the Defendants' motions, her claims pursuant to 42 U.S.C. § 1983 against Defendants Place, Cox, Pressley and Hullinger in their individual capacities and the challenge to the facial validity of the Lake Structures Regulations. Memorandum and Order, filed August 27, 2002.

On September 9, 2002, Hyatt filed her amended complaint which alleges the following causes of action: (1) the Lake Structures Regulations are invalid and unenforceable because they violate the statutory requirements of Article 19 of Chapter 160A of the North Carolina General Statutes; (2) the Lake Structures Regulations violate Hyatt's substantive and procedural due process and equal protection rights; (3) an alternative claim that Hyatt is in compliance with the Regulations and/or that the Defendants are estopped from the enforcement thereof as to her property; and (4) a claim pursuant to § 1983. Amended Complaint, filed September 9, 2002. The Defendants answered and asserted a counterclaim for trespass. Answer to Amended Complaint, filed September 30, 2002.

Hyatt and the Defendants cross-moved for summary judgment on July 15, 2003. The Magistrate Judge recommended that Hyatt's motion for summary judgment on her substantive and procedural due process claims be granted and that the Defendants' motion for summary judgment as to the equal protection and estoppel claims be granted. Both Hyatt and the Defendants have filed objections to the Memorandum and Recommendation.

II. SUMMARY JUDGMENT STANDARD OF REVIEW

Under the Federal Rules of Civil Procedure, summary judgment shall be awarded "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, ... show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." As the Supreme Court has observed, "this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact."

Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 519 (4th Cir.2003) (quoting Fed.R.Civ.P. 56(e) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A genuine issue exists if a reasonable jury considering the evidence could return a verdict for the nonmoving party. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994) (citing Anderson, supra). "Regardless of whether he may ultimately be responsible for proof and persuasion, the party seeking summary judgment bears an initial burden of demonstrating the absence of a genuine issue of material fact." Bouchat, supra, at 522 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If this showing is made, the burden then shifts to the non-moving party who must convince the Court that a triable issue does exist. Id.

A party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denial of [his] pleadings," but rather must "set forth specific facts showing that there is a genuine issue for trial." Furthermore, neither unsupported speculation, nor evidence that is merely colorable or not significantly probative, will suffice to defeat a motion for summary judgment; rather, if the adverse party fails to bring forth facts showing that reasonable minds could differ on a material point, then, regardless of any proof or evidentiary requirements imposed by the substantive law, summary judgment, if appropriate, shall be entered.

Id. (citing Fed.R.Civ.P. 56(e)) (other internal quotations and citations omitted). Moreover, in considering the facts for the purposes of this motion, the Court will view the pleadings and material presented in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

III. FINDINGS OF FACT

It is undisputed that Hyatt acquired Lot 16B of Lurewoods Manor Phase Two in April 2001. On June 14, 2001, she applied for a Lake Structure Permit from the Town of Lake Lure (Town) to build a seawall and a boathouse with Hyatt acting as her own contractor. Exhibit 11, attached to Deposition of H.M. Place, III (Place), filed July 15, 2003. Hyatt was to submit the plans for these improvements at a later date. Id. Hyatt represented that the boathouse would be 15 feet from the side lot line with dimensions of 15 feet high, 30 feet long and 45 feet wide. Id. The water depth at the end of the boathouse would be six to eight feet. Id. The seawall would be four to five feet high, 100 feet long and six to ten feet wide. Id. The permit contained the following conditions which were accepted by Hyatt:

Issuance of this permit does not abrogate the right of the Town of Lake Lure to flood to the 995 feet above sea level contour line, which right was confer [r]ed to the town by deed. Additionally, the town shall not be liable for harm to any structure erected on the waters of Lake Lure pursuant to this permit, absent gross negligence. Issuance of the permit does not constitute a waiver of any rights or defenses available to the town in the event of any damage or loss occur[r]ing to said structures. The applicant understands that structures are allowed on Lake Lure only by permission of the town and the continued permission by the town to allow a structure on the lake does not confer any rights of ownership or possession.

Id. (emphasis added). The permit was subject to approval by the United States Army Corps of Engineers (Corps). Id.

On the same day, Hyatt applied for a land disturbance permit for the boathouse and a driveway. Exhibit 12, attached to Place Deposition. Hyatt acknowledged in that application

I understand that I am responsible for any damage to adjacent property, including property of the Town of Lake Lure, from erosion caused by land disturbing activity on the property which is the subject of this permit. In the event sediment is deposited onto town property, I will cause the sediment to be removed at my expense within 24 hours or, failing this, will reimburse the town for said removal.

Id. (emphasis added).

On August 2, 2001, a Notice of Violation of the land disturbance permit was issued to Hyatt and a "Stop Work Order" was posted on the property. Exhibit 26, attached to Deposition of Terri Potts (Potts), filed July 15, 2003. The violation issued because Hyatt's contractor had not installed "proper erosion control measures [ ] to prohibit or limit the amount of erosion that [was] running into Lake Lure." Id. Despite prior warning and three visits to the site by Potts, the Town's zoning and ordinance administrator, the proper measures had not been taken. Id. The issuance of the notice suspended Hyatt's permits and resulted in a fine of $500 per day to both Hyatt and her contractor. Id.

Hyatt testified at her deposition that the first grading contractor she hired to construct a road to the shoreline did not complete the grading. Deposition of Patricia Hyatt, filed July 15, 2003, at 16. "And when he left he left the lot in a very bad condition, eroding condition and for three weeks in July we had heavy rains so it was a mess." Id. She actually sued that grader in small claims court and recovered the $500 fine imposed by the Town. Id., at 16-17.

Hyatt also testified that the seawall was constructed before the boathouse was built and admitted that she did not obtain a building permit from the Rutherford County. Hyatt Deposition, at 22-23. During the construction of the seawall, Hyatt was aware that a significant amount of erosion occurred. Id., at 36. The erosion was obvious and Potts had spoken to her about it more than once. Id. Hyatt also admitted that prior to applying for the permits from the Town, she had read the Lake Structures Regulations promulgated by the Town. Id., at 37-38.

The lot adjoining Hyatt's is owned by Lemuel Oates. At some point in the fall of 2001, Potts was advised that Hyatt's seawall encroached onto Oates' property. Place Deposition, at 28-31. "Hyatt was encroaching onto [Oates'] property with heavy equipment and digging up his lot." Potts Deposition, Vol. I, at 62. Potts then inspected the property and found that Hyatt's contractor had indeed dug an escarpment within the 12-foot set back, thus encroaching on Oates'...