Letendre v. Currituck Cnty.

• Decision Date: 15 May 2018
• Docket Number: No. COA17-1108,COA17-1108
• Citation: 259 N.C.App. 512,817 S.E.2d 73
• Court: North Carolina Court of Appeals
• Parties: Elizabeth E. LETENDRE, Plaintiff, v. CURRITUCK COUNTY, North Carolina, Defendant.

259 N.C.App. 512

817 S.E.2d 73

Elizabeth E. LETENDRE, Plaintiff,

v.CURRITUCK COUNTY, North Carolina, Defendant.

No. COA17-1108

Court of Appeals of North Carolina.

Filed: May 15, 2018

Parker Poe Adams & Bernstein LLP, Raleigh, by Jonathan E. Hall, Michael J. Crook, and Jamie Schwedler, for plaintiff-appellee.

Currituck County Attorney Donald I. McRee, Jr., for Defendant-appellant.

STROUD, Judge.

I. Introduction

This case arises from this Court's prior opinion issued on 21 June 2016 in Long v. Currituck County , ––– N.C. App. ––––, 787 S.E.2d 835 (2016), which held that under Currituck County's Unified Development Ordinance § 10.51, Plaintiff's proposed "project does not fit within the plain language of the definition of Single Family Dwelling, and thus is not appropriate in the SF District." Id. at ––––, 787 S.E.2d at 841. While Long was pending before this Court, Plaintiff was warned of the possible consequences of proceeding with construction of the project if the trial court's order in that case was reversed on appeal, but she decided to build the project anyway. After Defendant took action to comply with this Court's ruling in Long , issued on 21 June 2016, Plaintiff sought and obtained a preliminary injunction issued on 9 June 2017 which required Defendant to "deem the home approved by the County building permit issued in March 2015 to be a single-family detached dwelling for purposes of the Currituck County Unified Development Ordinance" and to allow her to complete construction and occupancy of the project. Defendant appealed the preliminary injunction. Although Plaintiff's complaint includes many claims in her attempt to prevent Defendant from enforcing the Unified Development Ordinance in accordance with this Court's opinion in Long , ––– N.C. App. ––––, 787 S.E.2d 835, Plaintiff has not demonstrated that she is likely to prevail on any of her claims, and therefore the preliminary injunction must be reversed.

II. Background

On 27 March 2017, Plaintiff filed this action seeking a declaratory judgment, preliminary injunction, permanent injunction, monetary damages, and attorney fees. On 9 June 2017, the trial court entered a preliminary injunction ordering Defendant to "deem the home approved by the County Building permit issued in March 2015 to be a single-family detached dwelling for purposes of the Currituck County Unified Development Ordinance;" to rescind the Stop Work Order issued in September 2016 and the Notice of Violation issued in February 2017; and to permit Plaintiff to complete construction of her project and then allow occupancy.

Plaintiff sought the preliminary injunction and other relief to prevent Defendant from complying with this Court's ruling issued on 21 June 2016 in Long , ––– N.C. App. ––––, 787 S.E.2d 835. Plaintiff was a party to Long and that case dealt with the same project and the same provisions of the Currituck County Unified Development Ordinance ("UDO") as this case. See generally id. In Long , the petitioner-plaintiffs appealed

a Superior Court (1) DECISION AND ORDER affirming the Currituck County Board of Adjustment's decision that a structure proposed for construction on property owned by Respondent Elizabeth Letendre is a single family detached dwelling under the Currituck County Unified Development Ordinance and a permitted use in the Single Family Residential Outer Banks Remote Zoning District and dismissing petitioners’ petition for writ of certiorari and (2) ORDER denying petitioners’ petition for review of the Currituck County Board of Adjustment's decision and again affirming the Currituck County Board of Adjustment's decision.

Id. at ––––, 787 S.E.2d at 836 (quotation marks omitted). In other words, the preliminary injunction on appeal ordered Defendant to "deem" Plaintiff's project which was under construction during the pendency of the appeal of Long "to be a single-family detached dwelling" under the Currituck County UDO, although this Court held in Long that her house is not a single-family detached dwelling as defined by the Currituck County UDO. See id. , ––– N.C. App. ––––, 787 S.E.2d 835.

Plaintiff described her plan to build the house which is the subject of this case, and was the subject of Long , in her complaint as follows:

4. LeTendre bought the Lot on the open market in April 2012 for a purchase price of $530,000.00.

5. From the time that LeTendre bought the Lot in April 2012, through the present time, the Lot has had a Single Family Residential Outer Banks Remote ("SFR") zoning classification assigned to it by Currituck County.

6. Under Currituck County's Unified Development Ordinance ("UDO"), developments that are permitted on properties with a SFR zoning classification include single-family detached dwellings.

7. Section 10.51 of the UDO defines a "single-family detached dwelling" as a "residential building containing not more than one dwelling unit to be occupied by one family, not physically attached to any other principal structure. For regulatory purposes, this term does not include manufactured homes, recreational vehicles, or other forms of temporary or portable housing. Manufactured buildings constructed for use as single-family dwelling units (manufactured home dwellings) are treated similar [sic] to single-family detached dwellings."

8. Neither Section 10.51 of the Currituck County UDO, nor any other provision of the Currituck County UDO, limits the square footage that a single family detached dwelling may have.

9. Neither Section 10.51 of the Currituck County UDO, nor any other provision of the Currituck County UDO, limits the number of bedrooms that a single-family detached dwelling may have.

10. Neither Section 10.51 of the Currituck County UDO, nor any other provision of the Currituck County UDO, limits the number of rooms that a single family detached dwelling may have.

11. After buying the Lot in April 2012, LeTendre engaged an architect to develop plans for a home to be built on the Lot. LeTendre's architect first developed plans for a home ("Disconnected Home") with one central wing and two side wings. The two side wings would not be connected to the central wing, and instead unenclosed decking would run between the central wing and each side wing, such that a person would have to step outside of the Disconnected Home in order to travel from wing to wing. The three wings would not have connected rooflines. On the plans for the Disconnected Home, because the three wings were not connected, the architect labeled each of the three wings as a separate "building." Those plans were never utilized, and the Disconnected Home was never built.

12. LeTendre's representatives later sought guidance from the County regarding what type of development on the Lot would qualify as a single-family detached dwelling under the Currituck County UDO. LeTendre's representatives met with the County Planning Director and the County Attorney in 2013. At that meeting, the County Planning Director advised LeTendre's representatives that, if the three wings had a connected roof and were connected by air-conditioned hallways that allowed for the free flow of heating and air conditioning, the resulting home would qualify as a single-family detached dwelling under the UDO. The County Planning Director did not claim that the three wings would need to have a common foundation in order for the home to qualify as a single-family detached dwelling.

13. Based on this guidance from the County Planning Director, LeTendre's architect developed a new set of plans for a different home for the Lot. This home ("Home") would also have a central wing and two side wings. But unlike in the Disconnected Home, the Home's side wings would be connected with the central wing by two enclosed, air-conditioned hallways. These hallways would allow for the free flow of heating and air conditioning, and they also would allow a person to walk throughout the Home, including all three wings, without ever stepping outside. The three wings in the Home would have a common, integrated roofline.

14. Although the plans for the Home showed that the three wings would be interconnected and would have a connected roofline, through inadvertence these plans continued the practice from the Disconnected Home's plans of labeling each wing as a separate "building."

15. In October 2013, LeTendre submitted the plans ("Plans") for this Home to Currituck County for the County to formally confirm that the Home would be a permissible single-family detached dwelling that would be permitted on the Lot under the County's UDO.

16. The Plans showed that each wing would be slightly less than 5,000 square feet in size, and they showed that the Home would also have a detached pavilion as an accessory structure.

17. The Plans showed that the foundation of each enclosed, air-conditioned hallway would be connected to the foundation of the side wing to which that hallway was attached.

18. The Plans showed that the foundations for the enclosed, air-conditioned hallways would not be connected to the foundation of the Home's central wing.

19. The Plans showed that each of the three wings would have its own separate foundation and that the foundations for the three wings would not connect together.

20. The Plans showed that the Home would not have a single common foundation.

21. The Plans that were submitted to Currituck County in October 2013 disclosed the square footage of each of the three wings of the Home as well as the total square footage of the Home.

In November of 2013, the Currituck County Planning Director, Mr. Ben E. Woody, issued a Letter of Determination "confirming that the Home as proposed in the Plans would be a single-family detached dwelling and would be permitted on the Lot pursuant to the Currituck County UDO."

Besides approval by the Currituck County BOA, Plaintiff's house required a permit from the N.C. Department of Environment and Natural Resources ("DENR") allowing "[m]ajor [d]evelopment in an [a]rea of [e]nvironmental [...