Molamphy v. Town of Southern Pines, No. 1:02CV00720 (M.D.N.C. 3/3/2004)
| Decision Date | 03 March 2004 |
| Docket Number | No. 1:02CV00720.,1:02CV00720. |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | PATRICK MOLAMPHY, Plaintiff, v. TOWN OF SOUTHERN PINES, FRANK QUIS, Individually and as Mayor of the Town of Southern Pines, JOHN McINERNEY and MICHAEL HANEY, Individually and in their capacities as Town Council Members, KYLE SONNENBERG, Individually and as Town Manager and BART NUCKOLS, Individually and in his capacity as Planning Director for the Town of Southern Pines, Defendants. |
This case involves a challenge to a zoning action of the Town of Southern Pines (hereinafter "the Town"). It is before the Court on cross-motions for summary judgment and on a motion by plaintiff to amend his complaint. The material facts are undisputed for purposes of deciding the motions. In setting out the facts, the Court will note the few instances where disputes occur.
In early March of 2002, plaintiff, a developer and landowner, was a member of a limited liability corporation known as Pinehurst Hospitality Real Estate Holdings Limited Liability Company (hereinafter Pinehurst LLC). Pinehurst LLC owned a 2.81 acre unimproved property (hereinafter the Property) located at the intersection of United States Highway 1 and Morganton Road. That intersection is in or near the defendant Town of Southern Pines and, in any event, is within the area that the Town can control through zoning ordinances. The property lies within the Town's "General Business Zoning District" and the "Morganton Road Highway Corridor and Urban Transition Highway Overlay Districts."
In early 2002, Pinehurst LLC was experiencing financial difficulties. This led plaintiff to negotiate with the other members of the LLC to purchase the entire property himself. Plaintiff intended to develop the property as a gas station/convenience store. The other members were amenable to this proposal and so, on March 1, 2002, plaintiff spoke with the North Carolina Department of Transportation (NCDOT) to make sure that a planned upgrade of the United States 1/Morganton Road interchange would not interfere with his plans to develop the Property. After being assured that it would not, plaintiff arranged to meet with defendant Bart Nuckols, who is the Town Planning Director for the Town of Southern Pines.
Plaintiff and another business associate met Nuckols first on March 5, 2002. Plaintiff requested this meeting because Southern Pines' Uniform Development Ordinance (UDO) Section 50 strongly encourages developers to consult with the Town's planning staff before submitting applications for permits. This is intended to minimize delay and confusion that might result from plans that do not comply with the UDO. The first meeting between plaintiff and Nuckols involved general discussions of plaintiff's plans and the applicable regulations. At the end of the meeting, Nuckols suggested that plaintiff submit a concept plan for review.
Following the initial meeting, plaintiff engaged in several significant actions regarding his planned development of the Property. First, he arranged to buy the Property from Pinehurst LLC, with closing set in early May. Second, he hired a project engineer. Finally, he produced a one-page concept plan showing the location of his proposed store and presented that plan to Nuckols on March 29, 2002.
Nuckols reviewed plaintiff's concept plan and responded by letter on April 24, 2002. In this letter, he informed plaintiff that the concept plan did not comply with the UDO because the store's gasoline pumps were not screened from the public-right-way. Before sending the April 24th letter, Nuckols had attended a regularly scheduled work session of the Town Council of Southern Pines on April 22, 2002. At that meeting, he mentioned plaintiff's proposal and some members of the Council expressed concerns about the aesthetics of convenience stores in the Highway Corridor Overlay Districts (HCOD) which they felt were the "gateways" to Southern Pines. Accordingly, they directed Nuckols to draft an amendment to the UDO that would prohibit convenience stores in those Districts. Nuckols did so and included the proposed amendment in the agenda packets for the next scheduled meeting of the Planning Board which was set for May 22, 2002. He did not mention this conversation in his April 24th letter to plaintiff.
In the meantime, plaintiff had received Nuckols' letter concerning the screening of the gas pumps and requested a further meeting with Nuckols. That meeting was held on May 2, 2002. At that meeting, the attendees discussed the screening issue, set backs, buffers, and other UDO issues about which there might be concern. No mention of the pending amendment was made. Plaintiff also states that he left the meeting with the understanding that Nuckols wanted a further set of fully engineered plans to be submitted. Therefore, plaintiff authorized such plans at a cost of "thousands" of dollars. He closed on the purchase of the Property on May 10, 2002.
On May 10 and May 13, 2002, a notice ran in The Pilot, a newspaper of general circulation in the Southern Pines area, announcing the upcoming Planning Board meeting and stating that the proposed amendment to the UDO would be on the agenda. At one point in his deposition, plaintiff states that he saw these notices because he was already looking for them. At other points in the record, he states that he first learned of the proposed amendment banning convenience stores in the HCOD by word of mouth on May 15, 2002. In any event, he did learn of the proposed amendment prior to the meeting on May 22, 2002. He then contacted Nuckols who plaintiff claims stated that he was "receiving guidance" about how to handle plaintiff's proposal.1 On May 17, 2002, plaintiff also met with defendant Frank Quis, the Mayor of Southern Pines. Quis allegedly told him that he and the Town Council were "not excited" about plaintiff's plans and that they intended to pass the proposed amendment.
On May 21 or 22, 2002, a representative of plaintiff submitted to the Planning Department six sets of plans showing his proposed store in more detail. While the plans may have been submitted to comply with Nuckols' request or/recommendation at the May 2nd meeting, they were also submitted for another reason. James Jackson II, plaintiff's representative related that he intended to submit the plans as part of an application for a building permit. While at the Planning Department, he received a checklist of items needed in order to complete the application process. Among these items were an approved water/sewer application, approval from the local fire department, a driveway permit from the NCDOT, an approved soil erosion plan, a PIN or LRK number, and a copy of a landscape contractor's license. Jackson took the list, applied for the water and sewer permit, gave a copy of the plans to the fire department, was unable to find the NCDOT office, and so went home for the day. He did not complete the application for the building permit and employees of the Town have testified that these items are required to apply for a building permit. Not only that, but the Town does not accept site plans as a part of an application for a building permit unless all materials required for the permit are submitted at the same time.
Also on May 22, 2002, the Planning Board met to discuss the proposed amendment to the UDO. Plaintiff appeared with counsel at that meeting and they were able to present a "position paper" stating plaintiff's objections to the proposed amendment. The Planning Board recommended that the amendment not be adopted.
Following the meeting of the Planning Board, the Town Council began preparations for a June 11th meeting. Accordingly, a notice concerning the meeting was sent to The Pilot to be published on Friday, May 24, 2002 and Monday, May 27, 2002. Unfortunately, these notices were actually published on May 27th and May 31st, which was in the same week. No further notice was given and the meeting was held as scheduled on June 11th. At that meeting, plaintiff once again appeared with counsel and spoke against the proposed UDO amendment. The Town Council rejected the Planning Board's recommendation and plaintiff's arguments and passed the amendment.
The passage of the UDO amendment did not end plaintiff's pursuit of his plans to build a store on the Property. Even following the June 11th passage of the UDO amendment, he and/or his representatives continued to attempt to gather the necessary items for completing a building application. Also, he pressed Nuckols to review the plans submitted on May 22nd. When Nuckols informed him orally of three problems with the plans, plaintiff insisted that Nuckols write the problems down in a letter. Nuckols did so in a letter dated June 12, 2002.
Furthermore, on or about June 22, 2002, Jackson attempted to submit plans fixing two of the problems mentioned by Nuckols and labeling the proposed store a "grocery store," rather than a "convenience store." Plaintiff did this because the amendment prohibiting convenience stores in the Overlay Districts defined "convenience stores" as having less than 2000 square feet of floor space. Plaintiff's proposed store contained approximately 3600 square feet which, in his view, constitutes a grocery store rather than a convenience store. Grocery stores were a permitted use for the Property even following the amendment. According to Jackson, the Planning Department would not accept the new plans, telling him the project was "on hold." Jackson also completed a second water and sewer application on June 21, 2002. This document is marked as being "on hold" as of June 24, 2002. Despite the fact that his project was allegedly "on hold" with the Town of Southern Pines, plaintiff continued to have his engineers work on the project until August 9, 2002, shortly after...
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