Nance v. City of Albemarle

Citation520 F.Supp.3d 758
Decision Date16 February 2021
Docket Number1:19CV641
CourtU.S. District Court — Middle District of North Carolina
Parties Chucky L. NANCE and Jennifer R. Nance, Plaintiffs, v. CITY OF ALBEMARLE, NORTH CAROLINA, Mayor Ronnie Michael, individually and in his official capacity, Chief Danny Bowen, individually and in his official capacity, SA Meredith Shoaf, individually, and Kevin Robinson, Director of Planning and Development Services, individually and in his official capacity, Defendants.

Kirk London Bowling, Bowling Law Firm, PLLC, Albemarle, NC, for Plaintiffs.

Marsha J. Lyons, Meredith Fitzgibbon Hamilton, Cranfill Sumner & Hartzog LLP, Charlotte, NC, for Defendants City of Albemarle, Mayor Ronnie Michael, Chief Danny Bowen, Kevin Robinson.

Bryan G. Nichols, N. C. Department of Justice Public Safety Section, Tammera S. Hill, N. C. Department of Justice Education Section, Raleigh, NC, for Defendant SA Meredith Shoaf.


OSTEEN, JR., District Judge

Before this court is a Motion to Dismiss pursuant to Rule 12(b)(6) filed by Defendants City of Albemarle, Mayor Ronnie Michael, Chief Danny Bowen, and Kevin Robinson. (Doc. 10.) Defendant Meredith Shoaf filed a separate motion to dismiss. (Doc. 14.) For the reasons stated herein, this court finds it should grant both motions as to all federal claims. This court declines to exercise supplemental jurisdiction over the remaining state claims.


On a motion to dismiss, a court must "accept as true all of the factual allegations contained in the complaint ...." Ray v. Roane, 948 F.3d 222, 226 (4th Cir. 2020) (quoting King v. Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016) ). The court may also consider documents "attached to the complaint as exhibits ...." Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016) ; see also Fed. R. Civ. P. 10(c) ("A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes."). The following facts are taken from the Complaint and its attachments as true.

A. Factual Background

Plaintiffs are husband and wife. (Complaint ("Compl.") (Doc. 1) ¶ 14.) Plaintiffs own the property at the center of this dispute, a property in the town of Albemarle, North Carolina, known as the "Heart of Albemarle" (the "Property"). (Id. ) Defendant the City of Albemarle ("City") is a municipality in North Carolina. (Id. ¶ 8.) Defendant Ronnie Michael was the mayor of Albemarle during all times relevant to this suit. (Id. ¶ 4.) Defendant Robert Daniel Bowen was the Albemarle City Chief of Police during all relevant times. (Id. ¶ 5.) Defendant Meredith Shoaf was a Special Agent in the North Carolina State Bureau of Investigation working in the Alcohol Law Enforcement branch. (Id. ¶ 6.) Defendant Kevin Robinson was the Director of Planning and Zoning for the City of Albemarle. (Id. ¶ 7.) This court has jurisdiction pursuant to 28 U.S.C. § 1331.

After Plaintiffs bought the Property, they leased it to Charlene Smith, who in turn leased it to individual tenants on "an extended stay basis." (Id. ¶ 15.) Plaintiffs were interested in having the Property approved for use as "Section 8"1 housing, and they asked Eric Allsbrook, a Section 8 Inspector with the City of Albemarle to tour the Property and "see if after renovations the property would meet minimum HUD requirements." (Id. ¶ 16.) The inspector said the Property would qualify after renovations were made and provided a letter stating this. (Id. ) Around February 2017, Plaintiff Chucky L. Nance ("Mr. Nance") made all Defendants, except Defendant Shoaf, aware of his plans for the Property. (Id. ¶ 18.) Plaintiffs allege that, at the same time, the City was considering purchasing a building across the street from the Property. (Id. ¶ 24.)

In anticipation of conducting the renovations on the Property, Mr. Nance began applying for the necessary permits on March 3, 2017, (id. ¶ 20), and "Central Permitting of Stanly County" subsequently issued those permits to Mr. Nance, who paid for them, (id. ¶ 21). However, the City of Albemarle's Planning and Development Services Department requires individuals whose building projects are located within the City of Albemarle to submit a City Coordination Form, to review the project for compliance with applicable City ordinances and Fire Code. Permitting & Inspections. City of Albemarle Planning and Development Services Department, Permitting & Inspections, (last visited Feb. 3, 2021).

On or about March 24, 2017, Plaintiffs received a letter from Defendant Bowen stating that the Property was being used in an illegal manner under "Chapter 19, Article 1, of the North Carolina General Statutes." (Compl. (Doc. 1) ¶ 22.) The letter stated that:

[d]uring the past several months, the Albemarle Police Department has responded to numerous calls at this Property. Reported unlawful activities on the property include illegal possession and sale of controlled substances and repeated acts which create and constitute a breach of the peace, including fights and assaults. Citizens in the community have repeatedly complained to law enforcement authorities about such activities occurring upon your property.

(Compl. (Doc. 1), Ex. A, Chief Bowen Nuisance Letter ("Bowen Letter") (Doc. 1-1).) The letter also stated that Mr. Nance had forty-five days to abate the nuisance. (Id. )

Mr. Nance responded with his own letter on March 31, 2017, stating that he would "promptly evict all current residents ... and begin the renovations to the property that were discussed at a previous council meeting ...." (Compl. (Doc. 1) ¶ 25.) Mr. Nance also requested a "copy of the investigation, all complaints, a copy of the documents your attorney referenced in our meeting on March 30, 2017 so that I may best alleviate any concerns." (Id. ¶ 26.) Mr. Nance also asked for confirmation within five days that Defendants "would consider this matter settled upon the evictions and the beginning of renovations and would cease any enforcement efforts based on the circumstances alleged ...." (Compl. (Doc. 1), Ex. B, Letter from Mr. Nance to Defendants ("Nance Letter") (Doc. 1-2) at 1.) Plaintiffs allege that Defendants "failed and/or refused to respond to his request." (Compl. (Doc. 1) ¶ 27.)

On April 5, 2017, Mr. Nance "attempted to apply for a required City of Albemarle Coordination Form with the City of Albemarle for renovations to Building 3."2 (Id. ¶ 30.) Defendant Robinson, upon learning that Mr. Nance was applying for the form, sent an email to the City's attorney asking how to proceed. (Id. ¶ 31.) The attorney responded,

[w]e've told [Mr. Nance] in writing that we want the motel demolished. Our position is that if he evicts all the criminal types that because of the reputation of the building, the criminal type [sic] will come back and we will have the nuisance problem over and over and over again. We don't think any useful purpose would be served by encouraging him to make repairs.

(Id. )

On April 5, 2017, Defendant Robinson denied the Coordination Form, citing "legal issues between you and the City of Albemarle ...." (Id. ¶ 33.) After the City informed Mr. Nance that the Coordination Form had been denied, Stanly County's Permitting Director informed Defendant Robinson that Plaintiffs’ County permits had been canceled and would not be regranted until the City approved the Coordination Form. (Id. ¶ 34.)

Plaintiffs allege that both the denials by the City and Stanly County were inconsistent with their normal procedures. (Id. ¶ 35.) Plaintiffs do not allege, however, that the Coordination Form was required to be issued, nor do Plaintiffs allege, as a matter of historical practice, that the form was always issued. This court therefore finds that the issuance of the Coordination Form was a matter of the exercise of the City of Albemarle's discretion. Plaintiffs had no right, vested or otherwise, to the Coordination Form.3

Mr. Nance evicted his last tenant on April 21, 2017, with assistance from the City of Albemarle Policy Department. (Id. ¶ 36.) Shortly after the tenants were evicted, Plaintiffs allege that Mr. Nance, "in an effort to satisfy the City, cleaned and removed furniture, carpet, pictures, and even the wallpaper in preparation for renovations to the property." (Id. ¶ 38.) Plaintiffs allege that "the property could not have been reopened until renovations were made." (Id. )

Plaintiffs allege that "[p]rior to May 15, 2017, Chief Danny Bowen, Special Agent Shoaf, and Paul Whitfield presented Chucky Nance with two proposed consent judgments to resolve potential litigation over the alleged nuisance." (Id. ¶ 39.) Plaintiffs allege that one consent judgment required Plaintiffs to sell the Property to the City, while the other required Plaintiffs to demolish the Property. (Id. ¶ 40.)

Plaintiffs allege Mr. Nance appeared at a City Council meeting on May 15, 2017, where he informed the City Manager that he had evicted the last tenant and had done "everything in his March 31, 2017 letter ...." (Id. ¶ 41; Nance Letter (Doc. 1-2) at 1; Pls.’ Resp. Br. (Doc. 13) at 3.)

At that same City Council meeting, Plaintiffs allege that Mr. Nance directly addressed Defendant Michael "out of frustration" regarding the denial of his Coordination Form, stating "Crap or get off the pot." (Compl. (Doc. 1) ¶ 44.) Plaintiffs allege that "the very next day," Defendant Michael "made the decision to file suit .... and directed Chief Bowen to move ahead with the lawsuit." (Id. ) Plaintiffs allege that Defendant Michael "exceeded his authority" and was "without proper authorization from the City Council" when he "directed Chief Danny Bowen to proceed with the suit against Plaintiffs ...." (Id. ¶ 45.)

Plaintiffs allege the nuisance complaint was ultimately filed on August 4, 2017, "approximately 105 days after the cessation of all business activity at the Heart of Albemarle property and 121...

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