Stephenson v. Town of Garner

• Decision Date: 01 February 2000
• Docket Number: No. COA99-43.,COA99-43.
• Citation: 136 NC App. 444,524 S.E.2d 608
• Parties: W. Carroll STEPHENSON, Jr., Plaintiff, v. TOWN OF GARNER, a Municipal Corporation, Ronnie Williams, Jackie Johns, Sr., and John Adams, Defendants.
• Court: North Carolina Court of Appeals

524 S.E.2d 608

136 NC App. 444

W. Carroll STEPHENSON, Jr., Plaintiff, v. TOWN OF GARNER, a Municipal Corporation, Ronnie Williams, Jackie Johns, Sr., and John Adams, Defendants.

No. COA99-43.

Court of Appeals of North Carolina.

February 1, 2000.

Armstrong & Armstrong, P.A., by L. Lamar Armstrong, Jr., Smithfield, for plaintiff-appellant.

Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Edward L. Eatman, Jr. and Holly L. Saunders, Charlotte, for defendant-appellees.

EAGLES, Chief Judge.

In reviewing the trial court's dismissal of Stephenson's claims under Rules 12(b)(6) or 12(c), we evaluate all facts alleged and permissible inferences therefrom in the light most favorable to Stephenson. Shuford, N.C. Practice and Procedure, §§ 12-8, 12-10. If the facts as alleged by the plaintiff do not either (1) give rise to any claim upon which relief may be granted, Shuford, § 12-8, citing Andrews v. Elliot, 109 N.C.App. 271, 426 S.E.2d 430 (1993), or (2) show that the nonmoving party is entitled to judgment as a matter of law, Shuford, § 12-10, citing Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d 494 (1974), then we must affirm the trial court.

We first address whether the trial court properly dismissed plaintiff's Chapter 75 unfair trade practices claims. Stephenson argues that (1) the aldermen's "inducement" of Sprint to enter into the Garner-Sprint Lease by denying Sprint's CUP petitions "in violation of a court order" and (2) the town's execution of the Garner-Sprint Lease constitute "[unlawful] unfair ... acts or practices in or affecting commerce." G.S. § 75-1.1. We disagree.

Stephenson argues that the aldermen's "intentional violation of a court order" by denying Sprint's CUP application on rehearing was also a violation of public policy, establishing the aldermen's actions as "unfair" under G.S. § 75-1.1. Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403-04 (1981). Viewing the facts in the light most favorable to the plaintiff, we do not agree that Judge Farmer's order compelled the aldermen to approve Sprint's CUP petition, making the aldermen's second denial of Sprint's petition an illegal act. Based on "substantial, competent and material evidence" in the record of the first CUP hearing, Judge Farmer concluded that the town's denial of Sprint's application was "arbitrary and capricious," but instead of ordering that the CUP be approved, Judge Farmer's order reversed the aldermen's first decision and remanded the matter to the board "for further proceedings in accordance with ... judgment." We conclude that the aldermen complied with the court's judgment by holding "further proceedings," during which additional testimony and newspaper articles not previously considered by Judge Farmer were introduced. Because (1) the May 1995 consent judgment precluded a final ruling on Sprint's Motion to Compel approval based on evidence presented in the first hearing and (2) Judge Farmer never ruled on the sufficiency of the new evidence in support of the aldermen's second denial of Sprint's CUP application, we find no clear violation of Judge Farmer's order and uphold the trial court's dismissal of the Chapter 75 claims against the aldermen.

As to the Chapter 75 unfair trade practices claim against the town, we held in Rea Construction Co. v. City of Charlotte, 121 N.C.App. 369, 465 S.E.2d 342, rev. denied, 343 N.C. 309, 471 S.E.2d 75 (1996), that because the State is immune to Chapter 75 claims "regardless of whether sovereign immunity may exist," Sperry Corp. v. Patterson, 73 N.C.App. 123, 125, 325 S.E.2d 642, 644 (1985), and cities and towns are "agenc[ies] created by the State," State v. Furio, 267 N.C. 353, 356, 148 S.E.2d 275, 277 (1966) (emphasis added), "in accord with Sperry, ... a city may not be sued under Chapter 75." Rea Construction at 370, 465 S.E.2d at 343 (emphasis added). Under Rea Construction, dismissal of the claim against the town was proper.

We next decide whether the court properly dismissed Stephenson's claims of interference with contractual relations against the aldermen and the town.

Defendants first argue that Stephenson lacks standing to bring an interference with contract claim against either the town or the aldermen. Specifically, defendants argue that because Sprint, as a "mere optionee," lacked the requisite standing as an "affected" property owner to appeal the aldermen's first denial of its CUP application, Sprint's appeal to Wake County Superior Court was improvidently granted. Humble Oil & Refining Co. v. Board of Aldermen of the Town of Chapel Hill, 20 N.C.App. 675, 678, 202 S.E.2d 806, 809, rev'd on other grounds, 286 N.C. 170, 209 S.E.2d 447 (1974), citing Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128 (1946). Defendants further argue that because Stephenson failed to file his own CUP application or appeal the aldermen's decision on Sprint's CUP application, he is precluded here from asserting "any claims he may have had regarding the denial of the conditional use permit." See G.S. § 160A-388(e) (providing for review of conditional use permitting decisions by any "aggrieved" party); Lee at 113, 37 S.E.2d at 133 ("a property owner whose property is affected by [a] proposed [zoning] change may seek review").

We note that Stephenson appears to concede the standing issue as to his claim against the aldermen when he states in his brief that "[i]f the defendants' mistreatment of Sprint had simply died without the Town of Garner usurping Stephenson's lease, it is debatable whether or not Stephenson would have had standing to seek damages for the loss of his lease income."

Even assuming arguendo that Stephenson does not concede the standing issue, we hold that when viewed in the light most favorable to the plaintiff, the facts support dismissal on grounds that the aldermen enjoyed legislative immunity to suit. Vereen v. Holden, 121 N.C.App. 779, 468 S.E.2d 471 (1996), disc. rev. denied, 347 N.C. 410, 494 S.E.2d 600 (1997). Officials may claim legislative immunity for action taken "in the sphere of legislative activity." See Bogan v. Scott-Harris, 523 U.S. 44, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998). To prove legislative immunity, a public official must show that (1) he was acting in a legislative (non-ministerial) capacity at the time of the alleged incident and (2) his acts were not illegal. Vereen at 782, 468 S.E.2d at 473, citing Scott v. Greenville County, 716 F.2d 1409, 1422 (4th cir. 1983). See also Bruce v. Riddle, 631 F.2d 272

(4th cir. 1980).

The question of whether local officials' actions are "legislative" depends on the nature of their acts. Scott at 1423; Bruce at 277-80, citing Lake Country Estates, Inc. v. Tahoe Regional Planning, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979) ("to an extent that the evidence discloses that [regional land use officials] were acting in a capacity comparable to that of members of a state legislature, they are entitled to absolute immunity"); Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (legislators, like judges, are entitled to absolute immunity "because of the special nature of their responsibilities"); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (reviewing the basis for conferring immunity on state legislators). While officials are not immune for acts outside the scope of their legislative duties, Scott at 1423, and arguably may claim only qualified immunity for "executive" acts (such as enforcement of zoning laws), id., absolute immunity is available when officials, in the exercise of legitimate functions under state and local law, act in a "legislative capacity," Pendleton Construction Corp. v. Rockbridge County, 652 F.Supp. 312, 323-24 (1987),aff'd,837 F.2d 178 (4th cir. 1988); Bruce at 279. So long as the acts are legislative in nature, immunity may extend to "vot[ing], ... and... every other act resulting from the nature, and in the execution, of the office." Bruce at 280, citing Tenney at 374, 71 S.Ct. at 787,95 L.Ed. at 1025-26.

Stephenson argues that (1) conditional use permitting is a ministerial act and (2) "even if the first denial of Sprint's application was not ministerial," Judge Farmer's decision transformed the rehearing of Sprint's CUP application into a ministerial act of approval. We disagree.

Conditional use permitting is not, as plaintiff alleges, a ministerial process akin to "putting a square peg in a square hole." Ministerial acts are those in which "nothing is left to discretion." Langley v. Taylor, 245 N.C. 59, 62, 95 S.E.2d 115, 117 (1956); Black's Law Dictionary, 6th ed. Under G.S. § 160A-381 (granting towns the power to adopt CUP ordinances), local zoning officials may not "deny applicants a permit in their unguided discretion or ... refuse it solely because, in their view, [it] would `adversely affect the public interest.'" Triple E Assoc. v. Town of Matthews, 105 N.C.App. 354, 361, 413 S.E.2d 305, 309, rev. denied, 332 N.C. 150, 419 S.E.2d 578 (1992) (emphasis added). However, our courts have held that a town zoning board sits as a "trier of fact," Ghidorzi Construction, Inc. v. Town of Chapel Hill, 80 N.C.App. 438, 440, 342 S.E.2d 545, 547, rev. denied, 317 N.C. 703, 347 S.E.2d 41 (1986), and are vested with "independent decision-making authority" to balance the petitioner's interest in subjecting his or her land to a particular use against his neighbors' interest in maintaining harmony of use throughout the community. Chrismon v. Guilford County, 322 N.C. 611, 635-36, 370 S.E.2d 579, 593-94 (1988)(authorizing conditional use permitting in North Carolina); see also Alexander v. Holden, 66 F.3d 62, 66,

cited in Vereen at 783, 468 S.E.2d at 474 ("[i]f the underlying facts `relate to particular individuals or situations' and the decision impacts specific individuals or `singles out specifiable individuals,' the decision is administrative. On the other hand, the action is legislative if the facts involve `generalizations...