TAC Stafford, LLC v. Town of Mooresville, COA21-229

Docket NºCOA21-229
Citation2022 NCCOA 217
Case DateApril 05, 2022
CourtCourt of Appeal of North Carolina (US)


TAC STAFFORD, LLC, a North Carolina Limited Liability Company, Plaintiff,

TOWN OF MOORESVILLE, a North Carolina body politic and corporate, Defendant.

No. COA21-229

Court of Appeals of North Carolina

April 5, 2022

Heard in the Court of Appeals 14 December 2021.

Appeal by defendant from orders entered 10 August 2020 and 23 February 2021 by Judge Martin B. McGee in Iredell County No. 19 CVS 280 Superior Court. Cross-appeal by plaintiff from order entered 23 February 2021 by Judge Martin B. McGee in Iredell County Superior Court.

Scarbrough, Scarbrough & Trilling, PLLC, by Madeline J. Trilling and James E. Scarbrough, for plaintiff-appellee/cross-appellant.

Cranfill Sumner LLP, by Steven A. Bader and Patrick H. Flanagan, for defendant-appellant/cross-appellee.


¶ 1 Defendant Town of Mooresville ("the Town") appeals from the trial court's 10 August 2020 order granting Plaintiff TAC Stafford, LLC's motion for summary judgment, denying the Town's motion for summary judgment, and issuing a writ of mandamus "requiring [the Town] to take all necessary steps to authorize the issuance of development approvals for the Stafford Subdivision without regard to construction


of the [o]ff-[s]ite [i]mprovements[.]" The Town also appeals from the trial court's 23 February 2021 order granting in part Plaintiff's motion for reimbursement of fees and denying the Town's motion to stay. Lastly, Plaintiff cross-appeals from the trial court's 23 February 2021 order denying in part its motion for reimbursement of expenditures and recovery of attorneys' fees and costs.

¶ 2 After careful review, we affirm the 10 August 2020 order. As for the 23 February 2021 order, we affirm in part, reverse in part, and remand to the trial court.


¶ 3 In 2014, Plaintiff purchased the Stafford Subdivision property (the "Subdivision"), which was zoned R-3 (Single Family Residential-3), allowing for development by right of three residential units per acre. Plaintiff submitted concept plans for the Subdivision to the Town, and on 21 January 2015, the Town informed Plaintiff via a series of emails first that the concept plans were approved, then that the approval was subject to the completion of a traffic impact analysis ("TIA") and the notation on the plan of "any required on-site and off-site improvements[.]"

¶ 4 Pursuant to a preexisting agreement, the Town selected Ramey Kemp & Associates, Inc. ("Ramey Kemp") to prepare the TIA, an expense for which Plaintiff was required to reimburse the Town. On 13 August 2015, Ramey Kemp completed and sealed the TIA. Still seeking the development approvals, Plaintiff entered into a Mitigation Measures Agreement ("MMA") with the Town on 4 November 2015. The


MMA obligated Plaintiff to implement certain mitigation measures, including various improvements to off-site public transportation locations (the "off-site improvements") up to 2.3 miles away from the Subdivision, "as a condition of development." The MMA also conditioned the issuance of certificates of occupancy ("COs") for certain units of the Subdivision on completion of the off-site improvements.

¶ 5 Following minor changes to the Subdivision concept plan, on 6 March 2017, the parties executed an amended MMA. In its attempt to complete its obligations under the MMA, Plaintiff spent a total of $993, 584.00. However, Plaintiff was ultimately unable to purchase rights-of-way from the owners of various properties necessary to complete the off-site improvements. Plaintiff requested that the Town condemn the properties, pursuant to the Town's preexisting policy concerning the private acquisition of property to facilitate transportation mitigation measures, but the Town rejected Plaintiff's request during three meetings between December 2017 and October 2018 at which Plaintiff was not present. The Town then refused to issue the remaining COs for more than half of the Subdivision, on the ground that Plaintiff had breached the MMA by failing to complete the required off-site improvements.

¶ 6 On 30 January 2019, Plaintiff filed a complaint against the Town asserting multiple claims for declaratory and injunctive relief arising from its obligations to make the off-site improvements in accordance with the MMA, as well as claims for inverse condemnation, refund of illegally exacted fees, and breach of contract (if the


MMA were found to be enforceable). Plaintiff argued, inter alia, that the Town lacked authority under N.C. Gen. Stat. § 160A-372 (2019)[1] to require the off-site improvements as part of a by-right approval process for the Subdivision. Plaintiff further petitioned the trial court to issue a writ of mandamus directing the Town to take all necessary steps to issue COs and any other required developmental approvals for the Subdivision, and moved for attorneys' fees and costs. The Town filed its answer, generally denying the allegations of Plaintiff's complaint, on 8 April 2019.

¶ 7 On 14 February 2020, the Town moved for summary judgment. Plaintiff filed its own motion for summary judgment on 18 February 2020. On 24 February 2020, the motions for summary judgment came on for hearing in Iredell County Superior Court. On 10 August 2020, the trial court entered its order granting Plaintiff's motion for summary judgment, denying the Town's motion for summary judgment, granting Plaintiff's petition for a writ of mandamus, and reserving for later determination the financial issues such as attorneys' fees, costs, and reimbursement of expenditures.

¶ 8 On 4 September 2020, the Town filed its notice of appeal. That same day, the Town filed a motion to stay or enjoin execution or enforcement of the order and writ


of mandamus, pending its appeal. The Town's motion came on for hearing on 2 October 2020, at which hearing Plaintiff again raised the financial issues. The trial court requested supplemental briefing on the financial issues, which both parties filed in November 2020.

¶ 9 On 23 February 2021, the trial court entered an order granting in part and denying in part Plaintiff's motion for reimbursement of expenditures, determining that the Town "should return $101, 500.00 plus 6% interest per annum" to Plaintiff pursuant to N.C. Gen. Stat. § 160A-363(e); however, the court determined that the remaining expenditures were "paid to other entities - not the Town - in the course of the development of the property and as part of the MMA" and thus those funds were "not recoverable pursuant to G.S. 160A-363(e)[.]" The trial court also granted Plaintiff's motion for attorneys' fees and costs. The trial court then concluded that "[b]ecause mandamus is the proper remedy in this case, Plaintiff's remaining claims that were not resolved" by the 10 August 2020 order "are moot." Accordingly, the trial court dismissed the remaining claims with prejudice.

¶ 10 On 24 February 2021, the Town filed its notice of appeal from the 23 February 2021 order. Plaintiff filed its notice of appeal from the same order on 8 March 2021.

Summary Judgment

¶ 11 On appeal from the trial court's 10 August 2020 order granting Plaintiff's motion for summary judgment and denying the Town's motion for summary


judgment, the Town argues that the trial court erred by concluding that the Town did not have the authority to require off-site improvements as a condition for issuing development approvals for the Subdivision.

A. Standard of Review

¶ 12 We conduct de novo review of a trial court's grant of summary judgment "because the trial court rules only on questions of law." Buckland v. Town of Haw River, 141 N.C.App. 460, 462, 541 S.E.2d 497, 499 (2000) (citation omitted). "A trial court may grant a motion for summary judgment where there is no genuine issue of material fact and where the movant is entitled to judgment as a matter of law." Id.; N.C. Gen. Stat. § 1A-1, Rule 56(c) (2021).

B. Analysis

¶ 13 In its order granting Plaintiff's motion for summary judgment, the trial court relied on this Court's opinion in Buckland to support its conclusion that § 160A-372 "does not permit the Town to require [Plaintiff] to make off-site changes, in the manner in which it seeks, as a condition of the Town issuing development approvals." The Town argues that Buckland is both legally and factually inapposite, and therefore is not controlling authority in this case. We disagree.

¶ 14 In Buckland, the plaintiffs requested that the town approve a subdivision plat dividing their 7.6-acre property into 11 lots. 141 N.C.App. at 461, 541 S.E.2d at 499. The town approved the plaintiffs' subdivision plat "with the condition that [the]


plaintiffs 'adhere to the subdivision regulations regarding the improvement of the public right-of-way and unopened portion of Fairview and Hollar Streets,' specifically instructing [the] plaintiffs that its 'subdivision ordinance requires paving and curb and gutter.'" Id. The plaintiffs filed a complaint seeking, inter alia, a writ of mandamus directing the town to approve their subdivision request without restrictions, but the trial court granted the town's motion for summary judgment. Id. at 461-62, 541 S.E.2d at 499.

¶ 15 On appeal, this Court reviewed N.C. Gen. Stat. § 160A-372, the enabling legislation for city and town ordinances, which "grant[ed] municipalities certain powers they may include in a subdivision control ordinance." Id. at 463, 541 S.E.2d at 500. As it existed both when this Court decided Buckland and when the trial court granted Plaintiff's motion for summary judgment in the present case, § 160A-372(a) provided:

A subdivision control ordinance may provide for the orderly growth and development of the city; for the coordination of transportation networks and utilities within proposed subdivisions with existing or planned streets and highways and with other public facilities; for the dedication or reservation of

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