Three Guys Real Estate v. Harnett County

• Decision Date: 07 May 1996
• Docket Number: No. COA95-498,COA95-498
• Citation: 122 N.C.App. 362,469 S.E.2d 578
• Parties: THREE GUYS REAL ESTATE, a North Carolina General Partnership, Plaintiff and Petitioner, v. HARNETT COUNTY, a body politic, George Jackson, in his official capacity as Harnett County Planning Director, and Thomas Taylor, in his official capacity as Harnett County Subdivision Administrator, Defendants.
• Court: North Carolina Court of Appeals

Page 578

469 S.E.2d 578

122 N.C.App. 362

THREE GUYS REAL ESTATE, a North Carolina General Partnership, Plaintiff and Petitioner, v. HARNETT COUNTY, a body politic, George Jackson, in his official capacity as Harnett County Planning Director, and Thomas Taylor, in his official capacity as Harnett County Subdivision Administrator, Defendants.

No. COA95-498.

Court of Appeals of North Carolina.

May 7, 1996.

Grainger R. Barrett, Chapel Hill, for plaintiff-appellant.

Dwight W. Snow, Dunn, for defendants-appellees.

JOHN C. MARTIN, Judge.

Plaintiff is the owner of an undeveloped tract of real property containing approximately 231.37 acres located in Harnett County, North Carolina. In late 1993, plaintiff submitted a plat map of the property, dated 27 April 1993, to the Harnett County Planning Department. This map showed a proposed subdivision entitled "Weswood 4" containing twenty-three parcels, each of which was in excess of ten acres. Plaintiff requested that the Planning Department certify the map as exempt from Harnett County's Subdivision Regulations so that the map could be recorded with the Harnett County Register of Deeds. The map was denied exemption by Thomas Taylor, Harnett County's Subdivision Administrator; the Harnett County Planning Board; and the Harnett County Board of Commissioners. The reason given for the denial was that the map showed no road access to the parcels.

Thereafter, plaintiff brought this action seeking (1) a declaratory judgment that the plat map of the Weswood 4 subdivision is exempt from Harnett County's Subdivision Regulations and (2) a writ of mandamus directing Mr. Taylor to certify the map as exempt from the regulations. After filing this action, plaintiff submitted a "revised" plat map of the Weswood 4 subdivision which showed a series of easements providing access to the parcels.

The trial court found the facts to be essentially as summarized above and made the following additional findings of fact:

11. Officials of the plaintiff claim that they intend to provide access to the various Weswood 4 subdivision lots with a series of private driveway easements to be maintained pursuant to a driveway maintenance agreement. However, even if such a network of easement roads became a reality, the roads for all intents and purposes would be open for public use.

12. Any access to the various subdivision lots is currently a dirt roadway from SR 1103 through Lot 6 of the Weswood 1 Subdivision and through Lot 36 of Weswood 4 to a T intersection which branches out into a series of unimproved timber cart paths which do not service each and every lot depicted on the Weswood 4 map.

13. Access to the 23 lots of Weswood Subdivision for county services such as law enforcement, fire or rescue operations would be prohibitive and inadequate. This lack of access condition would provide a dangerous environment for providing county emergency services for the benefit of any Harnett County residents of these prospective lots unless better access was planned or provided by the plaintiff developer.

14. The Subdivision plan map submitted by the plaintiff is in direct opposition to generally accepted principles of land use planning. The purpose of the Harnett County Subdivision Ordinance would be circumvented as far as the promotion of public health, safety and general welfare of the County if the Weswood 4 Subdivision plat was developed in its current form.

Based on its findings, the court concluded as a matter of law:

1. That the Weswood 4 tract as depicted on that plat dated April 27, 1993 by Mike Cain, RLS is subject to the Harnett County Subdivision authority.

2. The Weswood 4 plat is not exempt from the Harnett County Subdivision regulations.

3. That under the circumstances of this case, the Harnett County Subdivision Administrator does not have a mandatory duty to affix to the Weswood 4 Plat the Harnett County Planning Department Certificate that the Weswood 4 Plat is exempt from the Harnett County Subdivision Regulations.

The court then ordered, adjudged and decreed "[t]hat the Weswood 4 tract ... is subject to the Harnett County Subdivision authority and further said plat is not exempt from the Harnett County Subdivision Regulations." Plaintiff appeals.

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Plaintiff has assigned error to the foregoing findings of fact, conclusions of law, and entry of judgment. "All orders, judgments and decrees in an action for declaratory judgment may be reviewed as other orders, judgments and decrees." Hobson Construction Co. v. Great American Ins. Co., 71 N.C.App. 586, 589, 322 S.E.2d 632, 634 (1984), disc. review denied, 313 N.C. 329, 327 S.E.2d 890 (1985), (citing N.C. Gen.Stat. § 1-258 (1983)). Thus, the scope of our review is (1) whether there was competent evidence in the record to support these findings of fact, and (2) whether these findings justify the court's legal conclusions. Nationwide Mutual Insurance Co. v. Allison, 51 N.C.App. 654, 277 S.E.2d 473, disc. review denied, 303 N.C. 315, 281 S.E.2d 652 (1981).

Section 3.0(1) of the Harnett County Subdivision Regulations, which were enacted pursuant to Chapter 153A of the North Carolina General Statutes, provides, in pertinent part:

Section 3.0 General (As Amended 11-1-82, 11-15-82, 4-16-90)

1. All subdivisions of land ... within the subdivision jurisdiction of Harnett County shall hereafter conform to the procedure contained within the articles of this Ordinance. This Subdivision Regulation Ordinance requires that a plat be prepared, approved, and recorded pursuant to the provisions of this Ordinance whenever a subdivision of land takes place....

The regulations define "subdivision" as including:

... [A]ll divisions of a tract or parcel of land into two or more lots, building sites, or other divisions for the purpose whether immediate or future, of sale or building development, and shall include all divisions of land involving the dedication of a new street or a change in existing streets; ...

However, an exception to this definition is "[t]he division of land into parcels greater than ten (10) acres where no street right-of-way dedication is involved." Although the regulations do not define the words "right-of-way" or "dedication", the word "street" is denoted as "[a] dedicated and accepted public right-of-way for vehicular traffic." Thus, it is apparent that a plat map which (1) divides a tract of land into parcels consisting of ten or more acres and (2) specifically appropriates for the public, access to the proposed parcels is subject to the regulations.

In this case, defendants admitted that plaintiff's plat map of the Weswood 4 subdivision "does not show dedicated rights of way from SR 1103 [the only marked road located near, but not providing any direct access to, twenty-two of the twenty-three parcels]...." Notwithstanding such admission, the trial court, in its finding of fact # 11, found that the series of private driveway easements, by which plaintiff intends to provide access to the various Weswood 4 subdivision lots and which were to be maintained pursuant to a driveway maintenance agreement, were "for all intents and purposes ... open for public use." This finding was in error, for there was no evidence whatsoever in the record to support such finding. Hence, the conclusions and decree of the trial court that the plat map is not exempt from the Harnett County Subdivision Regulations are invalid.

This determination, however, does not end our inquiry and does not require us to vacate the trial court's judgment. A municipal planning board is not obliged to approve a subdivision merely because it is exempt from the local subdivision ordinance. In Sugarman v. Lewis, 488 A.2d 709 (R.I.1985), landowners brought a petition for declaratory judgment seeking a declaration that their real property was not within the town of Exeter, Rhode Island's subdivision ordinance. They had been told "informally" by the town that their plat map of the property would constitute an...