Town of Nags Head v. Cherry, Inc.

• Decision Date: 21 February 2012
• Docket Number: No. COA11–931.,COA11–931.
• Citation: 723 S.E.2d 156
• Parties: TOWN OF NAGS HEAD, Plaintiff, v. CHERRY, INC., Defendant.
• Court: North Carolina Court of Appeals

723 S.E.2d 156

TOWN OF NAGS HEAD, Plaintiff,

v.CHERRY, INC., Defendant.

No. COA11–931.

Court of Appeals of North Carolina.

Feb. 21, 2012.

Appeal by defendant from orders entered on or about 24 January 2011 by Judge Quentin T. Sumner in Superior Court, Dare County. Heard in the Court of Appeals 12 January 2012. Hornthal, Riley, Ellis & Maland, L.L.P., Elizabeth City, by Benjamin M. Gallop and John D. Leidy, for plaintiff-appellee.

Vandeventer Black LLP, Raleigh, by Norman W. Shearin and Wyatt M. Booth, for defendant-appellant.

STROUD, Judge.

Defendant appeals trial court orders denying its motions to dismiss and granting partial summary judgment in favor of plaintiff. For the following reasons, we reverse the trial court's order denying defendant's motion to dismiss pursuant to Rule of Civil Procedure 12(b)(1) and reverse the trial court's order granting partial summary judgment and remand for further proceedings.

I. Background

On 19 April 2010, plaintiff filed a verified complaint alleging that defendant owned a “Dwelling” that “[s]ince at least October 6, 2008 ... has been damaged to such an extent that the condition of the Dwelling was unsafe for human habitation causing the Dwelling to be condemned by the Town's building inspector[.]” Plaintiff further alleged:

The Town's Manager inspected the Dwelling ... and determined at the time of his inspection:

a. That the Dwelling was in a deteriorated and damaged condition;

b. That the Dwelling was disconnected from utilities;

c. That the Dwelling was disconnected from approved means of sewage disposal;

d. That components of the Dwelling's on-site sewage disposal system were visibly damaged or missing;

e. That the Dwelling was located in its entirety on the wet sand beach as evidenced by the high tide swash line and tidal pools located westward of the Dwelling;

f. That the Dwelling restricted vehicle access along the public trust beach area;

g. That the Dwelling restricted pedestrian access along the public trust beach area;

h. That the Dwelling had incurred storm and/or erosion damage;

i. That the Dwelling was located wholly or partially on land subject to the public trust and within the public trust beach area; and

j. That there did not appear to be an opportunity for relocation of the Dwelling on its lot in a manner complying with relevant federal, state and local laws and regulations.

Plaintiff further alleged that “[a]t all times subsequent to the Town Manager's inspection, the condition of the Dwelling has remained the same or has deteriorated due to weather, lack of use, lack of repair and damage caused by erosion, coastal storms, hurricanes and tropical storms.” The Town Manager “declared the Dwelling to be a public nuisance ... and provided Defendant eighteen (18) days to abate the nuisance by demolishing and/or removing the Dwelling.” Plaintiff requested, inter alia,

[a]n order of abatement ... commanding Defendant[ ] to immediately, and at [its] sole expense, bring the Property in compliance with all applicable regulations and laws by demolishing, repairing or otherwise taking corrective action regarding the Dwelling ... or commanding the Defendant[ ] to immediately allow the Town to enter upon the Property and take such action at the Defendants' sole expense.

On 7 July 2010, defendant filed a motion to dismiss pursuant to Rules of Civil Procedure 12(b)(1) and (6), answered plaintiff's complaint, and counterclaimed for inverse condemnation. On 26 July 2010, plaintiff filed motions to dismiss defendant's counterclaim. On 8 October 2010, defendant voluntarily dismissed its counterclaim. On or about 15 October 2010, plaintiff filed a motion for summary judgment. On 29 November 2010, plaintiff filed an amended/renewed motion for summary judgment.

On 6 December 2010, the trial court heard defendant's motions to dismiss and plaintiff's motions for summary judgment. Plaintiff provided two separate bases for declaring defendant's Dwelling a nuisance predicated upon Town of Nags Head Code of Ordinances (“Town Ordinance”) § 16–31(6): ¹ (1) “when there is a damaged structure or debris from [a] damage[d] structure where it can reasonably be determined that there is a likelihood of personal or property injury” and (2) “any structure regardless of the condition—it can be a brand new structure or any debris from a damaged structure which is located in whole or in part in a public trust area or on public land[.]” Town Ordinance § 16–31(6) provides in pertinent part,

The existence of any of the following conditions associated with storm-damaged or erosion—damaged structures or their resultant debris shall constitute a public nuisance.

....

b. Damaged structure or debris from damaged structures where it can reasonably be determined that there is a likelihood of personal or property injury;

c. Any structure, regardless of condition, or any debris from damaged structure which is located in whole or in part in a public trust area or public land.

Town of Nags Head, N.C., Code § 16–31(6) (2007). Town Ordinance § 16–33 further provides that “[u]pon a determination that conditions constituting a public nuisance exist, the town manager ... shall order the prompt abatement thereof ....” Town of Nags Head, N.C., Code § 16–33(a) (2007). “Abatement of a public nuisance shall consist of taking whatever appropriate steps are reasonably necessary to remove the condition or conditions which result in the declaration of a public nuisance.” Town of Nag's Head, N.C., Code § 16–33(b) (2007).

On 24 January 2011, the trial court entered orders denying defendant's motions to dismiss and granting plaintiff's motion for partial summary judgment as to the claim of abatement. The trial court stated that “Plaintiff's claim for public nuisance and order of abatement is GRANTED” and ordered that defendant “at its sole expense, abate the public nuisance ... by demolishing or removing the structure” and if defendant failed to take such action within 20 days “Plaintiff may enter upon the Property and abate the public nuisance [.]” Defendant appeals the orders denying its motions to dismiss and the order granting partial summary judgment.²

II. Public Trust

Defendant first contends that the trial court erred in denying its motion to dismiss pursuant to Rule 12(b)(1). As to the public trust doctrine, defendant contends that

the public trust doctrine is a common law right in the public that is held by the State of North Carolina and is enforceable only by the State in its sovereign capacity. The Town has no authority under the common law or under N.C. Gen.Stat. § 77–20 to enforce the State's common law rights, and therefore lacks the requisite subject matter jurisdiction to bring any action predicated on enforcement of the public trust doctrine.

Although the trial court's order does not state the specific basis for its ruling, it would appear that it was most likely based upon town ordinance § 16–31(6)(c), since the trial court ordered demolition of the Dwelling. See Town of Nag's Head, N.C., Code § 16–31(6)(c). If the Dwelling was a nuisance because of its location in a public trust area, then the only way to abate the nuisance would be removal of the Dwelling, while conditions such as damage to the Dwelling could most likely be repaired. To the extent that plaintiff seeks removal of the Dwelling as a nuisance according to Town Ordinance § 16–31(6)(c), we must first consider plaintiff's standing to enforce the public trust rights of the State.

Plaintiff claims that it is not seeking to enforce the State's public trust rights, arguing that

[t]he Town is not attempting to enforce the State's public trust rights with this action, but even if it were, it would have authority to do so as a governmental agency. The Defendant relies on dicta in multiple cases which seem to imply that the State of North Carolina must bring an action to enforce public trust rights via the Attorney General. No case in North Carolina has held such against an action brought by anything other than private individuals and entities. Even if determined not to be dicta, the Town acts as a governmental agency and exercises the police power of the State.

(Citations and quotation marks omitted.)

“The standard of review on a motion to dismiss under Rule 12(b)(1) is de novo.” Fairfield Harbour v. Midsouth Golf, LLC, ––– N.C.App. ––––, ––––, 715 S.E.2d 273, 280 (2011) (citation and quotation marks omitted).

This Court has previously described the public trust doctrine as applicable to land adjoining bodies of water:

The public trust doctrine is a common law principle providing that certain land associated with bodies of water is held in trust by the State for the benefit of the public. As this Court has held, public trust rights are those rights held in trust by the State for the use and benefit of the people of the State in common. They include, but are not limited to, the right to navigate, swim, hunt, fish and enjoy all recreational activities in the watercourses of the State and the right to freely use and enjoy the State's ocean and estuarine beaches and public access to the beaches.

As such, the public trust doctrine cannot give rise to an assertion of ownership that would be available to any private litigants in like circumstances. Any party, public or private, can assert title to land on the strength of a deed, but only the State, acting in its sovereign capacity, may assert rights in land by means of the public trust doctrine. Indeed, as the United States Supreme Court has stated, the public trust doctrine uniquely implicates a state's sovereign interests.

Fabrikant v. Currituck Cty., 174 N.C.App. 30, 41–42, 621 S.E.2d 19, 27 (2005) (emphasis added) (citations, quotation marks, ellipses, and brackets omitted).

The state is the sole party able to seek non-individualized, or public, remedies for alleged harm to public waters. Under the public trust doctrine,

the State holds title to the submerged lands under navigable...