Laches--municipal sign ordinance--failure to show prejudice
The trial court did not err by concluding that respondent
city is not precluded by the affirmative defense of laches from
enforcing its sign ordinance against petitioner car dealership,
because: (1) there were no assurances by city officials that the
signs would not violate the ordinance; (2) petitioner did not
spend any money relying on assurances from city officials; and
(3) the evidence fails to show a resulting prejudice based on the
city's delay in enforcing the ordinance.
James, McElroy & Diehl, P.A., by Richard B. Fennell, for
petitioners-appellants.
David M. Smith, Senior Assistant City Attorney, for
respondents-appellees.
WYNN, Judge.
In Abernathy v. Town of Boone Board of Adjustment, 109 N.C.
App. 459, 427 S.E.2d 875 (1993), this Court recognized that the
defense of laches could be asserted to prevent a municipality from
enforcing its ordinances.
Petitioner, Town and Country Ford, operates an auto dealership
in Charlotte and leases property from petitioner MMR Holdings.
They argue on appeal that the doctrine of laches barred the City of
Charlotte from declaring their balloons, pennants and other
declarations to be a violation of a sign ordinance. We review denovo the petitioners' contention that the record contains an error
of law and hold that the defense of laches does not apply to the
facts of this case. See Westminister Homes, Inc. v. Town of Cary
Zoning Bd. of Adjust., 140 N.C. App. 99, 102, 535 S.E.2d 415,
417-140 (2000), affirmed, __ N.C. ___, 554 S.E.2d 634 (2001).
Therefore, we affirm the Superior Court's holding that the City of
Charlotte Zoning Board of Adjustment committed no error in denying
petitioners' request for a variance from the sign ordinance.
To establish the affirmative defense of laches, our case law
recognizes that 1) the doctrine applies where a delay of time has
resulted in some change in the condition of the property or in the
relations of the parties; 2) the delay necessary to constitute
laches depends upon the facts and circumstances of each case;
however, the mere passage of time is insufficient to support a
finding of laches; 3) the delay must be shown to be unreasonable
and must have worked to the disadvantage, injury or prejudice of
the person seeking to invoke the doctrine of laches; and 4) the
defense of laches will only work as a bar when the claimant knew of
the existence of the grounds for the claim. See Taylor v. City of
Raleigh, 290 N.C. 608, 227 S.E.2d 576 (1976); Allen v. City of
Burlington Bd. of Adjust., 100 N.C. App. 615, 397 S.E.2d 657
(1990).
In Abernathy, Judge Jack Lewis writing for the Court, astutely
tempered “the general rule to be that laches cannot be asserted
against a municipality to prevent it from enforcing its ownordinances when the delay is reasonable and defendant has suffered
no disadvantage due to the delay.” Id. at 465, 427 S.E.2d at 878.
Thus, Judge Lewis narrowly determined that under the facts of that
case, the doctrine of laches applied because the Town of Boone
delayed for almost four years before trying to enforce the
ordinance although it was aware of the potential violation.
Additionally, after the business owner was assured by two town
officials that its sign was in compliance, the owner spent $250,000
to purchase the adjacent property. Thus, this Court concluded,
As a result, we hold that the unreasonable
delay on the part of the Town of Boone has
worked an unreasonable disadvantage to [the
business owner] and that it would be unjust to
allow the Town of Boone to now enforce its
sign ordinance
Id. at 465 , 427 S.E.2d 879.
In contrast to the fact-specific holding of Abernathy, in the
present case, there were no assurances by city officials that the
signs would not violate the Ordinance, and Town and Country Ford
did not spend any money relying on assurances from city officials.
Thus, the Superior Court found that:
11. Town and Country Ford made no change of
position based upon assurances that the Zoning
staff had given to Town and Country Ford any
assurance that the unlawful signage could
continue to be used.
Nonetheless, Town and Country Ford argues that as a result in
the City's delay in enforcing the Ordinance, it will be required to
spend substantially more money to renovate its building than it
would have spent had it known that the City was taking the positionthat the decorations at issue violated the sign ordinance in 1986
or 1990. However, the record also shows that Town and Country
received a warning citation in 1998 but continued to keep the
banners up after the warning. There is no evidence in the record
that any city official told Town and Country that the signs
complied with the Ordinance, and there is no evidence in the record
that based on assurances from city officials that Town and Country
changed its signs or spent money in reliance. Furthermore, the
evidence fails to show a resulting prejudice because of the City's
delay in enforcing the Ordinance. See Knotville Vol. Fire Dept.,
N.C. v. Wilkes County, 85 N.C. App. 598, 601, 355 S.E.2d 139, 141,
disc. review denied, 320 N.C. 632, 360 S.E.2d 88 (1987). Since
the facts of this case do not support a determination that the
delay was unreasonable nor that Town and Country suffered great
disadvantage due to the delay, we uphold the Superior Court's
conclusion of law that the City of Charlotte is not precluded from
enforcing its sign ordinance against Town and Country.
Affirmed.
Judges WALKER and THOMAS concur.
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