An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1343


Filed: 18 November 2003



v .                         Mecklenburg County
                            No. 02 CVS 6078
a North Carolina Municipality,


    Appeal by plaintiffs from an order entered 10 July 2002 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 03 June 2003.

    DeVore, Acton & Stafford, P.A., by Fred W. DeVore, III for the plaintiff-appellants.

    City of Charlotte by Assistant City Attorney R. Suzanne Todd for the defendant.

    ELMORE, Judge.

    Plaintiffs are the owners of a parcel of commercial property located in the City of Charlotte on which is located a 6,000 square foot concrete manufacturing plant. In 1995, plaintiffs sought a building permit from the defendant city of Charlotte in order to construct a larger facility. Defendant advised the plaintiffs that the permit was denied because the property was going to be condemned for a future road. Defendant held a public meeting inNovember 1996, and at the meeting produced a map showing that the proposed road bisected the plaintiffs' property, rendering their plant unusable. Plaintiffs then acquired ten acres of adjacent property upon which to move their facilities. In October 2000, the defendant sent to the plaintiffs through its agent what appears from the record to be an option agreement to purchase the plaintiffs' property for the sum of $245,000.00, which plaintiffs determined was undervalued. By the end of 2001, plaintiffs had been notified that the defendant had decided not to condemn the property.
    Plaintiffs brought suit alleging damages under a theory of laches and a violation of their constitutional rights for depriving them of the use of their property without just compensation or due process. Defendant City of Charlotte filed a motion to dismiss, alleging the complaint failed to show a legal basis for recovery. The motion was allowed. Plaintiffs now bring this appeal.

    Plaintiffs assign error to the trial court's dismissal of their case on the grounds that the defendant took their property without just compensation. We have stated:
        The preparation of maps or even the adoption of a plan (which may never be carried out) is not a taking or damaging of the property affected so as to constitute a condemnation in any form. Barbour v. Little, 37 N.C. App. 686, 247 S.E. 2d 252, review denied, 295 N.C. 733, 248 S.E. 2d 862 (1978).

Tucker v. Charter Medical Corp., 60 N.C. App. 665, 671, 299 S.E.2d 800, 804 (1983). Plaintiffs have not shown, nor sufficientlyalleged in their complaint, a taking which requires compensation under the constitution. They have alleged that the city's plan to build a roadway interfered with their plans for expanding their business, but this does not constitute a taking under the law. The trial court did not err in dismissing the action.
    The plaintiffs also argue that the trial court erred in dismissing their case on the grounds that the city is estopped from switching the location of the proposed road, and must pay damages under the doctrine of laches.
    The doctrine of laches is an affirmative defense, and offers no relief to the plaintiffs here. The doctrine of laches is applied ordinarily to situations in which the complainant has failed to act while the other party has materially changed his position. In such a case the doctrine would operate to prevent a complainant from asserting his rights when he has waited too long to do so, thereby causing the other party to change his position in a way that would be to his detriment were the complainant then allowed to assert his right.
    In the case at bar, the plaintiffs wish to extend the doctrine of laches to compel the defendant city to exercise a right, because the plaintiffs changed their position in anticipation of the right to condemn being exercised. The doctrine, however, does not operate to that end. Although six years is a considerable amount of time to restrict the use of a private citizen's business, the doctrine of laches is not an appropriate avenue of relief in sucha case. The trial court properly dismissed the case as the plaintiffs did not articulate a legal basis for relief.
    Judges TIMMONS-GOODSON and McCULLOUGH concur.
    Report per Rule 30(e).

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