Highways and Streets_planning approval_plat--upgrade to county road from private drive
The trial court had sufficient evidence to support its conclusions that a road labeled “right-
of-way private drive” on the recorded plat could be upgraded to provide access to acreage which
plaintiffs wished to subdivide. The long-time director of the Planning Department testified that it
was the usual custom of the Planning Department to upgrade private drives to county standard
roads, and that developers typically left forty-five foot rights- of-way on plats to preserve options
for future development.
Di Santi Watson Capua & Wilson, by Frank C. Wilson, III, for
the plaintiffs-appellees.
The Vetro Law Firm, P.C., by M. Shaun Lundy, for defendant-
appellant.
JACKSON, Judge.
On 11 February 2002, Ronald and Laura Darbo (“plaintiffs”)
purchased two tracts of land in Watauga County, North Carolina,
pursuant to a foreclosure sale. They recorded their deeds on 26
March 2002. Tract I (“Lot 27") consisted of Lot 27, which is
located in Section II of Old Keller Farm, as evidenced by a
recorded plat. Tract II (“Darbo lot”) consisted of 8.873 acres of
land which is an undeveloped and undivided piece of land that is
adjacent to Lot 27, and is also noted on the recorded plat.
The recorded plat shows a sixty foot wide road, “Keller Road,”
in the area designated as Section I of Old Keller Farm, thatextends into the Section II of the subdivision. Where Keller Road
continues into Section II of the subdivision, it is reduced to a
forty-five foot wide road, and is labeled on the plat as “45.00'
right-of-way private drive.” This smaller road extends along one
side of Lot 27, and continues to the Darbo lot.
After purchasing the two tracts of land, plaintiffs presented
a preliminary plat to the Watauga County Planning and Inspection
Department (“Planning Department”) in September 2002, proposing to
subdivide the Darbo lot into five new lots. Plaintiffs proposed
that the “45.00' right-of-way private drive” would service Lot 27,
along with the five proposed subdivided lots. Upon learning of
plaintiffs' proposed subdivision of the Darbo lot, the Old Keller
Farm Property Owners' Association, Inc. (“defendants”) notified the
Planning Department that it disputed whether plaintiffs had a
sufficient right-of-way to allow the subdivision as proposed in the
preliminary plat.
In a letter dated 11 September 2002, the Watauga County
Planning Board notified plaintiffs that “when there has been a
dispute regarding right-of-way, . . . the Planning Board has taken
the position that the parties resolve the dispute themselves,
rather than ask the County to do so, as these are actually private
legal issues over which the courts, not the County, have
jurisdiction.” The Planning Department thus refused to consider
plaintiffs' subdivision plans until the matter of the forty-five
foot “right-of-way private drive” was resolved in some other
fashion. On 5 March 2004, plaintiffs filed an action seeking a
declaratory judgment that the forty-five foot “right-of-way private
drive” was an easement over and across the privately maintained Old
Keller Farm Road, for ingress, egress, and regress to the Darbo
lot. After reviewing the recorded plat, county ordinances, and
hearing testimony from Joe Furman, who has been the Director of
Watauga County Planning and Inspections Department for twenty
years, the court concluded as a matter of law that the forty-five
foot road met the width requirements of a “County Standard Road.”
The court also concluded that the road could be upgraded and “the
custom of the county is to allow subdivisions to be developed in
stages and such upgrades to occur, provided all the other
provisions of the county subdivision ordinance have been
satisfied.” The trial court then ordered that plaintiffs have a
right-of-way forty-five feet wide along the border of Lot 27, which
also would serve as means of ingress, egress, and regress for the
Darbo lot. The court ordered that the forty-five foot right-of-way
may be upgraded to a “County Standard Road,” provided that all
other requirements of the Watauga County Ordinance to Govern
Subdivisions and Multi Unit Structures are met and approved by the
various government entities that are required to do so. From this
order defendants appeal.
Before addressing defendant's arguments on appeal, we wish to
note that the issues presented in this case are issues that are
properly addressed to and resolved by county or municipal planningand inspections departments as an initial matter, rather than our
courts.
Defendants argue that the trial court committed error when it
disregarded the plain and unambiguous language of the recorded plat
showing Section II of Old Keller Farm, and the Watauga County
Ordinance to Govern Subdivision and Multi-Unit Structures (“County
Ordinance”).
As previously stated, the recorded plat designated the road in
question as “45.00' right-of-way private drive.” The County
Ordinance defines a “private driveway” as “[a] roadway serving
three (3) or fewer lots, building sites or other divisions of land
and not intended to be public ingress or egress.” Watauga County,
N.C., Ordinance to Govern Subdivisions and Multi-Unit Structures
art. IV, § 41.10 (2004). The County Ordinance defines “right-of-
way” as “[a] strip of land designated by the owner or other
authority or acquired by other over which a person may legally
pass, and on which may be constructed a road or utilities.” Id. at
art. IV, § 41.13. Pursuant to the County Ordinance, all lots in a
subdivision must have direct vehicular access to a state or county
standard road. Id. at art. VII, § 72.016. The County Ordinance
also states that a county standard road must be no less than forty-
five feet wide, and the ordinance does not limit the number of lots
a county standard road may service. Id. at art. VII, § 71.021.
Defendants argue the recorded plat clearly designates the road as
a “private drive,” thereby limiting the number of lots the road mayservice to three, which is below the number of lots that plaintiffs
wish to have the road service.
The court heard testimony from Joe Furman of the Planning
Department, in which he stated the private driveway that plaintiffs
currently have, is adequate in width for it to be improved to a
county standard road. Mr. Furman further testified that it is
common practice for developers to provide a forty-five foot right-
of-way on plats accessing undeveloped land, in order to leave open
their options for future development. In addition, he stated that
the designation on the recorded plat showing the road as a “private
drive” “is a disclosure that it is private as opposed to public,”
and that such designation does not restrict the use of the
property. All parties agree that there are no recorded restrictive
covenants which would prohibit development of the Darbo lot.
Our court has held that when a recorded instrument is plain
and unambiguous, its construction is a matter of law. Lovin v.
Crisp, 36 N.C. App. 185, 243 S.E.2d 406 (1978). In the instant
case, the recorded plat map shows a “right-of-way private drive.”
Given the testimony presented at trial by Joe Furman of the Watauga
County Planning Department, we do not find this designation is
plain and unambiguous. Although plaintiffs clearly have a right-
of-way, it is unclear whether the right-of-way was intended to be
restricted as a private driveway thereby limiting development of
the Darbo lot.
With respect to the County Ordinance, our courts have held
that “[w]here an issue of statutory construction arises, theconstruction adopted by those who execute and administer the law in
question is relevant and may be considered. Such construction is
entitled to 'great consideration.'” MacPherson v. City of
Asheville, 283 N.C. 299, 307, 196 S.E.2d 200, 206 (1973) (quoting
Gill v. Commissioners, 160 N.C. 176, 76 S.E. 203 (1912)). “'The
rules applicable to the construction of statutes are equally
applicable to the construction of municipal ordinances.'” Knight
v. Town of Knightdale, 164 N.C. App. 766, 769, 596 S.E.2d 881, 884
(2004) (quoting Cogdell v. Taylor, 264 N.C. 424, 428, 142 S.E.2d
36, 39 (1965)). Further, “[t]he basic rule of statutory
construction 'is to ascertain and effectuate the intention of the
municipal legislative body.'” Id. (quoting George v. Town of
Edenton, 294 N.C. 679, 684, 242 S.E.2d 877, 880 (1978)). The best
indication of the municipal legislative body's intent is the
“language of the statute or ordinance, the spirit of the act and
what the act seeks to accomplish.” Id. (quoting Coastal Ready-Mix
Concrete Co. v. Board of Comm'rs, 299 N.C. 620, 629, 265 S.E.2d
379, 385, reh'g denied, 300 N.C. 562, 270 S.E.2d 106 (1980)).
Where an “ordinance is clear and unambiguous, its plain meaning
will be enforced. An interpretation that results in illogical or
absurd consequences should be avoided.” Pritchard v. Elizabeth
City, 81 N.C. App. 543, 549, 344 S.E.2d 821, 824 (1986) (internal
citation omitted).
In the present case, the County Ordinance in question is not
plain and unambiguous. Rather, the ordinance lacks specificity
regarding roads designated as rights-of-way, and the limitationswhich may be placed on these roads as well as an individual's
subsequent ability to modify the designation. Although the Watauga
County Planning Board declined to resolve the issue on behalf of
the County due to the disagreement between the parties, the trial
court heard testimony from the long-time director of the Planning
Department, in which he clearly stated that it is the usual custom
of the Planning Board to upgrade private drives to county standard
roads. He further testified that there are no ordinances
prohibiting this upgrade, and that unless there is some private
legal prohibition, such as a restrictive covenant, the private
drive may be upgraded provided it satisfies the necessary width
requirements. Furman stated that developers typically will leave
forty-five foot rights-of-way on their plats, accessing undeveloped
parts of the land, so that future development will not be limited
by the width of the road.
When the trial court was presented with a plat and a county
ordinance that were not plain and unambiguous, the trial court,
sitting without a jury, had the duty to make its own findings of
fact, which if supported by evidence, are conclusive on appeal.
Williams v. Pilot Life Insur. Co., 288 N.C. 338, 342, 218 S.E.2d
368, 371 (1975). In the instant case, the trial court was
presented with sufficient evidence showing that it was the County's
custom to upgrade private driveways to county standard roads in
order to further development. The court also heard testimony from
the original developer indicating that the road in question likely
was labeled as such in order to hold open the options for theremaining eight acres, which later became the Darbo lot.
Therefore, were the trial court to have applied the interpretation
of the plat and ordinances as defendants would prefer, the results
would be illogical. Their interpretation would limit the Darbos'
ability to subdivide the eight acres of the Darbo lot into no more
than two lots. The trial court properly gave deference to the
Watauga Planning Board, which actually administers and executes the
ordinances. Accordingly we hold that there was sufficient evidence
to support the trial court's findings of fact, and the court's
conclusions of law were similarly supported by these findings of
fact.
Affirmed.
Judges McGEE and McCULLOUGH concur.
*** Converted from WordPerfect ***