Appeal by plaintiffs from order entered 20 October 2004 by
Judge Ernest Fullwood in New Hanover County Superior Court. Heard
in the Court of Appeals 6 December 2005.
SHANKLIN & NICHOLS, LLP, by Kenneth A. Shanklin and Matthew A.
Nichols, for plaintiffs-appellants.
E. Holt Moore, III, for defendant-appellee.
LEWIS, Judge.
Timothy Allen Ward (“Timothy”) and Donnie H. Ward (“Donnie”)
(collectively, “plaintiffs”) appeal the trial court order granting
summary judgment in favor of New Hanover County (“defendant”). For
the reasons discussed herein, we affirm the trial court's order.
The facts and procedural history pertinent to the instant
appeal are as follows: Plaintiffs are the owners of a commercial
marina located in Wilmington, North Carolina. In 2002, plaintiffs
requested the New Hanover County Planning Staff (“the Planning
Staff”) approve the use of a “forklift” on their property to move,
store, launch, maintain, and repair boats. Plaintiffs contended
the forklift's use was covered by a 1971 Special Use Permit (“thePermit”) granted to their predecessor in title. According to
plaintiffs, the Permit authorized the use of the property as a
“[m]arina” and contained no express prohibition regarding the
operation of a forklift on the property. In response, the Planning
Staff contended the operation of a forklift on the property was
prohibited and the site plan proposed by plaintiffs was
inconsistent with the use allowed by the Permit.
After plaintiffs and the Planning Staff failed to reach an
agreement regarding whether the forklift could be used under the
terms of the Permit, plaintiffs requested the Planning Staff
administratively modify the Permit to allow the use of the forklift
on the property. However, on 31 October 2003, plaintiffs' counsel
wrote the following letter to the Planning Staff:
With respect to the request by [Timothy] for
administrative modification of his special use
permit with respect to the property . . . ,
please consider this our formal withdrawal of
the site plan to administratively modify the
special use permit. Thank you.
In April 2004, plaintiffs submitted a second site plan
regarding the use of the marina. In a letter dated 7 May 2004,
Senior Planner Baird Stewart (“Stewart”) replied in pertinent part
as follows:
Please be advised that the New Hanover County
Planning Staff and Zoning Enforcement Staff
met to review your site plan for Carolina
Marina & Yacht Club . . . . As noted
previously any plans submitted for this
project will be considered a revision to the
original 1971 Special Use Permit. Per section
71-1(9) of the New Hanover County Zoning
Ordinance “Minor changes shall be reviewed by
the Planning Department and upon favorable
recommendation by the Planning Director may beapproved by the Superintendent of Inspections.
Such approval shall not be granted should the
proposed revisions cause or contribute to:
(A) A change in the character of the
Development. . . .” Any proposed revisions
that constitute[] something more than a minor
change as determined by [the] Staff [] would
have to go back through the Planning Board and
County Commissioners Public Hearing
Process. . . .
As indicated in previous correspondence [the
Planning Staff] continues to believe that the
boat ramp was originally intended to be the
means to provide access to the water for boats
that were being trailered by users of the
facility, and that the use of a boat lift
system or forklift was not envisioned for this
particular marina. Therefore, [the Planning
Staff] believes that the use of a boatlift or
forklift or similar type equipment would be a
change in the character of the development.
You have indicated in previous correspondence
and discussions that the use of a forklift is
planned. This specific concern will need to
be addressed by you with specific language
noted on your plan, prior to any
administrative revision being considered by
[the] Staff.
Following receipt of this letter, plaintiffs' counsel wrote
the County Attorney a letter dated 14 May 2004, stating in
pertinent part as follows:
This letter follows our discussions yesterday
and this morning regarding [Stewart's] May 7,
2004 letter to my client . . . . I appreciate
you clarifying for me that Mr. Stewart's
letter is simply part of the ongoing
discussions that [Timothy] and this firm have
had with [defendant] regarding the site plans
for [Timothy's] marina property. Accordingly,
you have confirmed that Mr. Stewart's letter
is not a finding or determination by the
County that requires, or even allows,
[Timothy] to make a formal appeal to the Board
of Adjustment or other Board . . . . It is my
understanding that only the County
Superintendent of Inspections can issue such a
determination that is subject to appeal.
Please contact me if I am mistaken about the
foregoing.
On 16 June 2004, plaintiffs filed a declaratory judgment
complaint against defendant, alleging “judicial declaration is
necessary and appropriate at this time under all of the
circumstances” and requesting the trial court “decree[] that
[plaintiffs] are entitled to use a forklift [on the property] in
connection with their operation of a commercial marina” and “issue
a permanent injunction enjoining [defendant], its officers and
agents from interfering with [plaintiffs'] lawful use of a forklift
on [the property] under [the Permit].” On 15 July 2004, defendant
filed an answer asserting, inter alia, that plaintiffs' complaint
should be dismissed due to plaintiffs' failure to exhaust their
administrative remedies. Following cross-motions for summary
judgment, the trial court held a hearing on the matter on 6 October
2004. In an order entered 20 October 2004, the trial court
concluded “[t]here are no material issues of fact between the
parties as to whether [plaintiffs] have exhausted their
administrative remedies with [defendant],” and the trial court
granted summary judgment in defendant's favor. The trial court's
order also dismissed as moot several motions related to the
intervention of approximately thirty-three of plaintiffs'
neighbors. However, the purported intervenors have neither sought
appeal of this portion of the trial court order nor submitted
briefs regarding the instant appeal. Plaintiffs appeal the entry
of summary judgment.
The dispositive issue on appeal is whether the trial court
erred by granting summary judgment in defendant's favor.
Plaintiffs argue their declaratory complaint was properly filed and
the trial court erred by concluding plaintiffs failed to exhaust
their administrative remedies. We disagree.
“As a general rule, where the legislature has provided by
statute an effective administrative remedy, that remedy is
exclusive and its relief must be exhausted before recourse may be
had to the courts.”
Presnell v. Pell, 298 N.C. 715, 721, 260
S.E.2d 611, 615 (1979) (citations omitted);
see also Justice for
Animals, Inc. v. Robeson County, 164 N.C. App. 366, 369, 595 S.E.2d
773, 775 (2004)
(“If a plaintiff has failed to exhaust its
administrative remedies, the court lacks subject matter
jurisdiction and the action must be dismissed.”) (citing
Shell
Island Homeowners Ass'n v. Tomlinson, 134 N.C. App. 217, 220, 517
S.E.2d 406, 410 (1999)).
This is especially true where a statute
establishes . . . a procedure whereby matters
of regulation and control are first addressed
by commissions and agencies particularly
qualified for the purpose. In such a case,
the legislature has expressed an intention to
give the administrative entity most concerned
with a particular matter the first chance to
discover and rectify error. Only after the
appropriate agency has developed its own
record and factual background upon which its
decision must rest should the courts be
available to review the sufficiency of its
process. An earlier intercession may be both
wasteful and unwarranted. “To permit the
interruption and cessation of proceedings
before a commission by untimely and premature
intervention by the courts would completely
destroy the efficiency, effectiveness, and
purpose of administrative agencies.”
Presnell, 298 N.C. at 721-22, 260 S.E.2d at 615 (citations
omitted).
Regarding municipal zoning classification and enforcement,
N.C. Gen. Stat. § 153A-340(c) (2003) authorizes a county to create
zoning ordinances or regulations which allow
a board of adjustment [to] determine and vary
their application in harmony with their
general purpose and intent and in accordance
with general or specific rules therein
contained. The regulations may also provide
that the board of adjustment or the board of
commissioners may issue special use permits or
conditional use permits in the classes of
cases or situations and in accordance with the
principles, conditions, safeguards, and
procedures specified therein and may impose
reasonable and appropriate conditions and
safeguards upon these permits. . . . When
issuing or denying special use permits or
conditional use permits, the board of
commissioners shall follow the procedures for
boards of adjustments . . ., and every such
decision of the board of commissioners shall
be subject to review by the superior court by
proceedings in the nature of certiorari.
Our legislature recently amended N.C. Gen. Stat. § 153A-340,
transferring portions of subsection (c) to (c1) and providing,
inter alia, that “no change in permitted uses may be authorized by
variance.” Session Laws 2005-426, s.5(b). These amendments became
effective 1 September 2005.
Id.
Similar to N.C. Gen. Stat. § 153A-340, N.C. Gen. Stat. § 153A-
345 (2003) provides in pertinent part as follows:
(a) A county may designate a planning agency
to perform any or all of the duties of a board
of adjustment in addition to its other duties.
(b) The board of adjustment shall hear and
decide appeals from and review any order,
requirement, decision, or determination madeby an administrative official charged with
enforcing an ordinance adopted pursuant to
this Part. Any person aggrieved . . . may
take an appeal. . . .
(c) The zoning ordinance may provide that the
board of adjustment may permit special
exceptions to the zoning regulations in
classes of cases or situations and in
accordance with the principles, conditions,
safeguards, and procedures specified in the
ordinance. The ordinance may also authorize
the board to interpret zoning maps and pass
upon disputed questions of lot lines or
district boundary lines and similar questions
that may arise in the administration of the
ordinance. . . .
. . . .
(e) Each decision of the board is subject to
review by the superior court by proceedings in
the nature of certiorari. . . .
N.C. Gen. Stat. § 153A-345 was also recently amended. The
amendments, effective 1 January 2006, allow a county to designate
“a planning board or the board of county commissioners” to perform
any or all of the duties of a board of adjustment and,
inter alia,
further prohibit the use of a variance to authorize a “change in
permitted uses.” Session Laws 2005-418, s.8(b).
In this case, Article X of the New Hanover County Zoning
Ordinance (“the Ordinance”) provides as follows:
Duties of Building Inspector, Board of
Adjustment, Courts and County Commissioners as
to Matters of Appeal
108-1 It is the intention of this
Ordinance that all questions arising
in connection with the enforcement
of this Ordinance shall be presented
first to the Inspections Director or
when so delegated to the Zoning
Enforcement Officer and that such
questions shall be presented to theBoard of Zoning Adjustment only on
appeal from the Inspections Director
or Zoning Enforcement Officer; and
that from the decision of the Board
of Adjustment recourse shall be to
the courts as provided by law.
Article VII of the Ordinance contains “Provisions For Uses
Allowed As Special Uses” and authorizes “the Board of County
Commissioners” to issue special use permits “after a public hearing
and after Planning Board review and recommendation.” Article VII,
Section 71-1. Although Article VII requires that those applicants
issued special use permits comply with the specific conditions
imposed by their permit as well as the general regulations of the
Ordinance, Section 71-1(9) of Article VII allows “[t]he original
applicants [issued a special use permit], their successors or their
assignee [to] make minor changes in the [permitted special
structure or use] provided the necessity for these changes is
clearly demonstrated.” Nevertheless, Section 71-1(9) also requires
that such “[m]inor changes . . . be reviewed by the Planning
Department,” and it authorizes the “Superintendent of Inspections”
to approve the changes only if the Planning Director issues a
“favorable recommendation.” Furthermore,
Such approval shall not be granted should the
proposed revisions cause or contribute to:
(A) A change in the character of the
development[,]
(B) A change of design for, or an increase in
the hazards to pedestrian and vehicle traffic
circulation, or
(C) A reduction in the originally approved
setbacks from roads and/or property lines.
Id.
As detailed above, neither the Planning Staff nor the
Superintendent of Inspections have reached a formal decision
regarding plaintiffs' use of their property. Plaintiffs admit they
originally “consulted” with members of the Planning Staff to
“determine if [the Planning Staff] would approve an administrative
change to the site plan for the[ir] commercial marina.”
Nevertheless, citing their letter of 31 October 2003, plaintiffs
contend they “officially withdrew their request and new site plan
for administrative approval of the proposed expansion” and are thus
presently seeking an “
interpretation . . . of [their] existing
rights” under the Permit rather than an expansion of their rights
under the Permit. However, plaintiffs offer no explanation for
either the “Tuesday 4/27/04” filing of the “site plan for Carolina
Marina & Yacht Club” referred to in Stewart's 7 May 2004 letter or
the “ongoing discussions . . . with [defendant] regarding the site
plans” referred to in their own 14 May 2004 letter. Instead,
plaintiffs assert our Supreme Court recognized “a declaratory
judgment action []as a proper forum for a legal challenge to a
zoning ordinance's requirement for a Church to pave its parking
lot” in
Grace Baptist Church v. City of Oxford, 320 N.C. 439, 358
S.E.2d 372 (1987), thereby authorizing the instant action.
However, we note that in a footnote detailing the prior history of
Grace Baptist, the Court expressly stated that because neither of
the parties raised the issue, it was not “decid[ing] the question
of whether a party may seek an injunction against enforcement of anordinance where it has failed to exhaust its administrative
remedies.”
Id. at 440 n.1, 358 S.E.2d at 373 n.1. Accordingly, we
are not persuaded
Grace Baptist stands for the proposition advanced
by plaintiffs.
Plaintiffs also assert our Supreme Court's decision in
Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553
(1987), “shows that . . . Superior Court is the proper venue for
determining issues of
interpretation of existing rights under
special use permits.” Plaintiffs are again mistaken.
In
Davidson County, the City of High Point attained a special
use permit from Davidson County which allowed High Point to upgrade
a wastewater treatment facility located in an unincorporated
portion of Davidson County, on the condition that any “sewer
service to the citizens of Davidson County [was] subject to final
approval by the Davidson County Board of Commissioners.”
Id. at
253, 362 S.E.2d at 555. The permit was issued in 1983, and it
“directed the attention of those who were dissatisfied with the
Board's decision on the permit to the right of appeal to Davidson
County Superior Court within thirty days after the applicant's
receipt of the permit.”
Id. at 254, 362 S.E.2d at 555. High Point
subsequently sought to annex sixty acres in Davidson County and
provide sewer service to residents through an outfall from the
upgraded facility. On appeal from a judgment enjoining High Point
from using the facility to provide sewer services to its citizens
without prior approval from Davidson County, the Supreme Court
“deal[t] with the jurisdictional conflict between the statutorypower cities possess to provide services through public enterprises
and the statutory power counties possess to regulate the use of
land within their boundaries through zoning ordinances.”
Id. at
253, 362 S.E.2d at 554. After concluding Davidson County had no
authority to restrict or regulate High Point's provision of sewer
services to city residents,
id. at 259, 362 S.E.2d at 558, the
Court further rejected Davidson County's contention that High Point
was precluded from challenging the condition of the special use
permit, noting that
[s]ince the City was unaware of the County's
differing interpretation of [the condition
regarding sewer provision], it could not have
known that it should have appealed the
issue . . . within thirty days of receiving
the permit. . . . The County cannot now be
heard to assert that the City should have
pursued administrative remedies for a problem
it was unaware existed.
Id. at 260, 362 S.E.2d at 558.
We are not persuaded
Davidson County authorizes plaintiffs'
instant declaratory judgment action. In contrast to the facts of
this case, the party seeking interpretation of the special use
permit in
Davidson County was unable to pursue and exhaust the
administrative remedies afforded it because it was unaware of the
need to challenge the permit while those remedies existed. Here,
defendant placed no such time restrictions upon the special use
permit issued to plaintiffs' predecessors in title. Instead, by
the express terms of the Ordinance, a special use permit's
applicant, successors, and assignees are each afforded an
opportunity to pursue administrative remedies related to theexpansion and interpretation of the permit, regardless of when the
issues underlying the remedies arise. Further, as discussed above,
plaintiffs have sought an administrative remedy in the instant
case, petitioning the Planning Staff for administrative
modification of the Permit and submitting site plans regarding the
use of the marina at least twice. They did not complete those
efforts.
In sum, plaintiffs have failed to demonstrate why they should
be allowed to abandon their “ongoing discussions” with defendant
and file a declaratory judgment action in the trial court,
notwithstanding their admitted “[f]rustrat[ion] [with] these
discussions” and alleged “simpl[e] attempt[] to obtain a speedy
interpretation of [their] rights” under the Permit. Therefore, as
plaintiffs have failed to first exhaust their administrative
remedies by obtaining a formal determination from defendant
regarding their proposed use of the marina and rights under the
Permit, we affirm the trial court order granting summary judgment
in favor of defendant.
Affirmed.
Judges WYNN and STEELMAN concur.
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