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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
JOHN B. WOODLIEF and wife, CYNTHIA M. WOODLIEF, Plaintiffs, v.
MECKLENBURG COUNTY, a body politic and corporate of the State of
North Carolina, CITY OF CHARLOTTE, a municipal corporation of the
State of North Carolina, CHARLOTTE ZONING BOARD OF ADJUSTMENT,
INSITE ENGINEERING AND SURVEYING, PLLC, E.C. GRIFFITH COMPANY,
DORSETT HITCHENS PROPERTIES, LLC, and JOEL MADDEN, Defendants
Filed: 21 February 2006
1. Zoning_revision of application for floodlands development permit_considered
under original ordinance
The trial court did not err by granting summary judgment for defendants in a declaratory
judgment action arising from an application to develop property next to that of plaintiffs in an
area that frequently flooded. Plaintiffs contended that the court erred by allowing defendants to
revise their application under the ordinance in effect when the original application was filed (the
2000 ordinance), rather than a new ordinance (the 2003 ordinance). Both ordinances were silent
about grandfathering, and the practice of the Planning Commission was to evaluate subdivision
ordinances under the regulatory rules existing at the time of the application. Land development
is a process that occurs over time, and a request for further information by a reviewing agency
does not require that the process begin anew.
2. Zoning_development within floodway_permit not improperly allowed
Plaintiffs did not show that the Board of Adjustment acted arbitrarily, oppressively,
manifestly abused its authority, or committed an error of law by concluding that defendant's
street and utility development within a FEMA floodway did not constitute an impermissible
encroachment. Summary judgment was correctly granted for defendants.
3. Zoning_floodway development_application to proper entity
Defendants applied to the proper entity to obtain a development permit in an area subject
to flooding when it applied to the Floodplain Administrator for Storm Water rather than directly
to the Board of Adjustment. The Board of Adjustment did in fact conclude that the development
was in accord with the applicable ordinance and approved the issuance of the permit.
Judge HUDSON concurring in the result.
Appeal by plaintiffs from order entered 5 May 2004 by Judge
James W. Morgan and order entered 17 December 2004 by Judge Richard
D. Boner in Mecklenburg County Superior Court. Heard in the Court
of Appeals 8 December 2005.
Smith Moore LLC, by Thomas E. Terrell, Jr. and Laurie D.
Clark, for plaintiffs-appellants.
Charlotte City Attorney, by Senior Assistant City Attorney
Robert E. Hagemann, for petitioner-appellees Mecklenburg
County, City of Charlotte and Charlotte Zoning Board of
Shumaker, Loop & Kendrick, LLP, by William H. Sturges, for
petitioners-appellees Insite Engineering and Surveying, PLLC,
E.C. Griffith Company, Dorsett Hitchens Properties, LLC, and
John B. Woodlief and Cynthia M. Woodlief (plaintiffs) appeal
from the trial court's 17 December 2004 order granting summary
judgment in favor of Mecklenburg County, the City of Charlotte, the
Charlotte Zoning Board of Adjustment, Insite Engineering and
Surveying, PLLC, E.C. Griffith Company, Dorsett Hitchens
Properties, LLC, and Joel Madden (collectively, defendants). We
Plaintiffs are the owners of a parcel of land used for
residential purposes located in Charlotte. Defendant, E.C.
Griffith Company (Griffith), owns approximately 6.4 acres of
undeveloped woodland property abutting plaintiff's parcel. Both
properties adjoin the Briar Creek floodway, an area regulated by
the federal and local governments to control flooding. This area
has experienced significant flooding in past years.
The Federal Emergency Management Agency (FEMA) regulates
uses of land that are subject to flooding. FEMA requires states
and local communities to adopt standards equal to or morerestrictive than the federal criteria in order to qualify for
federal disaster relief and insurance.
Prior to 2000, the City of Charlotte regulated the 1.0 foot
surcharge FEMA floodway, as required by FEMA's flood insurance
program. In the late 1990s, the City of Charlotte and Mecklenburg
County began to develop and adopt more restrictive flood protection
regulations. On 28 February 2000, the Charlotte City Council
established a more restrictive floodway using a 0.5 foot surcharge
instead of the 1.0 foot FEMA surcharge to locate the floodway
encroachment line. The City Council also established a 0.1 foot
surcharge local floodway known as the FLUM (Floodplain Land Use
Map) floodway. The FLUM floodway further limits uses and
development than what is permitted within the FEMA floodway.
Griffith and defendant, Dorsett Hitchens Properties, LLC.
(Dorsett), decided to jointly develop the 6.4 acre parcel into a
residential subdivision. Griffith and Dorsett employed defendant,
Insite Engineering and Surveying, PLLC (Insite), to apply for a
floodlands development permit. Insite's employee, defendant Joel
Madden (Madden), filed an application for a permit with the
Mecklenburg County Storm Water Services Department (Storm Water)
on Griffith's and Dorsett's behalf on 3 March 2003. Storm Water
issued Permit Number 917 on 27 March 2003.
In May 2004, Storm Water determined it had mistakenly issued
the permit. The Charlotte City Council adopted new floodway
regulations on 12 May 2003, after Permit Number 917 was issued.
Storm Water sent Griffith and Madden a letter stating Permit Number917 had been revoked. The letter also advised the applicant
could revise its application to comply with the 2000 ordinance in
effect at the time the original application was filed.
Griffith, through Insite, submitted a revised flood study in
June 2004. Storm Water found the revised flood study complied with
the City of Charlotte's floodplain regulations in effect at the
time of the application. Storm Water reissued Permit Number 917.
This permitting decision was affirmed and adopted by the Charlotte
Zoning Board of Adjustment on 4 November 2003.
Plaintiffs filed a complaint for declaratory judgment in
Mecklenburg County Superior Court challenging the validity of
Permit Number 917. On 5 May 2004, the trial court granted
defendant's motion for partial judgment on the pleadings. On 17
December 2004, the trial court granted summary judgment in favor of
defendants. Plaintiff appeals.
Plaintiffs contend the trial court erred in granting summary
judgment for defendants and argue: (1) the flood permit was issued
under a repealed ordinance; (2) the flood permit was issued in
violation of the 2000 ordinance; and (3) the flood permit was
issued by an entity that lacked the legal authority to issue it.
Plaintiffs also assigned error to the trial court's 5 May 2004
order. Plaintiffs failed to argue their assignment of error to the
order entered 5 May 2004 on appeal. N.C.R. App. P. 28(b)(6) (2005)
(Assignments of error not set out in the appellant's brief, or in
support of which no reason or argument is stated or authoritycited, will be taken as abandoned.). This assignment of error is
III. Standard of Review
A. Summary Judgment
In a motion for summary judgment, the movant has the burden of
establishing that there are no genuine issues of material fact.
The movant can meet the burden by either: 1) Proving that an
essential element of the opposing party's claim is nonexistent; or
2) Showing through discovery that the opposing party cannot produce
evidence sufficient to support an essential element of his claim
nor [evidence] sufficient to surmount an affirmative defense to his
claim. Price v. Davis
, 132 N.C. App. 556, 559, 512 S.E.2d 783,
786 (1999) (citing Messick v. Catawba County
, 110 N.C. App. 707,
712, 431 S.E.2d 489, 492-93, disc. rev. denied
, 334 N.C. 621, 435
S.E.2d 336 (1993)).
When a motion for summary judgment is made and
supported as provided in this rule, an adverse
party may not rest upon the mere allegations
or denials of his pleading, but his response,
by affidavits or as otherwise provided in this
rule, must set forth specific facts showing
that there is a genuine issue for trial. If he
does not so respond, summary judgment, if
appropriate, shall be entered against him.
N.C. Gen. Stat. § 1A-1, Rule 56(e) (2003).
Hines v. Yates, 171
N.C. App. 150, 157, 614 S.E.2d 385, 389 (2005).
B. Statutory Construction
We review an issue of statutory construction de novo . A&F
Trademark, Inc. v. Tolson, 167 N.C. App. 150, 153-54, 605 S.E.2d
187, 190 (2004). The primary goal of statutory construction is to
effectuate the legislature's purpose and intention. MacPherson v.City of Asheville, 283 N.C. 299, 307, 196 S.E.2d 200, 206 (1973).
'The rules applicable to the construction of statutes are equally
applicable to the construction of municipal ordinances.' Id.
(quoting Cogdell v. Taylor, 264 N.C. 424, 142 S.E.2d 36 (1965)).
When reviewing a board of adjustment's interpretation of an
ordinance, 'our task on appeal is not to decide whether another
interpretation of the ordinance might reasonably have been reached
by the board,' but to decide if the board 'acted arbitrarily,
oppressively, manifestly abused its authority, or committed an
error of law' in interpreting the ordinance. Whiteco Outdoor
Adver. v. Johnston County Bd. of Adjust., 132 N.C. App. 465, 470,
513 S.E.2d 70, 74 (1999) (quoting Taylor Home v. City of Charlotte,
116 N.C. App. 188, 193, 447 S.E.2d 438, 442, disc. rev. denied, 338
N.C. 524, 453 S.E.2d 170 (1994)).
IV. Issuance of the Flood Permit
A. Evaluation Under the 2000 Ordinance
 Plaintiffs argue the trial court erred in granting summary
judgment to defendants because Storm Water evaluated the June 2004
revised flood study under the 2000 floodplain ordinance instead of
the 2003 ordinance. We disagree.
The original application was submitted on 3 March 2003 when
the 2000 ordinance controlled the conditions of the permit. The
City amended the flood way regulations in May 2003. Insight's
revised flood study was submitted in June 2004. The 2003 ordinance
is silent on allowing filed flood lands development permit
applications to be evaluated under standards in effect when filed. Plaintiffs argue the trial court erred in applying a grandfather
provision when the 2003 ordinance contains no such provision.
The letter from Storm Water to Griffith and Madden stated:
If you wish to submit a revised model or
models still showing the fill within the FEMA
floodway line or a revised application with
different fill parameters and revised models
for our review using the ordinance that was in
effect at the time of your original submittal
(March 3, 2003), please do so no later than
July 12, 2004. Failure to submit by that date
will result in your original application being
deemed to have been abandoned.
(Emphasis supplied). An inter-office memorandum within the
Planning Commission stated:
We have been informed that Mecklenburg County
Storm Water Services has revoked the
Floodlands Development Permit necessary for
the development of Eastover Woods after
determining that it was mistakenly issued.
However, Mecklenburg County Storm Water
Services has given the developer until July
12, 2004 to re-submit information in support
of their original Floodland Development Permit
Storm Water considered the following factors in determining
whether the revised flood study would be evaluated under the 2000
ordinance: (1) both the 2000 and 2003 ordinances are silent on the
issue of evaluating permit applications submitted and filed prior
to the adoption of the 2003 ordinance; and (2) the Charlotte
Mecklenburg Planning Commission had a prior pattern and practice of
evaluating subdivision applications under the regulatory rules
existing at the time of the application for preliminary subdivisionapproval, where the subsequently adopted regulations are silent on
the issue of grandfathering.
In Northwestern Financial Group v. County of Gaston, our
Supreme Court addressed an explicit grandfathering provision. 329
N.C. 180, 405 S.E.2d 138 (1991). Gaston County adopted a mobile
home park ordinance on 1 July 1986. Id. at 182, 405 S.E.2d at 139.
Gaston County amended the ordinance in September 1987. Id. The
amended ordinance contained the following language: [t]he
provisions of the Gaston County Mobile Home Park Ordinance Dated
July 1, 1986, shall apply to those . . . plans . . . submitted to
the Gaston County Division of Planning after July 1, 1986 and prior
to the effective date of this ordinance. Id. The plaintiff
submitted a plan for a mobile home park in June 1987 prior to the
effective date of the ordinance's amendment. Id. The plaintiff
submitted a revised plan shortly before the ordinance was amended.
Id. at 183, 405 S.E.2d at 140. In response to requests from Gaston
County, the plaintiff further revised and resubmitted the plans
three times after the 1987 ordinance became effective. Gaston
County refused to accept the fifth set of revised plans under the
1986 ordinance. 329 N.C. at 185, 405 S.E.2d at 141.
In Northwestern Financial Group, our Supreme Court determined
whether the plaintiff waived its right to have the plan reviewed
under the 1986 ordinance by either an affirmative act or a failure
to act. Id. at 188, 405 S.E.2d at 143. The Court stated:
The Court of Appeals held that the revised
plans submitted after the enactment of the new
ordinance did not relate back to plans
submitted prior to the enactment of thatordinance. We do not agree. We conceive the
issue to be not so much whether the plans
relate back, as it is whether the submission
of the subsequent revised plans in response to
the requirements or recommendations of
regulatory bodies resulted in a waiver or
abandonment of Northwestern's right to review
under the 1986 ordinance. The more pertinent
inquiry as to whether such right is waived or
abandoned is through examination of the
question of whether the subsequent plans were
made in a good faith effort to bring its
application into compliance with the 1986
ordinance. We hold, based on the findings by
the trial court, which are amply supported by
the evidence, that Northwestern submitted the
revised plans in response to the modifications
recommended by a regulatory agency, proceeded
in good faith to comply with the requirements
of the 1986 ordinance, and did not waive or
abandon its right to review under that
ordinance. The revised plans were essentially
a part of the normal give and take between the
applicant and the regulatory authorities.
Id. at 188-89, 405 S.E.2d at 143 (emphasis supplied). Good faith
efforts to comply with the recommendations of the reviewing
agencies should not prejudice the applicant. Id. at 190, 405
S.E.2d at 144.
Here, the Griffith application was submitted and filed when
the 2000 ordinance controlled the development. Griffith submitted
additional information in connection with the original application
after the ordinance was amended. Storm Water considered the
revised flood study to be part of the original application process
and not a new and separate permit application. The submission of
the revised flood study was part of the normal give and take
between the applicant and the regulatory authorities. Id. at 189,
405 S.E.2d at 143. In submitting the revised flood study, Griffith
was making a good faith [effort] to comply with requirements ofthe . . . ordinance in effect at the time the application was
filed. Id. at 190, 405 S.E.2d at 144. Defendants [were] entitled
to rely upon the language of the ordinance in effect at the time
[Griffith] applied for the permit. Lambeth v. Town of Kure Beach,
157 N.C. App. 349, 351, 578 S.E.2d 688, 690 (2003) (citing
Northwestern Financial Group, 329 N.C. 180, 405 S.E.2d 138).
Land development is somewhat analogous to litigation. Neither
is a snapshot, a freeze in time, but rather a process that occurs
over time, sometimes months and years. Once a claimant timely
files a lawsuit, the claimant tolls the statute of limitations for
those claims. The claimant may amend his pleadings, dismiss
without prejudice and refile, or add parties or claims to the
original action. N.C. Gen. Stat. § 1A-1, Rule 15(a) (2003); N.C.
Gen. Stat. § 1A-1, Rule 41(a) (2003); N.C. Gen. Stat. § 1A-1, Rule
14(a) (2003); N.C. Gen. Stat. § 1A-1, Rule 18(a) (2003). Both land
development and litigation hold the potential for multiple
sequences and paths. The outcome depends upon numerous dependent
and independent, but correlated, variables. The design and
construction of a project is specifically tailored to comply with
the regulations in effect at the time of application for permits.
A request for further information or clarification of an existing
application by a reviewing agency or board does not require the
entire application and permitting process to begin anew. To hold
otherwise would allow compliance with regulations and permitting to
become a moving target to ever changing revisions or amendments.
Although our review is de novo, we give deference to theagency's interpretation of the ordinance in issue. County of
Durham v. N.C. Dept. of Env't and Natural Resources, 131 N.C. App.
395, 396-97, 507 S.E.2d 310, 311 (1998) ([E]ven when reviewing a
case de novo, courts recognize the long-standing tradition of
according deference to the agency's interpretation. The agency's
past pattern and practice in similar applications also supports
upholding the agency's decision in the absence of other controlling
authority. This assignment of error is overruled.
B. Issuance in Accordance with the 2000 Ordinance
 Plaintiffs contend the trial court erred in granting
summary judgment in favor of defendants because Permit Number 917
was issued in violation of Section 9-21(4)(a) of the 2000
ordinance. We disagree.
The 2000 ordinance restricts development within both the FEMA
and FLUM floodways. Section 9-21(4)(a) of the 2000 ordinance
addresses the FEMA floodway and provides:
With the exception of stream crossings which
shall not raise the base flood elevation more
than one foot, no encroachments, including
fill, new construction, substantial
improvements and other developments shall be
permitted within the FEMA floodway, unless it
has been demonstrated through hydrologic and
hydraulic analysis performed in accordance
with standard engineering practice that such
encroachment would not result in any increase
in flood level during occurrence of a FLUM
base flood discharge, changes in FEMA floodway
elevations, or FEMA floodway width.
The revised floodplain study shows development occurring
inside the FEMA floodway. The proposed subdivision plan showsconstruction of a cul-de-sac, driveway connections to the road,
utility installations, and land clearing activities located within
the FEMA floodway. Plaintiffs assert Griffith failed to
demonstrate the encroachment will cause no rise in the flood level
to occur during a FLUM base flood discharge as required by Section
The term encroachment is not defined in the 2000 ordinance.
Section 9-21(4)(c) provides:
The following uses shall be permitted by right
within the floodway district to the extent
that they are otherwise permitted by the
zoning ordinance, and provided they do not
employ structures, fill or storage of
materials or equipment except as provided
. . . .
2. Loading areas, parking areas, rotary
aircraft ports and other similar uses,
provided they are no closer than twenty-five
(25) feet to the stream bank;
. . . .
5. Streets, bridges, overhead utility lines,
creek and storm drainage facilities . . . and
other similar public community or utility
The Board of Adjustment concluded the revised flood study did
not propose any encroachment or activity that would trigger the
application of Former Regulations Sec. 9-21(4)a. The Board also
concluded the proposed activities that will occur in conjunction
with the development are not encroachments under Sec. 9-21(4)a and
are uses permitted by right pursuant to Sec. 9-21(4)c of the FormerRegulations. Plaintiffs have failed to show the Board of
Adjustment 'acted arbitrarily, oppressively, manifestly abused its
authority, or committed an error of law' by concluding the street
and utility development within the FEMA floodway is permitted by
right, does not constitute an impermissible encroachment, and is
exempt. Whiteco Outdoor Adver., 132 N.C. App. at 470, 512 S.E.2d
at 74. This assignment of error is overruled.
C. Authority of Storm Water
 Plaintiffs argue Griffith did not apply to the proper
entity for purposes of obtaining the permit. We disagree.
Permit Number 917 was sought and obtained from the Floodplain
Administrator for Storm Water. Section 9-19(a) of the 2000
ordinance, entitled, Variance Procedures, states, The zoning
board of adjustment . . . shall hear and decide . . . any proposed
encroachment requests that would result in an increase in the
floodway elevations or floodway widths during the occurrence of a
Plaintiffs assert Griffith should have applied directly to the
Board of Adjustment because it sought permission to place
encroachments in restricted areas and evidence shows the
encroachments would raise the base flood elevation. The Zoning
Board of Adjustment concluded the proposed development was in
accordance with the 2000 ordinance and the proposed construction in
the floodway was exempt from the ordinance. The ordinance
expressly provides for exemptions for development such as
utilities, public roads, and parking areas in the restricted areas. The Zoning Board of Adjustment also expressly stated in its
decision: To the extent . . . that approval of the Charlotte
Zoning Board of Adjustment is necessary, this decision on appeal
shall constitute such approval and issuance of permit #917. This
assignment of error is overruled.
The trial court did not err in granting summary judgment in
favor of defendants. No error of law was committed by the superior
court in ruling the proposed development inside the FEMA floodway
did not constitute an impermissible encroachment under Section 9-
21(4)(a) of the 2000 City of Charlotte Floodway Regulations and
defendant's development is permitted by right under Section 9-
21(4)(c) of the City of Charlotte Floodway Regulations. The trial
court's order is affirmed.
Judge LEVINSON concurs.
Judge HUDSON concurs in result with a separate opinion.
HUDSON, Judge, concurring in result.
While I concur in the result reached by the majority, I
believe that its discussion of grandfathering provisions,
particularly the analogy to litigation, is misplaced. The primary
case cited by the majority, Northwestern Fin. Group, Inc. v. County
of Gaston, concerns a change to an ordinance which explicitly
provided that the old version applied to plans submitted before the
effective date of the change. 329 N.C. 180, 405 S.E.2d 138 (1991). The Court in Northwestern notes that the Board found that this
explicit provision applied, then focuses on whether Northwestern
had waived its application. Id. at 188, 405 S.E.2d at 143. The
language quoted in the majority opinion immediately follows this
Having decided that Northwestern is entitled
to have its application reviewed under the
1986 ordinance, we must next determine whether
Northwestern waived that right by affirmative
acts, that is, by abandonment of the first
plans through the submission of the other
revised plans, or by a failure to act, that
is, the passage of time.
Id. Thus, the language discussed by the majority is focused on
waiver by affirmative acts, which is not the issue before this
Court. In addition, neither party cites a case in which our Courts
have approved grandfathering in the absence of an explicit
authorization, nor have we found one. I do not believe that
creating a process of implicit grandfathering is appropriate here.
The law regarding vesting of a right to proceed under the
prior version of an amended ordinance is well-established:
A party's common law right to develop and/or
construct vests when: (1) the party has made,
prior to the amendment of a zoning ordinance,
expenditures or incurred contractual
obligations substantial in amount, incidental
to or as part of the acquisition of the
building site or the construction or equipment
of the proposed building; (2) the obligations
and/or expenditures are incurred in good
faith; (3) the obligations and/or expenditures
were made in reasonable reliance on and after
the issuance of a valid building permit, if
such permit is required, authorizing the use
requested by the party; and (4) the amended
ordinance is a detriment to the party. Theburden is on the landowner to prove each of
the above four elements.
Browning-Ferris Industries v. Guilford County Bd. of Adj., 126 N.C.
App. 168, 171-72, 484 S.E.2d 411, 414 (1997) (internal quotation
marks and citations omitted).
Here, plaintiffs made expenditures in reliance on the original
permit and the May 2003 letter from Storm Water, and thus acted in
good faith, satisfying the third of the Browning-Ferris Industries
elements. The amended ordinance tightened the floodplain
development restrictions to the detriment of plaintiffs, thus
satisfying the fourth. However, [p]ermits unlawfully or
mistakenly issued do not create a vested right. Clark Stone Co.
v. N.C. Dep't of Env't & Natural Res., 164 N.C. App. 24, 40, 594
S.E.2d 832, 842, disc. appeal dismissed, 358 N.C. 731, 603 S.E.2d
878 (2004). Accordingly, defendants cannot prevail under a theory
of vested rights.
Nevertheless, Storm Water first issued a permit to plaintiffs
on 27 March 2003. In May 2003, Storm Water determined they had
issued the permit in error, and sent plaintiffs a letter revoking
the permit, but advising that the application could be revised and
resubmitted under the 2000 ordinance. Storm Water did not notify
defendants about the error issuing the original permit until early
May; the amendment was adopted 12 May 2003. Because Storm Water
erred in issuing the original permit and did not catch its mistake
in time for defendants to make the necessary revisions, Storm Water
treated this process as a revision and reissue, rather than as a
new submission. Given our deference to an agency's interpretationof its own ordinance, I conclude that this process was proper, and
would affirm on that basis.
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