{ "id": 8353038, "name": "TIMOTHY ALLEN WARD and DONNIE H. WARD, Plaintiffs v. NEW HANOVER COUNTY, Defendant", "name_abbreviation": "Ward v. New Hanover County", "decision_date": "2006-02-07", "docket_number": "No. COA05-423", "first_page": "671", "last_page": "679", "citations": [ { "type": "official", "cite": "175 N.C. App. 671" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "362 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1987, "pin_cites": [ { "page": "555" }, { "page": "555" }, { "page": "554" }, { "page": "558" }, { "page": "558" } ], "opinion_index": 0 }, { "cite": "321 N.C. 252", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566429 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/321/0252-01" ] }, { "cite": "358 S.E.2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727847 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0439-01" ] }, { "cite": "517 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "410" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 217", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11143772 ], "year": 1999, "pin_cites": [ { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0217-01" ] }, { "cite": "595 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "775", "parenthetical": "\"If a plaintiff has failed to exhaust its administrative remedies, the court lacks subject matter jurisdiction and the action must be dismissed.\"" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 366", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8897426 ], "year": 2004, "pin_cites": [ { "page": "369", "parenthetical": "\"If a plaintiff has failed to exhaust its administrative remedies, the court lacks subject matter jurisdiction and the action must be dismissed.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0366-01" ] }, { "cite": "260 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1979, "pin_cites": [ { "page": "615", "parenthetical": "citations omitted" }, { "page": "615", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "298 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573981 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "721", "parenthetical": "citations omitted" }, { "page": "721-22" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0715-01" ] } ], "analysis": { "cardinality": 832, "char_count": 19463, "ocr_confidence": 0.749, "pagerank": { "raw": 2.619301175667371e-07, "percentile": 0.8211949808656798 }, "sha256": "5dfb4d5ec807c1ed95f9cce5fe89d44ea87cc46d8875ea9ee63700c23d1645af", "simhash": "1:cf6fed02e40a0f70", "word_count": 3015 }, "last_updated": "2023-07-14T22:29:36.119960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and STEELMAN concur." ], "parties": [ "TIMOTHY ALLEN WARD and DONNIE H. WARD, Plaintiffs v. NEW HANOVER COUNTY, Defendant" ], "opinions": [ { "text": "LEWIS, Judge.\nTimothy Allen Ward (\u201cTimothy\u201d) and Donnie H. Ward (\u201cDonnie\u201d) (collectively, \u201cplaintiffs\u201d) appeal the trial court order granting summary judgment in favor of New Hanover County (\u201cdefendant\u201d). For the reasons discussed herein, we affirm the trial court\u2019s order.\nThe 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 (\u201cthe Planning Staff\u201d) approve the use of a \u201cforklift\u201d on their property to move, store, launch, maintain, and repair boats. Plaintiffs contended the forklift\u2019s use was covered by a 1971 Special Use Permit (\u201cthe Permit\u201d) granted to their predecessor in title. According to plaintiffs, the Permit authorized the use of the property as a \u201c[mjarina\u201d 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.\nAfter 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\u2019 counsel wrote the following letter to the Planning Staff:\nWith 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.\nIn 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 (\u201cStewart\u201d) replied in pertinent part as follows:\nPlease 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 \u201cMinor changes shall be reviewed by the Planning Department and upon favorable recommendation by the Planning Director may be approved 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. ...\u201d 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. . . .\nAs 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.\nFollowing receipt of this letter, plaintiffs\u2019 counsel wrote the County Attorney a letter dated 14 May 2004, stating in pertinent part as follows:\nThis letter follows our discussions yesterday and this morning regarding [Stewart\u2019s] May 7, 2004 letter to my client.... I appreciate you clarifying for me that Mr. Stewart\u2019s letter is simply part of the ongoing discussions that [Timothy] and this firm have had with [defendant] regarding the site plans for [Timothy\u2019s] marina property. Accordingly, you have confirmed that Mr. Stewart\u2019s 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.\nPlease contact me if I am mistaken about the foregoing.\nOn 16 June 2004, plaintiffs filed a declaratory judgment complaint against defendant, alleging \u201cjudicial declaration is necessary and appropriate at this time under all of the circumstances\u201d and requesting the trial court \u201cdecree[] that [plaintiffs] are entitled to use a forklift [on the property] in connection with their operation of a commercial marina\u201d and \u201cissue a permanent injunction enjoining [defendant], its officers and agents from interfering with [plaintiffs\u2019] lawful use of a forklift on [the property] under [the Permit].\u201d On 15 July 2004, defendant filed an answer asserting, inter alia, that plaintiffs\u2019 complaint should be dismissed due to plaintiffs\u2019 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 \u201c[t]here are no material issues of fact between the parties as to whether [plaintiffs] have exhausted their administrative remedies with [defendant],\u201d and the trial court granted summary judgment in defendant\u2019s favor. The trial court\u2019s order also dismissed as moot several motions related to the intervention of approximately thirty-three of plaintiffs\u2019 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.\nThe dispositive issue on appeal is whether the trial court erred by granting summary judgment in defendant\u2019s 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.\n\u201cAs 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.\u201d 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) (\u201cIf a plaintiff has failed to exhaust its administrative remedies, the court lacks subject matter jurisdiction and the action must be dismissed.\u201d) (citing Shell Island Homeowners Ass\u2019n v. Tomlinson, 134 N.C. App. 217, 220, 517 S.E.2d 406, 410 (1999)).\nThis 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. \u201cTo 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.\u201d\nPresnell, 298 N.C. at 721-22, 260 S.E.2d at 615 (citations omitted).\nRegarding municipal zoning classification and enforcement, N.C. Gen. Stat. \u00a7 153A-340(c) (2003) authorizes a county to create zoning ordinances or regulations which allow\na 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.\nOur legislature recently amended N.C. Gen. Stat. \u00a7 153A-340, transferring portions of subsection (c) to (cl) and providing, inter alia, that \u201cno change in permitted uses may be authorized, by variance.\u201d Session Laws 2005-426, s.5(b). These amendments became effective 1 September 2005. Id.\nSimilar to N.C. Gen. Stat. \u00a7 153A-340, N.C. Gen. Stat. \u00a7 153A-345 (2003) provides in pertinent part as follows:\n(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.\n(b) The board of adjustment shall hear and decide appeals from and review any order, requirement, decision, or determination made by an administrative official charged with enforcing an ordinance adopted pursuant to this Part. Any person aggrieved . . . may take an appeal. .. .\n(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. . . .\n(e) Each decision of the board is subject to review by the superior court by proceedings in the nature of certiorari. . . .\nN.C. Gen. Stat. \u00a7 153A-345 was also recently amended. The amendments, effective 1 January 2006, allow a county to designate \u201ca planning board or the board of county commissioners\u201d 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 \u201cchange in permitted uses.\u201d Session Laws 2005-418, s.8(b).\nIn this case, Article X of the New Hanover County Zoning Ordinance (\u201cthe Ordinance\u201d) provides as follows:\nDuties of Building Inspector, Board of Adjustment, Courts and County Commissioners as to Matters of Appeal\n108-1 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 the Board 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.\nArticle VII of the Ordinance contains \u201cProvisions For Uses Allowed As Special Uses\u201d and authorizes \u201cthe Board of County Commissioners\u201d to issue special use permits \u201cafter a public hearing and after Planning Board review and recommendation.\u201d 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 \u201c[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.\u201d Nevertheless, Section 71-1(9) also requires that such \u201c[m]inor changes ... be reviewed by the Planning Department,\u201d and it authorizes the \u201cSuperintendent of Inspections\u201d to approve the changes only if the Planning Director issues a \u201cfavorable recommendation.\u201d Furthermore,\nSuch approval shall not be granted should the proposed revisions cause or contribute to:\n(A) A change in the character of the development^]\n(B) A change of design for, or an increase in the hazards to pedestrian and vehicle traffic circulation, or\n(C) A reduction in the originally approved setbacks from roads and/or property lines.\nId.\nAs detailed above, neither the Planning Staff nor the Superintendent of Inspections have reached a formal decision regarding plaintiffs\u2019 use of their property. Plaintiffs admit they originally \u201cconsulted\u201d with members of the Planning Staff to \u201cdetermine if [the Planning Staff] would approve an administrative change to the site plan for the[ir] commercial marina.\u201d Nevertheless, citing their letter of 31 October 2003, plaintiffs contend they \u201cofficially withdrew their request and new site plan for administrative approval of the proposed expansion\u201d and are thus presently seeking an \u201cinterpretation ... of [their] existing rights\u201d under the Permit rather than an expansion of their rights under the Permit. However, plaintiffs offer no explanation for either the \u201cTuesday 4/27/04\u201d filing of the \u201csite plan for Carolina Marina & Yacht Club\u201d referred to in Stewart\u2019s 7 May 2004 letter or the \u201congoing discussions . . . with [defendant] regarding the site plans\u201d referred to in their own 14 May 2004 letter. Instead, plaintiffs assert our Supreme Court recognized \u201ca declaratory judgment action []as a proper forum for a legal challenge to a zoning ordinance\u2019s requirement for a Church to pave its parking lot\u201d 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 \u201cdeciding] the question of whether a party may seek an injunction against enforcement of an ordinance where it has failed to exhaust its administrative remedies.\u201d Id. at 440 n.l, 358 S.E.2d at 373 n.l. Accordingly, we are not persuaded Grace Baptist stands for the proposition advanced by plaintiffs.\nPlaintiffs also assert our Supreme Court\u2019s decision in Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987), \u201cshows that . . . Superior Court is the proper venue for determining issues of interpretation of existing rights under special use permits.\u201d Plaintiffs are again mistaken.\nIn 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 \u201csewer service to the citizens of Davidson County [was] subject to final approval by the Davidson County Board of Commissioners.\u201d Id. at 253, 362 S.E.2d at 555. The permit was issued in 1983, and it \u201cdirected the attention of those who were dissatisfied with the Board\u2019s decision on the permit to the right of appeal to Davidson County Superior Court within thirty days after the applicant\u2019s receipt of the permit.\u201d 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 \u201cdeal[t] with the jurisdictional conflict between the statutory power 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.\u201d Id. at 253, 362 S.E.2d at 554. After concluding Davidson County had no authority to restrict or regulate High Point\u2019s provision of sewer services to city residents, id. at 259, 362 S.E.2d at 558, the Court further rejected Davidson County\u2019s contention that High Point was precluded from challenging the condition of the special use permit, noting that\n[s]ince the City was unaware of the County\u2019s 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.\nId. at 260, 362 S.E.2d at 558.\nWe are not persuaded Davidson County authorizes plaintiffs\u2019 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\u2019 predecessors in title. Instead, by the express terms of the Ordinance, a special use permit\u2019s applicant, successors, and assignees are each afforded an opportunity to pursue administrative remedies related to the expansion 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.\nIn sum, plaintiffs have failed to demonstrate why they should be allowed to abandon their \u201congoing discussions\u201d with defendant and file a declaratory judgment action in the trial court, notwithstanding their admitted \u201c[f]rustrat[ion] [with] these discussions\u201d and alleged \u201csimpl[e] attempt[] to obtain a speedy interpretation of [their] rights\u201d 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.\nAffirmed.\nJudges WYNN and STEELMAN concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Shanklin & Nichols, LLP, by Kenneth A. Shanklin and Matthew A. Nichols, for plaintiffs-appellants.", "E. Holt Moore, III, for defendant-appellee." ], "corrections": "", "head_matter": "TIMOTHY ALLEN WARD and DONNIE H. WARD, Plaintiffs v. NEW HANOVER COUNTY, Defendant\nNo. COA05-423\n(Filed 7 February 2006)\nZoning\u2014 interpretation of special use permit \u2014 declaratory judgment action \u2014 exhaustion of administrative remedies\nSummary judgment for defendant county was affirmed where plaintiffs sought a declaratory judgment regarding the addition of a forklift to their marina for moving or storing boats without completing their administrative remedies for special use permits under the New Hanover County Zoning Ordinance.\nAppeal 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.\nShanklin & Nichols, LLP, by Kenneth A. Shanklin and Matthew A. Nichols, for plaintiffs-appellants.\nE. Holt Moore, III, for defendant-appellee." }, "file_name": "0671-01", "first_page_order": 705, "last_page_order": 713 }