{ "id": 4178710, "name": "CAROLINA MARINA AND YACHT CLUB, LLC, a North Carolina limited liability company, Petitioner v. NEW HANOVER COUNTY BOARD OF COMMISSIONERS and NEW HANOVER COUNTY, Respondents, and VIOLET WARD, Intervenor-Respondent", "name_abbreviation": "Carolina Marina & Yacht Club, LLC v. New Hanover County Board of Commissioners", "decision_date": "2010-09-21", "docket_number": "No. COA10-77", "first_page": "250", "last_page": "255", "citations": [ { "type": "official", "cite": "207 N.C. App. 250" } ], "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": "527 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132295, 132172, 132143, 132208, 132185 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0093-04", "/nc/350/0093-03", "/nc/350/0093-01", "/nc/350/0093-05", "/nc/350/0093-02" ] }, { "cite": "504 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 15, "year": 1998, "pin_cites": [ { "page": "298" }, { "page": "298, 299" }, { "page": "298" }, { "page": "300", "parenthetical": "emphasis added" }, { "page": "300" }, { "page": "300" }, { "page": "300" }, { "page": "299" }, { "page": "300" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 664", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11469787 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "665" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0664-01" ] }, { "cite": "61 L. Ed. 2d 297", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "442 U.S. 929", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531938, 1532133, 1531912, 1532170, 1532010, 1532202, 1532021, 1531990, 1532122, 1532092, 1531806 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/442/0929-02", "/us/442/0929-01", "/us/442/0929-10", "/us/442/0929-08", "/us/442/0929-11", "/us/442/0929-03", "/us/442/0929-04", "/us/442/0929-09", "/us/442/0929-05", "/us/442/0929-06", "/us/442/0929-07" ] }, { "cite": "250 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "912" }, { "page": "912" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "296 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565310 ], "year": 1978, "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0109-01" ] } ], "analysis": { "cardinality": 528, "char_count": 12991, "ocr_confidence": 0.726, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1371927475308406 }, "sha256": "6843f36eb174daf0842c89568669473e5687f52d95720aea91e1e8f7b6051e68", "simhash": "1:953bd9b1205944ae", "word_count": 2127 }, "last_updated": "2023-07-14T16:56:31.092499+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STROUD and ERVIN concur." ], "parties": [ "CAROLINA MARINA AND YACHT CLUB, LLC, a North Carolina limited liability company, Petitioner v. NEW HANOVER COUNTY BOARD OF COMMISSIONERS and NEW HANOVER COUNTY, Respondents, and VIOLET WARD, Intervenor-Respondent" ], "opinions": [ { "text": "Martin, Chief Judge.\nViolet Ward appeals from the superior court\u2019s 6 August 2009 order reversing the New Hanover County Board of Commissioners\u2019 7 July 2008 order, which denied the application of Carolina Marina and Yacht-Club, LLC for a special use permit. For the reasons stated herein, we dismiss this appeal as moot.\nCarolina Marina and Yacht Club, LLC (\u201cCarolina Marina\u201d), a North Carolina limited liability company, is the record owner of the real property at 1512 Burnett Road, which is located in an R-15 residential zoning district in Wilmington, North Carolina. On 7 May 2008, Carolina Marina submitted a special use permit application to the New Hanover County Planning Department (\u201cthe Planning Department\u201d) concerning the property at 1512 Burnett Road. At the time Carolina Marina submitted its permit application, the Burnett Road property was already operating as a commercial marina in accordance with Special Use Permit No. 13 (\u201cthe S-13 permit\u201d), which had been issued on 7 June 1971 to a family member of the parties from whom the Burnett Road property was later conveyed to Carolina Marina.\nThe current S-13 permit for the Burnett Road property allows for two piers, a boat ramp, a 3-story clubhouse, surface parking for 41 boats, and associated parking for the combined uses. Carolina Marina\u2019s May 2008 application to the Planning Department requested a permit allowing, among other things, the construction of a dry stack storage structure approximately 40 feet high, 115 feet wide, and 290 feet long, which would be capable of storing up to 200 boats, and the elimination of an existing marina boat ramp to accommodate the construction of a fortified forklift pier, which would be capable of use by a marine forklift that would carry and deliver boats between the dry stack storage structure and the water at the end of the pier.\nOn 5 June 2008, the Planning Department voted 4-0 to recommend the denial of Carolina Marina\u2019s permit application. On 7 July 2008, Carolina Marina\u2019s permit application was considered by the New Hanover County Board of Commissioners (\u201cthe Board\u201d) at a public hearing. After considering all of the evidence presented, the Board voted unanimously to deny Carolina Marina\u2019s request for a special use permit, which was identified by the Board as proposed special use permit S-582.\nOn 22 August 2008, Carolina Marina sought review' of the Board\u2019s decision to deny its request by petition for writ of certiorari in the New Hanover County Superior Court, which the court allowed. On 30 June 2009, Violet Ward, who owned property in the immediate vicinity of the property that was the subject of Carolina Marina\u2019s special use permit proposal, moved to intervene in the action as a respondent. After conducting a hearing on the matter, on 6 August 2009, the superior court entered an order in which it (1) reversed the Board\u2019s decision denying Carolina Marina\u2019s application for proposed special use permit S-582, (2) granted Violet Ward\u2019s motion to intervene, and (3) remanded the matter to the Board with instructions that it should enter an order granting Carolina Marina\u2019s application for proposed special use permit S-582.\nOn 8 September 2009, only Violet Ward filed notice of appeal from the superior court\u2019s 6 August 2009 order; neither the Board nor New Hanover County appealed from the superior court\u2019s order. On the same day, Violet Ward filed an Application for Stay in the superior court, in which she requested that the court stay its 6 August 2009 order until the resolution of her appeal by this Court. On 30 October 2009, Violet Ward filed a Motion for Injunction Pending Appeal in the superior court, in which she prayed the superior court to enter an injunction against the Board from issuing Carolina Marina\u2019s permit in accordance with the 6 August 2009 order. On 16 November 2009, the superior court denied Violet Ward\u2019s Application for Stay and Motion for Injunction Pending Appeal. On 23 November 2009, Violet Ward filed a Petition for Writ of Supersedeas and Temporary Stay and Temporary Injunction in this Court (P09-930). This Court denied Violet Ward\u2019s petition for writ of supersedeas on 7 December 2009.\nOn 16 December 2009, the Board entered an order granting Carolina Marina\u2019s application for special use permit S-582 \u201c[bjased upon [the Board\u2019s] hearing and the decision rendered on July 7, 2008 and the Order of Superior Court Judge Gary Locklear dated August 6, 2009____\u201d On 19 April 2010, Carolina Marina filed its Notice of Mootness and Motion to Dismiss Appeal as Moot.\nWhenever, during the course of litigation, \u201cit develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law.\u201d In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978), cert. denied sub nom. Peoples v. Jud\u2019l Standards Comm\u2019n of N.C., 442 U.S. 929, 61 L. Ed. 2d 297 (1979). \u201cUnlike the question of jurisdiction, the issue of mootness is not determined solely by examining facts in existence at the commencement of the action.\u201d Id. at 148, 250 S.E.2d at 912. \u201cIf the issues before a court or administrative body become moot at any time during the course of the proceedings, the usual response should be to dismiss the action.\u201d Id. (emphasis added).\nHere, Carolina Marina moved to dismiss Violet Ward\u2019s appeal on the grounds that the Board\u2019s 16 December 2009 order, which issued the special use permit S-582 sought by Carolina Marina, rendered moot the issues raised by Violet Ward\u2019s appeal. In so doing, Carolina Marina relies upon this Court\u2019s opinion in Estates, Inc. v. Town of Chapel Hill, 130 N.C. App. 664, 504 S.E.2d 296 (1998), disc. reviews denied, 350 N.C. 93, 527 S.E.2d 664-65 (1999). In Estates, Inc. v. Town of Chapel Hill, the respondent\u2019s town council denied an application for a special use permit requested by the petitioners. See Estates, 130 N.C. App. at 665, 504 S.E.2d at 298. The petitioners sought review of this decision by certiorari in the superior court pursuant to N.C.G.S. \u00a7 160A-381, and the owners of property in the immediate vicinity of the petitioners\u2019 proposed development moved to intervene, which the superior court allowed. See id,. After considering the matter, \u201cthe superior court reversed the Council\u2019s denial of petitioners\u2019 application for a special use permit and directed the Council to approve the application and issue the permit.\u201d Id. The intervenors appealed to this Court from the superior court\u2019s order. See id.\nFour days later, during a time when the superior court\u2019s order was automatically stayed pursuant to N.C.G.S. \u00a7 1A-1, Rule 62, \u201cin compliance with the mandate of the superior court, the Town Council issued the special use permit sought by petitioners.\u201d Id. at 665, 667-68, 504 S.E.2d at 298, 299. The petitioners then sought to dismiss the intervenors\u2019 appeal to this Court on the grounds that the questions raised by the appeal had become moot as a result of the subsequent issuance of the permit by the respondent\u2019s town council. See id. at 665-66, 504 S.E.2d at 298. This Court agreed and found that \u201c[a] reversal of the superior court\u2019s ruling by this Court would have the limited effect of affirming the Council\u2019s initial denial of petitioners\u2019 request for a special use permit. It would do nothing to invalidate the permit later issued voluntarily by the Council pursuant to the superior court\u2019s mandate.\u201d Id. at 668, 504 S.E.2d at 300 (emphasis added). Further, since \u201c[o]ur review of th[e] case [wa]s limited to determining whether the Town Council\u2019s quasi-judicial decision to deny the permit in the first place was lawful,\u201d id., this Court recognized that \u201cthe question of whether the permit issued by the Town Council is valid was never ruled on by any court and therefore [wa]s not before us.\u201d Id. at 668-69, 504 S.E.2d at 300. Thus, because \u201c[i]ntervenors\u2019 purpose in bringing their appeal was, plainly, to prevent the special use permit from being issued to petitioners[, and t]hat relief [could] no longer be granted in th[e] case[, this Court concluded that t]he issues raised in intervenor[s\u2019] appeal [we]re therefore moot.\u201d Id. at 669, 504 S.E.2d at 300.\nIn the present case, Violet Ward presents the following issues for review: (I) whether the superior court applied the correct standard of review when it considered the Board\u2019s decision to deny Carolina Marina\u2019s application for proposed special use permit S-582; (II) whether the superior court correctly determined that there was competent, material, and substantial evidence that Carolina Marina met each of the requirements set forth in the New Hanover County Zoning Ordinance \u00a7 71-1(3); and (III) whether the superior court erred as a matter of law when it concluded that Carolina Marina satisfied the requirements set forth in the New.Hanover County Zoning Ordinance \u00a7 71-1(3) and ordered the Board to grant Carolina Marina\u2019s application for proposed special use permit S-582. In other words, as in Estates, the arguments presented to this Court for review by Violet Ward are \u201climited to determining whether [the Board\u2019s] quasi-judicial decision to deny the permit in the first place was lawful,\u201d and do not address whether the permit later issued by the Board on 16 December 2009 is valid. See id. at 668, 504 S.E.2d at 300.\nBut Violet Ward asserts that Estates is distinguishable from the present case because, in Estates, the respondent\u2019s town council \u201cvoluntarily\u201d issued the permit during a time when the superior court\u2019s order was automatically stayed pursuant to N.C.G.S. \u00a7 1A-1, Rule 62, see id. at 667-68, 504 S.E.2d at 299, while, in the present case, the superior court issued the permit about three months after the expiration of the automatic stay at a time when the Board would, according to Violet Ward, \u201cface other legal action to compel compliance, possibly Contempt,\u201d had it not issued the permit. There is no evidence before this Court that enforcement proceedings had been initiated against the Board when it issued Carolina Marina\u2019s special use permit S-582. Nevertheless, Violet Ward argues, without authority, that the Board could not have \u201cvoluntarily\u201d issued a permit consistent with the superior court\u2019s order after the automatic stay had expired. We are not persuaded by Violet Ward\u2019s unsupported assertion.\nHere, as in Estates, the special use permit was issued during a time when enforcement proceedings had not been initiated for the superior court\u2019s order. Thus, the record before this Court indicates that the Board\u2019s quasi-judicial body issued a special use permit \u201cvoluntarily . . . pursuant to the superior court\u2019s mandate.\u201d See id. at 668, 504 S.E.2d at 300. Further, as was the case in Estates, the validity of the permit issued by the Board on 16 December 2009 has not been ruled on to date by any court, and the issues presented by Violet Ward to this Court are limited to determining whether the Board\u2019s decision to deny Carolina Marina\u2019s request for a special use permit was lawful in the first place. See id. 'Therefore, since Violet Ward\u2019s purpose in bringing her appeal in the present case was, like Estates, \u201cplainly, to prevent the special use permit from being issued to [Carolina Marina, and t]hat relief can no longer be granted in this case,\u201d see id., we conclude the issues presented for review by Violet Ward\u2019s appeal have become moot. Accordingly, we grant Carolina Marina\u2019s motion to dismiss Violet Ward\u2019s appeal.\nDismissed.\nJudges STROUD and ERVIN concur.\n. Ms. Ward\u2019s son, David, sought to intervene in the action by the same motion. Because the superior court subsequently determined that David Ward merely resided on neighboring property and did not own said property, the superior court denied the motion to intervene as to David Ward.", "type": "majority", "author": "Martin, Chief Judge." } ], "attorneys": [ "Shanklin & Nichols, LLP, by Kenneth A. Shanklin and Matthew A. Nichols, for petitioner-appellee Carolina Marina and Yacht Club, LLC.", "Kurt B. Fryar, for intervenor-respondent-appellant Violet Ward." ], "corrections": "", "head_matter": "CAROLINA MARINA AND YACHT CLUB, LLC, a North Carolina limited liability company, Petitioner v. NEW HANOVER COUNTY BOARD OF COMMISSIONERS and NEW HANOVER COUNTY, Respondents, and VIOLET WARD, Intervenor-Respondent\nNo. COA10-77\n(Filed 21 September 2010)\nAppeal and Error\u2014 mootness \u2014 appeal dismissed\nRespondent intervenor\u2019s appeal from the superior court\u2019s order reversing the New Hanover County Board of Commissioners\u2019 order, which denied the application of Carolina Marina and Yacht Club, LLC for a special use permit, was dismissed as moot. Respondent intervenor\u2019s purpose in bringing her appeal was plainly to prevent the special use permit from being issued to Carolina Marina and that relief could no longer be granted.\nAppeal by intervenor-respondent from order entered 6 August 2009 by Judge Gary L. Locklear in New Hanover County Superior Court. Heard in the Court of Appeals 30 August 2010.\nShanklin & Nichols, LLP, by Kenneth A. Shanklin and Matthew A. Nichols, for petitioner-appellee Carolina Marina and Yacht Club, LLC.\nKurt B. Fryar, for intervenor-respondent-appellant Violet Ward." }, "file_name": "0250-01", "first_page_order": 274, "last_page_order": 279 }