{ "id": 12169223, "name": "SWAN BEACH COROLLA, L.L.C., OCEAN ASSOCIATES, LP, LITTLE NECK TOWERS, L.L.C., GERALD FRIEDMAN, NANCY FRIEDMAN, CHARLES S. FRIEDMAN, TIL MORNING, LLC, and SECOND STAR, L.L.C., Plaintiffs v. COUNTY OF CURRITUCK; THE CURRITUCK COUNTY BOARD OF COMMISSIONERS; and JOHN D. RORER, MARION GILBERT, O. VANCE AYDLETT, JR., H.M. PETREY, J. OWEN ETHERIDGE, PAUL MARTIN, and S. PAUL O'NEAL as members of the CURRITUCK COUNTY BOARD OF COMMISSIONERS, Defendants", "name_abbreviation": "Swan Beach Corolla, L.L.C. v. County of Currituck", "decision_date": "2014-07-01", "docket_number": "No. COA13-1272", "first_page": "617", "last_page": "631", "citations": [ { "type": "official", "cite": "234 N.C. App. 617" } ], "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": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": -1 }, { "cite": "506 U.S. 985", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12035616, 12035130, 12035173, 12035238, 12035081, 12035561, 12035342, 12034992, 12035285, 12035509, 12035449, 12035034, 12035391 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/us/506/0985-13", "/us/506/0985-04", "/us/506/0985-05", "/us/506/0985-06", "/us/506/0985-03", "/us/506/0985-12", "/us/506/0985-08", "/us/506/0985-01", "/us/506/0985-07", "/us/506/0985-11", "/us/506/0985-10", "/us/506/0985-02", "/us/506/0985-09" ] }, { "cite": "350 N.C. 594", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132232, 131953, 132177, 132117, 131963 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0594-03", "/nc/350/0594-02", "/nc/350/0594-01", "/nc/350/0594-04", "/nc/350/0594-05" ] }, { "cite": "710 S.E.2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": 0 }, { "cite": "702 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "207 N.C. App. 555", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4178725 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc-app/207/0555-01" ] }, { "cite": "397 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "100 N.C. App. 541", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527139 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/100/0541-01" ] }, { "cite": "170 S.E.2d 904", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "276 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559989 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/276/0048-01" ] }, { "cite": "530 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "138 N.C. App. 79", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11078626 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/138/0079-01" ] }, { "cite": "484 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "126 N.C. App. 168", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11709198 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc-app/126/0168-01" ] }, { "cite": "215 S.E.2d 73", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 493", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564022 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0493-01" ] }, { "cite": "688 S.E.2d 426", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "428" } ], "opinion_index": 0 }, { "cite": "363 N.C. 784", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151199 ], "year": 2010, "pin_cites": [ { "page": "788" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0784-01" ] }, { "cite": "136 L.Ed. 2d 839", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "519 U.S. 1112", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11775264, 11775708, 11775654, 11775399, 11775499, 11775307, 11775602, 11775219, 11775543, 11775448, 11775353, 11775899, 11775964, 11775774 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/519/1112-02", "/us/519/1112-11", "/us/519/1112-10", "/us/519/1112-05", "/us/519/1112-07", "/us/519/1112-03", "/us/519/1112-09", "/us/519/1112-01", "/us/519/1112-08", "/us/519/1112-06", "/us/519/1112-04", "/us/519/1112-13", "/us/519/1112-14", "/us/519/1112-12" ] }, { "cite": "471 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "347" } ], "opinion_index": 0 }, { "cite": "343 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798949 ], "year": 1996, "pin_cites": [ { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0426-01" ] }, { "cite": "165 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "206" } ], "opinion_index": 0 }, { "cite": "275 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557757 ], "year": 1969, "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0041-01" ] }, { "cite": "356 S.E.2d 4", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4742703, 4748272, 4739442, 4739320, 4739642 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0458-03", "/nc/319/0458-04", "/nc/319/0458-02", "/nc/319/0458-01", "/nc/319/0458-05" ] }, { "cite": "352 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "266" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 292", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168365 ], "year": 1987, "pin_cites": [ { "page": "294" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0292-01" ] }, { "cite": "572 S.E.2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511608, 1511289, 1511570, 1511500 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0437-04", "/nc/356/0437-02", "/nc/356/0437-01", "/nc/356/0437-03" ] }, { "cite": "570 S.E.2d 136", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "140" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 378", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250019 ], "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0378-01" ] }, { "cite": "547 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135816, 135921, 135696, 135881 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0372-04", "/nc/353/0372-01", "/nc/353/0372-03", "/nc/353/0372-02" ] }, { "cite": "538 S.E.2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "616", "parenthetical": "noting that \"a municipal entity has no claim to immunity in a section 1983 suit\" (citation and quotation marks omitted)" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 606", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12133018 ], "year": 2000, "pin_cites": [ { "page": "627", "parenthetical": "noting that \"a municipal entity has no claim to immunity in a section 1983 suit\" (citation and quotation marks omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0606-01" ] }, { "cite": "121 L.Ed. 2d 431", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "413 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "283" } ], "opinion_index": 0 }, { "cite": "330 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511641 ], "pin_cites": [ { "page": "772" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0761-01" ] }, { "cite": "481 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "20" } ], "opinion_index": 0 }, { "cite": "345 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53966 ], "year": 1997, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0356-01" ] }, { "cite": "710 S.E.2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": 0 }, { "cite": "365 N.C. 211", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "year": 2011, "opinion_index": 0 }, { "cite": "698 S.E.2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "431" } ], "opinion_index": 0 }, { "cite": "207 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4178908 ], "year": 2010, "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/207/0001-01" ] }, { "cite": "384 S.E.2d 8", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "16" } ], "opinion_index": 0 }, { "cite": "325 N.C. 352", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2489703 ], "year": 1989, "pin_cites": [ { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0352-01" ] }, { "cite": "37 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "pin_cites": [ { "page": "132" } ], "opinion_index": 0 }, { "cite": "226 N.C. 107", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613807 ], "year": 1946, "pin_cites": [ { "page": "111" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0107-01" ] }, { "cite": "110 L.Ed. 2d 651", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "496 U.S. 931", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12152225, 12152134, 12152362, 12152274, 12152182, 12152311 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/496/0931-03", "/us/496/0931-01", "/us/496/0931-06", "/us/496/0931-04", "/us/496/0931-02", "/us/496/0931-05" ] }, { "cite": "387 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "661-62" } ], "opinion_index": 0 }, { "cite": "326 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305891 ], "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0001-01" ] }, { "cite": "344 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "279" } ], "opinion_index": 0 }, { "cite": "317 N.C. 51", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4771671 ], "year": 1986, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0051-01" ] }, { "cite": "576 S.E.2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "356 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511335 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/356/0656-01" ] }, { "cite": "562 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "111" }, { "page": "111" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 701", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9131417 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "706" }, { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0701-01" ] }, { "cite": "569 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "701", "parenthetical": "citations, quotation marks, and brackets omitted" }, { "page": "702" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 218", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249165 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "226", "parenthetical": "citations, quotation marks, and brackets omitted" }, { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0218-01" ] }, { "cite": "683 S.E.2d 774", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "779" } ], "opinion_index": 0 }, { "cite": "200 N.C. App. 403", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4171730 ], "year": 2009, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/nc-app/200/0403-01" ] }, { "cite": "509 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "174" } ], "opinion_index": 0 }, { "cite": "349 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571673 ], "year": 1988, "pin_cites": [ { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0656-01" ] }, { "cite": "537 S.E.2d 213", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "505 S.E.2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "904", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 179", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11198145 ], "year": 1998, "pin_cites": [ { "page": "186", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0179-01" ] }, { "cite": "571 S.E.2d 52", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "58" }, { "page": "58" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250810 ], "year": 2002, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0527-01" ] }, { "cite": "595 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "775" } ], "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" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0366-01" ] }, { "cite": "260 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "615" } ], "opinion_index": 0 }, { "cite": "298 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573981 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0715-01" ] }, { "cite": "752 S.E.2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "pin_cites": [ { "page": "663-64", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "720 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "735", "parenthetical": "citations, quotation marks, brackets, and italics omitted" } ], "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 6, "opinion_index": 0 } ], "analysis": { "cardinality": 1221, "char_count": 34052, "ocr_confidence": 0.732, "pagerank": { "raw": 5.76404674394502e-08, "percentile": 0.3602908895460701 }, "sha256": "668a270d9815f04c7dc707a58aad2d3d5c2230c6ac3fb868a33bf48f30b22bc4", "simhash": "1:0d6995fa00bf26fc", "word_count": 5451 }, "last_updated": "2023-07-14T22:30:06.319137+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, JR., Robert N. and DILLON concur." ], "parties": [ "SWAN BEACH COROLLA, L.L.C., OCEAN ASSOCIATES, LP, LITTLE NECK TOWERS, L.L.C., GERALD FRIEDMAN, NANCY FRIEDMAN, CHARLES S. FRIEDMAN, TIL MORNING, LLC, and SECOND STAR, L.L.C., Plaintiffs v. COUNTY OF CURRITUCK; THE CURRITUCK COUNTY BOARD OF COMMISSIONERS; and JOHN D. RORER, MARION GILBERT, O. VANCE AYDLETT, JR., H.M. PETREY, J. OWEN ETHERIDGE, PAUL MARTIN, and S. PAUL O\u2019NEAL as members of the CURRITUCK COUNTY BOARD OF COMMISSIONERS, Defendants" ], "opinions": [ { "text": "STROUD, Judge.\nPlaintiffs appeal from an order entered 24 July 2013 dismissing their complaint for declaratory judgment regarding vested rights they claimed to develop their property commercially, for violations of constitutional rights under 42 U.S.C. \u00a7 1983, and for violation of Article V, Section 2 of the North Carolina Constitution. We reverse in part, affirm in part, and remand for further proceedings.\nI. Background\nPlaintiffs are five companies and three individuals who own property in the Swan Beach Subdivision in Currituck County. On 6 July 2012, they filed a complaint against the County of Currituck, the Currituck Board of Commissioners, and the commissioners themselves in their official capacities. Plaintiff Ocean Associates was the original developer of the land and the other plaintiffs purchased their land from it. They alleged that they have common law vested rights to develop commercial uses on their property. They also raised claims of laches, \u201ceasement rights\u201d to commercially develop their property, state constitutional violations, and violations of federal equal protection and due process under 42 U.S.C. \u00a7 1983.\nAccording to the complaint, plaintiff Ocean Associates, LP, purchased approximately 1400 acres of property in the Carova Beach area of Currituck County in 1966 to develop a residential subdivision along with related commercial services. In 1969, Ocean Associates created and recorded a plat indicating that it intended to divide the property into residential and business lots. At the time, Currituck County had no applicable zoning ordinance. However, the County asked Ocean Associates to refrain from developing the business lots until the residential lots were sufficiently occupied. After filing the plat, Ocean Associates began to prepare both the residential and business lots for development. They spent $425,050.00 on services such as surveying, land geosciences, general engineering, road grading, canal digging, dune building, filling lots, evacuating ditches, and landscaping. This infrastructure would serve both the business and residential lots.\nIn 1971, Currituck County adopted a zoning ordinance. The 1971 ordinance designated plaintiffs\u2019 property as RA-20. The RA-20 district allowed for low density residential and agricultural uses with only limited business uses. Plaintiffs allege that they did not know that the zoning of their property had changed. In 1975, the County enacted a new zoning ordinance. This ordinance zoned plaintiffs\u2019 property in a similar manner to the previous ordinance. Plaintiffs believed that the County would still permit them to develop their property for commercial uses because the County had allowed other property owners to do the same.\nIn 1989, Currituck County enacted a Unified Development Ordinance (UDO). The UDO zoned plaintiffs\u2019 property R02, which does not allow business uses except for marinas, campgrounds, outdoor recreational facilities, and small professional offices. The business and commercial uses intended by plaintiffs would not be permitted under this ordinance. Nevertheless, plaintiffs continued to believe that they would be allowed to commercially develop their property.\nIn 2004, plaintiffs decided to move forward with development of the business lots because the density of the residential lots had finally become sufficient to support such use. They wanted to build a convenience store, real estate offices, a post office, and a restaurant. Around September 2004, the County informed plaintiffs that such uses would not be permitted. Plaintiffs asserted that they had vested rights to use their property in this manner, but the County disagreed, asserting that the UDO barred such uses. Over the next three years, plaintiffs then attempted to convince the County to rezone their property so that they could develop their property for business uses. The parties agreed that such uses would not be permitted on their property under the UDO.\nPlaintiffs allege that despite the County\u2019s assertion that the UDO prohibits business development in the R02 district, the County has permitted other businesses to operate in the area. They alleged that the County treated plaintiffs differently without a rational basis, or because the individual plaintiffs are Jewish.\nOn 12 September 2012, defendants filed a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) and failure to state a claim under Rule 12(b)(6). Defendants argued that plaintiffs failed to exhaust applicable administrative remedies and that they are protected by sovereign, governmental, and legislative immunity. They further argued that plaintiffs\u2019 complaint is barred by the applicable statutes of limitations.\nPlaintiffs filed an amended complaint on 13 February 2013. The amended complaint added an allegation that the County adopted a zoning ordinance in 1968, but that there was no map accompanying the ordinance and that their property was not zoned at that time. The amended complaint also added a claim under Article V, Section 2 of the North Carolina Constitution. Plaintiffs alleged that the County had taxed their property as business property since 1969, so its failure to permit plaintiffs to develop their property for business uses contravenes the requirement of taxation by uniform rule.\nDefendants then filed an amended motion to dismiss and an amended brief in support of their motion. The motion was heard by the superior court on 20 May 2013. By order entered 24 July 2013, the superior court allowed defendants\u2019 12(b)(1) motion to dismiss for failure to exhaust administrative remedies and their 12(b)(6) motion for failure to state a claim, though it did not specify a reason. Plaintiffs timely appealed to this Court.\nII. Standard of Review\nDefendants moved to dismiss plaintiffs\u2019 complaint for lack of subject matter jurisdiction under N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(l)(2011) and for failure to state a claim under N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b) (6)(2011).\nRule 12(b)(1) permits a party to contest, by motion, the jurisdiction of the trial court over the subject matter in controversy. We review Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction de novo and may consider matters outside the pleadings. Pursuant to the de novo standard of review, the court considers the matter anew and freely substitutes its own judgment for that of the trial court.\nTrivette v. Yount, _ N.C. App. _, _, 720 S.E.2d 732, 735 (2011) (citations, quotation marks, brackets, and italics omitted).\nThe standard of review of an order granting a 12(b)(6) motion is whether the complaint states a claim for which relief can be granted under some legal theory when the complaint is liberally construed and all the allegations included therein are taken as true. On a motion to dismiss, the complaint\u2019s material factual allegations are taken as true. Dismissal is proper when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff\u2019s claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiffs claim. On appeal of a 12(b)(6) motion to dismiss, this Court conducts a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court\u2019s ruling on the motion to dismiss was correct.\nPodrebarac v. Horack, Talley, Pharr, & Lowndes, P.A., _ N.C. App. _, _, 752 S.E.2d 661, 663-64 (2013) (citation and quotation marks omitted).\nIII. Common Law Vested Rights Claim\nPlaintiffs argue that the trial court erred in dismissing their common law vested rights claim under Rule 12(b)(1) for failure to exhaust administrative remedies. Defendants counter that even if it was error to dismiss under Rule 12(b)(1), dismissal was proper under Rule 12(b)(6). We hold that plaintiffs did not fail to exhaust administrative remedies and that their common law vested rights claim was sufficiently pled to survive a motion to dismiss under either Rule 12(b)(1) or Rule 12(b)(6).\nA. Exhaustion of Administrative Remedies\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). \u201cIf a plaintiff has failed to exhaust its administrative remedies, the court lacks subject matter jurisdiction and the action must be dismissed.\u201d Justice for Animals, Inc. v. Robeson County, 164 N.C. App. 366, 369, 595 S.E.2d 773, 775 (2004). Nevertheless, \u201ca party need not exhaust an administrative remedy where the remedy is inadequate.\u201d Affordable Care, Inc. v. North Carolina State Bd. of Dental Examiners, 153 N.C. App. 527, 534, 571 S.E.2d 52, 58 (2002). Facts justifying avoidance of administrative procedure must be pled in the complaint. Id. at 534, 571 S.E.2d at 58.\n\u201cThe [administrative] remedy is considered inadequate unless it is calculated to give relief more or less commensurate with the claim.\u201d Jackson for Jackson v. North Carolina Dept. of Human Resources, 131 N.C. App. 179, 186, 505 S.E.2d 899, 904 (1998) (citation and quotation marks omitted), disc. rev. denied, 350 N.C. 594, 537 S.E.2d 213 (1999). Generally, constitutional claims are not subject to administrative remedies, so failure to pursue such remedies is not fatal to those claims. See Meads v N.C. Dep\u2019t of Agric., 349 N.C. 656, 670, 509 S.E.2d 165, 174 (1988); Hardy ex rel. Hardy v. Beaufort County Bd. of Educ., 200 N.C. App. 403, 409, 683 S.E.2d 774, 779 (2009).\nHere, plaintiffs specifically pled that they were not required to exhaust administrative remedies and that the administrative remedies are inadequate. Nevertheless, we must consider whether the facts as pled justify failure to exhaust administrative procedures. We hold that plaintiffs sufficiently pled futility because the Currituck County Board of Adjustment would not be authorized to hear plaintiffs\u2019 common law vested rights claim.\nThe \u2018vested rights\u2019 doctrine has evolved as a constitutional limitation on the state\u2019s exercise of its police power to restrict an individual\u2019s use of private property by the enactment of zoning ordinances. A determination of the \u2018vested rights\u2019 issue requires resolution of questions of fact, including reasonableness of refiance, existence of good or bad faith, and substantiality of expenditures.\nHuntington Properties, LLC v. Currituck County, 153 N.C. App. 218, 226, 569 S.E.2d 695, 701 (2002) (citations, quotation marks, and brackets omitted).\n\u201cIn reviewing the determination of an administrative enforcement officer pursuant to N.C. Gen. Stat. \u00a7 160A-388, a board of adjustment sits in a \u2018quasi-judicial capacity\u2019 and has only the authority it is granted under that statute.\u201d Dobo v. Zoning Bd. of Adjustment of City of Wilmington, 149 N.C. App. 701, 706, 562 S.E.2d 108, 111 (2002), rev\u2019d in part on other grounds, 356 N.C. 656, 576 S.E.2d 324 (2003). N.C. Gen. Stat. \u00a7 160A-388(b) (2011) authorizes boards of adjustment to \u201chear and decide special and conditional use permits, requests for variances, and appeals of decisions of administrative officials charged with enforcement of the ordinance.\u201d Its role is solely related to the interpretation of the ordinances and deciding whether to grant a variance from those ordinances. See Godfrey v. Zoning Bd. of Adjustment of Union County, 317 N.C. 51, 63, 344 S.E.2d 272, 279 (1986). Boards of adjustment do not have the authority to adjudicate constitutional claims. Id.; Dobo, 149 N.C. App. at 706, 562 S.E.2d at 111.\nSome common law vested rights cases have been appealed from boards of adjustment; others have been brought as civil actions without prior administrative proceedings. These cases do not announce a clear rule for the proper method to pursue a vested rights claim. Nevertheless, a rule can be inferred from the appellate courts\u2019 treatment of those cases and the statutory authority of boards of adjustment discussed above. Our Supreme Court has differentiated between interpretations of zoning ordinances, which are properly considered by boards of adjustment, and constitutional challenges, which are not. See Batch v. Town of Chapel Hill, 326 N.C. 1, 11, 387 S.E.2d 655, 661-62 (holding that it was error to join a claim concerning the interpretation of development ordinances with constitutional challenges thereto), cert. denied, 496 U.S. 931, 110 L.Ed. 2d 651 (1990). We have noted that where interpretation of an ordinance is involved the property owner should follow the administrative procedure of seeking permission for a nonconforming use from the board of adjustment. See Huntington Properties, LLC, 153 N.C. App. at 227, 569 S.E.2d at 702; see also Kirkpatrick, 138 N.C. App. at 87-88, 530 S.E.2d at 343-44 (considering a common law vested rights claim in a case first brought to the board of adjustment, along with issues concerning interpretation of the ordinances). However, the discretion of a board of adjustment is not unlimited. Its \u201cpower to \u2018determine and vary\u2019 is limited to such variations and modifications as are in harmony with the general purpose and intent of the ordinance and do no violence to its spirit.\u201d Lee v. Board of Adjustment of City of Rocky Mount, 226 N.C. 107, 111, 37 S.E.2d 128, 132 (1946). A plaintiff is not required to request that the board of adjustment issue a variance that it does not have the authority to issue. See Smith, 276 N.C. at 57, 170 S.E.2d at 911.\nWhere the interpretation of the ordinance is not at issue, the ordinance prohibits the property owner\u2019s intended use, and the property owner is claiming a common law vested right to such a nonconforming use, the only claim is a constitutional one. In such a case, plaintiffs are not required to first exhaust the procedures before the board of adjustment. Here, as in Smith, plaintiffs\u2019 \u201ccontention is that they have a legal right to build, which right the city cannot take from them and for which no permit is authorized by the ordinance.... [T]he law does not require them to make a vain trip to the City Hall before exercising it.\u201d Id. at 57, 170 S.E.2d at 911. Plaintiffs specifically alleged that the meaning of the UDO was not in dispute and that their desired use was not allowed under the ordinance.\nTherefore, we conclude that plaintiffs were not required to exhaust administrative remedies before the Currituck County Board of Adjustment in order to bring the present civil action. The trial court erred in dismissing plaintiffs\u2019 vested rights claim under Rule 12(b)(1) for failure to exhaust administrative remedies.\nB. Sufficiency of Claim\nNext, we must consider whether plaintiffs\u2019 common law vested rights claim was sufficiently pled to state a cause of action. We hold that plaintiffs sufficiently pled their common law vested rights claim to survive a motion to dismiss.\nA party\u2019s common law right to develop and/or construct vests when: (1) the party has made, prior to the [enactment or] 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.\nBrowning-Ferris, 126 N.C. App. at 171-72, 484 S.E.2d at 414 (citations and quotation marks omitted).\n\u201c[W]hen a property owner makes expenditures in the absence of zoning . . . , subsequent changes in the zoning of the property may not prohibit the resulting nonconforming use.\u201d Finch v. City of Durham, 325 N.C. 352, 366, 384 S.E.2d 8, 16 (1989). A property owner need not rely on the existence of a permit authorizing construction if none was required at the time the expenditures were made. MLC Automotive, LLC, 207 N.C. App. at 565, 702 S.E.2d at 75. \u201cTo acquire such vested property right[s] it is sufficient that, prior to the . . . enactment of the zoning ordinance and with the requisite good faith, he make a substantial beginning of construction and incur therein substantial expense.\u201d Campsites Unlimited, 287 N.C. at 501, 215 S.E.2d at 78 (citation and quotation marks omitted). \u201cA party acts in good faith rebanee when it has an honest belief that the nonconforming use would not violate declared pubbe pobey.\u201d Kirkpatrick, 138 N.C. App. at 87, 530 S.E.2d at 343 (citation, quotation marks, and brackets omitted).\nAs we are considering a 12(b)(6) motion to dismiss, we must assume that the facts alleged by plaintiffs are true and bberally construe the complaint. Mosteller v. Duke Energy Corp., 207 N.C. App. 1, 11, 698 S.E.2d 424, 431 (2010), disc. rev. denied, 365 N.C. 211, 710 S.E.2d 38 (2011). The relevant allegations are as follows:\nIn 1966, plaintiffs or their predecessors in interest acquired approximately 1400 acres of property in Currituck County. The property was not then zoned and. commercial development was allowed. In June 1966, the County adopted a \u201cSubdivision Ordinance.\u201d On 2 September 1969, consistent with this ordinance, Plaintiff Ocean Associates recorded a plat showing 577 residential lots and six business areas on the property. Such commercial uses were permitted in that area at the time. The County asked that the commercial development not begin until there was sufficient residential density in the area to support the businesses and plaintiffs agreed. Plaintiffs began development in 1969. Between 1968 and 1971, plaintiffs spent approximately $425,050.00 to prepare both the residential and the business lots. These expenditures included general engineering, land geosciences, road grading, canal digging, dune building, lot fUling, evacuating ditches, landscaping, and surveying. Plaintiffs would not have expended these funds \u201cbut for the fact that business and commercial uses were permitted on the Property under County law....\u201d In the early 1970s, plaintiffs completed the infrastructure that would serve both the business and residential lots.\nIn October 1971, Currituck County adopted a zoning ordinance and prepared a map. The map seemed to designate the property as \u201cRA-20.\u201d The RA-20 district permitted mostly low density residential and agricultural uses, with only limited business or commercial uses. The County adopted a second zoning ordinance in 1975, which seemed to continue designating plaintiffs\u2019 property as RA-20. The County assured property owners that subdivisions approved prior to adoption of these ordinances would continue to be allowed.\nIn 1989, the County adopted a UDO, which is still in effect. Although unclear, plaintiffs\u2019 property was apparently zoned R02. The R02 district allows only limited business uses. Plaintiffs\u2019 planned uses for the property are not allowed under the UDO. Plaintiffs moved forward with further development of the business lots in 2004. The County informed plaintiffs that their intended uses were not permitted under the UDO and denied that plaintiffs had any vested rights to use their property in that manner.\nTaking these facts as true, we hold that plaintiffs sufficiently pled their claim for common law vested rights to survive a motion to dismiss. Plaintiffs have alleged that their property was not zoned at the time they made their expenditures to prepare the business lots. They have alleged that this use was lawful at the time the expenditures were made and that the expenditures were made in good faith reliance on that fact. They have alleged that they expended over $400,000 on the development. They allege that they are prejudiced by the zoning ordinance because their intended commercial use would not be permitted under the ordinance.\nIn Campsites Unlimited, our Supreme Court held that the property owners had a vested right because they made substantial expenditures in reliance on the lack of zoning. 287 N.C. at 502, 215 S.E.2d at 78. In that case, the property owners had cleared and constructed roadways and staked out lots. Id. The alleged construction activities here were at least as substantial as those in Campsites Unlimited, if not more. Plaintiffs\u2019 clearing of the lots, canal digging, dime building, and road grading were intended to prepare the site for development. Cf. Russell, 100 N.C. App. at 545, 397 S.E.2d at 337 (holding that the plaintiff\u2019s expenditures were not substantial where there was \u201cno evidence of ground breaking, tree clearing or anything else done to prepare the site for development\u201d). We conclude that these expenditures were \u201csubstantial.\u201d\nAdditionally, taking the allegations of the complaint as true, plaintiffs\u2019 reliance on the lawfulness of their project was in good faith. The required \u201cgood faith\u201d\nis not present when the landowner, with knowledge that the adoption of a zoning ordinance is imminent and that, if adopted, it will forbid his proposed construction and use of the land, hastens, in a race with the town commissioners, to make expenditures or incur obligations before the town can take its contemplated action so as to avoid what would otherwise be the effect of the ordinance upon him.\nCampsites Unlimited, 287 N.C. at 503, 215 S.E.2d at 79 (citation and quotation marks omitted).\nHere, plaintiffs filed plats indicating business development before any zoning ordinance was in place. There is no indication that they were aware of any plans to zone their property such that business development would not be allowed. Cf. id. The face of the complaint does not reveal that plaintiffs failed to acquire any other permits required to begin construction. Cf. Browning-Ferris, 126 N.C. App. at 172, 484 S.E.2d at 414. Indeed, plaintiffs have alleged that the County was aware of their plans and condoned them.\nIn sum, plaintiffs\u2019 allegations, if true, show that they have made substantial expenditures in good faith reliance on the lack of zoning at the time the expenditures were made. We conclude that plaintiffs have sufficiently pled a common law vested rights claim. Accordingly, we hold that the trial court erred in allowing defendants\u2019 motion to dismiss under Rule 12(b)(6).\nIV. Equal Protection and Due Process \u00a7 1983 Claims\nPlaintiffs next argue that the trial court erred in dismissing their equal protection and substantive due process claims under 42 U.S.C. \u00a7 1983 (2006) for failure to exhaust administrative remedies and sovereign immunity. Although the basis for its decision is not clear from the trial court\u2019s order, defendants moved to dismiss plaintiffs\u2019 \u00a7 1983 claims on the basis of failure to exhaust administrative remedies, sovereign immunity, and legislative immunity. Defendants did not argue at the motion hearing that the \u00a7 1983 claim was improperly pled or that the claims would be barred by the statute of limitations. On appeal, defendants do not argue that they are immune.\n\u201cTo state a claim under 42 U.S.C. \u00a7 1983, a plaintiff must show that [a person], acting under color of law, has \u2018subjected [him] to the deprivation of any rights, privileges, or immunities seemed by the Constitution and laws.\u2019 \u201d Copper, 363 N.C. at 789, 688 S.E.2d at 429 (quoting 42 U.S.C. \u00a7 1983 (2006)). \u201c[A] municipality is a \u2018person\u2019 within the meaning of section 1983.\u201d Moore v. City of Creedmoor, 345 N.C. 356, 365, 481 S.E.2d 14, 20 (1997).\nPlaintiffs alleged that the County has allowed other similarly situated property owners to operate businesses in the zoning districts that prohibit commercial buildings while denying plaintiffs the opportunity to do the same. They have alleged that the County treated them differently because they are Jewish. Moreover, plaintiffs allege that the County\u2019s decision to treat them differently was arbitrary and without any rational relationship to a valid governmental objective. They allege that they have been damaged by this discrimination because they have lost income they could have received from the commercial development of their property. All of the claims were brought against the County itself and the individual County Commissioners in their official capacity.\nFirst, plaintiffs\u2019 \u00a7 1983 claims may not be dismissed for failure to exhaust administrative remedies. While claims for violation of procedural due process may be subject to exhaustion requirements, Copper, 363 N.C. at 789-90, at 688 S.E.2d at 430, substantive constitutional claims are not, Edward Valves, Inc., 343 N.C. at 435, 471 S.E.2d at 347. Here, plaintiffs\u2019 claims are founded on substantive due process and equal protection. They were not required to exhaust any administrative process to bring these claims. See Edward Valves, Inc., 343 N.C. at 435, 471 S.E.2d at 347.\nSecond, defendants are not protected from \u00a7 1983 claims on the basis of sovereign immunity. Corum v. University of North Carolina Through Bd. of Governors, 330 N.C. 761, 772, 413 S.E.2d 276, 283 (\u201c[S] overeign immunity alleged under state law is not a permissible defense to section 1983 actions.\u201d), disc. rev. denied, 506 U.S. 985, 121 L.Ed. 2d 431 (1992); Glenn-Robinson v. Acker, 140 N.C. App. 606, 627, 538 S.E.2d 601, 616 (2000) (noting that \u201ca municipal entity has no claim to immunity in a section 1983 suit\u201d (citation and quotation marks omitted)), disc. rev. denied, 353 N.C. 372, 547 S.E.2d 811 (2001). Indeed, defendants do not argue on appeal that they are immune from suit under \u00a7 1983.\nFinally, defendants argue that plaintiffs\u2019 \u00a7 1983 claim is barred by the statute of limitations concerning challenges to zoning ordinances. Plaintiffs urge us not to consider this argument since it was not raised below. Defendants did argue in their brief to the trial court that the statute of limitation barred plaintiffs\u2019 \u00a7 1983 claims, but only \u201c[t]o the extent Plaintiffs[\u2019] due process and equal protection claims are a based on\u201d a lack of notice of the amendments to the zoning ordinances. But plaintiffs\u2019 \u00a7 1983 claims are not based on any notice issue. Plaintiffs specifically alleged in their amended complaint that they are not \u201cattacking a defect in the ordinance adoption process . . . .\u201d Defendants apparently recognized this fact as they did not argue at the motions hearing that the statute of limitations would require dismissal of these claims. Moreover, it is not clear that they ever received a ruling from the trial court on this issue. Therefore, they have not preserved this issue for our review and we will not address it. N.C.R. App. P. 10(a)(1); Lovelace v. City of Shelby, 153 N.C. App. 378, 384, 570 S.E.2d 136, 140 (declining to address an appellee\u2019s argument that was not raised below), disc. rev. denied, 356 N.C. 437, 572 S.E.2d 785 (2002).\nWe hold that the trial court erred in dismissing plaintiffs\u2019 claims under 42 U.S.C. \u00a7 1983 because the claims are not barred by sovereign immunity or failure to exhaust administrative remedies. Therefore, we reverse the portion of the trial court\u2019s order dismissing these claims.\nV. Tax Claim\nPlaintiffs finally argue that the trial court erred in dismissing their claim under Article V, Section 2(2) of the North Carolina Constitution. We disagree.\nPlaintiffs alleged that defendant violated Article V, Section 2(2) of the North Carolina Constitution by refusing to allow business development on property that it has classified for tax purposes as business property. The North Carolina Constitution \u201crequires that taxation must be imposed by a uniform rule.\u201d HED, Inc. v. Powers, 84 N.C. App. 292, 294, 352 S.E.2d 265, 266, disc. rev. denied, 319 N.C. 458, 356 S.E.2d 4 (1987). That requirement is met \u201cif the rate is uniform throughout each taxing authority\u2019s jurisdiction.\u201d State ex rel. Dyer v. City of Leaksville, 275 N.C. 41, 49, 165 S.E.2d 201, 206 (1969).\nHere, plaintiffs do not actually challenge the tax classification or the uniformity of the tax rules. Indeed, they assert that the tax classification of their property as business property is entirely accurate. They have not alleged that defendants tax such property in a non-uniform manner. At best, the tax classification of plaintiffs\u2019 property might be relevant to the \u201cgood faith\u201d element of their vested rights claim. But their allegations are insufficient to state a claim under Article V, Section 2 of the North Carolina Constitution. Therefore, we affirm the trial court\u2019s dismissal of this claim.\nVI. Conclusion\nFor the foregoing reasons, we conclude that the trial court erred in dismissing plaintiffs\u2019 vested rights claim and their \u00a7 1983 claims, but that it properly dismissed plaintiffs\u2019 tax claim. Therefore, we reverse those portions of the trial court\u2019s order dismissing the vested rights and \u00a7 1983 claims, affirm the portion dismissing the tax claim, and remand for further proceedings.\nREVERSED, in part; AFFIRMED, in part; and REMANDED.\nJudges HUNTER, JR., Robert N. and DILLON concur.\n. The precise nature of the relationship between Ocean Associates and the other plaintiffs is not clear from the complaint.\n. Because this case comes to us on a motion to dismiss, all of the following facts are from the complaint; we express no opinion as to their veracity.\n. Exhaustion may be required for procedural due process claims. See Edward Valves, Inc. v. Wake County, 343 N.C. 426, 435, 471 S.E.2d 342, 347 (1996), cert. denied, 519 U.S. 1112, 136 L.Ed. 2d 839 (1997); Copper ex rel. Copper v. Denlinger, 363 N.C. 784, 788, 688 S.E.2d 426, 428 (2010).\n. See, e.g., Application of Campsites Unlimited, Inc., 287 N.C. 493, 215 S.E.2d 73 (1975), Browning-Ferris Industries Of South Atlantic, Inc. v. Guilford County Bd. of Adjustment, 126 N.C. App. 168, 484 S.E.2d 411 (1997), Kirkpatrick v. Village Council for Village of Pinehurst, 138 N.C. App. 79, 530 S.E.2d 338 (2000).\n. See, e.g., Town of Hillsborough v. Smith, 276 N.C. 48, 170 S.E.2d 904 (1969), Russell v. Guilford County, 100 N.C. App. 541, 397 S.E.2d 335 (1990), MLC Automotive, LLC v. Town of Southern Pines, 207 N.C. App. 555, 702 S.E.2d 68 (2010), disc. rev. denied, 365 N.C. 211, 710 S.E.2d 2 (2011).\n. This case involves only common law vested rights; plaintiffs do not assert statutory vested rights under N.C. Gen. Stat. \u00a7 160A-385.1.\n. There was a question raised at oral arguments concerning whether the plaintiffs other than Ocean Associates could bring a vested rights claim as successors in interest even though they did not actually expend the funds themselves. The individuals involved with the property are apparently the same, but the corporate forms have changed. This issue was not raised in the pleadings, briefed by the parties, or addressed by the trial court, so we express no opinion on that question.\n. Defendants did not argue to the trial court and do not argue on appeal that plaintiffs failed to allege any element of these claims.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Smith, Anderson, Blount, Dorsett, Mitchell & Jemigan, L.L.P., by Lacy H. Reaves and J. Mitchell Armbruster, for plaintiffs-appellants.", "County of Currituck, by Donald I. McRee, Jr., for defendants-appellees." ], "corrections": "", "head_matter": "SWAN BEACH COROLLA, L.L.C., OCEAN ASSOCIATES, LP, LITTLE NECK TOWERS, L.L.C., GERALD FRIEDMAN, NANCY FRIEDMAN, CHARLES S. FRIEDMAN, TIL MORNING, LLC, and SECOND STAR, L.L.C., Plaintiffs v. COUNTY OF CURRITUCK; THE CURRITUCK COUNTY BOARD OF COMMISSIONERS; and JOHN D. RORER, MARION GILBERT, O. VANCE AYDLETT, JR., H.M. PETREY, J. OWEN ETHERIDGE, PAUL MARTIN, and S. PAUL O\u2019NEAL as members of the CURRITUCK COUNTY BOARD OF COMMISSIONERS, Defendants\nNo. COA13-1272\nFiled 1 July 2014\n1. Zoning\u2014vested rights claim\u2014exhaustion of administrative remedies\u2014not required\nPlaintiffs were not required to exhaust administrative remedies before the Currituck County Board of Adjustment in order to bring this civil action and the trial court erred by dismissing their common law vested rights claim under N.C.G.S. \u00a7 1A-1, Rule 12(b)(1) A plaintiff is not required to request that a board of adjustment issue a variance that it does not have the authority to issue.\n2. Zoning\u2014common law vested rights\u2014statement of claim \u2014sufficient\nPlaintiffs\u2019 claim of common law vests rights in developing property was sufficiently pled to survive a motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6). Taking plaintiffs allegations as true, their clearing of lots, canal digging, dune building, and road grading were substantial expenditures, their property was not zoned at the time they made their expenditures, and their expenditures were made in good faith.\n3. Civil Rights\u2014\u00a7 1983\u2014development of land\u2014failure to exhaust administrative remedies\u2014sovereign immunity\u2014 statute of limitations\nThe trial court erred by dismissing plaintiffs\u2019 claims under 42 U.S.C. \u00a7 1983 because these claims were not barred by state law sovereign immunity or failure to exhaust administrative remedies. Defendants did not preserve a statute of limitations issue for appeal because they did not argue the statute of limitations at the motion hearing and it was not clear that they obtained a ruling on the issue.\n4. Zoning\u2014state constitution\u2014tax classification\u2014claim dismissed\nThe trial court did not err in a zoning case by dismissing plaintiffs\u2019 allegations under Article V, Section 2 of the North Carolina Constitution that the County had refused to allow business development on property that it had classified as business property for tax purposes. Plaintiffs did not challenge the tax classification or the uniformity of the tax rules. The tax classification of plaintiffs\u2019 property might be relevant to the \u201cgood faith\u201d element of their vested rights claim, but their allegations were insufficient to state a claim under Article V, Section 2 of the North Carolina Constitution.\nAppeal by plaintiffs from Order entered 24 July 2013 by Judge Wayland J. Sermons in Superior Court, Currituck County. Heard in the Court of Appeals 24 April 2014.\nSmith, Anderson, Blount, Dorsett, Mitchell & Jemigan, L.L.P., by Lacy H. Reaves and J. Mitchell Armbruster, for plaintiffs-appellants.\nCounty of Currituck, by Donald I. McRee, Jr., for defendants-appellees." }, "file_name": "0617-01", "first_page_order": 627, "last_page_order": 641 }