# Currituck County, North Carolina v. LeTendre > District Court, E.D. North Carolina · February 12, 2020 URL: https://www.frixlaw.com/law-library/cases/10250909 ## Case - **Court:** District Court, E.D. North Carolina - **Decided:** February 12, 2020 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10250909 ## Opinion text IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA NORTHERN DIVISION No. 2:19-CV-27-BO CURRITUCK COUNTY, NORTH ) CAROLINA, ) Plaintiff, ) ORDER ELIZABETH E. LETENDRE, Defendant. ) This cause comes before the Court on plaintiff's motion to remand and defendant’s motion for an injunction pursuant to the All Writs Act, 28 U.S.C. 1651(a). The appropriate responses and replies have been filed and a hearing on the matters was held before the undersigned on February 5, 2020, at Elizabeth City, North Carolina. In the posture, the motions are ripe for ruling and, for the reasons that follow, both motions are denied. BACKGROUND | oe a This case arises out of a dispute over a building project constructed on a 3.67-acre lot at 1441 Ocean Pearl Road in Currituck County, North Carolina. Defendant, Elizabeth LeTendre, is aresident of Massachusetts and owns the poner and the dwelling. The parcel is within Currituck □ County’s zoning jurisdiction and is subject to its Unified Development Ordinance (UDO). The North Carolina Court of Appeals has described the building project as comprising 15,000 square “feet'and consisting of: “a three-story main building that includes cooking, sleeping, and sanitary facilities” and two “two-story side buildings that include sleeping and sanitary facilities. The main building and side buildings are connected by conditioned hallways so that all three may be used together as one unit, and each of the three buildings is approximately 5,000 square feet.” Lorig v. Currituck Cty., 248 N.C. App. 55, 56 (2016) (internal quotations omitted). This building project has resulted in a series of cases litigated before the Currituck County Board of Adjustment and in the state courts of North Carolina. The primary litigated issue has been whether LeTendre’s plans satisfied the Currituck County UDO’s definition of a single family dwelling. LeTendre’s lot is located in the Single Family Residential Outer Banks Remote zone, in which the UDO permits ‘single family detached dwellings. Single family detached dwellings are defined by the UDO as □□ residential building containing not more than one dwelling unit to be occupied by one family, not _, physically attached to any other principal structure.” [DE 1-3] Compl. 6. □ — In November 2013, the Currituck County Planning Director issued a letter of determination "finding that LeTendre’s revised project plans constituted a single family detached dwelling and complied with the county’s UDO. LeTendre’s neighbors, Marie and Michael Long, appealed the _. etter of determination to the Currituck County Board of Adjustment. The Board of Adjustment held that LeTendre’s plans depicted a home that satisfied the UDO’s definition of a single family . dwelling, ‘The Longs then appealed that decision to the Currituck County Superiér Court. Ta December 2014, the superior court also ruled the plans reflected a single family dwelling in pometinnce with the UDO. Long v. Currituck County and LeTendre, 14-CVS-228. The Longs again appealed, and on June 21, 2016, the North Carolina Court of Appeals held that LeTendre’s project included multiple buildings, none of which were accessory structures, atid oa ‘that the project did not satisfy the UDO’s definition of a single family dwelling. Long v. Currituck : Cy, 248 N.C. App. 55, 64 (2016). The court of appeals reversed the superior court’s eenater Famer for further proceedings consistent with its opinion. Jd. On September 24° 2016, the superior — ordered that the Board of Adjustment’s decision and the letter of determination weil reversed. In March 2015, during the appeals process, LeTendre received a building permit for □□□□ _ building project from the County. Construction was allegedly 95% complete when the court of Peele filed its opinion and by the end of 2016 the construction of the proj ect was complete. On February 1, 2017, the County sent LeTendre a notice of violation, instructing her to bring the: building project into compliance. LeTendre appealed the notice of violation to the Board of Adjustment, but no hearing has taken place. LeTendre submitted another set of construction plans to the County, and on March 27, 2017, the County sent LeTendre a letter of determination finding that the 2017 plans, which depicted the same buildings as the 2013 plans, was not in compliance with the UDO. Also on March 27, 2017, LeTendre filed a complaint and request for preliminary injunction in Currituck County Superior Court. LeTendre v. Currituck County, 17-CVS-146. On June 9, 2017, the superior court entered a preliminary injunction against the County’s February 2017 notice of violation and 2018 letter of determination. The superior court ordered the County to “deem the home approved by the County Building permit issued in March 2015 tobe single-family detached dwelling for purposes of the Currituck County Unified Development to rescind the Stop Work Order issued in September 2016 and the Notice of Violation issued in February 2017; and to permit Plaintiff to complete construction of her project and □□□□ allow occupancy.” Letendre y. Currituck Cty., 817 S.E.2d 73, 78 (N.C. Ct. App. 2018). The - superior court also denied the Longs’ motion to intervene. . The County appealed the preliminary injunction. On August 15, 2017, presumably □□□□ County’s appeal was pending, the County issued LeTendre a certificate of compliance for the Poe deccnbine itasa single family dwelling. The court of appeals ultimately réveised' the superior poUrGe entry of a preliminary injunction by opinion filed May 15, 2018. eerie. 817 §.E.2d at 107. On February 15, 2019, the County notified LeTendre that it had revoked her certificate of compliance. □□□ On August 5, 2019, Currituck County filed a complaint against LeTendre in the Currituék ‘County Superior Court seeking, inter alia, a declaration and prohibitory injunction under state law as well as an order of abatement and/or a injunction compelling LeTendre to conform the building project to comply with section 10.51 of the Currituck County UDO and prior decisions of the North Carolina Court of Appeals. LeTendre removed Currituck County’s complaint to this Court on the basis of its diversity jurisdiction and asserted counterclaims against the County. Following LeTendre’s removal of Currituck County’s case to this Court, Currituck coer Michael P. and Marie C. Long filed a motion for injunctive relief in the closed Currituck County SUneon Court proceeding, 14 CVS 228, styled Long v. Currituck County, North Carolia □ Elizabeth LeTendre. [DE 23-1]. In their joint motion, the Longs and Currituck County sought ancillary injunctive relief under N.C. Gen, Stat. § 160A-393(m) seeking an order enforcing ine eon of appeals’ decision in Long v. Currituck County, 285 N.C. App. 55 (2016), and ordering ‘LeTendre to either move or remove her allegedly unlawful buildings from the 1441 Ocean Pearl Road lot. The Superior Court granted the Longs’ and Currituck County’s request for injunctive relief and declined to stay its order to allow the litigation in this Court to proceed. [DE 23-3; 23- 4], LeTendre’s motion for injunction under the All Writs Act was filed in this Court following the ‘superior court’s denial of her motion to stay the state proceeding. □□ a A few days after Currituck County and the Longs filed their joint motion in Curritiiék ‘County Superior Court, Currituck County filed a motion to remand this case to Currituck ‘County. ‘Currituck County argues that the iocries of Burford and Younger abstention apply and counsel -against this Court adjudicating the County’s complaint and LeTendre’s counterclaims. LeTendre opposes remand. DISCUSSION Motion for injunction under the All Writs Act. The All Writs Act provides that the federal courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principals of law.” 28 US.V. § 1651(a). It authorizes federal courts to “issue such commands... as may be mecessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.” United States v. New York Tel. Co., 434 US. 159,172 (1977). The Anti-Injunction Act, however, provides that a federal court “may not een an injunction to stay proceedings in a State court except as expressly authorized by an Ae of leonmessl or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U‘S.C. § 2283. The Anti-Injunction Act is an “absolute prohibition against any injunction of “any state-court proceedings, unless the injunction falls within one of the three specifically defined exceptions in the Act.” Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 630 (1977). OS LeTendre’s counterclaims against Currituck County include, among others, claims under 42 US.C. § 1983 for inverse condemnation and unconstitutional taking as well as violation of her equal. protection rights secured by the Fourteenth Amendment. Section 1983 is an act of Congress aren falls within the expressly authorized exception to the Anti-Injunction Act. Mitchum Foster,.407 U.S. 225, 243 (1972). “However, merely because an injunction may an does riot mean that it should or must. Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 151 (1988). Rather, a federal court must be restrained by principles of equity, comity, and federalism, and should only ‘Stay a state court proceeding where the moving party’s § 1983 claims could not be given their intended scope in the absence of an injunction. Mitchum, 407 U.S. at 238, 243. Here, it is plain that LeTendre will be able to prosecute her § 1983 claims even in the face of a state court order to enforce the decisions of the state court of appeals. See also Knick v. Twp. of Scott, Pennsylvania, 139 s. Ct. 2176 (2019) (discussing taking claims and holding that “As long as an adequate provision for obtaining just compensation exists, there is no basis to enjoin government action effecting a taking.”). Nor would an injunction be, as LeTendre argues, in aid of this Court’s jurisdiction: “The tule is well established that where federal and state courts have concurrent jurisdiction over actions ‘involving an identical issue and both are in personam the actions may proceed simultaneously and neither court may enjoin the other proceeding.” St. Paul Fire & Marine Ins. Co. v. Lack, 443 F.2d 404, 407 (4th Cir. 1971); see also United States v. Schurkman, 728 F.3d 129, 138 (2d Cir. 2013). Finally, the third exception to the Anti-Injunction Act is inapplicable, as this Court has not entered judgment in this matter that would need protecting or effectuating. Bryan v, BeliSouth Comme Inc., 492 F.3d 231, 236 (4th Cir. 2007). Accordingly, the Court, in its discretion, declines to enter the injunction sought by ‘LeTendre. □ □ IL Motion to remand. eae, we □ Currituck County asks this Court to remand based upon the doctrines of Biujord and Younger abstention. See Burford v. Sun Gil Co., 319 US. 315, 316 (1943) Younger v. Heirs “401 US.37, 38 (1971). It is undisputed that this case was properly removed and that Coutt Riediecon over the pomrisint and counterclaims. es 6 . Federal courts typically have an unflagging duty to exercise their jutisdiction 46 ‘decide cases which are properly before them. Quackenbush v. Allstate Ins, Co., 517US. 706, 716 (1996). Abstention under Burford applies to federal courts sitting in equity □ □□ (1) when there are “difficult questions of state law bearing on policy problems of ° substantial public import whose importance transcends the result in the case then at bar”; or (2) where the “exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 361 (1989) (citation omitted). Burford abstention has often been found to be appropriate in state and local land use and zoning cases because a federal decision would be disruptive of a state’s establishment of a coherent pole with respect to a matter of public concern. See, e.g., MIC Auto., LLC v. Town of S. Pines, F.3d 269, 282 (4th Cir. 2008). However, zoning and land use cases do not automatically require federal courts to abstain under Burford. Washington Gas Light Co. v. Prince George □ Cty, Council, 711 F.3d 412, 419 (4th Cir. 2013). The Court in its discretion determines that Burford abstention is not warranted in this case. This Court will not be required to answer difficult or disputed questions of state law, and strong state interest alone is an insufficient ground on which to abstain under Burford. Martin v. Stewart, 499 F.3d 360, 369 (4th Cir. 2007). Moreover, the Court plainly has jurisdiction and may procesd “to consider LeTendre’s counterclaims, including her vested rights and equal protestion clas e.g., Griffin Farm & Landfill, Inc. v. Town of Unionville, No. 3:10-CV-250-RJC-DSC, 2012 WL 3257789, at 3 (W.D.N.C. Aug.-8, 2012) (examination of whether party acquired vested right under North Carolina law); Town of Nags Head v. Toloczko, 728 F.3d 391, 398 (4th Cir. 2013) (citation omitted) (that equal protection claim and zoning law are intertwined does not necessarily mean that the equal protection claim is “state law in federal clothing.”). Additionally, inverse 7 condemnation claims need not be litigated in state court before proceeding in federal court. Knick, 1398. Ct. at 2179. □□ Mindful that the balance between federal and state interest “only rarely favors abstention,” Quackenbush, 517 U.S, at 726, the Court determines that abstention under Burford is not appropriate in this case, and that if it were, the Court would exercise its discretion not to abstain. Under Younger, a federal court must “abstain from exercising jurisdiction and interfering . in a state [] proceeding if 1) there is an ongoing state judicial proceeding brought prior to _substantial progress in the federal proceeding; that (2) implicates important, substantial, or vital _ state interests; and (3) provides adequate opportunity to raise constitutional challenges.” Nivens Gilchrist, 444 F.3d 237, 241 (4th Cir. 2006); Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 165 (4th Cir: 2008). ee ‘First, there is no pending litigation which was brought prior to substantial progress in this The County filed this action in August 2019, and it filed its motion seeking to enforce . judgment in the closed Long proceeding after this case was removed to this Court. Second, “ajbstention is not in order simply because a pending state-court proceeding involves the □□ subject matter.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013). Younger involved. a state criminal prosecution, and, although its holding has been extended to apply where there ‘is an ongoing civil case which is quasi-criminal in nature or akin to a criminal proceeding, the Supretis Count has! cautioned against extending Younger to virtually all parallel federal and state proceedings id at72,81. °° Ls For thése reasons, the Court deterniines that the requirements for Younger abstention ‘are not present in this action, and it declines to abstain on that ground. Also pending before the Court is a motion by Marie and Michael Long to intervene in this action for the limited purpose of opposing LeTendre’s request for an injunction. Because the Court has denied the motion for injunction, the motion to intervene is denied as moot. CONCLUSION Accordingly, and for the foregoing reasons, the motion to remand [DE 15] is DENIED and the motion for an injunction pursuant to the All Writs Act [DE 21] is also DENIED. The motion to intervene [DE 31] is DENIED AS MOOT. □□ ORDERED, this /@¥ day of February, 2020. TERRENCE W. BOYLE □ CHIEF UNITED STATES DISTRICT JUDGE» --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10250909. Public record. Not legal advice.