LeTendre v. Currituck Cty.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA17-1108

Filed: 15 May 2018

Currituck County, No. 17-CVS-146

ELIZABETH E. LETENDRE, Plaintiff,

v.

CURRITUCK COUNTY, NORTH CAROLINA, Defendant.

Appeal by Defendant from order entered 9 June 2017 by Judge Walter H.

Godwin, Jr. in Superior Court, Currituck County. Heard in the Court of Appeals 21

March 2018.

Parker Poe Adams & Bernstein LLP, by Jonathan E. Hall, Michael J. Crook,

and Jamie Schwedler, for plaintiff-appellee.

Currituck County Attorney Donald I. McRee, Jr., for Defendant-appellant.

STROUD, Judge.

I. Introduction

This case arises from this Court’s prior opinion issued on 21 June 2016 in Long

v. Currituck County, ___ N.C. App. ___, 787 S.E.2d 835 (2016), which held that under

Currituck County’s Unified Development Ordinance § 10.51, Plaintiff’s proposed

“project does not fit within the plain language of the definition of Single Family

Dwelling, and thus is not appropriate in the SF District.” Id. at ___, 787 S.E.2d at

841. While Long was pending before this Court, Plaintiff was warned of the possible

LETENDRE V. CURRITUCK CTY.

Opinion of the Court

consequences of proceeding with construction of the project if the trial court’s order

in that case was reversed on appeal, but she decided to build the project anyway.

After Defendant took action to comply with this Court’s ruling in Long, issued on 21

June 2016, Plaintiff sought and obtained a preliminary injunction issued on 9 June

2017 which required Defendant to “deem the home approved by the County building

permit issued in March 2015 to be a single-family detached dwelling for purposes of

the Currituck County Unified Development Ordinance” and to allow her to complete

construction and occupancy of the project. Defendant appealed the preliminary

injunction. Although Plaintiff’s complaint includes many claims in her attempt to

prevent Defendant from enforcing the Unified Development Ordinance in accordance

with this Court’s opinion in Long, ___ N.C. App. ___, 787 S.E.2d 835, Plaintiff has not

demonstrated that she is likely to prevail on any of her claims, and therefore the

preliminary injunction must be reversed.

II. Background

On 27 March 2017, Plaintiff filed this action seeking a declaratory judgment,

preliminary injunction, permanent injunction, monetary damages, and attorney fees.

On 9 June 2017, the trial court entered a preliminary injunction ordering Defendant

to “deem the home approved by the County Building permit issued in March 2015 to

be a single-family detached dwelling for purposes of the Currituck County Unified

Development Ordinance;” to rescind the Stop Work Order issued in September 2016

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and the Notice of Violation issued in February 2017; and to permit Plaintiff to

complete construction of her project and then allow occupancy.

Plaintiff sought the preliminary injunction and other relief to prevent

Defendant from complying with this Court’s ruling issued on 21 June 2016 in Long,

___ N.C. App. ___, 787 S.E.2d 835. Plaintiff was a party to Long and that case dealt

with the same project and the same provisions of the Currituck County Unified

Development Ordinance (“UDO”) as this case. See generally id. In Long, the

petitioner-plaintiffs appealed

a Superior Court (1) DECISION AND ORDER affirming

the Currituck County Board of Adjustment’s decision that

a structure proposed for construction on property owned by

Respondent Elizabeth Letendre is a single family detached

dwelling under the Currituck County Unified Development

Ordinance and a permitted use in the Single Family

Residential Outer Banks Remote Zoning District and

dismissing petitioners’ petition for writ of certiorari and (2)

ORDER denying petitioners’ petition for review of the

Currituck County Board of Adjustment’s decision and

again affirming the Currituck County Board of

Adjustment's decision.

Id. at ___, 787 S.E.2d at 836 (quotation marks omitted). In other words, the

preliminary injunction on appeal ordered Defendant to “deem” Plaintiff’s project

which was under construction during the pendency of the appeal of Long “to be a

single-family detached dwelling” under the Currituck County UDO, although this

Court held in Long that her house is not a single-family detached dwelling as defined

by the Currituck County UDO. See id., ___ N.C. App. ___, 787 S.E.2d 835.

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Plaintiff described her plan to build the house which is the subject of this case,

and was the subject of Long, in her complaint as follows:

4. LeTendre bought the Lot on the open market

in April 2012 for a purchase price of $530,000.00.

5. From the time that LeTendre bought the Lot

in April 2012, through the present time, the Lot has had a

Single Family Residential Outer Banks Remote (“SFR”)

zoning classification assigned to it by Currituck County.

6. Under Currituck County’s Unified

Development Ordinance (“UDO”), developments that are

permitted on properties with a SFR zoning classification

include single-family detached dwellings.

7. Section 10.51 of the UDO defines a “single-

family detached dwelling” as a “residential building

containing not more than one dwelling unit to be occupied

by one family, not physically attached to any other

principal structure. For regulatory purposes, this term

does not include manufactured homes, recreational

vehicles, or other forms of temporary or portable housing.

Manufactured buildings constructed for use as single-

family dwelling units (manufactured home dwellings) are

treated similar [sic] to single-family detached dwellings.”

8. Neither Section 10.51 of the Currituck County

UDO, nor any other provision of the Currituck County

UDO, limits the square footage that a single family

detached dwelling may have.

9. Neither Section 10.51 of the Currituck County

UDO, nor any other provision of the Currituck County

UDO, limits the number of bedrooms that a single-family

detached dwelling may have.

10. Neither Section 10.51 of the Currituck County

UDO, nor any other provision of the Currituck County

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UDO, limits the number of rooms that a single family

detached dwelling may have.

11. After buying the Lot in April 2012, LeTendre

engaged an architect to develop plans for a home to be built

on the Lot. LeTendre’s architect first developed plans for a

home (“Disconnected Home”) with one central wing and

two side wings. The two side wings would not be connected

to the central wing, and instead unenclosed decking would

run between the central wing and each side wing, such that

a person would have to step outside of the Disconnected

Home in order to travel from wing to wing. The three wings

would not have connected rooflines. On the plans for the

Disconnected Home, because the three wings were not

connected, the architect labeled each of the three wings as

a separate “building.” Those plans were never utilized, and

the Disconnected Home was never built.

12. LeTendre’s representatives later sought

guidance from the County regarding what type of

development on the Lot would qualify as a single-family

detached dwelling under the Currituck County UDO.

LeTendre’s representatives met with the County Planning

Director and the County Attorney in 2013. At that

meeting, the County Planning Director advised LeTendre’s

representatives that, if the three wings had a connected

roof and were connected by air-conditioned hallways that

allowed for the free flow of heating and air conditioning,

the resulting home would qualify as a single-family

detached dwelling under the UDO. The County Planning

Director did not claim that the three wings would need to

have a common foundation in order for the home to qualify

as a single-family detached dwelling.

13. Based on this guidance from the County

Planning Director, LeTendre’s architect developed a new

set of plans for a different home for the Lot. This home

(“Home”) would also have a central wing and two side

wings. But unlike in the Disconnected Home, the Home’s

side wings would be connected with the central wing by two

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enclosed, air-conditioned hallways. These hallways would

allow for the free flow of heating and air conditioning, and

they also would allow a person to walk throughout the

Home, including all three wings, without ever stepping

outside. The three wings in the Home would have a

common, integrated roofline.

14. Although the plans for the Home showed that

the three wings would be interconnected and would have a

connected roofline, through inadvertence these plans

continued the practice from the Disconnected Home’s plans

of labeling each wing as a separate “building.”

15. In October 2013, LeTendre submitted the

plans (“Plans”) for this Home to Currituck County for the

County to formally confirm that the Home would be a

permissible single-family detached dwelling that would be

permitted on the Lot under the County’s UDO.

16. The Plans showed that each wing would be

slightly less than 5,000 square feet in size, and they showed

that the Home would also have a detached pavilion as an

accessory structure.

17. The Plans showed that the foundation of each

enclosed, air-conditioned hallway would be connected to

the foundation of the side wing to which that hallway was

attached.

18. The Plans showed that the foundations for the

enclosed, air-conditioned hallways would not be connected

to the foundation of the Home’s central wing.

19. The Plans showed that each of the three

wings would have its own separate foundation and that the

foundations for the three wings would not connect together.

20. The Plans showed that the Home would not

have a single common foundation.

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21. The Plans that were submitted to Currituck

County in October 2013 disclosed the square footage of

each of the three wings of the Home as well as the total

square footage of the Home.

In November of 2013, the Currituck County Planning Director, Mr. Ben E. Woody,

issued a Letter of Determination “confirming that the Home as proposed in the Plans

would be a single-family detached dwelling and would be permitted on the Lot

pursuant to the Currituck County UDO.”

Besides approval by the Currituck County BOA, Plaintiff’s house required a

permit from the N.C. Department of Environment and Natural Resources (“DENR”)

allowing “[m]ajor [d]evelopment in an [a]rea of [e]nvironmental [c]oncern pursuant

to NCGS 113-118[.]” Plaintiff planned to build close to the water, in a location “set

back a minimum of 60 feet from the first line of stable natural vegetation[.]” Plaintiff

had hired George Wood, of Environmental Professionals, as a consultant to “assist

her in obtaining state and federal approvals for construction of a home on the

oceanfront property she bought in April 2012.” Plaintiff’s representatives, including

Mr. Wood, her architect, and her contractor, worked with the North Carolina

Division of Coastal Management to develop a plan for the house which would meet

Coastal Area Management Act (“CAMA”) requirements. The requirement which has

created most of this controversy was that no building could be larger than 5,000

square feet; Plaintiff planned for the project to be approximately 15,000 square feet.

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The trial court’s order made several findings of fact regarding the CAMA

regulations:

3. Construction on LeTendre’s lot would also

have to satisfy regulation under North Carolina’s Coastal

Area Management Act (“CAMA”). CAMA regulations

impose setbacks that developments must satisfy that are

based on the size of the developments proposed. LeTendre

wanted her home to use a CAMA setback known as the “60

foot” setback, which requires a development to be set back

from the waterfront a minimum of 60 feet or 30 times the

property’s shoreline erosion rate. That setback is for

developments less than 5,000 square feet in size. However,

CAMA regulations allow a larger development to use the

60-foot setback if that development is composed of separate

components that are each less than 5,000 square feet and

that are structurally independent of each other. LeTendre

therefore intended to design her home so that each of the

three wings would be less than 5,000 square feet and would

be structurally independent from each other. Designing

homes that are larger than 5,000 square feet so that they

have structurally independent components and can use the

60-foot CAMA setback is permitted by the Division of

Coastal Management and is common along the North

Carolina Coast and in Currituck County. LeTendre’s

representatives explained to the Division of Coastal

Management and to Currituck County her desire for the

wings of her home to be structurally independent so that

the 60-foot setback could be used.

4. After consultation with the North Carolina

Division of Coastal Management, which administers

CAMA regulations, and with the Currituck County

Planning Department, LeTendre’s architect prepared a set

of plans that proposed to connect the three wings of her

home using uncovered, unenclosed decking. Although this

would satisfy CAMA’s requirement for structural

independence, the Currituck County Planning Director

would not accept those plans. The Planning Director

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determined that connecting the wings with unenclosed

decking would not make the wings a single structure in

order for the home to qualify as a single-family detached

dwelling under the County UDO.

5. During subsequent discussions between

LeTendre’s design professionals and the County Planning

Department, the County Planning Director proposed that

the wings be connected with enclosed, air conditioned

hallways. The Planning Director determined that

connecting the wings in this way would allow the home to

qualify as a single-family detached dwelling because the

wings would be sufficiently integrated to constitute a single

structure. There was no language in the UDO that

expressly contradicted this determination by the Planning

Director.1

6. LeTendre’s architect therefore prepared a set

of plans that proposed to connect the three wings using

enclosed, air conditioned hallways. After reviewing these

plans, the County Planning Director issued a November

2013 Letter of Determination providing that the home

proposed on those plans would qualify as a single-family

detached dwelling under the UDO. The Division of Coastal

Management also concluded that those plans satisfied

CAMA’s setback regulations so that the 60-foot setback

could be used for LeTendre’s home.

After these consultations and plan revisions seeking to comply with both CAMA

regulations and the UDO, the CAMA permit was “issued on March 17th, 2014, four

days after the hearing before the Currituck County Board of Adjustment on March

13, 2014” where Mr. Wood testified as Plaintiff’s CAMA expert.

1 Section 10.51 of the UDO does not permit the principal structure to be “physically attached”

to any other principal structure, so the last sentence of this finding is not entirely accurate; this Court

interpreted the UDO in Long and determined otherwise. Long, __ N.C. App. at ___, 787 S.E.2d at 838.

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In December of 2013, landowners adjacent to Plaintiff’s lot, Mr. and Mrs. Long,

appealed the November 2013 Letter of Determination to the Currituck County BOA,

which upheld the Letter of Determination in May of 2014. The Longs then sought

review of the BOA’s determination by the Superior Court, which upheld the BOA’s

ruling in December of 2014; on 31 December 2014, the Longs appealed.

In March of 2015, after the Longs filed their notice of appeal and before the

record on appeal had even been submitted to this Court, Plaintiff sought a Building

Permit “permitting construction of the Home on the Lot.” Our record shows that both

the Currituck County Planning Director, Mr. Woody, and counsel for the Longs

warned Plaintiff about beginning construction before this Court had issued its

opinion in Long. On 2 April 2015, counsel for the Longs sent a letter to Plaintiff’s

counsel warning:

I want to emphasize that this litigation is not over and you

and your client are on notice that construction of the

project while the litigation is ongoing is done with the risk

that the appellate court will reverse the Superior Court,

and that such reversal would result in the revocation of the

building permit. While it may be true that your client can

begin construction (provided there is no other prohibition

from the Department of Insurance) your client will

nonetheless be required to tear down, dismantle or

otherwise remove such construction if the Court of Appeals

reverses the Superior Court and revokes the zoning

approval and attendant building permit. I understand that

your client has elected to proceed with construction despite

knowledge of the aforementioned risks.

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Despite these warnings, Plaintiff proceeded with construction. Plaintiff

described her decision to proceed in her affidavit filed in this case:

14. In March 2015, Currituck County issued a

building permit for my home to me and to my general

contractor. Although the Longs’ appeal wasn’t over, after

carefully considering all options, I decided to proceed with

construction of the home. I made this decision for several

reasons.

15. First, over the course of a year, three different

authorities had considered the 2013 plans for my home and

had agreed that the home would be permitted under the

County UDO. The Currituck County Planning Director

had made that determination, the Currituck County Board

of Adjustment had made that determination, and then a

superior court judge had made that determination. All of

them had considered the Longs’ arguments for why my

home shouldn’t be allowed, and all of them had rejected the

Longs’ arguments.

16. Additionally, the plans for my home had been

reviewed and approved by a number of other agencies . . . .

These agencies all had reviewed the plans because a CAMA

Major Development was required for my home.

17. Meanwhile, the Longs hadn’t filed any appeal

to the Board of Adjustment from the building permit issued

to me in March 2015. No challenge to that permit existed

when I decided to begin construction. In fact, to date, no

one has appealed the issuance of my building permit, and

the County Building Inspector has never withdrawn that

permit. The Longs also had not appealed the Division of

Coastal Management’s issuance of a CAMA permit for my

home.

On 21 June 2016, this Court issued its opinion in Long, reversing the superior

court’s order and holding that Plaintiff’s project as proposed was not a single family

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detached dwelling as defined by the Currituck County UDO, Section 10.51. See Long,

___ N.C. App. ___, 787 S.E.2d 835. Plaintiff alleges in her complaint in this action

that construction on the project was about 95% complete at that point. Plaintiff’s

representatives met with county officials and they discussed various ways of bringing

Plaintiff’s house into compliance with the UDO in a manner within the CAMA permit

but could not reach an agreement. In September 2016, Defendant issued a Stop Work

Order. In January 2017, Plaintiff proposed an amendment to the UDO which would

allow her project to be permitted as a single family detached dwelling, but the

Currituck County Board of Commissioners rejected it. On 1 February 2017, the

Currituck County Planning Director issued a Notice of Violation based upon the

house’s failure to qualify as a single family detached dwelling under the UDO, in

accordance with Long. Plaintiff made no changes to the house but filed this action

seeking injunctions and a declaratory judgment preventing Defendant from

complying with this Court’s ruling in Long and compensation for Defendant’s

attempts to enforce Long.

III. Preliminary Matters

Before addressing the substance of Defendant’s appeal, we first address a few

preliminary matters.

A. Plaintiff’s Claims

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Plaintiff’s complaint presents many claims which she alleges support issuance

of a preliminary injunction, permanent injunction, and ultimately a declaratory

judgment preventing Defendant from enforcing its UDO in accord with this Court’s

opinion in Long. To avoid confusion, we will address Plaintiff’s claims mostly in the

order as presented in her complaint, although we will group the claims of

constitutional violations together since the analysis is similar for each. Plaintiff

labeled her claims as follows:

FIRST CAUSE OF ACTION

(Section 10.51 of the Currituck County UDO Violates

North Carolina’s Zoning Enabling Statutes)

(Section 10.51’s Requirement That the Home Have a Single

Common Foundation Does Not Promote Health, Safety,

Morals, or the General Welfare)

(Section 10.51’s Requirement That a Single-Family

Detached Dwelling Be Contained Within a Single Building

Does Not Promote Health, Safety, Morals, or the General

Welfare)

(Section 10.51 Otherwise Imposes Pointless Restrictions)

SECOND CAUSE OF ACTION

(Section 10.51 of the Currituck County UDO Violates the

United States and North Carolina Constitutions Because

It Is Arbitrary and Capricious)

THIRD CAUSE OF ACTION

(Section 10.51 of the Currituck County UDO Attempts To

Regulate “Building Design Elements” In Violation of North

Carolina Law)

FOURTH CAUSE OF ACTION

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(Section 10.51 of the Currituck County UDO Is Preempted

By the North Carolina Building Code)

FIFTH CAUSE OF ACTION

(Section 10.51 of the Currituck County UDO Is

Unconstitutionally Vague)

SIXTH CAUSE OF ACTION

(Currituck County Has Taken LeTendre’s Property)

SEVENTH CAUSE OF ACTION

(Currituck County Has Violated LeTendre’s Right to Equal

Protection Under the North Carolina Constitution and the

United States Constitution)

EIGHTH CAUSE OF ACTION

(Currituck County’s Attempts to Enforce Section 10.51 of

the UDO Against the Home are Barred by Laches)

NINTH CAUSE OF ACTION

(LeTendre Has Vested Rights To Complete the Home and

To Use the Home)2

In this appeal, we will consider only whether the trial court erred in issuing

the preliminary injunction. We will consider only whether the trial court erred in

issuing the preliminary injunction based upon the conclusion that Plaintiff is likely

to prevail on the merits of any of the other claims and will suffer irreparable harm

without issuance of the injunction.

B. Interlocutory Appeal

Because the preliminary injunction is not a final order, this appeal is

2 Plaintiff’s complaint has 69 pages with 372 paragraphs of allegations. The record includes

651 pages of exhibits. In comparison, this opinion is relatively short.

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interlocutory. See Rockford-Cohen Grp., LLC v. N.C. Dep’t of Ins., 230 N.C. App. 317,

318, 749 S.E.2d 469, 471 (2013) (“It is well-established that a preliminary injunction

is an interlocutory order.”) “There is no immediate right of appeal from an

interlocutory order unless the order affects a substantial right.” Id. Defendant

alleges that it has a substantial right that will be impaired if review is delayed

because it has a right to exercise its police power to enforce its ordinances. Defendant

is correct as clarified by Judge, now Justice, Ervin’s dissent, which was adopted by

the Supreme Court in Sandhill Amusements, Inc. v. Sheriff of Onslow Cnty.: “[T]his

Court has recognized that the entry of a preliminary injunction precluding a state or

local agency from enforcing the law affects a substantial right and is immediately

appealable.” 236 N.C. App. 340, 360, 762 S.E.2d 666, 680 (2014) (Ervin, J.

dissenting), rev'd and remanded, 368 N.C. 91, 773 S.E.2d 55 (2015). Adoption and

enforcement of zoning ordinances is an exercise of the police power. See Raleigh v.

Fisher, 232 N.C. 629, 635, 61 S.E.2d 897, 902 (1950) (“In enacting and enforcing

zoning regulations, a municipality acts as a governmental agency and exercises the

police power of the State.”) This Court therefore “has jurisdiction over Defendant’s

appeal from the issuance of the preliminary injunction” and we will “proceed to

address the validity of Defendant’s challenge to . . . the trial court’s order on the

merits.” Sandhill, 236 N.C. App. at 361, 762 S.E.2d at 681.

C. Plaintiff’s Motion to Dismiss as Moot

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Plaintiff has moved to dismiss this appeal as moot because the preliminary

injunction on appeal allowed her to complete the construction of the project and begin

using it. Plaintiff argues that the “[c]onstruction cannot be undone, the County’s

determination that the Home was constructed in accordance with the building code

cannot be unmade, and the [Certificate of Occupancy] cannot rightfully be rescinded.”

Defendant responds that even though the project is complete, the preliminary

injunction continues to have effect because it “prevents the County from requiring

Letendre to cease use of the multiple buildings on her property until she complies

with the UDO and this Court’s Long decision and the County’s use of civil and

criminal remedies to enforce the county’s ordinance.”

“A case is considered moot when a determination is sought on a matter

which, when rendered, cannot have any practical effect on the existing

controversy.” Lange v. Lange, 357 N.C. 645, 647, 588 S.E.2d 877, 879 (2003)

(citation and quotation marks omitted). Plaintiff’s assertions that “construction

cannot be undone” and “the [Certificate of Occupancy] cannot rightfully be rescinded”

are not supported by law and are incorrect. Construction can be undone and

structures can be moved. Plaintiff’s assertion regarding “the County’s determination

that the Home was constructed in accordance with the building code” is irrelevant.

There has never been any contention in this case that Plaintiff’s project was in

violation of the building code; the dispute arises from the UDO. Because the

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preliminary injunction continues to keep Defendant from enforcing the UDO as

required by this Court’s opinion in Long, this appeal is not moot, see generally id.,

and Plaintiff’s motion to dismiss is denied.

IV. Analysis

Defendant appealed the trial court’s ORDER GRANTING PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION which orders Defendant to “deem the

home approved by the building permit issued in March 2015 to be a single-family

detached dwelling for purposes of the Currituck County Unified Development

Ordinance” and to allow Plaintiff to complete construction of the home and to grant

a certificate of occupancy when complete. The trial court determined Plaintiff was

likely to succeed on the merits of several claims in her complaint, and Plaintiff argues

on appeal that even if a legal basis found by the trial court was in error, the order

must be affirmed if there is any legal basis to support the result. Therefore, if just

one of Plaintiff’s claims is likely to succeed on the merits, the injunction must be

affirmed. See generally Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989)

(“If the correct result has been reached, the judgment will not be disturbed even

though the trial court may not have assigned the correct reason for the judgment

entered.”) Because we have determined that Plaintiff is not likely to succeed on any

of her claims, we must address each of them.

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A. Standard of Review

In review of a trial court's ruling on a motion for a preliminary injunction, we

begin with the “presumption that the lower court’s decision was correct, and the

burden is on the appellant to show error.” A.E.P. Industries v. McClure, 308 N.C.

393, 414, 302 S.E.2d 754, 767 (1983). But “on appeal from an order of superior court

granting or denying a preliminary injunction, an appellate court is not bound by the

findings, but may review and weigh the evidence and find facts for itself.” Id. at 402,

302 S.E.2d at 760. “The scope of appellate review in the granting or denying of a

preliminary injunction is essentially de novo.” Robins & Weill v. Mason, 70 N.C. App.

537, 540, 320 S.E.2d 693, 696 (1984).

A preliminary injunction is an extraordinary measure normally intended only

to preserve the status quo during litigation,

[i]t will be issued only (1) if a plaintiff is able

to show likelihood of success on the merits of

his case and (2) if a plaintiff is likely to sustain

irreparable loss unless the injunction is

issued, or if, in the opinion of the Court,

issuance is necessary for the protection of a

plaintiff’s rights during the course of

litigation.

A.E.P., 308 N.C. at 401, 302 S.E.2d at 759–60 (citations omitted).

In this action, there is no challenge to the trial court’s underlying findings of

fact. Also, the preliminary injunction was not intended “to preserve the status quo[,]”

see id., but to change it, by requiring Defendant to disregard the UDO’s plain

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language as interpreted by Long and remove Defendant’s ability to enforce the law.

See generally Long, ___ N.C. App. ___, 787 S.E.2d 835. But in any event, the first

question in determining whether a preliminary injunction should have been granted

is the likelihood of success on the merits. See id. If the Plaintiff is unable to show

likelihood of success on the merits of her legal claims, the Court need not reach the

second question of whether the Plaintiff “is likely to sustain irreparable loss unless

the injunction is issued, or if, in the opinion of the Court, issuance is necessary for

the protection of a plaintiff’s rights during the course of litigation.” Id.

We will next consider whether Defendant has met its burden of showing that

Plaintiff does not have a likelihood of success on the merits for each claim.

Defendant’s brief addresses why Plaintiff’s claims will likely not succeed, and

Plaintiff’s brief addresses why they will. Thus, while Defendant is the appellant, the

focus of our analysis is on Plaintiff’s claims and their “likelihood of success on the

merits[.]” Id. We consider “essentially de novo[,]” Robin, 70 N.C. App. at 540, 320

S.E.2d at 696, whether the trial court erred in taking this “extraordinary measure”

and determining “plaintiff is able to show likelihood of success on the merits[.]”

A.E.P., 308 N.C. at 401, 302 S.E.2d at 759. Because many of Plaintiff’s claims are

similar and her arguments tend to overlap, and because Plaintiff’s brief does not

address the issues in the same order as Defendant’s brief, we will address the claims

in the order as set forth in the complaint.

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We also note that while Plaintiff has presented nine claims, including

constitutional claims, Plaintiff is actually challenging a definition of a single family

detached dwelling. Six out of Plaintiff’s nine claim headings specifically reference

Section 10.51 and the other three implicitly rely upon it. As noted by Long, Section

10.51 simply defines a single family detached dwelling as “[a] residential building

containing not more than one dwelling unit to be occupied by one family, not

physically attached to any other principal structure. UDO § 10.51.” Long, __ N.C.

App. at ___, 787 S.E.2d at 838. While it is easy to lose the forest for the trees amidst

Plaintiff’s many claims, Plaintiff is simply challenging the definition of a single family

detached dwelling as interpreted by Long and as applied to her project. See Id. ___

N.C. App. ___, 787 S.E.2d 835.

B. Claim I: UDO Section 10.51 Violates North Carolina’s Zoning Enabling

Statutes

Plaintiff raises two claims under the Zoning Enabling Statutes.

1. North Carolina General Statute § 153A-340(a)

Plaintiff alleges that Section 10.51 of the UDO violates North Carolina

General Statute § 153A-340(a), which is the grant of power to counties to enact

zoning ordinances:

For the purpose of promoting health, safety, morals, or the

general welfare, a county may adopt zoning and

development regulation ordinances. These ordinances may

be adopted as part of a unified development ordinance or

as a separate ordinance. A zoning ordinance may regulate

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and restrict the height, number of stories and size of

buildings and other structures, the percentage of lots that

may be occupied, the size of yards, courts and other open

spaces, the density of population, and the location and use

of buildings, structures, and land for trade, industry,

residence, or other purposes.

N.C. Gen. Stat. § 153A-340(a) (2017).

The trial court made this conclusion of law on the zoning enabling statute:

4. LeTendre is likely to prevail on her claim that

the provisions of the UDO that are barring her home from

being a single-family detached dwelling are unenforceable

because those provisions violate the zoning enabling

statutes. They constitute an arbitrary restriction on her

ability to use her property in that they do not promote

health, safety, morals, or the general welfare.

(Emphasis added.) Plaintiff contends that Section 10.51 of Currituck County’s UDO

violates North Carolina General Statute § 153A-340(a) because it does not promote

“health, safety, morals, or the general welfare[.]” Id. Plaintiff argues that Section

10.51’s “requirements” of “a Single Common Foundation” and “that a Single-Family

Detached Dwelling Be Contained Within a Single Building” do not “Promote Health,

Safety, Morals, or the General Welfare[.]”

“The presumption is that the zoning ordinance as a whole is a proper exercise

of the police power[.] The burden to show otherwise rests upon a property owner who

asserts its invalidity.” Durham County. v. Addison, 262 N.C. 280, 282, 136 S.E.2d

600, 602 (1964) (citations, quotation marks, and ellipses omitted). In asserting

Section 10.51’s “invalidity[,]” see id., Plaintiff focuses on her alleged “requirements”

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of UDO Section 10.51 and the lack of a substantial relation between the regulation

and the promotion of general welfare. Plaintiff argues,

Our courts have confirmed that zoning regulations are

valid only if they substantially promote one of the four

stated goals. ‘Zoning ordinances are upheld when, but only

when, they bear a substantial relation to the public

health, safety, morals, or general welfare.’ Schloss v.

Jamison, 262 N.C. 108, 114, 136 S.E.2d 691, 695 (1964)

(emphasis added); see also Covington v. Town of Apex, 108

N.C. App. 231, 234-35, 423 S.E.2d 537, 539 (1992) (striking

down a town’s rezoning ordinance in part because the

rezoning would create only aesthetic improvements, which

were a minimal public benefit); Wenco Mgmt. Co. Town of

Carrboro, 53 N.C. App. 480, 281 S.E.2d 74 (1981) (finding

zoning ordinances that barred drive-thru restaurants but

allowed other types of businesses to have drive-thru

windows as not being reasonably related to any legitimate

governmental objective).

(Emphasis in original.) Plaintiff claims, and the trial court found, that Section 10.51

of the UDO is an “arbitrary restriction on her ability to use her property” because it

does “not promote health, safety, morals, or the general welfare” so it is in violation

of the zoning enabling statutes. Plaintiff argues that “the UDO’s requirement of

structural dependence does not bear substantial relation to the zoning enabling

statute because this statute does not authorize a County to regulate the design or

function of structural elements.”

The most basic problem with Plaintiff’s argument is that UDO Section 10.51

does not require “a Single Common Foundation” or that “a Single-Family Detached

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Opinion of the Court

Dwelling Be Contained Within a Single Building[,]” nor does it “regulate the design

or function of structural elements.” As explained in Long,

The UDO defines “DWELLING, SINGLE-FAMILY

DETACHED” as follows: “A residential building

containing not more than one dwelling unit to be occupied

by one family, not physically attached to any other

principal structure.” UDO § 10.51. Thus, the definition of

a Single Family Dwelling has five elements: (1) A building,

(2) for residential use, (3) containing not more than one

dwelling unit, (4) to be occupied by one family, and (5) not

physically attached to any other “principal structure.” The

definition of a Single Family Dwelling includes portions

that address the physical structure of the proposed

dwelling: “a building,” “containing not more than one

dwelling unit,” and “not physically attached to any other

principal structure.” . . .

....

Yet the definition of Single Family Dwelling clearly

allows more than one “building” or “structure” to be

constructed on the same lot, so the presence of three

“buildings” alone does not disqualify the project.

___ N.C. App. at ___, 787 S.E.2d at 838-40 (citation and footnotes omitted).

Plaintiff argues because the UDO would allow a 15,000 square foot house on

Plaintiff’s lot there is no practical difference between her project and a 15,000 square

foot house of a more traditional configuration. Plaintiff’s argument, and some of the

trial court’s findings, also focus on a “structural dependence” requirement allegedly

imposed by Defendant. But the UDO does not address structural dependency nor

does it require any particular type or design of foundation. The type or design of

foundation was also not a factor in this Court’s decision in Long. See Long, ___ N.C.

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App. ___, 787 S.E.2d 835. Section 10.51 addresses the types of structures allowed but

says nothing about their construction or design. See generally id. at ___, 787 S.E.2d

at 838. Section 10.51 is directly within the types of restrictions listed by North

Carolina General Statute § 153A-340(a); Defendant

may regulate and restrict the height, number of stories and

size of buildings and other structures, the percentage of

lots that may be occupied, the size of yards, courts and

other open spaces, the density of population, and the

location and use of buildings, structures, and land for

trade, industry, residence, or other purposes.

N.C. Gen. Stat. § 153A-340(a).

Plaintiff’s focus on a requirement of “structural dependence” is simply misplaced.

The only specific requirements as to the design or size of the house or type of

foundation are imposed by the CAMA permit which will not allow any single building

to be over 5,000 square feet. As the trial court found, “CAMA regulations allow a

larger development to use the 60-foot setback if that development is composed of

separate components that are each less than 5,000 square feet and that are structurally

independent of each other.” (Emphasis added). And the need for a CAMA permit was

created by Plaintiff’s decision to build the house so close to the shore. Plaintiff’s lot

is approximately 3.5 acres, and the project could have been constructed in another

location where a CAMA permit would not be needed. The unique characteristics of

Plaintiff’s lot and her desired project location do not mean that Defendant acted

beyond the authority granted by North Carolina General Statute § 153A-340(a) to

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enact ordinances which in their legislative judgment “promote health, safety, morals,

or the general welfare[.]” N.C. Gen. Stat. § 153A-340(a).

In addition, Long also noted the substantial relation between Section 10.51

and the general welfare:

The UDO provides that the SF District

is established to accommodate very low

density residential development on the

portion of the outer banks north of Currituck

Milepost 13. The district is intended to

accommodate limited amounts of

development in a manner that preserves

sensitive natural resources, protects wildlife

habitat, recognizes the inherent limitations

on development due to the lack of

infrastructure, and seeks to minimize damage

from flooding and catastrophic weather

events. The district accommodates single-

family detached homes. Public safety and

utility uses are allowed, while commercial,

office, and industrial uses are prohibited.

Long, ___ N.C. App. at ___, 787 S.E.2d at 838 (citation, ellipses, and brackets

omitted). “The UDO defines DWELLING, SINGLE–FAMILY DETACHED as follows:

A residential building containing not more than one dwelling unit to be occupied by

one family, not physically attached to any other principal structure. UDO § 10.51.”

Id. at ___, 787 S.E.2d at 838 (quotation marks omitted). Thus, allowing only

residential buildings that do not contain “more than one dwelling unit to be occupied

by one family” and are “not physically attached to any other principal structure”

ensures there is “limited amounts of development in a manner that preserves

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Opinion of the Court

sensitive natural resources, protects wildlife habitat, recognizes the inherent

limitations on development due to the lack of infrastructure, and seeks to minimize

damage from flooding and catastrophic weather events[;]” id., the UDO’s goals would

promote “the public health, safety, morals, or general welfare.” N.C. Gen. Stat. §

153A-340(a). And while we find Plaintiff’s argument to be without merit, even

assuming arguendo there was weight to her contention that UDO Section 10.51 does

not promote “public health, safety, morals, or general welfare[,]” Plaintiff’s own cited

case law states that

[w]hen the most that can be said against such ordinances

is that whether it was an unreasonable, arbitrary or

unequal exercise of power is fairly debatable, the courts

will not interfere. In such circumstances the settled rule

seems to be that the court will not substitute its judgment

for that of the legislative body charged with the primary

duty and responsibility of determining whether its action

is in the interest of the public health, safety, morals or

general welfare.

Schloss v. Jamison, 262 N.C. 108, 115, 136 S.E.2d 691, 696 (1964) (citations and

quotation marks omitted).

Plaintiff is asking this Court to conclude she is likely to prevail on a claim that

a UDO definition of a single family detached dwelling is beyond the legislative

authority granted by North Carolina General Statute § 153A-340(a). If we were to

determine that Plaintiff is likely to prevail on such a claim, our ruling would cast

serious doubt on nearly every common provision of all municipal ordinances in the

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State of North Carolina, including definitions of single family detached dwellings and

other common uses. Plaintiff has presented no authority that Defendant’s definition

of a single family detached dwelling is beyond the County’s statutory power. Plaintiff

is unlikely to prevail on her claim that UDO Section 10.51 is not authorized by North

Carolina General Statute § 153A-340(a), and thus that is not a proper basis for a

preliminary injunction.

2. North Carolina General Statute § 153A-340(l)

North Carolina General Statute § 153A-340(l) provides, in part,

Any zoning and development regulation ordinance relating

to building design elements adopted under this Part, under

Part 2 of this Article, or under any recommendation made

under G.S. 160A-452(6)c. may not be applied to any

structures subject to regulation under the North Carolina

Residential Code for One- and Two-Family Dwellings . . . .

....

. . . For the purposes of this subsection, the phrase “building

design elements” means exterior building color; type or

style of exterior cladding material; style or materials of roof

structures or porches; exterior nonstructural architectural

ornamentation; location or architectural styling of

windows and doors, including garage doors; the number

and types of rooms; and the interior layout of rooms. The

phrase “building design elements” does not include any of

the following: (i) the height, bulk, orientation, or location of

a structure on a zoning lot; (ii) the use of buffering or

screening to minimize visual impacts, to mitigate the

impacts of light and noise, or to protect the privacy of

neighbors; or (iii) regulations adopted pursuant to this

Article governing the permitted uses of land or structures

subject to the North Carolina Residential Code for One-

and Two-Family Dwellings.

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N.C. Gen. Stat. § 153A-340(l) (2017).

Plaintiff also argues that “Section 10.51 of the Currituck County UDO

[a]ttempts [t]o [r]egulate “[b]uilding [d]esign [e]lements” [i]n [v]iolation of North

Carolina [l]aw[,]” specifically North Carolina General Statute § 153A-340(l). Plaintiff

essentially alleges in her complaint that because multiple principal structures are

not allowed on her lot, the UDO impermissibly attempts “to regulate the interior

layout of rooms[.]” The trial court did not make a specific conclusion as to North

Carolina General Statute § 153A-340(l) and its conclusion regarding the zoning

enabling statute focuses on the “public welfare” portion of subsection (a). Plaintiff

also does not make any arguments specifically regarding North Carolina General

Statute § 153A-340(l) in her brief.

But just as we discussed above, Plaintiff’s argument seeks to impose imaginary

“requirements” upon Section 10.51. Section 10.51 does not address the “interior

layout of rooms” any more than it addresses foundations or “structural dependence[.]”

Plaintiff is unlikely to prevail on a claim that Defendant wrongfully regulated the

interior layout of her rooms, and thus that could not be a proper basis for a

preliminary injunction.

C. Constitutional Claims

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Plaintiff’s second, fifth, and seventh claims all raise constitutional issues.

Each of the constitutional issues again focuses on Section 10.51. It is not entirely

clear if Plaintiff’s claims are facial or as-applied challenges to Section 10.51.

[T]here is a difference between a challenge to the facial

validity of an ordinance as opposed to a challenge to the

ordinance as applied to a specific party. The basic

distinction is that an as-applied challenge represents a

plaintiff’s protest against how a statute was applied in the

particular context in which plaintiff acted or proposed to

act, while a facial challenge represents a plaintiff’s

contention that a statute is incapable of constitutional

application in any context. In an as-applied case, the

plaintiff is contending that the defendant municipal agency

violated his or her constitutional rights in the manner in

which an ordinance was applied to his or her property.

Only in as-applied challenges are facts surrounding the

plaintiff’s particular circumstances relevant.

. . . And in the context of a zoning action involving

property, it must be clear that the state’s action has no

foundation in reason and is a mere arbitrary or irrational

exercise of power having no substantial relation to the

public health, the public morals, the public safety or the

public welfare in its proper sense. Further, in making this

determination we may consider, among other factors,

whether: (1) the zoning decision is tainted with

fundamental procedural irregularity; (2) the action is

targeted at a single party; and (3) the action deviates from

or is inconsistent with regular practice.

Town of Beech Mountain v. Genesis Wildlife, ___ N.C. App. ___, ___, 786 S.E.2d 335,

347 (2016) (citations, quotation marks, and brackets omitted), aff’d per curiam, 369

N.C. 722, 799 S.E.2d 611 (2017). The complaint uses the phrase “on its face” several

times, but Plaintiff cites no authority and makes no real argument that the UDO is

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Opinion of the Court

unconstitutional on its face. Because “a facial challenge represents a Plaintiff’s

contention that a statute is incapable of constitutional application in any context[,]”

if we determine the ordinance is constitutional as-applied to Plaintiff, we have

necessarily also determined it is facially constitutional as her case is the “context”

where it is capable “of constitutional application[.]” Id. (emphasis added). Plaintiff’s

real argument is that UDO Section 10.5 is unconstitutional as applied to her project,

so we will address her contentions accordingly.

Again, it is also important to remember the history of this case. Defendant

initially approved Plaintiff’s plans and the Longs challenged that approval in Long.

See generally Long, ___ N.C. App. ___, 787 S.E.2d 835. Defendant did not apply UDO

Section 10.51 to Plaintiff in the manner she claims to be unconstitutional in this case

until after Long was issued and Defendant sought to comply with the ruling in Long.

So Plaintiff’s as-applied constitutional challenges are based upon Defendant’s efforts

to enforce the UDO as interpreted by Long.

While our standard of review remains “essentially de novo[,]” Robin, 70 N.C.

App. at 540, 320 S.E.2d at 696, for purposes of whether the trial court should have

issued a preliminary injunction, we also consider constitutional issues de novo:

The standard of review for questions concerning

constitutional rights is de novo. Furthermore, when

considering the constitutionality of a statute or act there is

a presumption in favor of constitutionality, and all doubts

must be resolved in favor of the act. In passing upon the

constitutionality of a statute there is a presumption that it

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is constitutional, and it must be so held by the courts,

unless it is in conflict with some constitutional provision.

State v. Fryou, 244 N.C. App. 112, 125, 780 S.E.2d 152, 161 (2015), disc. review

dismissed, 368 N.C. 689, 781 S.E.2d 479, disc. review denied, 368 N.C. 689, 781 S.E.2d

483 (2016).

1. Arbitrary and Capricious

Plaintiff argues that application of Section 10.51 violates the state and federal

constitutions because it arbitrarily and capriciously distinguishes between building

characteristics and her constitutional due process rights have been violated. To a

large extent, Plaintiff’s argument repeats her contentions from her arguments

regarding North Carolina General Statute § 153A-340(a). The trial court’s only

conclusion which appears to address this claim is: “They constitute an arbitrary

restriction on her ability to use her property in that they do not promote health,

safety, morals, or the general welfare.”3

Plaintiff contends

Section 10.51 violates the federal and state constitutions

because it is arbitrary and capricious in three respects: (1)

its distinction of permissible buildings based on common,

versus separate, foundations; (2) its requirement that a

‘dwelling’ be a single building; and (3) the County’s

interpretation that labeling within plans as opposed to

actual building characteristics, is determinative.

3 It appears this conclusion was actually addressing the zoning enabling statutes since that is

the only legal basis the trial court mentions along with the “health, safety, morals, or the general

welfare” language, but it is the only conclusion which uses the word “arbitrary[.]”

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Plaintiff only cites one case in this section of her brief: “‘Governmental action in the

zoning or land use context violates due process principles if it is arbitrary or

capricious, lacks a rational basis, or is undertaken with improper motives.’

Browning-Ferris Industs. Of South Atlantic, Inc. v. Wake Cty., 905 F. Supp. 312, 319

(E.D.N.C. 1995).”4 Plaintiff uses Browning-Ferris only to support this general

proposition, which is correct, but Plaintiff cites no cases to show how her enumerated

three contentions would likely violate her rights to due process.

In Responsible Citizens, our Supreme Court set out the analysis to be used in

“due process challenges to governmental regulations of private property claimed to

be an invalid exercise of the police power.” See generally Responsible Citizens v. City

of Asheville, 308 N.C. 255, 261, 302 S.E.2d 204, 208 (1983).

Several principles must be borne in mind

when considering a due process challenge to

governmental regulation of private property

on grounds that it is an invalid exercise of the

police power. First, is the object of the

legislation within the scope of the police

power? Second, considering all the

surrounding circumstances and particular

facts of the case is the means by which the

governmental entity has chosen to regulate

reasonable?

In short, then, the court is to engage in an ends-

means analysis in deciding whether a particular exercise

of the police power is legitimate. The court first determines

4 As a federal district court case, Browning-Ferris is from a federal trial court, and is not

binding upon this Court.

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whether the ends sought, i.e., the object of the legislation,

is within the scope of the power. The court then determines

whether the means chosen to regulate are reasonable.

Justice Brock stated that this second inquiry is really a

two-pronged test. That is, in determining if the means

chosen are reasonable the court must answer the following:

(1) Is the statute in its application reasonably necessary to

promote the accomplishment of a public good and (2) is the

interference with the owner’s right to use his property as

he deems appropriate reasonable in degree?

Id. at 255, 261–62, 302 S.E.2d at 208 (1983) (citations and quotation marks omitted).

As directed by our Supreme Court in Responsible Citizens, see id., we must first

consider whether “the object of the ordinance is within the scope of the police power[.]”

Id. at 261, 302 S.E.2d at 208. It is well-established that zoning ordinances such as

Section 10.51 are within Defendant’s police power:

In enacting and enforcing zoning regulations, a

municipality acts as a governmental agency and exercises

the police power of the State. The police power is that

inherent and plenary power in the state which enables it to

govern, and to prohibit things hurtful to the health, morals,

safety, and welfare of society.

Raleigh v. Fisher, 232 N.C. 629, 635, 61 S.E.2d 897, 902 (1950). In addition, Section

10.51 is specifically within the authority granted by North Carolina General Statute

§ 153A-340(a). See N.C. Gen. Stat. § 153A-340(a).

Next, we must address whether “considering all the surrounding

circumstances and particular facts of the case is the means by which the

governmental entity has chosen to regulate reasonable?” Responsible Citizens, 308

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N.C. at 261, 302 S.E.2d at 208. This question includes a “two-pronged test”: “(1) Is

the statute in its application reasonably necessary to promote the accomplishment of

a public good and (2) is the interference with the owner’s right to use his property as

he deems appropriate reasonable in degree?” Id. at 261–62, 302 S.E.2d at 208.

The first question is whether Section 10.51 of the UDO is “in its application

reasonably necessary to promote the accomplishment of a public good[.]” Id.

Defendant has chosen to adopt a zoning ordinance which limits development in the

Single Family Residential Outer Banks Remote District. See generally Long, ___ N.C.

App. at ___, 787 S.E.2d at 838. The “public good” which the ordinance seeks to

accomplish is provided by the ordinance itself:

The UDO provides that the [Single Family Residential

Outer Banks Remote] District

is established to accommodate very low

density residential development on the

portion of the outer banks north of Currituck

Milepost 13. The district is intended to

accommodate limited amounts of

development in a manner that preserves

sensitive natural resources, protects wildlife

habitat, recognizes the inherent limitations

on development due to the lack of

infrastructure, and seeks to minimize damage

from flooding and catastrophic weather

events. The district accommodates single-

family detached homes. Public safety and

utility uses are allowed, while commercial,

office, and industrial uses are prohibited.

Id.

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Part of the “surrounding circumstances[,]” Responsible Citizens, 308 N.C. at

261, 302 S.E.2d at 208, is the natural environment of the Single Family Residential

Outer Banks Remote District. The location of Plaintiff’s project is so environmentally

sensitive that her house also required a CAMA permit and approval by other

agencies. Plaintiff’s project is in exactly the type of location which justifies

limitations on development. The limitations are intended both to protect the natural

environment and to protect the people who live in or visit the area. As the UDO

notes, there is a “lack of infrastructure,” making access by emergency personnel more

difficult. See generally Long, ___ N.C. App. at ___, 787 S.E.2d at 838. In addition,

the area is subject to “flooding and catastrophic weather events” so there is a greater

risk of a need for emergency evacuation. Id.

The risk from flooding and erosion is also one of the stated reasons for the

structural limitations of the CAMA permit: “Any structure authorized by this permit

shall be relocated or dismantled when it becomes imminently threatened by changes

in shoreline configuration.” Plaintiff’s environmental expert, Mr. Woody, described

the reasons for the 5,000 square foot limitation in his affidavit:

The goal in determining structure setbacks under CAMA

is articulated in a January 17, 1992 memorandum to the

Implementation & Standards Committee (CRAC) from

Charles Jones of the DCM staff. That memorandum states

that the “objective [of determining the size of a structure] is

to limit the total size of a structure so that it can be readily

relocated if threatened by erosion.” If a home is larger than

5,000 square feet but consists of structurally independent

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components that are each less than 5,000 square feet, that

would facilitate relocation of the structure if it is threatened

by erosion.

(Emphasis added.)

Defendant’s ordinances are “reasonably necessary to promote the

accomplishment of a public good” and Defendant is applying them reasonably and

consistently with that purpose. “[I]t is this Court’s duty to apply the ordinance

irrespective of any opinion we may have as to its wisdom, for it is our duty to declare

what the law is not what the law ought to be.” Town of Pine Knoll Shores v. Evans,

104 N.C. App. 79, 83, 407 S.E.2d 895, 897 (1991) (citation, quotation marks, and

brackets omitted), aff'd as modified, 331 N.C. 361, 416 S.E.2d 4 (1992). Although

there may be other ways to accomplish the UDO’s purposes and it could be worded

differently, we cannot substitute our judgment for that of the Currituck County Board

of Commissioners.5 See id. The specific application of Section 10.51 of the UDO to

Plaintiff’s project which Plaintiff challenges is based upon Defendant’s Notice of

Violation and Stop Work order issued after, and based directly upon, this Court’s

opinion in Long. Plaintiff cannot show that Defendant has acted unreasonably or

arbitrarily by seeking to comply with this Court’s mandate. See Battle v. City of Rocky

Mount, 156 N.C. 329, 337, 72 S.E. 354, 357 (1911) (“The law will not countenance or

5 Again, Plaintiff proposed an amendment to the UDO which would allow her project to be

permitted as a single family detached dwelling, but the Currituck County Board of Commissioners

rejected it.

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condone any attempt to defy its mandate. The private citizen must obey the law, and

the public officer is not exempt from this duty by any special privilege appertaining

to his office. He is not wiser than the law, nor is he above it.”)

The second prong of the test “is [whether] the interference with the owner’s

right to use his property as he deems appropriate [is] reasonable in degree?”

Responsible Citizens, 308 N.C. at 255, 262, 302 S.E.2d at 208. In Wenco Management

Co. v. Town of Carrboro, this Court addressed whether a zoning ordinance was a

reasonable interference with the landowner’s right to use its property. 53 N.C. App.

480, 281 S.E.2d 74 (1981). Carrboro had adopted an amendment to its zoning

ordinances which barred drive-through windows for restaurants in all of the business

zoning districts in town except one, the B-4 district. See id. at 482, 281 S.E.2d at 75.

But Carrboro designated no area in the town as B-4, so there was nowhere in town

where Wenco could operate a restaurant with drive-through service. See id. In

addition, Carrboro had adopted the amendment to its zoning ordinance “in direct

response to plaintiffs’ proposed construction of a restaurant with drive-in service after

plaintiffs had obtained a valid conditional use permit.” Id. at 483, 281 S.E.2d at 76.

This Court determined the amendment was not reasonably related to any legitimate

governmental interest because of the timing of the ordinance in response to plaintiff’s

permit and the fact that no area was designated as a B-4 district, holding that “[t]he

B-4 district amendment was unlawful as an arbitrary and unduly discriminatory

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Opinion of the Court

interference with plaintiffs’ property rights which lacked any rational relation to

valid police power objectives.” Id. at 484, 281 S.E.2d at 76.

Here, there is no indication that Defendant has adopted or applied any zoning

ordinance in a discriminatory, arbitrary, or retaliatory manner. Nor does the

ordinance prevent Plaintiff from using her lot for its intended purpose, a single family

detached dwelling. The UDO does not limit plaintiff’s right to build a house on her

property; it does not limit the square footage of the house, or as relevant for this case,

where on the lot she may build. Once again, plaintiff’s issue is created by a

combination of her decision to build in a certain location on her property, the CAMA

permit based upon that location, and the requirements of the UDO. Any “interference

with [Plaintiff’s] right to use her property as [she] deems appropriate” imposed by the

UDO is secondary to the other factors and is “reasonable in degree[.]” Responsible

Citizens, 308 N.C. at 262, 302 S.E.2d at 208.

Plaintiff also argues that the UDO is arbitrary and capricious as applied to her

because of (1) a distinction of permissible buildings based on common versus separate

foundations; (2) a requirement that a dwelling be a single building; and (3)

Defendant’s interpretation that labeling within the plans, as opposed to actual

building characteristics, is determinative.

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Plaintiff’s argument regarding the foundation of the project is based primarily

upon the Letter of Determination from the Planning Director, of 27 March 2017. In

that letter, Mr. Woody stated:

In response to the Notice of Violation dated

February 1, 2017, you have submitted for review

construction plans dated January 20, 2017. The

construction plans dated January 20, 2017 depict the same

three structurally separate and independent buildings

illustrated on construction plans dated November 22, 2013

that were the subject of the Letter of Determination

reversed by the Court of Appeals. Other than modification

of language on the construction plan sheets, there appears

to be no material difference between the plans used to

construct the three structurally separate and independent

buildings and the construction plans dated January 20,

2017. It is also noteworthy that to acquire a permit from

the North Carolina Division of Coastal Management it is

represented to that agency that the buildings located on

your property are structurally separate and independent

buildings. In a January 27, 2017 North Carolina Division

of Coastal Management memorandum from Doug Hugget,

Major Permits Coordinator, to Ron Reinaldi, Field

Representative, Mr. Hugget writes, “The original major

permit authorized the construction of three single-family

dwellings connected via a structurally detached roofed two

story deck . . . .” Mr. Hugget’s memorandum further shows

that the only changes on construction plan sheets are (1)

“[c]hanges nomenclature on the Title Sheet to refer to the

dwelling as a ‘Single-Family Dwelling’” and “depicts a

smaller constructed size of the permitted gazebo building”

and (2) “that a girder system that would connect the

separate buildings is no longer being considered and is not

incorporated into the submitted construction plans.”

The February 1, 2017 Notice of Violation requires

compliance by structurally modifying separate and

independent buildings on your property into one

structurally dependent building. The construction plans

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Opinion of the Court

dated January 20, 2017 do not show one structurally

dependent building. It is therefore my determination that

plans dated January 20, 2017 do not show a building that

complies with the UDO definition for single-family

detached dwelling and a modified zoning compliance

permit is denied.

This letter was part of Defendant’s efforts to comply with this Court’s decision

in Long. After Long, plaintiff and Defendant sought to find an acceptable revision to

the project to make it fit within the UDO requirements as set forth by Long. Several

possible changes were discussed, such as moving the three buildings out of the CAMA

setback area so they could be connected as one principal structure or reconfiguring

the side buildings to be smaller accessory buildings, with the middle building as the

principal structure. Plaintiff declined to make any changes, and ultimately Mr.

Woody issued the 27 March 2017 letter. But Defendant was not requiring any

particular revision to Plaintiff’s project. Defendant has no duty to tell Plaintiff what

she must do to comply with the UDO, although Defendant has worked extensively

with Plaintiff and her representatives to consider alternatives. It is not the job of

Defendant’s Planning Department to direct the details of how to bring the project into

compliance with the UDO; their job is to determine if Plaintiff’s proposed plans

comply with the UDO. Section 10.51 does not regulate plaintiff’s “foundation[.]” The

fact that Defendant may have suggested changes to plaintiff’s foundation as one way

to comply with both the UDO and CAMA, does not mean the UDO regulates

foundations.

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Nor does the UDO require that a single family detached dwelling be “a single

building[.]” As explained by Long, the dwelling may include “accessory structures”

which are

“subordinate in use and square footage” to a principal

structure. UDO § 10.34. Even assuming that the two side

“buildings” or “structures” are subordinate in use to the

center “building,” it is uncontested that all of the buildings

are approximately 5,000 square feet. No building is

subordinate in square footage to another so none can meet

the definition of an “accessory structure.”

Id. at ___, 787 S.E.2d at 840 (citations and footnote omitted).

And if labeling on plans, instead of actual building characteristics, were

controlling, there would be no dispute here. Plaintiff could simply re-label the

structures on the plans as whatever she likes that would comply with the UDO.

According to Mr. Woody’s letter, that is what she attempted to do.6 Although in Long,

___ N.C. App. ___, 787 S.E.2d 835, the parties were dealing with plans on paper, when

Plaintiff filed her complaint, the buildings were nearly complete so Defendant is

dealing with actual structures. Giving a structure a new name on paper changes

nothing; it is what it is. See, e.g., Pine Knoll Shores, 104 N.C. App. 79 at 80-81, 407

S.E.2d at 895-96. ( The defendant landowners called their structure a “ground cover,”

not a “deck,” where zoning ordinance forbade construction of “other separate

6 Mr. Woody’s letter provides, “Other than modification of language on the construction plan

sheets, there appears to be no material difference between the plans used to construct the three

structurally separate and independent buildings and the construction plans dated January 20, 2017.”

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structures” on single-family residential lot; Court determined name of structure was

not controlling and landowner had violated the ordinance by construction of a

structure of “precisely sized wooden boards connected to one another so as to form a

level, continuous surface covering a substantial area of the lot between the canal and

house.”). Plaintiff has failed to show she is likely to prevail on her claim that Section

10.51 of the UDO is unconstitutionally arbitrary or capricious as applied to her, and

thus that is not a proper basis for the issuance of a preliminary injunction.

2. Vagueness

Plaintiff argues that “[t]he UDO is unconstitutionally vague to the extent it

requires the wings of the home to be structurally dependent.”

[A] statute is unconstitutionally vague if it either: (1) fails

to give the person of ordinary intelligence a reasonable

opportunity to know what is prohibited; or (2) fails to

provide explicit standards for those who apply the law. A

statute which either forbids or requires the doing of an act

in terms so vague that men of common intelligence must

necessarily guess at its meaning and differ as to its

application violates the first essential of due process of law.

Fryou, 244 N.C. App. at 125, 780 S.E.2d at 161 (citation omitted).

The trial court determined that Plaintiff is likely to prevail on her claim that

Section 10.51 is unconstitutionally vague:

LeTendre is likely to prevail on her claim that those

provisions in the UDO that are barring her home from

being a single-family detached dwelling are

unconstitutionally vague. The UDO as written does not

provide reasonable notice that a home like LeTendre’s, in

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Opinion of the Court

which the wings connected by enclosed, air conditioned

hallways and have connected rooflines, would not meet the

definition of a single-family detached dwelling. Those UDO

provisions therefore fail to reasonably apprise property

owners concerning what conduct they prohibit.

Again, Plaintiff’s argument is based upon an assumption that the UDO

requires “structural dependency[,]” although it does not. In fact, even Plaintiff notes

that “Section 10.51 of the UDO does not expressly include a requirement that the

wings of a building be structurally dependent on one another in order for the building

to be considered a dwelling.” As explained in Long,

The UDO defines “DWELLING, SINGLE-FAMILY

DETACHED” as follows: “A residential building

containing not more than one dwelling unit to be occupied

by one family, not physically attached to any other

principal structure.” UDO § 10.51. Thus, the definition of

a Single Family Dwelling has five elements: (1) A building,

(2) for residential use, (3) containing not more than one

dwelling unit, (4) to be occupied by one family, and (5) not

physically attached to any other “principal structure.” The

definition of a Single Family Dwelling includes portions

that address the physical structure of the proposed

dwelling: “a building,” “containing not more than one

dwelling unit,” and “not physically attached to any other

principal structure.” . . .

....

Yet the definition of Single Family Dwelling clearly

allows more than one “building” or “structure” to be

constructed on the same lot, so the presence of three

“buildings” alone does not disqualify the project. However,

the remainder of the definition does disqualify the project.

The last element in the definition of a Single Family

Dwelling is “not physically attached to any other principal

structure.” UDO § 10.51. In other words, the Single Family

Dwelling is “detached,” which is part of the title. The UDO

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provides that “words used in the singular number include

the plural number and the plural number includes the

singular number, unless the context of the particular usage

clearly indicates otherwise.” UDO § 10.1.11. In the

definition of Single Family Dwelling, the context does

clearly indicate otherwise. We cannot substitute the word

“buildings” for “a building” without rendering the last

phrase of the definition, “not physically attached to any

other principal structure” either useless or illogical. The

Planning Director determined that the multiple buildings

together function as a principal structure, but even if they

are functionally used as one dwelling unit, each individual

building is itself a “structure.” See §§ 10.43, .83. Thus,

each building is necessarily either an “accessory structure”

or a principal structure. And respondents do not argue

that the side buildings are “accessory structures;” they

argue only that the entire project functions as one

“principal structure.” Although the ordinance does not

define principal structure, it does define “accessory

structures” as “subordinate in use and square footage” to a

principal structure. UDO § 10.34. Even assuming that the

two side “buildings” or “structures” are subordinate in use

to the center “building,” it is uncontested that all of the

buildings are approximately 5,000 square feet. No building

is subordinate in square footage to another so none can

meet the definition of an “accessory structure.” This would

mean that each building is a principal structure, however

a Single Family Dwelling only allows for one. In addition,

the ordinary meaning of “principal” is in accord. See

Webster’s Seventh New Collegiate Dictionary 676 (1969).

“Principal” is defined as “most important.” Id. There can be

only one “principal structure” on a lot in the SF District

and that principal structure can be attached only to

“accessory structures.”

Long, ___ N.C. App. at ___, 787 S.E.2d at 838-40 (citations, brackets, and footnotes

omitted).

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The UDO defines a single family detached dwelling as “[a] residential building

containing not more than one dwelling unit to be occupied by one family, not

physically attached to any other principal structure. UDO § 10.51.” Id. at ___, 787

S.E.2d at 838 (emphasis added). Plaintiff is again arguing, as she did in Long, see id.

at ___ 787 S.E.2d at 840, that if the structures are connected, they function as and

should be deemed as one “building” under the UDO.7 But “connection” does not make

three building into one, despite the function. As explained in Long,

Perhaps a more “absurd” result would be if we were to read

the ordinances to focus only upon the “use” portion of

Single Family Dwelling definition, as respondents argue,

while ignoring the structural portion, since it would not

matter how many “buildings” are connected by

“conditioned hallways” if they are functioning as one

dwelling for one family. Were we to adopt respondent

Currituck County’s interpretation, a project including ten

5,000 square foot buildings, all attached by conditioned

hallways, which will be used as a residential dwelling for

one family with a kitchen facility in only one of the

buildings would qualify as a Single Family Dwelling.

Respondents’ interpretation would also be contrary to the

stated purpose of the zoning, which calls for “very low

density residential development” and “is intended to

accommodate limited amounts of development in a manner

that preserves sensitive natural resources, protects wildlife

habitat, recognizes the inherent limitations on

development due to the lack of infrastructure, and seeks to

minimize damage from flooding and catastrophic weather

events.”

7 For example, the affidavit from Plaintiff’s architect states that “[o]n the October 10, 2013

plans, because the wings were connected with air conditioned hallways and their roof lines were

connected, the wings were integrated and connected such that the entire home would be considered a

single building and a single dwelling in the design and construction industry.”

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Id. at ___, 787 S.E.2d at 840-41 (citation omitted).

The words “physically attached” are not vague or difficult to understand; they

mean the same thing as “connected.” Id. at ___, 787 S.E.2d at 838. However the

structures are “physically attached” – whether by the foundation or by “air

conditioned hallways” – Plaintiff’s project includes three separate buildings which

are physically attached to one another. The importance of the foundation of the

structures comes only from the CAMA requirements, not the UDO. The CAMA

permit will allow no building larger than 5,000 square feet and will not allow the

three buildings to be structurally dependent upon one another. Plaintiff’s project

included three separate buildings from the beginning; it was intentionally designed

this way to comply with CAMA requirements.

The Long case answered the question of vagueness. Id. at ___, 787 S.E.2d at

840-41. Although the UDO provisions can be difficult to read, as many ordinances

and statutes are, they are not unconstitutionally vague. Section 10.51 “give[s] the

person of ordinary intelligence a reasonable opportunity to know what is prohibited”

and “provide[s] explicit standards for those who apply the law[,]” Fryou, 244 N.C.

App. at 125, 780 S.E.2d at 161, by plainly prohibiting more than one principal

structure per lot, although allowing accessory structures. See Long, ___ N.C. App. at

___, 787 S.E.2d at 838-40. Plaintiff understood this also; the negotiations and plan

revisions have been caused by Plaintiff’s insistence on fitting a square peg into a

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Opinion of the Court

round hole. The problem was created by the CAMA regulations and Plaintiff’s

decision to build within the CAMA setback area; these factors do not make the

ordinance vague. Plaintiff is unlikely to prevail on her claim of unconstitutional

vagueness, and thus that is not a proper basis for the issuance of a preliminary

injunction.

3. Equal Protection

Plaintiff’s final constitutional claim was regarding equal protection. The trial

court’s order did not address whether plaintiff was likely to prevail on her equal

protection claim. Neither Plaintiff nor Defendant have addressed equal protection in

their briefs on appeal.8

An equal protection violation would require Plaintiff to show that Defendant

treated her differently from other similarly situated property owners in its

application of the UDO because in order

[t]o establish an equal protection violation,

[plaintiff] must identify a class of similarly situated

persons who are treated dissimilarly. . . . Thus, in order to

properly assert an equal protection violation, Petitioner

was required to allege and demonstrate that she was

treated differently than other similarly situated

individuals in some relevant way.

8 Because a trial court’s order must be affirmed if there is any legal basis for the order, even

one other than stated in the order, see generally Shore, 324 N.C. at 428, 378 S.E.2d at 779, we are

briefly addressing equal protection. In addition, plaintiff was unwilling to concede at oral argument

that any one of the nine claims may not support the preliminary injunction.

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Yan-Min Wang v. UNC-CH Sch. Of Med., 216 N.C. App. 185, 204–05, 716 S.E.2d 646,

658–59 (2011) (citation and quotation marks omitted). There has been no forecast of

evidence that Defendant has applied its zoning ordinance in a manner that treats

Plaintiff differently from other property owners in the SF District. Plaintiff is not

likely to prevail on a claim for violation of her equal protection rights so it may not

serve as the reason a preliminary injunction may issue.

D. Preemption by North Carolina Building Code

Plaintiff’s fourth cause of action is that “Section 10.51 of the Currituck County

UDO [i]s [p]reempted [b]y the North Carolina Building Code[.]” The trial court’s

order agreed with Plaintiff and found:

The provisions in the UDO that prevent LeTendre’s home

from qualifying as a single-family detached dwelling also

attempt to regulate matters already regulated by the North

Carolina Building Code. Ms. LeTendre’s home is governed

[by] the Building Code, and the Building Code contains

detailed provisions governing such matters as how the

foundations of her home should be constructed and

whether the wings of her home should be structurally

dependent. Nothing in the Building Code requires the

foundations of LeTendre’s home to be structurally

integrated, and nothing in the Building Code requires the

wings of her home to be structurally dependent. The UDO

provisions that bar her home from being a single family

detached dwelling therefore require her home to be

constructed in a way that the Building Code does not

require.

The trial court concluded:

LeTendre is likely to prevail on her claim that the

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provisions of the UDO that are barring her home from

being a single-family detached dwelling are preempted by

the North Carolina Building Code because those provisions

attempt to regulate matters of construction that are

already comprehensively and exclusively regulated by the

Building Code.

We first note that neither Plaintiff’s brief nor the trial court’s order identifies

which provisions of the North Carolina Building Code preempt Defendant’s zoning

ordinance, but Plaintiff’s complaint identified the statutory basis for her claim as

North Carolina General Statute § 143-138(e), which provides:

Effect upon Local Codes. -- Except as otherwise provided in

this section, the North Carolina State Building Code shall

apply throughout the State, from the time of its adoption.

Approved rules shall become effective in accordance with

G.S. 150B-21.3. However, any political subdivision of the

State may adopt a fire prevention code and floodplain

management regulations within its jurisdiction. The

territorial jurisdiction of any municipality or county for

this purpose, unless otherwise specified by the General

Assembly, shall be as follows: Municipal jurisdiction shall

include all areas within the corporate limits of the

municipality and extraterritorial jurisdiction areas

established as provided in G.S. 160A-360 or a local act;

county jurisdiction shall include all other areas of the

county. No such code or regulations, other than floodplain

management regulations and those permitted by G.S.

160A-436, shall be effective until they have been officially

approved by the Building Code Council as providing

adequate minimum standards to preserve and protect

health and safety, in accordance with the provisions of

subsection (c) above. Local floodplain regulations may

regulate all types and uses of buildings or structures

located in flood hazard areas identified by local, State, and

federal agencies, and include provisions governing

substantial improvements, substantial damage,

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cumulative substantial improvements, lowest floor

elevation, protection of mechanical and electrical systems,

foundation construction, anchorage, acceptable flood

resistant materials, and other measures the political

subdivision deems necessary considering the

characteristics of its flood hazards and vulnerability. In the

absence of approval by the Building Code Council, or in the

event that approval is withdrawn, local fire prevention

codes and regulations shall have no force and effect.

Provided any local regulations approved by the local

governing body which are found by the Council to be more

stringent than the adopted statewide fire prevention code

and which are found to regulate only activities and

conditions in buildings, structures, and premises that pose

dangers of fire, explosion or related hazards, and are not

matters in conflict with the State Building Code, shall be

approved. Local governments may enforce the fire

prevention code of the State Building Code using civil

remedies authorized under G.S. 143-139, 153A-123, and

160A-175. If the Commissioner of Insurance or other State

official with responsibility for enforcement of the Code

institutes a civil action pursuant to G.S. 143-139, a local

government may not institute a civil action under G.S. 143-

139, 153A-123, or 160A-175 based upon the same violation.

Appeals from the assessment or imposition of such civil

remedies shall be as provided in G.S. 160A-434.

A local government may not adopt any ordinance in

conflict with the exemption provided by subsection (c1) of

this section. No local ordinance or regulation shall be

construed to limit the exemption provided by subsection

(c1) of this section.9

N.C. Gen. Stat. § 143-138(e) (2017). North Carolina General Statute § 143-138(e)

merely sets forth the authority of the State to adopt building codes which apply

throughout the state. Plaintiff’s house is governed by the North Carolina Residential

9 Subsection (c1) deals with elevators in private clubs and religious organizations, so it is not

relevant to this case. See N.C. Gen. Stat. § 143-138(c1) (2017).

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Code.

Plaintiff again focuses her argument on her contention that the UDO requires

“structurally dependent foundations[.]” Plaintiff submitted the affidavit of her

contractor, Mr. Mancuso, who averred:

80. The Building Code contains a chapter on

foundations. I have reviewed and relied upon that chapter

of the Building Code many times over the years and am

personally familiar with it. An accurate copy of that

chapter is attached as Exhibit 13. The Building Code’s

chapter on foundations applies to and governs the

foundations in Ms. LeTendre’s home. That chapter of the

Building Code states that it “shall control the design and

the construction of the foundation and foundation spaces

for all buildings.” That chapter comprehensively regulates

the foundations of one and two family dwellings, and it has

provisions governing matters like what materials must be

used in a home’s foundation, how the different components

in a home’s foundation must connect together and connect

to other parts of the home, and what standards the

components of a home’s foundation must meet.

81. Neither the Building Code’s chapter on

foundations, nor any other provision in the Building Code,

requires the foundations of the three wings in Ms.

LeTendre’s home to be connected or requires Ms.

LeTendre’s home to have a single common foundation.

82. Simply put, Ms. LeTendre’s home is one

building and one dwelling. It is one building for purposes

of the Building Code, and it is considered one building as

[that] term is understood and used in the local design and

construction industry.

Plaintiff also relies upon a determination by the North Carolina Building Code

Council issued in August 2015. Plaintiff’s project came under consideration by the

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Building Code Council based upon Plaintiff’s appeal from the North Carolina

Department of Insurance (“NCDOI”). A staff member of NCDOI determined, after

his review of the building plans, coupled with his review of

the Coastal Area Management Agency (“CAMA”) permit

application for the project, led him to conclude that the

proposed occupancy more closely resembles a “hotel” and

should be constructed in compliance with R-l type

occupancy as mandated in the North Carolina Building

Code (“NCBC”).

After discussion among Plaintiff’s contractor, members of Defendant’s staff,

and NCDOI staff,

an agreement was reached wherein Mr. Newns issued a

residential building permit for the project with various

modifications to construction standards and methods

normally called for only in projects meeting R-3 occupancy

standards found in the [North Carolina Building Code], but

not in the [North Carolina Residential Code.] The

additional requirements included sprinkler systems,

handicap access, increased fire protection, emergency exits

and the like.

Plaintiff’s contractor agreed to these requirements with the “express

understanding that . . . [Plaintiff] would solicit a formal interpretation from NCDOI

regarding the occupancy classification and petition the County to remove all

additional requirements not expressly mandated by the NCRC” if the NCDOI’s

determination that the building closely resembled a hotel” was reversed. On 28 May,

2015, a deputy commissioner of the NCDOI approved the determination that “if the

property is ‘used as a house,’ it can be built according to NCRC standards, but if it

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were rented out as a '’vacation rental,’ as shown in the CAMA application, it most

closely resembles a Group R-l Occupancy and must be constructed in accordance with

the NCBC.” Plaintiff appealed this determination to the North Carolina Building

Code Council, and the Council reversed the NCDOI ruling and concluded that “[t]his

project meets the definition of a one family dwelling not more than three stories above

grade plane in height with a separate means of egress, as required in NCRC section

R101.2. Accordingly, the NCRC applies to this project.”

Plaintiff argues that

Currituck County’s application of the UDO attempts

to regulate a home’s foundations in a manner different

from that prescribed by the Building Code. (See Doc. Ex.

116 ¶¶80–81) The construction of a home’s foundation(s) is

regulated by the Building Code, and nowhere in the Code

is there a requirement that various wings of a home must

be structurally dependent or share a common foundation.

Plaintiff then footnotes that

[t]hese conclusions are supported by the August 2015

ruling of the Building Code Council, which determined that

the home depicted in the October 2013 plans is a “single-

family dwelling.” (Doc. Ex. 94-95, Ex. 11) Two building

inspectors, including the County’s Chief Building

Inspector, have confirmed that the home is a single

building for purposes of the Building Code. (Doc. Ex. 115

¶78)

The first problem with plaintiff’s preemption argument is that the Currituck

County UDO does not regulate the construction of foundations. Plaintiff is arguing

only that the definition of a single family detached dwelling in the UDO somehow

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Opinion of the Court

addresses the construction of foundations. The Planning Director’s letter of 17

March 2017 also did not address any of the technical requirements of foundations. In

addition, the determination by the North Carolina Building Code Council does not in

any way control Defendant’s application of its UDO.

In Duggins v. Town of Walnut Cove, this Court rejected a similar argument

that the town ordinance’s definitions of “mobile home,” “modular home,” and “site-

built home” were an “impermissible attempt to regulate construction practices.” 63

N.C. App. 684, 687, 306 S.E.2d 186, 188 (1983). The plaintiffs contended that they

should be allowed to install a mobile home in an area which allowed only modular

and site-built homes. See id. Prior to purchasing the mobile home, “the plaintiffs

described to Defendant’s town clerk/zoning administrator the type of manufactured

home they intended to erect on their property and were assured this home complied

with local ordinances. Defendant issued a building permit to plaintiffs and accepted

their payment of $200 as a water tap fee.” Id. at 685, 306 S.E.2d at 187. But when

the plaintiffs tried to install the mobile home on their lot, they were informed that it

was not allowed in that zoning district. Id. One of the plaintiffs’ arguments on appeal

was that

[d]efendant’s attempt to “zone out” mobile homes as

defined in the ordinance exceeds Defendant town’s

statutory authority both because the zoning enabling act

does not authorize Defendant to regulate the types of

structures used for single-family residential purposes and

because Defendant's ordinance constitutes a back door

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attempt to intrude into a field preempted by state and

federal law.

63 N.C. App. at 686, 306 S.E.2d at 188. Regarding building codes, the plaintiffs

argued that because mobile homes and modular or site-built homes are governed by

different building codes, “the zoning ordinance . . . [has] the effect of distinguishing

between structures used for the same purpose--single-family residences--based solely

on the construction methods and materials used.” Id. at 687, 306 S.E.2d at 188. But

this Court determined,

We do not agree with plaintiffs’ interpretation of the

ordinance. It is obvious from the definitions in the

ordinance that the different applicable building codes is not

the only factor differentiating mobile homes from modular

homes. Therefore, the ordinance does not have the effect

suggested by plaintiffs. Defendant is clearly authorized by

G.S. 160A-381 to regulate and restrict the location and use

of any buildings or structures for residential and other

purposes, and that is exactly what defendant has done in

restricting the location of mobile homes.

Similarly, plaintiffs attack the ordinance on the

grounds it is an impermissible attempt to regulate

construction practices. Defendant’s ordinance was not

intended to and does not have the effect of regulating

construction practices in any way. Rather, the ordinance

deals solely with the location and use of buildings and

structures as the statute expressly authorizes. Plaintiffs’

attempt to read more into defendant’s enactment of the

ordinance is not warranted. Accordingly, we hold both

aspects of plaintiffs’ first argument are meritless.

Id. at 687, 306 S.E.2d at 188–89 (emphasis added).

Defendant’s UDO also “deals solely with the location and use of buildings and

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structures as the statute expressly authorizes. Plaintiff[’]s[] attempt to read more into

defendant’s enactment of the ordinance is not warranted.” Id. The trial court erred

in concluding that Plaintiff is likely to prevail on her claim that UDO Section 10.51

impermissibly regulates construction practices and is preempted by the North

Carolina Building Code. Plaintiff is unlikely to prevail on this claim so it is not a

proper basis for a preliminary injunction.

E. Inverse Condemnation

Plaintiff’s sixth cause of action is that “Currituck County [h]as [t]aken

LeTendre’s [p]roperty[.]” The trial court did not conclude and Plaintiff does not argue

that the preliminary injuction could be based upon her alternative claim for inverse

condemnation. Plaintiff’s complaint alleges that “Section 10.51 of the Currituck

County UDO, by itself and in combination with those County actions, assurances,

and representations . . . induced [her] to build” the project which now is deprived “of

all economic value, market value, and utility.” But since inverse condemnation is a

claim for monetary compensation and not a claim to restrain the Defendant from

taking some action, a preliminary injunction could not logically be based on inverse

condemnation. We also note that under North Carolina General Statute § 40A-51, a

Memorandum of Action must be filed for an inverse condemnation claim, and plaintiff

has failed to do so. See N.C. Gen. Stat. § 40A-51(b) (2017); see also Cape Fear Pub.

Util. Auth. v. Costa, 205 N.C. App. 589, 596, 697 S.E.2d 338, 342 (2010) (“Defendant’s

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counterclaim for inverse condemnation was thus subject to dismissal for its failure to

comply with N.C. Gen. Stat. § 40A–51.”) Since the preliminary injunction could not

be based upon this claim, we will not speculate on it further, but we note Plaintiff

would not be entitled to a preliminary injunction on this basis.

F. Laches

Plaintiff’s eighth cause of action is that “Currituck County’s [a]ttempts to

[e]nforce Section 10.51 of the UDO [a]gainst the Home are [b]arred by [l]aches[.]”

This claim is based upon her allegation that Currituck County had notice “that the

Home as described in the Plans might not comply with the UDO” in December of 2013

when the Longs appealed the BOA’s determination. In other words, Defendant has

taken too long to oppose Plaintiff’s plans; Defendant should have known better than

to approve her plans in November 2013 and should have changed its position right

away to join in the Longs’ challenge.10 The trial court did not rely upon laches in its

issuance of the preliminary injunction, and Plaintiff has not addressed laches on

appeal. But we do note that “a municipality cannot be estopped to enforce a zoning

ordinance against a violator by the conduct of its officials in encouraging or

permitting such violator to violate such ordinance in times past.” Fisher, 232 N.C. at

635, 61 S.E.2d at 902. Therefore, plaintiff is not entitled to a preliminary injunction

on the basis of a likelihood of success of her claim of laches.

10In Long, Plaintiff and Defendant were in agreement. See Long, ___ N.C. App. ___, 787 S.E.2d

835. Defendant is now carrying out this Court’s mandate in Long, in opposition to Plaintiff.

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G. Common Law Vested Right

Plaintiff’s last claim is that even if she is not likely to prevail on any of her

other claims, she still has a common law vested right to use the project. The trial

court concluded that Plaintiff was likely to prevail on her vested right claim:

LeTendre is likely to prevail on her claim that she has a

vested right to complete and use her home as approved by

the County in November 2013. At the time that LeTendre

constructed her home, starting in the spring of 2015, she

had valid approvals from Currituck County for that home’s

construction. This Court had ruled in December 2014 that

the County’s approval of her home was valid, and there was

no stay in place to prevent this Court’s order from taking

effect. As a result, when LeTendre spent substantial sums

in reliance on her approvals from the County to construct

her home, she was relying on valid governmental

approvals. Her reliance on those approvals was also

reasonable and in good faith.

Plaintiff argues that

[t]o establish a common law vested right, an owner must

obtain an approval for the development and make

substantial expenditures in good faith reliance on that

approval. River Birch Assocs. v. City of Raleigh, 326 N.C.

100, 112, 388 S.E.2d 538, 544–45 (1990). LeTendre

received approval of her home’s construction in the

County’s November 2013 Letter of Determination and

March 2015 building permit. She then spent over $4

million building her home in reliance on those approvals.

(See Doc. Ex. 10 ¶32) Thus, she made substantial

expenditures in good faith reliance on governmental

approvals.

This Court described how a landowner may acquire a vested right to use her

land in a certain way in Browning-Ferris Industries v. Guilford County Bd. of Adj.:

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The common law vested rights doctrine is rooted in

the due process of law and the law of the land clauses of

the federal and state constitutions and has evolved as a

constitutional limitation on the state’s exercise of its police

powers. A party’s common law right to develop and/or

construct vests when: (1) the party has made, prior to the

amendment of a zoning ordinance, expenditures or

incurred contractual obligations substantial in amount,

incidental to or as part of the acquisition of the building

site or the construction or equipment of the proposed

building; (2) the obligations and/or expenditures are

incurred in good faith; (3) the obligations and/or

expenditures were made in reasonable reliance on and

after the issuance of a valid building permit, if such permit

is required, authorizing the use requested by the party; and

(4) the amended ordinance is a detriment to the party. The

burden is on the landowner to prove each of the above four

elements.

126 N.C. App. 168, 171–72, 484 S.E.2d 411, 414 (1997) (citations, quotation marks,

and brackets omitted).

As described in Browning-Ferris, the first element of a vested rights claim is

that “the party has made, prior to the amendment of a zoning ordinance, expenditures

or incurred contractual obligations substantial in amount, incidental to or as part of

the acquisition of the building site or the construction or equipment of the proposed

building[.]” Id. at 171, 484 S.E.2d at 414 (emphasis added). Here, the zoning

ordinance has not been amended; the only question from the beginning has been

whether Plaintiff’s house is a “single-family detached dwelling” as defined by Section

10.51 of the UDO. Long, ___ N.C. App. at ___, 787 S.E.2d at 836 (“On appeal, there

is no real factual issue presented but only an issue of the interpretation of the UDO.

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The parties have made many different arguments, with petitioners focusing upon the

applicable definitions and provisions of the UDO, and respondents focusing upon the

intended use and function of the project. This case ultimately turns upon the

definition of a single family detached dwelling.” (citations, quotation marks, and

brackets omitted)). Plaintiff is correct in noting that her project was initially

approved by Defendant:

The 22 November 2013, LETTER OF DETERMINATION

from the Planning Director describes the project as follows:

“The plans indicate a three-story main building that

includes cooking, sleeping, and sanitary facilities; as well

as two-story side buildings that include sleeping and

sanitary facilities. The building plans also show two

conditioned hallways connecting rooms within the

proposed single family detached dwelling.” This is an

accurate and undisputed description of the project. The

BOA affirmed the Planning Director’s description, and the

Superior Court affirmed the BOA’s decision.

Id. at ___, 787 S.E.2d at 839.

But the Longs appealed and that case proceeded on appeal to this Court, where

it was resolved by issuance of Long in favor of the petitioner-plaintiffs who argued

against plaintiff LeTendre. See id., ___ N.C. App. ___, 787 S.E.2d 835. Thus, as to

Plaintiff’s argument that she relied upon “the County’s November 2013 Letter of

Determination and March 2015 building permit[,]” Plaintiff knew the Letter of

Determination as affirmed by the BOA and then the Superior Court was on appeal

and was specifically warned that this Court may not find in her favor Plaintiff did

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not get her building permit and begin construction until after the appeal. See

generally id. But Plaintiff argues that unless someone took additional legal action to

stop her, she was still entitled to proceed to build: “With a valid building permit in

hand, and without any injunction in place, proceeding with her home was a

reasonable decision made in good faith.” Thus, Plaintiff’s vested rights theory is that

she could acquire a common law vested right to build and occupy her house simply by

proceeding with construction quickly, even while aware that her right to do so was on

appeal and could be reversed.

Plaintiff’s interpretation of vested rights is simply not supported by the law.

See generally Fisher, 232 N.C. 629, 61 S.E.2d 897. First, Plaintiff’s interpretation

would deprive Defendant of its right and duty to exercise the police power if a

landowner building a structure in violation of its zoning ordinance simply acts fast

enough to complete the work before a legal challenge to the landowner’s project can

be completed. Although Fisher did not specifically address vested rights, the

situation presented is very similar to this case. See generally id. In Fisher, the City

of Raleigh sued to enjoin the Defendant “landowners from carrying on business in a

residential zoning district in violation of a zoning ordinance.” Id. at 630, 61 S.E.2d

at 898. The Defendants had been “operating a bakery and sandwich company” at an

address within a residential zoning district. Id. at 631, 61 S.E.2d at 899 (quotation

marks omitted). The property had been zoned as residential since 1923, and in 1936

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the Defendants acquired the land and constructed the house in which the business

operated. See id. at 632, 61 S.E.2d at 900. Defendants operated the business from

this location “with the full approval and consent of the officials of the City of Raleigh”

“for at least ten years.” Id. The Defendants also “increased their facilities from the

operation of the business” during this time, investing “at least $75,000.00, which

[would] be lost in case they are precluded from continuing their commercial

operations[.]11 Id. (quotation marks omitted). But in 1948, the City of Raleigh notified

Defendants they must “discontinue their business operations within said residential

district[;]” the Defendants refused to comply, leading to the lawsuit to enjoin them

from continuing operation of the business. Id. at 631, 61 S.E.2d. at 899-900 (quotation

marks omitted),

The Supreme Court determined that the City of Raleigh could not be estopped

from enforcing “its zoning ordinance against the defendants” despite “the fact that its

officials have encouraged or permitted them to violate it for at least ten years.” Id.

at 634, 61 S.E.2d at 900. While the Court recognized Defendants’ good faith reliance

upon the City’s acquiescence, and even encouragement, of the operation of the

business for many years and their substantial expenditures based upon that reliance,

11 To put the investment of $75,000.00 in context, according to the United States Department

of Labor, Bureau of Labor Statistics’ Consumer Price Index calculator, this expenditure in 1940 would

be equivalent to over $1,300,000.00 today. See United States Department of Labor, Bureau of Labor

Statistics, Databases, Tables & Calculators by Subject, CPI Inflation Calculator -

https://www.bls.gov/data/inflation_calculator.htm.

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it determined that because enforcement of the zoning ordinances is within the police

power of the City, the City could change its position and require the business to cease

operation in that location:

In enacting and enforcing zoning regulations, a

municipality acts as a governmental agency and exercises

the police power of the State. The police power is that

inherent and plenary power in the state which enables it to

govern, and to prohibit things hurtful to the health, morals,

safety, and welfare of society. In the very nature of things,

the police power of the State cannot be bartered away by

contract, or lost by any other mode.

This being true, a municipality cannot be estopped

to enforce a zoning ordinance against a violator by the

conduct of its officials in encouraging or permitting such

violator to violate such ordinance in times past.

Undoubtedly this conclusion entails much hardship

to the defendants. Nevertheless, the law must be so

written; for a contrary decision would require an

acceptance of the paradoxical proposition that a citizen can

acquire immunity to the law of his country by habitually

violating such law with the consent of unfaithful public

officials charged with the duty of enforcing it.

Id. at 635, 61 S.E.2d at 902 (citations omitted). The November 2013 Letter of

Determination could not create a vested right for Plaintiff to build the project as

planned, particularly since that letter was immediately challenged, and she did not

even begin construction until much later. See generally id. We have no doubt that

Defendant’s Planning Director was acting in good faith in approving Plaintiff’s plans,

but Plaintiff could not in good faith rely upon the November 2013 letter to build the

house, where a legal challenge to the project was pending.

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Our Supreme Court has also recognized that a landowner cannot in good faith

acquire a vested right if the landowner knows of a pending amendment to a zoning

ordinance which would change the use of the land:

The “good faith” which is requisite under the rule of

Warner v. W & O, Inc., supra, is 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.

Town of Hillsborough v. Smith, 276 N.C. 48, 56, 170 S.E.2d 904, 910 (1969).

In Finch v. City of Durham, the plaintiffs planned to build a hotel on a tract of

land zoned as Office-Institutional, which would allow hotels. See Finch, 325 N.C.

352, 355-56, 384 S.E.2d 8, 10 (1989). The plaintiffs worked on planning the motel for

several years and leased the property with an option to purchase it at the end of the

lease. See id. at 356-60, 384 S.E.2d at 10-12. In 1984, the plaintiffs entered into an

agreement with Red Roof Inns providing for Red Roof Inns to construct the motel and

lease the property from plaintiffs. See id. The plaintiffs had to exercise their option

to purchase by giving notice by 1 May 1985; if they did not, the lease would end in

June 1985. See id. The plaintiffs exercised the option, but a rezoning request for the

property was under consideration during April 1985, and on 6 May 1985, the Durham

City County adopted an amendment to the zoning, changing it back to R-10,

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Opinion of the Court

residential. See id. at 355-60, 384 S.E.2d at 10-12. Therefore, when the plaintiffs

exercised the option to purchase, they knew that a proposed change to the zoning was

pending, although it had not yet been approved. See generally id. at 356-57, 384

S.E.2d at 10-11.

The plaintiffs brought a declaratory judgment and damages lawsuit against

Durham with claims quite similar to this case which included

six claims: (1) that the zoning ordinance be invalidated as

arbitrary, capricious, discriminatory and unreasonable; (2)

that the zoning ordinance be invalidated as a “taking”

under the state and federal Constitutions; (3) that the City

of Durham be found liable for inverse condemnation under

N.C.G.S. § 40A-51, and pay damages of $700,000; (4) that

the City of Durham be estopped from enforcing the zoning

ordinance and the subsequent general ordinance requiring

a use permit; (5) that should the zoning ordinance be

invalidated, the City of Durham be found liable for a

“temporary taking” and plaintiffs be compensated under

N.C.G.S. § 40A-51 in the amount of $100,000; and (6) that

the City of Durham be found liable under 42 U.S.C. § 1983

for a taking and compensate plaintiffs in the amount of

$700,000 and costs and attorney’s fees.

Id. at 358, 384 S.E.2d at 11.

Some of the plaintiffs’ claims were dismissed by summary judgment but some

proceeded to a jury trial. See id. at 358, 384 S.E.2d at 11-12. But on appeal of various

issues and rulings, the Supreme Court ruled in favor of the City of Durham on all

claims. See id., 325 N.C. 352, 384 S.E.2d 8. Regarding the plaintiffs’ decision to

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exercise their option to purchase despite knowledge of a pending proposal to change

the zoning, the Court stated:

[W]here an investor knows of a pending ordinance change

proposed by a city planning board to the city council, the

investor has no valid claim that he relied upon the prior

ordinance in guiding his investment decision. An investor

may speculate on regulatory changes, but the purchase

price is irrelevant to the reasonableness of the current

restriction. To hold otherwise would constitute a windfall

to the investor at taxpayer expense.

In analyzing the distinct investment-backed

expectations of plaintiffs, we note the City Council enacted

the zoning change on 6 May 1985, seven days after

plaintiffs were under an equitable obligation to perform the

purchase contract. However, the undisputed evidence

shows that plaintiffs chose to exercise their option to

purchase the property on 29 April 1985. This was some

twenty-seven days after plaintiffs knew of the

recommendation by the Durham Planning and Zoning

Commission to rezone the property to R-10. Plaintiffs’

expectations of investment return were in fact based on a

speculative risk that the Durham City Council would not

rezone the property to prohibit the proposed Red Roof Inn

project.

Plaintiffs argue that exercise of the option was

necessary to protect prior financial investment in the

property. It is axiomatic, however, that the purpose of an

option contract is to minimize investment exposure to

adverse changes in the business environment by

postponing for an extended period the decision to accept or

reject an offer. When such changes threatened, plaintiffs

chose to ignore the warning clouds. They cannot now say

that they reasonably expected an investment return

untroubled by zoning changes.

Finch v. City of Durham, 325 N.C. 352, 366–67, 384 S.E.2d 8, 16–17 (1989) (emphasis

added) (citations omitted).

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As noted above, vested rights cases are normally based upon an actual or

pending amendment to a zoning ordinance after a landowner has made substantial

expenditures or entered into contractual obligations as part of developing the land.

Here, there was no change in zoning and Defendant’s action which Plaintiff seeks to

permanently enjoin is its enforcement of this Court’s mandate from litigation

challenging Plaintiff’s project which was pending before a building permit was issued

or any construction occurred. Although we are not aware of a North Carolina case

which has directly held that a landowner may not acquire a vested right to develop

land in a certain way where there is pending litigation directly challenging the

proposed development, we conclude that actual litigation challenging the plan is a far

stronger factor in eliminating the landowner’s reasonable expectations than the

landowner’s knowledge of a pending rezoning proposal, as in Finch. See generally id.,

325 N.C. 352, 384 S.E.2d 8. In addition, although in dicta, our Supreme Court has

cited with approval several cases from other states which do address whether vested

rights may accrue when the landowner knows of a pending lawsuit which may affect

use of the land:

In Omaha Fish & Wildlife Club, Inc. v. Community

Refuse Disposal, Inc., 213 Neb. 234, 329 N.W.2d 335 (1983),

the Nebraska Supreme Court refused to apply the doctrine

of “vested rights” for the benefit of defendant landowner.

That court found that expenditures made by defendant

with knowledge that a lawsuit had been filed challenging

his proposed use were not made in good faith.

In an analogous situation, the Supreme Court of

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Hawaii held that a resort developer proceeded at his own

risk where he made expenditures despite notice that a

petition had been certified for a public referendum which

would (and, when passed, did) prohibit the proposed use.

The court refused to apply the “vested rights” or “equitable

estoppel” doctrines to allow property rights to vest. County

of Kauai v. Pacific Std. Life Ins., 65 Haw. 318, 653 P.2d 766

(1982), appeal dismissed, 460 U.S. 1077, 103 S.Ct. 1762, 76

L.Ed.2d 338 (1983).

In Bosse v. City of Portsmouth, 107 N.H. 523, 226

A.2d 99 (1967), the Pace Industrial Corporation had

successfully persuaded the local administrative body to

rezone its particular tract from residential to light

industrial. Adjoining landowners had sought two

injunctions to prevent the proposed use, and during the

hearings, the trial court had twice warned Pace that it

proceeded with construction at its own peril. The New

Hampshire Supreme Court held that the designation

change procured by Pace constituted unlawful “spot

zoning” and stated that Pace had taken a “calculated risk”

in proceeding with construction after plaintiffs had twice

instituted legal proceedings seeking to enjoin the

construction. Quoting from the Master’s order below, the

court went on to note:

“‘Under the circumstances, and

considering the fact that the Pace Industrial

Corporation was aware that this was a

Residential Zone at the time the purchase was

made, and was aware shortly after the

passage of the ordinance that the validity of

this particular zone would be attacked, the

Master finds that no vested interest accrued

to Pace Industrial Corporation.’”

Id. at 532, 226 A.2d at 107.

Finally, in an often-cited Florida Supreme Court

case, Sakolsky v. City of Coral Gables, 151 So.2d 433 (Fla.

1963), that court held that knowledge by a developer that

a political contest in which the success of certain

candidates might alter the voting pattern of the municipal

body did not prevent good faith reliance on an act of the

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current governing body. However, the court was careful to

point out that

“[t]he effect of pending litigation directly

attacking the validity of a permit or zoning

ordinance, or the effect of an eventual

determination that such permit was invalid,

may present a very different problem. The

decision in the instant case was not rested on

any showing that petitioner, at the time he

acted in reliance on the permit granted him,

was a party defendant in legal action directly

attacking its validity, that he had any notice

that his permit might have been invalid in its

inception, or that its revocation was in fact

required in the public interest.”

Id. at 436 (footnote omitted). See generally Heeter, Zoning

Estoppel: Application of the Principles of Equitable

Estoppel and Vested Rights to Zoning Disputes, 1971 Urban

L. Ann. 63, 80.

A trial court could conclude that application of the

“vested rights” doctrine is inappropriate on the facts of this

case and hold that when the landowner here incurred

expenses with the knowledge that a lawsuit had been filed

challenging the validity of the zoning ordinance

amendment under which the landowner had obtained his

building permit, he proceeded at his peril and thereby

acquired no vested rights in the use of the property which

is prohibited as a result of a judicial declaration that the

ordinance amendment was invalid. In such a situation, it

could not be said that the landowner had expended funds

in good faith and in reasonable reliance upon a building

permit issued pursuant to the challenged amendment.

Godfrey v. Zoning Bd. of Adjustment, 317 N.C. 51, 64 n.2, 344 S.E.2d 272, 280 n.2

(1986).

Here, Plaintiff also took a calculated risk to proceed with construction while

litigation challenging her project’s approval was pending. Plaintiff could not accrue a

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vested right to construct or occupy the project where she knew of the potential effect

of pending litigation – particularly since the Plaintiff herself was a party to that

litigation. The litigation in Long challenged Defendant’s approval of Plaintiff’s plans,

but Plaintiff decided, upon consideration of many factors as described in her affidavit,

she would proceed with construction. See generally Long ___ N.C. App. ___, 787

S.E.2d 835. Plaintiff believed she would prevail on the Long appeal because her plans

had been approved by the BOA and by the Superior Court, so she demanded a

building permit and sought to complete construction before the Long appeal was

concluded. After issuance of the Long opinion, Plaintiff sought the preliminary

injunction at issue here so she could continue to build and use the project. Plaintiff

even moved to dismiss this appeal as moot because she had completed the project in

spite of the issuance of the opinion in Long.

Plaintiff also argues that since no one stopped her, she could continue to build.

Defendant issued the building permit, which it had a duty to do based upon the

Superior Court’s approval of the BOA’s ruling. Plaintiff argues that either Defendant

or the Longs should have sought injunctive relief against her to stop her construction.

But in Godfrey, our Supreme Court rejected a similar argument:

We disagree with the suggestion of the panel below

that plaintiffs and others similarly situated must resort to

obtaining or attempting to obtain injunctive relief in order

to protect their property interests against unlawful actions

of a zoning board. Plaintiffs were well within their rights

in electing to challenge the 1980 amendment through a

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declaratory judgment action rather than attempting,

possibly in vain, to raise sufficient bond in order to procure

an injunction.

A suit to determine the validity of a city

zoning ordinance is a proper case for a

declaratory judgment. The plaintiffs, owners

of property in the adjoining area affected by

the ordinance, are parties in interest entitled

to maintain the action. Jackson v. Board of

Adjustment, 275 N.C. 155, 166 S.E.2d 78;

Zopfi v. City of Wilmington, 273 N.C. 430, 160

S.E.2d 325.

The adjoining property owners should not be called

upon to suffer to protect the financial investment of one

who acts at his own peril with forewarning of the possible

consequences. If the law were otherwise, there would be no

protection from a zoning board which, unlike the situation

before us, might act from purely corrupt motives. If one, in

a situation such as the one at bar, could be assured that a

major investment would be protected regardless of the

outcome of his gamble, a comprehensive zoning ordinance

would offer little or no protection to those who have relied

upon that ordinance.

Godrey, 317 N.C. at 67, 344 S.E.2d at 281 (citations omitted).

Just as in Godfrey, neither Defendant nor adjacent property owners were

required to take additional legal action “to protect the financial investment of one

who acts at his own peril with forewarning of the possible consequences.” Id.

Plaintiff knew of the potential consequences of her decision to construct the home as

it is designed and in the location she chose. She did not even begin construction until

after the Superior Court order in Long was on appeal, so if she did not know before

then, she knew about the potential for reversal when that appeal was taken. Both

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the Long’s counsel and Defendant specifically warned Plaintiff of the risks of

proceeding with construction. Plaintiff knowingly chose to gamble that the order in

Long would not be reversed, and she lost that gamble. The consequences of delaying

construction may have also been harsh, and Plaintiff had to make a difficult choice,

but the choice was hers to make:

The ultimate result in cases such as this may indeed

be harsh. As this Court said in City of Raleigh v. Fisher,

232 N.C. 629, 61 S.E.2d 879 (1950):

Undoubtedly this conclusion entails

much hardship to the Defendants.

Nevertheless, the law must be so written; for

a contrary decision would require an

acceptance of the paradoxical proposition that

a citizen can acquire immunity to the law of

his country by habitually violating such law

with the consent of unfaithful public officials

charged with the duty of enforcing it.

Id. at 67, 344 S.E.2d at 281–82. Plaintiff is not likely to prevail on her vested rights

claim, and thus it is not a proper basis for a preliminary injunction.

V. Conclusion

We have examined each of Plaintiff’s causes of action and determined that

none have a likelihood of success for the purposes of entering a preliminary

injunction. Because the order below must be reversed, we need not address

Defendant’s other contentions of why Plaintiff’s preliminary injunction should be

reversed, including arguments that Plaintiff failed to properly appeal the March 2017

determination letter from Mr. Woody; that Plaintiff’s claims are barred by the statute

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of limitations; that Plaintiff has unclean hands; and that Plaintiff has an adequate

remedy at law.

On de novo review, Defendant has borne its burden of showing that the trial

court’s preliminary injunction was erroneous. Even if Plaintiff has demonstrated the

potential for harm and substantial financial loss, she has not demonstrated a

likelihood of success on any of her causes of action. The preliminary injunction is

hereby reversed. “[T]he mandate of an appellate court is binding on the trial court,

which must strictly adhere to its holdings.” Campbell v. Church, 51 N.C. App. 393,

394, 276 S.E.2d 712, 713 (1981). This matter is remanded to the trial court for further

proceedings consistent with this Court’s opinion in Long and this opinion.

REVERSED and REMANDED.

Judges DAVIS and ARROWOOD concur.

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