Cary Creek Ltd. Partnership v. Town of Cary

690 S.E.2d 549

CARY CREEK LIMITED PARTNERSHIP, Plaintiff, v. TOWN OF CARY, North Carolina, Defendant.

No. COA09-799.

Court of Appeals of North Carolina.

March 16, 2010.

Robertson, Medlin & Blocker, P.L.L.C., by John F. Bloss, Greensboro, and Smith Moore Leatherwood, L.L.P., by Marc C. Tucker, Greensboro, for plaintiff-appellant.

Womble Carlyle Sandridge & Rice, P.L.L.C., by John C. Cooke and Michael T. Henry, Raleigh, for defendant-appellee.

Julia F. Youngman, Chapel Hill, for Catawba Riverkeeper Foundation, Inc., Haw River Assembly, North Carolina Conservation Network, Southern Environmental Law Center and WakeUP Wake County, amici curiae.

Gregory F. Schwitzgebel, III, Raleigh, for North Carolina League of Municipalities and North Carolina Association of County Commissioners, amici curiae.

BRYANT, Judge.

On 29 May 2007, plaintiff Cary Creek Limited Partnership ("Cary Creek") sought a declaratory judgment that ordinances enacted by defendant Town of Cary ("the Town") which require preservation of riparian buffers are invalid and unenforceable or, in the alternative, that the Town must compensate Cary Creek under principles of inverse condemnation. The Town moved to dismiss pursuant to Rules 12(b)(1) and 12(b)(6), which motion the trial court subsequently denied by order entered 14 November 2008. On 27 October 2008, Cary Creek moved for partial summary judgment, and on 26 November 2008, the Town moved for summary judgment as well. On 14 January 2009, following a hearing, the trial court entered orders granting summary judgment in favor of the Town and denying summary judgment to Cary Creek on both the declaratory judgment and inverse condemnation claims. Cary Creek appeals. As discussed below, we affirm in part, reverse in part, and vacate in part.

Facts

Cary Creek owns a tract of approximately 108 acres ("the site") near the intersection of Highway 55 and Alston Avenue in the Town of Cary which it plans to develop as a mixed commercial and residential center. The site is within the Cape Fear River Basin and is traversed by both a perennial stream and two intermittent streams which flow only during wet periods.

The Town has enacted a series of ordinances known collectively as the Land Development Ordinance which includes a subchapter of stormwater management ordinances. These stormwater management ordinances were designed for the "protection of riparian buffers, control of nitrogen export from development, control of peak stormwater runoff, and the use of best management practices." Stormwater management ordinance section 7.3.2, entitled "Protecting Riparian Buffers," required one-hundred-foot riparian buffers on either side of "all perennial and intermittent streams" indicated on USGS maps and fifty-foot buffers adjacent to other surface waters indicated by the Soil Survey of Wake or Chatham County.¹ Stormwater management ordinance section 7.3.7 permits parties to seek a variance from the riparian buffer requirement from the Cary Town Council ("the Council"). The Council denied Cary Creek's request for such a variance on 26 April 2007.

Cary Creek raises two arguments on appeal, contending the trial court erred in granting summary judgment to the Town on Cary Creek's (I) declaratory judgment and (II) inverse condemnation claims. The Town cross-appeals on two issues, arguing that the trial court erred in its 14 November 2008 order denying the Town's motion to dismiss Cary Creek's (III) declaratory judgment and (IV) inverse condemnation claims for lack of subject matter jurisdiction. Because the Town's cross-appeal implicates the threshold issue of subject matter jurisdiction, we address those arguments first. We affirm both the trial court's denial of the Town's motion to dismiss and its grant of summary judgment to the Town on Cary Creek's declaratory judgment action. We reverse the trial court's denial of the Town's motion to dismiss the inverse condemnation claim and vacate the grant of summary judgment to the Town on this claim.

III

The Town first contends that the superior court lacked subject matter jurisdiction over Cary Creek's declaratory judgment claim. As discussed below, we disagree.

"A suit to determine the validity of a zoning ordinance is a proper case for a declaratory judgment." Laurel Valley Watch, Inc. v. Mt. Enters. of Wolf Ridge, LLC, 192 N.C.App. 391, 396, 665 S.E.2d 561, 565 (2008) (citations omitted). In a pair of unpublished opinions, we have previously approved a plaintiff challenging the validity of the Town's riparian buffer ordinance and claiming inverse condemnation via a declaratory judgment action while also pursuing a separate certiorari proceeding to challenge the Town's denial of his request for a variance under the ordinance. See ARH Int'l Co. v. Cary, 170 N.C.App. 436, 613 S.E.2d 753 (2005) (unpublished); Hashemi v. Town of Cary, 173 N.C.App. 447, 618 S.E.2d 875 (2005) (unpublished). Indeed, because the standard of review and role of the superior court is different in certiorari proceedings, where it sits as an appellate court, than in declaratory judgment actions, where it sits as a trial court, such actions must be brought separately. See Batch v. Town of Chapel Hill, 326 N.C. 1, 11, 387 S.E.2d 655, 661-62, cert. denied, 496 U.S. 931, 110 S.Ct. 2631, 110 L.Ed.2d 651 (1990). The fact that Cary Creek's certiorari proceeding is on-going does not deprive the superior court of subject matter jurisdiction in this declaratory judgment action. The Town's cross-assignment of error on this point is overruled.

IV, II

The Town also argues that the superior court lacked subject matter jurisdiction over Cary Creek's action seeking compensation under a theory of inverse condemnation because the matter is unripe. We agree.

Cary Creek's inverse condemnation claim is based on the theory that if the riparian buffer ordinance is upheld as valid and enforceable in the instant case and if Cary Creek does not prevail in its certiorari proceeding, a taking will have occurred. Because neither of these prerequisite events had occurred at the time Cary Creek filed its claim, there had been no taking and there was no concrete controversy ripe for adjudication. See Messer v. Town of Chapel Hill, 125 N.C.App. 57, 61, 479 S.E.2d 221, 223, vacated as moot, 346 N.C. 259, 485 S.E.2d 269 (1997) (stating that "land-use challenges are not ripe for review until there has been a final decision about what uses of the property will be permitted"). We reverse the trial court's order denying the Town's motion to dismiss as to this claim. Further, because Cary Creek's inverse condemnation claim was not ripe and should have been dismissed, we also vacate the trial court's grant of summary judgment to the Town on this claim.

I

Cary Creek argues that the Court erred in granting summary judgment to the Town on Cary Creek's declaratory judgment claim. We disagree.

In a declaratory judgment action to determine the validity of a zoning ordinance, "summary judgment is properly granted where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." Laurel Valley Watch, Inc., 192 N.C.App. at 396, 665 S.E.2d at 565 (internal quotation marks and citations omitted). "An appellate court reviews the trial court's decision de novo, with the evidence to be viewed in the light most favorable to the non-movant." Granville Farms, Inc. v. County of Granville, 170 N.C.App. 109, 111, 612 S.E.2d 156, 158 (2005).

Cary Creek moved for partial summary judgment on its declaratory judgment claim, arguing that the State's regulation of riparian buffers preempted any attempt by the Town to implement more stringent regulations. The trial court did not explain the basis for its grant of summary judgment as to Cary Creek's declaratory judgment and inverse condemnation claims in the order entered 14 January 2009 titled "Summary Judgment in Favor of the Town on Counts I and II". However, in its order granting partial summary judgment in favor of the Town in response to Cary Creek's motion, also entered 14 January 2009, the trial court states that "the local laws challenged in this action are not in conflict with or preempted by general State law".

In Granville Farms, Inc., we also considered whether an "ordinance was preempted because it purports to regulate a field for which a state or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation." Id. That case concerned the land application of biosolids and we noted that the relevant "statute, coupled with the permit requirements set forth in the applicable regulations, are so comprehensive in scope that they were intended to comprise a `complete and integrated regulatory scheme' on a statewide basis, thus leaving no room for further local regulation." Id. at 116, 612 S.E.2d at 161.

In contrast, the State's watershed management system both provides minimal protections which local governments must enforce, and explicitly permits local ordinances which are more protective than those minimal state-wide standards. North Carolina General Statute section 143-214.5, titled "Water supply watershed protection", contains a policy statement which provides, in pertinent part:

This section provides for a cooperative program of water supply watershed management and protection to be administered by local governments consistent with minimum statewide management requirements established by the Environmental Management Commission. If a local government fails to adopt a water supply watershed protection program or does not adequately carry out its responsibility to enforce the minimum water supply watershed management requirements of its approved program, the Commission shall administer and enforce the minimum statewide

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