Thomas v. Vill. of Bald Head Island

892 S.E.2d 888

Scott THOMAS, Amy Elizabeth Dunn, James Brian Dunn, Dave Emonson, Penny Emonson, and John Farabow, Plaintiffs, v. VILLAGE OF BALD HEAD ISLAND; Peter Quinn, Mayor of Village of Bald Head Island; Village Council Members of the Village of Bald Head Island, Each in their Representative capacity as Council Members of the Village of Bald Head Island; to wit: Scott Gardner, Mayor Pro Tem; Ginnie White, Councilor; Emily Hill, Councilor; and Jerry Maggio, Councilor, Defendants.

No. COA23-242

Court of Appeals of North Carolina.

Filed October 3, 2023

John M. Kirby, Raleigh, for plaintiffs-appellants.

Brooks Pierce McLendon Humphrey & Leonard, L.L.P., by S. Wilson Quick and Jimmy C. Chang, Greensboro, for defendants-appellees.

FLOOD, Judge.

Scott Thomas, Amy Elizabeth Dunn, James Brian Dunn, Dave Emonson, Penny Emonson, and John Farabow (collectively "Plaintiffs") appeal from the trial court's order granting Defendants’ motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Plaintiffs allege the trial court erred in: (1) finding Plaintiffs lacked standing to challenge the decision to close a portion of Lighthouse Wynd; (2) concluding Plaintiffs did not have standing to bring this action where the relevant statute allows "any person" to be heard prior to the closure of a road; and (3) rejecting the doctrine of relation back as to John Farabow ("Farabow") and Dave and Penny Emonson (the "Emonsons"). As we explain in further detail below, the trial court did not err.

I. Factual and Procedural Background

On 3 May 2021, Defendant Village of Bald Head Island (the "Village") received a petition and request from Mark and Robin Prak; Old Ballast Stone, LLC; the Old Baldy Foundation, Inc.; the Village Chapel; Bald Head Limited, LLC; and the Bald Head Island Association, seeking closure of a portion of Lighthouse Wynd (the "Road") that is near Old Baldy lighthouse—specifically, the west end of the Road between where it intersects with Ballast Stone Alley and where it intersects with Timber Bridge. On 18 February 2022, these petitioners renewed their request for closure of the Road. On 18 March 2022, the Village adopted resolution number 2022-0304 (the "Resolution"), whereby the Village declared its intent to consider closing the Road. In the Resolution, the Village also set the public hearing on the considered Road closing to be held "at 10:00 [a.m.], or shortly thereafter, on Thursday," 14 April 2022.

On or about 30 March 2022, the Village filed a Certification of Mailing and Sign Posting, which read, in relevant part:

I, Darcy Sperry, Village Clerk, with the Village of Bald Head Island, DO HEREBY CERTIFY that in accordance with [N.C. Gen. Stat. §] 160A-299(a), I mailed, or caused to be mailed, via USPS certified mail a Notice of Public Hearing being held by the Village Council on [14 April] 2022.

This notice informed the abutting property owners of the subject property that the applicant is seeking to close a portion of the subject property. The mailed notice included the date, time, place, and subject of the meeting. The notice also included the process by which interested parties can participate in the public hearing (in person or via email). The notice was mailed on [29 March] 2022.

Staff has also posted the subject parcel with two [ ] signs indicating that the property is subject to a Public Hearing with instructions to contact the Development Services Department via phone or email.

The Village also filed a copy of the notice that was published in the local newspaper, The State Port Pilot. This notice was published in the 23 March 2022, 30 March 2022, 6 April 2022, and 13 April 2022 editions of the newspaper. On 5 April 2022, the Village issued by email a notice where they changed the start time of the 14 April 2022 Village Council "regular scheduled meeting" from 10:00 [a.m.] to 9:00 [a.m.]. Plaintiff Scott Thomas ("Thomas") was a recipient of this email. The same day, the Village posted notice of this time change.

On 13 April 2022, Thomas sent an email to Village Clerk—Darcy Sperry—and several other people, requesting the Village not close the Road. In the email, Thomas asserted closure of the Road would be detrimental to the "island community because of [Old Baldy's] historical significance, aesthetic appeal and environmental sensitivity[;]" not closing the Road would be in "the public's best interest[;]" and the Village did not provide proper notice prior the 14 April 2022 hearing.

On 14 April 2022, during the Village Council's regularly scheduled meeting, the Village Council held a hearing on the closure of the Road. The Record shows Thomas phoned in to the hearing to speak remotely, and he expressed several concerns regarding closure of the Road "including but not limited to fire and emergency services, on[-]street parking, tree scape, pedestrian safety, lack of site plan, and Island infrastructure[.]" Thereafter, the Village Council unanimously voted to adopt order number 2022-0402 (the "Order") to permanently close the Road.

On 12 May 2022, Thomas, Amy Elizabeth Dunn, and James Brian Dunn (the "Dunns") filed a Petition to Vacate and Notice of Appeal from the Order (the "Initial Petition"). On 29 June 2022, Thomas and the Dunns filed an Amended Petition (the "Amended Petition"), which added Farabow and the Emonsons as petitioners. The Amended Petition did not add any allegations or circumstances unique to any Plaintiffs. On 2 August 2022, Defendants filed a Motion to Dismiss the Amended Petition pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. On 12 September 2022, the trial court held a hearing on Defendants’ motion to dismiss. At the hearing, Plaintiffs made an oral motion to amend the Amended Petition via affidavits by each of the Plaintiffs, to "give further specifics about the individual positions of each" Plaintiff. The trial court denied Plaintiffs’ motion and declined to consider the affidavits.

On 16 September 2022, the trial court entered an order granting Defendants’ motion to dismiss, for Plaintiffs’ "failure to establish standing pursuant to the requirements of [N.C. Gen. Stat. §] 160A-299" and, as to Farabow and the Emonsons, for "failure to file an appeal [to the trial court] within [thirty] days from the adoption of the Order ... as required by [N.C. Gen. Stat. §] 160A-299." On 17 October 2022, Plaintiffs filed written notice of appeal.

II. Jurisdiction

Plaintiffs’ appeal is properly before this Court pursuant to N.C. Gen. Stat. §§ 7A-27(a)(1), and 1-277, and Rule 3(a) of the North Carolina Rules of Appellate Procedure. See N.C. Gen. Stat. §§ 7A-27(a)(1), and 1-277 (2021) ; see N.C.R. App. P. 3(a).

III. Standard of Review

"A ruling on a motion to dismiss for want of standing is reviewed de novo. " Ring v. Moore Cnty. , 257 N.C. App. 168, 170, 809 S.E.2d 11, 12 (2017). This Court's review of an order granting a Rule 12(b)(6) motion to dismiss does not entail review of the trial court's reasoning; rather, this Court "affirms or reverses the disposition of the trial court—the granting of the Rule 12(b)(6) motion to dismiss—based on the appellate court's review of whether the allegations of the complaint are sufficient to state a claim." Taylor v. Bank of America, N.A. , 382 N.C. 677, 679, 878 S.E.2d 798, 800 (2022).

Dismissal under Rule 12(b)(6) is proper when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff's claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff's claim.

Wood v. Guilford Cnty. , 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002).

"Standing is jurisdictional in nature and consequently, standing is a threshold issue that must be addressed, and found to exist, before the merits of the case are judicially resolved." In re Miller , 162 N.C. App. 355, 357, 590 S.E.2d 864, 865 (2004). "For the purpose of the motion [to dismiss under Rule 12(b)(6) ], the well-pleaded material allegations of the complaint are taken as admitted; but conclusions of law or unwarranted deductions of fact are not admitted." Lloyd v. Babb , 296 N.C. 416, 427, 251 S.E.2d 843, 851 (1979). ¹

IV. Analysis

Plaintiffs argue on appeal: (A) the trial court erred in concluding Plaintiffs did not have standing to bring this action where Plaintiffs were "persons aggrieved" under N.C. Gen. Stat. § 160A-299 ; (B) even if Plaintiffs were not persons aggrieved under N.C. Gen. Stat. § 160A-299, they were still persons entitled to be heard prior to a road closure; and (C) the trial court erroneously found Farabow and the Emonsons failed to timely file their claims.

A. Standing as "Persons Aggrieved"

We first address whether Plaintiffs had standing as "person[s] aggrieved" pursuant to N.C. Gen. Stat. § 160A-299. As we explain below, Plaintiffs did not have standing.

Plaintiffs argue, pursuant to N.C. Gen. Stat. § 160A-299(b), they are "persons aggrieved" by the closure of the Road, and therefore, the trial court erred in dismissing their amended complaint for lack of standing. We disagree.

N.C. Gen. Stat. § 160A-299(b) provides, in pertinent part:

Any person aggrieved by the closing of any street or alley ... may appeal the council's order to the General Court of Justice within [thirty] days after its adoption.... In addition to determining whether procedural requirements were complied with, the court shall determine whether, on the record as presented to the city council, the council's decision to close the street was in accordance with the statutory standards of subsection (a) of this section and any other applicable requirements of local law or ordinance.

No cause of action or defense founded upon the invalidity of any proceedings taken in closing any street or alley may be asserted, nor shall the validity of the order be open to question

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