Town of Leland, N.C. v. HWW, LLC, No. COA08-987 (N.C. App. 6/16/2009)

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Unpublished Opinion

TOWN OF LELAND, N.C., Plaintiff v. HWW, LLC and WESTPORT HOMEOWNERS' ASSOCIATION, INC., Defendants

No. COA08-987

Court of Appeals of North Carolina.

Filed June 16, 2009

This case not for publication

Brunswick County No. 07 CVS 2440

Appeal by defendant from order and judgment entered 10 June 2008 by Judge Thomas H. Lock in Brunswick County Superior Court. Heard in the Court of Appeals 28 January 2009.

Wessell & Raney, LLP, by John C. Wessell, III, for plaintiff-appellee.

Hogue Hill Jones Nash & Lynch, LLP, by David A. Nash and Anna J. Averitt, for defendant HWW, LLC-appellant.

Marshall, Williams & Gorham, LLP, by Charles D. Meier, for defendant Westport Homeowners' Association-appellee.

CALABRIA, Judge.

HWW, LLC ("HWW" or "developer") appeals the trial court's grant of summary judgment in favor of the Town of Leland ("the Town" or "plaintiff"). We affirm in part and remand in part.

HWW is the developer of the Westport subdivision in Leland, North Carolina. Defendant Westport Homeowners' Association, Inc. ("WHOA") is the current owner of the real property which is the subject of this action.¹ On 16 December 2004, HWW submitted a land use plan to the Town Council for approval of phase 2 of the Westport subdivision. Phase 2, section 1 of the site specific plan for the Westport subdivision was approved in January or February 2005. On 15 September 2005, the Town Council approved HWW's site specific plan for phase 2 section 2. The Westport subdivision plan provided for an area of open space described as a recreation area in phase 2, section 2 of the site specific plan. Specifically, the recreation area would include a parking lot, pool, softball field, and soccer field.

In June of 2006, the Town adopted a new zoning ordinance, section 30-313, which required:

(5) Ensured recreation/open space

a. In any PUD district, a minimum of five percent of the total land area shall be reserved as open space. Any area or segment of land less than eight feet in width may not be included in calculating the minimum open space reservation unless such land is clearly a part of an open space system, such as a pedestrian walkway.

b. A minimum of 25 percent of the required open space shall be developed for active recreational purposes, such as tennis courts, ballfields or playgrounds. . . . Such recreation area shall be conveniently and centrally located to the housing units. Building areas for recreational facilities may be computed as open space.

c. Provisions for continuous maintenance of open space, specifically including that developed for active recreational purposes, shall be made by the developer either through proposed dedication to the town, if acceptable, or through the establishment of a private homeowners' association.

In February 2007, residents of the Westport subdivision complained to the Mayor of Leland that HWW left a large mound of dirt and debris approximately ten to fifteen feet in height in the recreation area. On 9 February 2007, Town Manager and Acting Code Enforcement Officer of the Town of Leland, Bill Farris ("Farris"), sent a memorandum copied to the developer stating "the condition and appearance of the knoll was less than desired." The memorandum indicates the developer discussed the knoll with Farris and agreed to improve the area so residents could access the knoll more easily, install a small foot bridge, grade the site so it is easier to climb onto the knoll, create a passive recreation area with landscaping, and install irrigation to help new plants survive. The memorandum also states "a registered land surveyor has made calculations that show the development's open space and recreation areas meet the Town's requirements without considering this area."

On 1 March 2007, Sandy Wood ("Wood"), president of Hearthside Builders & Developers, LLC and a member of HWW, LLC, sent a letter to Farris indicating defendant completed the requirements in plaintiff's 9 February 2007 memorandum except for seeding and planting trees due to inclement weather.

On 20 March 2007, Farris notified HWW that the mound of dirt in the recreation area did not meet the site specific plan and wasin violation of section 30-313 of the Town code.² This letter notified HWW that it must begin removal of the existing mound of dirt on the recreational site adjacent to Merestone Drive as described hereinabove and bring that area into compliance with the site specific plan approved by the Town of Leland. Action to remove this violation must begin within fourteen (14) days of the date of this letter and must be completed within seventy-four (74) days of the date of this letter.

On 25 April 2007, HWW's attorney, Bill Lynch, sent a letter to plaintiff's attorney contesting the Town's decision and its authority to require developers to construct additional facilities. Mr. Lynch stated in his letter to "please provide me with any official form for an appeal to the Board of Adjustment if this letter does not suffice."

On 4 May 2007, HWW's attorney sent another notice of appeal stating the Town had conceded that the site specific plan met all requirements in September 2005. HWW's appeal to the Leland Board of Adjustment was scheduled for hearing on 25 June 2007 and later continued until 23 July 2007. On 23 July 2007, HWW's counsel sent a letter to the Town notifying its withdrawal of its appeal along with an agreement to move the soil to make it match the natural grade of the area and allow construction of a ball field. The letter also stated "[r]emoval or relocation of earth for commencement of construction of the ball field cannot begin until an amended erosion control permit has been obtained." On the same day, plaintiff's attorney sent a letter to HWW's counsel acknowledging the developer's 23 July 2007 letter and stating, "[s]ince the developer has withdrawn its appeal from the decision of the Code Enforcement Officer, that decision now stands as the ruling in this matter." The letter also notified HWW of a thirty day deadline in order to comply with the Town's decision. If HWW did not comply by the deadline, then the Town planned to commence enforcement proceedings. In addition, the letter stated, "[t]he developer must still satisfy the Town that what it is proposing to do is consistent with the Town ordinances."

On 30 July 2007, HWW's counsel responded to plaintiff's 23 July 2007 letter, stating the developer had no other written plans for the removal or relocation of the dirt. On 13 August 2007, counsel for HWW sent a letter to plaintiff's counsel stating the developer submitted a plan to the Division of Water Quality regarding the removal of soil. After learning it would take 15 days for approval, the developer asked the Town to extend the 30 day deadline to begin work. On 28 August 2007, the developer sent a letter to Farris stating the developer received approval for modification of an erosion control permit and would begin moving dirt in September.

On 1 November 2007, plaintiff filed the complaint in the present action, seeking a court order requiring the developer to remove the dirt. Plaintiff alleged in its complaint that HWW made the following improvements to the site:

(a) Grading a portion of the previously existing mound of dirt to a level approximately the same as that of the parking lot and swimming pool;

(b) Constructing within the newly graded area a youth soccer field and youth softball field;

(c) Moving the dirt and debris from the graded area to another location within the same recreation area;

(d) Installing a fence around the newly constructed soccer field and softball field; and

(e) Placing additional fill and grassing certain portions of the remaining mound.

Plaintiff alleged the activities resulted in "no dirt or debris being removed from the site in question." On 3 January 2008, HWW filed an answer.

On 23 April 2008, plaintiff moved for summary judgment and filed an Affidavit of William Farris ("Farris Affidavit") in support of its motion. On 2 May 2008, HWW moved to amend its answer to plead laches and estoppel. The same day, plaintiff moved to amend the complaint to add Westport Homeowners Association as a defendant. On 12 May 2008, HWW responded to plaintiff's motion for summary judgment and submitted the affidavits of Sandy Wood and Gregory Buzzerd. On the same day, HWW moved to amend its answer to plead unclean hands. The trial court entered an order allowing plaintiff's amendment to the complaint to add WHOA as a party on 12 May 2008.

On 10 June 2008, the trial court granted the motion for summary judgment in plaintiff's favor and ordered HWW to bring the recreation and open space into compliance with the site specific plan by removing the dirt and debris so it would be the same grade as the parking lot, basketball court, soccer field, and softball field. On 23 June 2008, HWW moved to stay the order pending appeal. On 3 July 2008, the parties consented to amend the answer to plead unclean hands. On 7 July 2008, the parties entered a consent order staying mandatory injunctive relief pending appeal. On the same day, HWW moved for relief from judgment under Rule 60(b)(1) and (6). No hearing or ruling was held on the Rule 60(b) motion. On 9 July 2008, HWW appealed.

I. Standard of Review

The standard of review on summary judgment in the trial court is whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Oliver v. Roberts, 49 N.C. App. 311, 314, 271 S.E.2d 399, 401 (1980); Barbour v. Little, 37 N.C. App. 686, 692, 247 S.E.2d 252, 256 (1978). "The record is to be viewed in the light most favorable to the non-movant, giving it the benefit of all inferences reasonably arising therefrom." Ausley v. Bishop, 133 N.C. App. 210, 214, 515 S.E.2d 72, 75 (1999) (citation omitted). This Court's standard of review of a trial court's ruling is de novo. Gaines v. Cumberland County Hosp. Sys., ___ N.C. App....