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 Municipal Law Notes, July/August 2013 

July/August 2013                                                                                                            Volume XXXIII, Nos. 1-2

Procedure; Board of Adjustment; Permits; Attorney’s Fees

Izydore v. City of Durham, ___ N.C. App. ___ (No. COA12-1284, Durham− 8/6/13)

  • Holding− Trial court properly denied petitioner’s petition to recover attorney’s fees from Board of Adjustment under G.S. 6-19.1 (entitled “Attorney’s fees to parties appealing or defending against agency decision.”). The City, the Board of Adjustment, and the Planning Department are not “agencies” for purposes of G.S. 6-19.1.

  • Key Excerpt− “[B]ecause statutes authorizing the award of attorney's fees are in derogation of the common law, they must be strictly construed. As such, ‘everything [should] be excluded from [the statute's] operation which does not clearly come within the scope of the language used . . . .’

Neither [G.S.] 6-19.1 nor Chapter 6 of the General Statutes in its entirety provides a definition of the terms ‘agency’ or ‘State action.’ Section 6-19.1 does, however, twice reference Chapter 150B of the North Carolina General Statutes, which contains North Carolina's Administrative Procedure Act (‘APA’). Although the APA nowhere defines the phrase ‘State action,’ it does define the term ‘agency’ as follows:

‘Agency’ means an agency or an officer in the executive branch of the government of this State and includes the Council of State, the Governor's Office, a board, a commission, a department, a division, a council, and any other unit of government in the executive branch. A local unit of government is not an agency.

 [G.S.] 150B-2(1a) (2011) (emphasis added).

Thus, because counties and municipalities are considered local units of government, they do not constitute ‘agencies’ for purposes of the APA.

. . . . Based on the plain language of [G.S.] 6-19.1, our caselaw interpreting the statue, and other provisions of the General Statutes, we conclude that local governmental units - such as respondents in this case - do not constitute 'agencies' for purposes of [G.S.] 6-19.1.

[G.S.] 6-19.1’s limitation of attorney’s fees to those civil actions with ‘State’ involvement coupled with its repeated references to the APA strongly suggest that the legislature intended for the statute to apply to entities falling within the APA’s definition of the term ‘agency’ as set out in [G.S.] 150B-2(1a).” (Citations omitted.)

  • Synopsis− Appeal by petitioner from May 2012 order denying petitioner’s petition for attorney’s fees. Affirmed. (Opinion by Judge Davis, with Judge McGee and Judge Geer concurring.)


Procedure; Subject Matter Jurisdiction; Pole Attachment Agreements;
Just, Reasonable, and Non-Discriminatory Rates

Time Warner Entertainment Advance/Newhouse Partnership v. Town of Landis, (No. COA13-22, N.C. Business Court− 8/6/13)

  • Holding− In plaintiff-Time Warner Entertainment Advance/Newhouse Partnership’s (TWEAN’s) action under G.S. 62-350 arising from dispute concerning pole attachment agreement, N.C. Court of Appeals holds that Business Court erred in dismissing case for lack of subject matter jurisdiction. G.S. 62-350 creates a statutory right for both communications service providers and municipalities to establish "just, reasonable, and nondiscriminatory" pole attachment rates within 90 days of a request to negotiate. The statute creates a private cause of action to enforce these rights, allowing “either party [to] bring an action in Business Court in accordance with the procedures for a mandatory business case.” G.S. 62-350(c).
  • Key Excerpt− “[T]he Business Court determined it did not have subject matter jurisdiction because TWEAN did not satisfy the controversy requirement. Specifically, the Business Court held TWEAN did not allege: (i) a prior violation of its rights; or (ii) the imminent threat of a violation. Upon review, we conclude the Business Court erred because TWEAN showed a controversy exists under [G.S.] 62-350.

To this effect, TWEAN alleged a prior violation of its statutory right to establish ‘just, reasonable, and nondiscriminatory’ pole attachment rates within 90 days of a request to negotiate. See [G.S.] 62-350(c). It then presented evidence supporting its allegation. First, TWEAN submitted a request to negotiate to Landis on 31 August 2009. Next, TWEAN negotiated with Landis for more than 90 days. In fact, the Business Court implicitly acknowledged the parties negotiated when it dismissed TWEAN's refusal to negotiate claim. Despite these negotiations, the parties failed to reach an agreement. Once 90 days had passed, TWEAN filed its complaint under [G.S.] 62-350.

Contrary to the Business Court's determination, the controversy here is not the future possibility of increased pole attachment rates. Instead, the controversy arises from the parties' failure to reach an agreement within 90 days. This failure violated TWEAN's right to establish ‘just, reasonable, and nondiscriminatory’ pole attachment rates within 90 days of a request to negotiate. While we make no determination as to whether the pole attachment rates in the Proposed Agreement are ‘just, reasonable, and nondiscriminatory,’ we determine there exists a justiciable controversy.” (Citations omitted.) The Court remanded for further proceedings.

  • Synopsis− Appeal by plaintiff-TWEAN from October 2012 order. Reversed and remanded. (Opinion by Judge Hunter, Jr. (Robert N.),, with Judge McGee and Judge Stephens concurring.) 


Nota Bene (N.B.)
Other Recent Decisions of Note

Land Use; Certiorari; Motion Seeking Amendment and/or Alteration Myers Park Homeowners Association, Inc. v. City of Charlotte, ___ N.C. App. ___ (No. COA12-1346, Mecklenburg− 8/20/13) (In petitioner-homeowner association’s appeal from trial court’s orders: (1) affirming Zoning Board of Adjustment’s decision pertaining to expansion of university’s campus and (2) denying petitioner’s subsequent request pursuant to Rules 52 and 59 of the N.C. Rules of Civil Procedure for inter alia additional conclusions of law, N.C. Court of Appeals affirms. “As we held in Markham v. Swails, we are of the opinion that Rule 52(b) has no application where the superior court sits in the posture of an appellate court. 29 N.C. App. 205, 208, 223 S.E.2d 920, 922 (1976). Similarly, we hold that a motion pursuant to Rule 59, concerning new trials and amendment of judgments, is inapplicable in the present case.” (Opinion by Judge McCullough, with Judge Calabria and Judge Steelman concurring.)

Torts; Governmental Immunity; Office Building; Premises Liability Bynum v. Wilson County, ___ N.C. App. ___ (No. COA12-779, Wilson− 6/18/13), petition for reh’g denied, ___ N.C. App. ___ (No. COA12-779, 8/15/13) (In plaintiff’s action seeking damages from fall on steps of County’s main office building after payment of water bill, Court of Appeals unanimously holds that trial court did not err by denying defendant County’s motion for summary judgment on governmental immunity grounds. “As a result of the fact that the operation of a water system is a proprietary rather than a governmental function, the fact that Mr. Bynum was lawfully on the premises in question for the purpose of paying his water bill, and the fact that Mr. Bynum allegedly sustained injuries as the result of negligence on the part of Defendant Wilson County as he left the building after paying his water bill, we conclude that Defendant Wilson County is not entitled to the entry of judgment in its favor based on a defense of governmental immunity.” Opinion by Judge Ervin, with Chief Judge Martin and Judge Dillon concurring. Defendants-appellants’ petition for rehearing was denied by the Court of Appeals on August 15, 2013. (As stated by the Court in the text of its opinion, a prior appeal in this matter is found at Bynum v. Wilson County, ___ N.C. App. ___, 716 S.E.2d 90 (2011) (unpublished) (Bynum I).)

Law Enforcement; Police Pursuits Greene v. City of Greenville, ___ N.C. App. ___ (No. COA12-908, Pitt− 1/15/13), disc. review denied, ___ N.C. ___ (No. 121P13, 8/27/13) (In wrongful death action involving police pursuit arising from suspected violation of drug laws, Court of Appeals holds that trial court erred in denying defendants’ motion for summary judgment. “Officer Campbell followed common procedure and exercised his discretion by waiting to activate the siren and lights. Moreover, there is no evidence that Officer Campbell lost control prior to his attempt to avoid a crash with the vehicle making an unsignaled turn. Although he violated policy by failing to notify the police communications center of the pursuit, this failure does not constitute gross negligence. See e.g. Id. [Young v. Woodall, 343 N.C. 459, 463, 471 S.E.2d 357, 360 (1996)] (violating a policy requiring that the blue light and siren be activated when a patrol car exceeds the speed limit does not establish gross negligence). Finally, we recognize that Officer Campbell reached a maximum speed of approximately 30 m.p.h. over the speed limit. However, exceeding the speed limit is also insufficient to establish gross negligence. See Parish v. Hill, 350 N.C. 231, 245, 513 S.E.2d 547, 555 (1999). We conclude that these circumstances do not demonstrate the degree of reckless indifference toward the safety of others required to establish gross negligence.” (Opinion by Judge Elmore, with Judge McGee and Judge Robert C. Hunter concurring.) Plaintiff filed a petition for discretionary review in March 2013. The Supreme Court denied the petition on August 27, 2013.)

Personnel; Wrongful Discharge; Constitutional Claims; Motion for Judgment on the Pleadings Bigelow v. Town of Chapel Hill, ___ N.C. App. ___ (No. COA12-1105, Orange− 5/7/13), disc. review denied, ___ N.C. ___ (No. 257P13, 8/27/13) In plaintiff-sanitation workers’ appeal from trial court’s granting of defendant’s motion for judgment on the pleadings, G.S. 1A-1, Rule 12(c), N.C. Court of Appeals affirms in part and vacates and remands in part. Court affirms the granting of the motion for judgment on the pleadings as to the claims against the Town Manager acting in his individual capacity. “North Carolina does not recognize direct North Carolina constitutional claims against public officials acting in their individual capacities. Corum v. University of North Carolina, 330 N.C. 761, 789, 413 S.E.2d 276, 293 (1992).” As to remaining claims against the Town, Court vacates and remands. “While we make no determinations on the merits of Plaintiffs' wrongful discharge claim, we hold that Plaintiffs have sufficiently pled a claim for wrongful discharge.” As to the constitutional claims, Court states, “As long as Defendants' sovereign immunity defense remains potentially viable for any or all of Plaintiffs' wrongful discharge-related claims, our Supreme Court's decision in Craig, 363 N.C. [334] at 340, 678 S.E.2d [351] at 355 [(2009)], dictates that Plaintiffs' associated North Carolina constitutional claims are not supplanted by those claims. ‘This holding does not predetermine the likelihood that plaintiff will win other pretrial motions, defeat affirmative defenses, or ultimately succeed on the merits of his case. Rather, it simply ensures that an adequate remedy must provide the possibility of relief under the circumstances.’ Id.” (Opinion by Judge McGee, with Judge Geer and Judge Davis concurring.) Defendants filed a petition for discretionary review in June 2013. The Supreme Court denied the petition on August 27, 2013.)

Procedure; Land Use; Permits; Adjacent Property Owner Challenge to Permit Issuance; Certiorari; Subject Matter Jurisdiction Whitson v. Camden County Board of Comm’rs, ___ N.C. App. ___ (No. COA12-1282, Camden− 7/16/13)(unpublished) (In petitioner-adjacent property owner’s appeal from order granting County’s motion to dismiss, N.C. Court of Appeals affirms dismissal of petition for writ of certiorari for lack of jurisdiction where petitioner failed to name Camden Plantation (the conditional use permit applicant) as a respondent in accordance with G.S. 160A-393(e). “The relevant portion of [G.S.] 160A-193(e) provides, ‘[i]f the petitioner is not the applicant before the decision-making board whose decision is being appealed, the petitioner shall also name that applicant as a respondent.’ [G.S.] 160A-393(e). We hold this language clear and unambiguous. In this case, Camden Plantation submitted the application for the CUP and was identified as the applicant on the application. It follows that Camden Plantation was the applicant before the Board required by statute to be named as a respondent. We find this analysis based on the plain meaning of the language of the statute sufficient to affirm the trial court’s dismissal.” Court also rejects petitioner-adjacent property owner’s argument that he could not name Camden Plantation as a respondent because doing so would waive his argument that Camden Plantation lacked standing before the Board. (Opinion by Judge McCullough, with Judge Bryant and Judge Hunter, Jr. (Robert N.) concurring.)