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STATE OF NORTH CAROLINA
COUNTY OF BRUNSWICK
THE ROYAL OAK CONCERNED CITIZENS ASSOCIATION, CURTIS MCMILLIAN and DENNIS MCMILLIAN,
Plaintiffs,
V.
BRUNSWICK COUNTY,
Defendant.
IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION
11-CVS-1301
DEFENDANT BRUNSWICK COUNTY'S BRIEF IN SUPPORT OF MOTION TO DISMISS
*************************************************************************
STATE OF NORTH CAROLINA
IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION
COUNTY OF BRUNSWICK
THE ROYAL OAK CONCERNED CITIZENS ASSOCIATION, CURTIS MCMILLIAN and DENNIS MCMILLIAN,
Plaintiffs,
V.
1 1-CVS-1301
DEFENDANT BRUNSWICK COUNTY'S BRIEF IN SUPPORT OF MOTION TO DISMISS
BRUNSWICK COUNTY,
Defendant.
TABLE OF CONTENTS
Page
STATEMENTOF THE CASE ....................................................................... ..............................1
FACTUALBACKGROUND ........................................................................................................2
TheExisting C&D Landfill ........................................................................ ..............................2
The County Rezones Land Adjacent to the Landfill .................................. ..............................3
SpecialUse Proceedings: Permit Denied ................................................... ..............................3
Plaintiffs' Complaint ................................................................................................................. 4
ReliefRequested ........................................................................................................................4
SUMMARYOF THE ARGUMENT ............................................................. ..............................5
ARGUMENT ..................................................................................................................................7
I. BECAUSE PLAINTIFFS' CLAIMS PERTAINING TO THE PLACEMENT AND EXPANSION OF THE LANDFILL ARE NOT JUSTICIABLE, THEY SHOULD BE DISMISSED ..........................................7
A. The Planning Board's Denial of the Special Use Permit Rendered the Claims Associated with the Landfill Non-Justiciable...................................................................................................7
B. Plaintiffs' Claims About the Landfill Were Non-Justiciable FromInception ........................................................................................11
II. PLAINTIFFS' "CLAIM" UNDER § 153A-136(C) FAILS TO STATE A CLAIM AND IS ALSO MOOT GIVEN THE DENIAL OF THE SPECIAL USE PERMIT ....................................................................................13
III. PLAINTIFFS' FAILURE TO EXHAUST THEIR ADMINISTRATIVE REMEDIES UNDER THE FAIR HOUSING ACT REQUIRES DISMISSAL OF THE CLAIM ..........................................14
A. Because Plaintiffs Failed to File a Complaint With the Commission, They Did Not Exhaust Their Administrative Remedies Under the NCFHA, and the Superior Court Lacks Jurisdiction of Plaintiffs' NCFHA Claim ..............................................15
1. The NCFHA's Plain Language Reveals the Exhaustion Requirement.................................................................................16
2. Right-to-Sue Provisions Reinforce Exhaustion Requirements................................................................................16
3. Construing the NCFHA as Permitting a Direct Claim in Superior Court Would Violate the Principles of Statutory Construction, and Render the Commission's RoleSuperfluous ..........................................................................17
B. The Federal Fair Housing Act Does Not Control this Case .................19
IV. PLAINTIFFS' CLAIM UNDER THE NORTH CAROLINA CONSTITUTION SHOULD BE DISMISSED, AS STATE LAW PROVIDES PLAINTIFFS WITH ADEQUATE REMEDIES ........................21
A. Landfill: Plaintiffs' Constitutional Claim Related to the Landfill's Siting and Expansion is Barred, as Plaintiffs Have AdequateState Law Remedies ...............................................................23
ii
B. Water and Sewer: Plaintiffs' NCFHA Claim, and the Petition Process for Water and Sewer Services, Constitute Adequate Remedies...................................................................................................24
V. PLAINTIFFS FAIL TO STATE A CLAIM UNDER THE CONSTITUTION FOR A WRONGFUL DENIAL OF WATER AND SEWER SERVICES ...........................................................................................25
VI. BECAUSE NO THERE IS NO DECLARATORY RELIEF AVAILABLE TO PLAINTIFFS FOR THEIR NCFHA AND CONSTITUTIONAL CLAIMS, THOSE CLAIMS SHOULD BE DISMISSED ..........................................................................................................28
VII. "ROCCA" LACKS STANDING TO SUE AND SHOULD BE DISMISSED ..........................................................................................................29
A. "ROCCA" Cannot Show Its Legal Existence and Capacity to Sue.............................................................................................................29
B. "ROCCA" Has Not Alleged a Specific Legal Interest in Property to Show Standing to Challenge the Rezoning ....................... 30
CONCLUSION............................................................................................................................31
iii
STATE OF NORTH CAROLINA
IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION
COUNTY OF BRUNSWICK
11-CVS-1301
THE ROYAL OAK CONCERNED CITIZENS ASSOCIATION, CURTIS MCMILLIAN and DENNIS MCMILLIAN,
Plaintiffs,
V.
BRUNSWICK COUNTY,
Defendant.
DEFENDANT BRUNSWICK COUNTY'S BRIEF IN SUPPORT OF MOTION TO DISMISS
STATEMENT OF THE CASE
The thrust of this case involves Plaintiffs' efforts to stop the proposed expansion of the
existing Brunswick County construction and demolition debris landfill. To accomplish this,
Plaintiffs took two approaches: (1) an administrative challenge to the permitting of the land for
special use as a landfill; and (2) filing the present lawsuit against Brunswick County challenging
the rezoning of property in issue and bringing claims under the North Carolina Constitution and
Fair Housing Act alleging racial discrimination.
On March 28, 2012, the Brunswick County Planning Board voted to deny the County's
application for a permit to expand the landfill onto the property. In short, Plaintiffs' efforts to
halt expansion of the landfill succeeded and rendered the present dispute regarding the landfill
non justiciable. Nonetheless, Plaintiffs maintain this lawsuit, which asks the Court to interfere
with any future administrative process of siting the landfill, and to do so on an advisory basis.
Plaintiffs' secondary allegations—that the absence of water and sewer services in a rural
area known as "Royal Oak" establishes discrimination on the part of the County—fail to survive
Rule 12's requirements. Indeed, Plaintiffs' Complaint reveals that Royal Oak has made no
formal efforts to obtain water and sewer services, and that Plaintiffs' conclusory allegations
serve to buttress their attempt to stop the landfill's expansion. As explained below, with the
exception of the administrative challenge to the rezoning of the parcels, all of Plaintiffs' claims
should be dismissed under Rule 12.
FACTUAL BACKGROUND
There are three plaintiffs in this case: Royal Oak Concerned Citizens Association,
or "ROCCA," Dennis McMillian, and Curtis McMillian. ROCCA is by admission "an
unincorporated community association" allegedly made up of citizens and residents of
Brunswick County. (Third Am. Compl., ¶ 5.) ROCCA's stated purpose is to protect the quality
of life and environment of the Royal Oak community. Id. Royal Oak, as defined by the
Plaintiffs, is made up of mostly African-American residents, and is located in a rural part of the
county constituting approximately four square miles. Id. at ¶¶ 5, 8.
ROCCA's existence is not recorded with the Register of Deeds and the Complaint makes
no allegation of such recording. Curtis McMillian owns property in Royal Oak; Dennis
McMillian has alleged only that he lives in the community. (Third Am. Compl., IT 9, 11.)
The Existing C&D Landfill
Since 1998, Brunswick County has operated a construction and demolition debris landfill
("C&D landfill" or "landfill") located in the center of the County. Prior to that time, from 1983
to 1997, the landfill was a municipal solid waste ("MSW") landfill which accepted common
household waste. Id. at ¶¶ 27, 29. at IT 27, 29. Construction and demolition debris is defined as
"solid waste resulting solely from construction, remodeling, repair or demolition operations on
pavement, buildings, or other structures but does not include inert debris, land-clearing debris or
yard debris." N.C. Gen. Stat. § 130A-290(a)(4).
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The County Rezones Land Adjacent to the Landfill
Several years ago, the County began considering expanding the landfill to accommodate
its extensive growth. In June 2010, the County purchased two parcels of land adjacent to the
existing landfill: "Parcel 806" and "Parcel "058." (Third Am. Compl., ¶ 36.) Following the
requisite public hearings and proceedings, on April 4, 2011, the County approved the rezoning of
the parcels from "rural residential" classification to "industrial general." Id. at ¶ 63.
Plaintiffs filed their initial Complaint roughly two months later on June 3, 2011, and have
alleged broadly that proposed expansion of the landfill will greatly increase the traffic, noise,
pollution, and odor caused by the existing landfill. Id. at ¶¶ 89-93. Plaintiffs seek to enjoin the
Board's rezoning decision as well as the landfill's proposed expansion, claiming that the County
has historically burdened Royal Oak with other unwanted land uses. Such acts, Plaintiffs assert,
were motivated by racial discrimination. Id. at ¶¶ 109, 111.
Special Use Proceedings: Permit Denied
As part of its zoning ordinance, however, the County had to obtain a "special use" or
"special exception" permit from its Planning Board in order to expand the existing landfill onto
the two parcels. N.C. Gen. Stat. § 153A-345(c); Sect. 3.3 of Brunswick County Unified
Development Ordinance; Table of Uses.' Only if the special use permit was granted would the
County begin the long process of seeking state approval for the proposed expansion. Indeed, the
North Carolina Department of Environmental and Natural Resources ("DENR")—not the
County—is responsible for permitting and regulating landfills in North Carolina, including C&D
landfills. N.C. Gen. Stat. § 130A-294; 15A N.C. Admin. Code 13B.0531.
In a series of four administrative hearings in 2011 and 2012, Plaintiffs, through their
same attorneys, presented evidence and testimony in opposition to the issuance of the special use
1 A certified copy of the County's Unified Development Ordinance is already on file in this case.
3
permit. On March 28, 2012, the Planning Board denied the County's application for the permit.
(De£'s Motion to Dismiss, Exh. 1.) The County did not appeal the decision.
Plaintiffs' Complaint
Plaintiffs' 161 -paragraph Complaint sets forth two main factual grievances: first, that the
landfill's proposed expansion is part of the County's historical discrimination against African-
Americans and will cause additional harm past that caused by the existing landfill; and second,
that the County has denied Plaintiffs water and sewer services while disproportionately providing
those services to white residents. At its essence, the lawsuit is one seeking to enjoin the landfill,
and to complain of what Plaintiffs assert is historical discrimination by the County. Plaintiffs
bring four distinct causes of action:
1. A declaratory judgment that the rezoning of the two parcels is invalid.
2. Violation of the North Carolina Fair Housing Act ("NCFHA").
3. Violation of the Equal Protection Clause of the North Carolina Constitution.
4. Violation of N.C. Gen. Stat. § 153A-136(c).
Relief Requested
Plaintiffs request the Court provide the following relief:
1. Invalidate the rezoning decision.
2. Permanently enjoin the County from rezoning the two parcels to Industrial
General.
3. Permanently enjoin Defendant from expanding or intensifying the use of the
landfill.
4. Award Dennis and Curtis McMillian damages in excess of $10,000.00.
5. Declare the actions of the County in violation of the NCFHA.
6. Declare the actions of the County in violation of the North Carolina Constitution.
7. Declare the actions of the County in violation of N.C. Gen. Stat. § 153A-136(c).
Plaintiffs do not seek to compel the provision of water and sewer to Royal Oak.
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SUMMARY OF THE ARGUMENT
As set forth below, with the limited exception of the challenge to the rezoning decision,
Plaintiffs' claims fail as a matter of law.
Plaintiffs' Claims Are Not Justiciable
First, to the extent it was ever justiciable, the Planning Board's denial of the requisite
permit needed to expand the landfill rendered all claims associated with the landfill's expansion
non justiciable. To this end, the extraordinary relief Plaintiffs seek—an order enjoining future
expansion of the landfill and declaring its proposed expansion illegal—impermissibly requests
what amounts to an advisory opinion from the Court as to speculative future occurrences.
Plaintiffs' equal protection and fair housing claims likewise rely primarily on allegations of
discrimination associated with the proposed expansion of the landfill. Because there is no
present action to expand the landfill, these claims no longer present justiciable controversies.
Plaintiffs' "claim" under N.C. Gen. Stat. § 153A-136(c) fails here too, as the statute does not
apply to C&D landfills, and in any event, relates only to Plaintiffs' assertion that Defendant did
not follow proper procedure to expand the landfill. It is thus non justiciable, too.
FHA: Jurisdiction Lacking for Failure to Exhaust Administrative Remedy
Assuming the claims under the NCFHA and North Carolina Constitution are justiciable,
Plaintiffs' claim under the NCFHA is fatally flawed as Plaintiffs failed to pursue and exhaust the
requisite administrative remedy under the statute by first filing a claim with the North Carolina
Human Relations Commission. The statutory directive of the NCFHA requires such exhaustion
before a plaintiff can file a lawsuit in Superior Court. Plaintiffs' failure to file a claim with the
Commission is thus fatal to their NCFHA claim as a matter of law.
5
Constitutional Claim Fails as Alternate Remedies Exist at State Law
Plaintiffs' failure to perfect their NCFHA claim simultaneously upends Plaintiffs' claim
under the North Carolina Constitution. Claims under the Constitution are considered
exceptional. Therefore, to pursue a direct claim under the North Carolina Constitution, our
courts adhere firmly to the requirement that a plaintiff allege and show that he does not have an
alternate remedy under state law. According to Plaintiffs, their allegations regarding the
placement and proposed expansion of the landfill and water/sewer services entitle them to relief
under the NCFHA. As such, Plaintiffs' claim under the NCFHA served as the alternate state
law remedy for their discrimination claims regarding the landfill and the purported denial of
water and sewer services. Plaintiffs cannot have both a claim under the NCFHA and the
Constitution. To this end, Plaintiffs' failure to preserve the NCFHA claim destroyed both
claims, as the law is clear that a plaintiff's failure to preserve the alternate state remedy—here
the NCFHA claim—does not render the alternate remedy inadequate, and thereby allow him to
pursue a constitutional claim.
Moreover, Plaintiffs have an adequate remedy to address their grievances through the
administrative process, as demonstrated by Plaintiffs' successful challenge to the special
exception permit. Likewise, Plaintiffs' Complaint fails to allege facts sufficient to state a claim
under the Constitution for denial of water and sewer services. The Complaint further reveals that
Plaintiffs have never formally requested such services from the County, and thus cannot pursue a
direct constitutional claim under this theory.
ROCCA Lacks Standing
Finally, the Complaint reveals not only that ROCCA failed to allege its associational
standing, but that ROCCA is not an entity capable of bringing a lawsuit in North Carolina. As an
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unincorporated association, prior to filing its Complaint, ROCCA was required to record its
existence and allege the recordation pursuant to N.C. Gen. Stat. § 66-88 and 1-69.1. Because
ROCCA failed to do so, it lacks standing to maintain this lawsuit and should be dismissed.
ARGUMENT
I. BECAUSE PLAINTIFFS' CLAIMS PERTAINING TO THE PLACEMENT AND EXPANSION OF THE LANDFILL ARE NOT JUSTICIABLE, THEY SHOULD BE DISMISSED.
A. The Planning Board's Denial of the Special Use Permit Rendered the Claims Associated with the Landfill Non-Justiciable.
Plaintiffs ask this Court to take the extraordinary action of enjoining the proposed
expansion of the landfill on grounds it violates their rights under the North Carolina Constitution
and the NCFHA. Plaintiffs maintain this demand despite the fact that the Planning Board denied
the County's request for a special use permit to expand the landfill onto the property in question.
This permit is but an initial step in a long process to expand a landfill that is ultimately
regulated by the State of North Carolina. The permit was required in order for the County to
proceed with an application to DENR to expand the landfill, which may or may not have been
granted. The administrative process to expand a landfill begins with submission to DENR of a
detailed site study. 15A N.C. Admin. Code 13B.0536. If DENR finds the site suitable, it
authorizes the county to prepare an application for a permit to construct the landfill. Id. at .0535.
The application must include a facility plan and drawings, an engineering plan for initial phase
development, a construction quality assurance plan, an operation plan, monitoring plans, and a
closure and post-closure plan. DENR thereafter oversees the construction of the facility. If these
pre-operative requirements are met, DENR then issues a permit to operate. Id. at .0535-0546.
7
The County did not appeal the Planning Board's decision. Accordingly, to the extent the
claim was ever justiciable (as argued is Sect. B), Plaintiffs' claim that the proposed expansion of
the landfill violated their equal protection rights and the NCFHA is now moot. 2
It is well-established that when no present and genuine controversy exists between the
parties, the courts cannot and should not intervene. Granville County Bd. of Comm'rs v. N.C.
Hazardous Waste Mgm't Comm'n, 329 N.C. 615, 625, 407 S.E.2d 785, 791 (1991). The rule
applies with special force to prevent the premature litigation of constitutional issues. Id.
To this end, when during the course of litigation, "it develops that the relief sought has
been granted or that the questions originally in controversy between the parties are no longer at
issue, the case should be dismissed ...." Pearson v. Martin, 319 N.C. 449, 451, 355 S.E.2d
496, 497 (1987) (citation and quotation marks omitted). "That [an] action was brought as a
declaratory judgment action does not alter this result." Id., 355 S.E.2d at 498.
Issues of mootness and justiciability are especially salient when the litigation at hand
involves an administrative decision-making process regarding public waste facilities. These
principles are demonstrated in the North Carolina Supreme Court's decision in Granville County.
In Granville County, the plaintiff county sought a declaratory judgment and injunctive relief to
2 The Supreme Court has held: "consideration of matters outside the record is especially appropriate where it would disclose that the question presented has become moot, or academic." State ex rel. Utils. Comm 'n v. So. Bell, 289 N.C. 286, 288, 221 S.E.2d 322, 323 (1976); In re Stratton, 159 N.C. App. 461 (2003). Questions of mootness arising during the litigation are generally treated as motions under Rule 12(b)(1), subject matter jurisdiction. See Springer-Eubank v. Four County Elec. Membership Corp., 142 N.C. App. 496, 500, 543 S.E.2d 197, 201 (2001) ("we conclude the trial court was correct in determining it no longer had subject matter jurisdiction because the issue is moot"). Courts may consider matters outside of the pleadings to rule on a Rule I2(b)(1) motion without turning it into a motion for summary judgment. Harris v. Matthews, 361 N.C. 265, 271, 643 S.E.2d 566, 570 (2007). While some courts have framed the mootness issue as one of judicial restraint, the directive is clear that when a matter becomes moot, dismissal should not be delayed. In addition, the special use permit proceedings are public record. To avoid the unnecessary filing of voluminous documents, the Court can take judicial notice that the hearings occurred and of the undisputed decision by the Board to deny the permit. Not only are the records public, but the proceedings—in which both parties participated—were quasi-judicial in nature and determined matters closely related and important to the present litigation. See N.C.R. Evid. 201; State ex rel. Utils Conun'n, supra.; State v. King, N.C. App. , , 721 S.E.2d 327, 330 (2012); Simpson v. Simpson, _ N.C. App. _, 703 S.E.2d 890, 893-94 (2011).
prevent the defendant Commission from siting a hazardous waste treatment facility on a parcel of
land. 329 N.C. at 616-17, 407 S.E.2d at 786. The Commission was tasked by statute with
locating and managing hazardous waste sites in the state. Id. at 616, 407 S.E.2d at 786. Shortly
after its creation, North Carolina joined an interstate agreement which required the state to
construct and operate hazardous waste treatment facility under certain guidelines, and set
"milestone" scheduling for the siting, construction, and operation of this facility. Id. at 620, 407
S.E.2d at 788. Prior to the litigation, the Commission had taken the preliminary step of
identifying two sites that warranted on-site evaluation, including the site in Granville County.
Id. Numerous steps remained before the Commission could finally choose a site and begin
construction, including on-site evaluations of the various properties and submission of permit
applications to state and federal environmental agencies. Just before the on-site evaluation
process was to begin, the County filed suit. Id.
In response, the trial court issued an injunction prohibiting the Commission from taking
any further actions with respect to the siting of a facility at the Granville County location. Id. at
617, 407 S.E.2d at 786. The court's ruling was based upon its ex mero motu determination that
the interstate agreement violated Article I, Section 6 of the North Carolina Constitution. Id.
In the months following the trial court's ruling, however, the Commission downgraded
the Granville site from suitable to "potentially acceptable/high priority. "3 Id. at 621, 407 S.E.2d
at 788. As a result of these events, the state was unable to meet one of the milestones in the
interstate agreement and was eliminated from the agreement. Id. at 622, 407 S.E.2d at 789.
Following the expulsion, the General Assembly took no action. Id.
3 The Commission simultaneously named another Granville tract as a preferred site, but was unable to obtain fee simple title of the land. Id. at 621, 407 S.E.2d at 789.
E
Upon discretionary review directly to the Supreme Court, the Commission argued that
the case had become non justiciable. The Court agreed, stating that the downgrading of the
Granville site and the state's expulsion from the interstate agreement rendered the case moot. Id.
The present case is likewise non justiciable, as the administrative process to expand the
proposed landfill has stopped. While the County planned to propose to DENR a site for the
expansion, it never got that far, as it could not obtain the special use permit required to proceed
to the next administrative step of offering DENR a site plan. Indeed, the County was at the very
beginning of the administrative process to expand the landfill.
Thus, what remains of the controversy is Plaintiffs' anticipation that the County may
choose at some future date to reapply for the special use permit, and thereafter successfully apply
to DENR for construction permits. The Supreme Court has consistently has held that "future or
anticipated action of a litigant does not give subject matter jurisdiction to our courts under the
Declaratory Judgment Act." Town ofAyden v. Town of Winterville, 143 N.C. App. 136, 141, 544
S.E.2d 821, 824 (2001) (citation and quotation marks omitted). As such, Plaintiffs' speculation
will not support a present dispute for the Court's decision, as courts will "not issue anticipatory
judgments resolving controversies that have not arisen." Wendell v. Long, 107 N.C. App. 80, 83,
418 S.E.2d 825, 826 (1992) (dismissing claim where defendant's proposed construction of house
as seen on plat caused plaintiff to anticipate violation of restrictive covenants); City of Raleigh v.
Norfolk So. Ry. Co., 275 N.C. 454, 464, 168 S.E.2d 389, 396 (1969) (no justiciable controversy
where parties sought construction of proposed city ordinance that had not yet been passed at the
time suit was filed); Town of Pine Knoll Shores v. Carolina Water Serv., Inc., 128 N.C. App.
321, 323, 494 S.E.2d 618, 619 (1998) (dismissing complaint because justiciable controversy not
shown where town proposed to construct a water system).
10
Moreover, to continue with the case at this juncture would require the determination of
constitutional questions in contradiction of the Court's "established judicial policy [] to refrain
from deciding constitutional questions" unless clearly necessary. City of Greensboro v. Wall,
247 N.C. 516, 520, 101 S.E.2d 413, 416 (1958). Because the Court should dismiss a case where
events following the complaint render it non justiciable, especially in the face of constitutional
claims, to the extent Plaintiffs' claims regarding the proposed expansion of the landfill were ever
justiciable, they should be dismissed.
B. Plaintiffs' Landfill Claims Were Non-Justiciable From Inception.
The Supreme Court in Granville County did not stop after deciding the mootness issue,
but went further to determine that the trial court should not have issued the injunction at all. In
addressing the trial court's injunction against the Commission, the Court proceeded to offer
"guidance to the lower courts as to their proper and timely role" in the dispute, by addressing
whether the matter was justiciable to begin with given that when the injunction issued, the
administrative decision-making process controlling the siting of the facility was at its initial
stages and had not resulted in a final site selection. 329 N.C. at 623, 407 S.E.2d at 790. The
Commission had questioned the jurisdiction of the lower court to intervene in the middle of an
administrative decision-making process and to enjoin a state agency from taking the steps
necessary to reach a final decision on the selection of a site for a hazardous waste facility,
arguing that "the courts should not become prematurely involved in the administrative process
and interfere in a decision-making process by the Commission which has not yet culminated in a
final agency decision." Id.
In determining that the trial court erred in enjoining the Commission, the Court focused
on the great importance of promptly establishing a hazardous waste facility, and the multi-step
11
process of siting a facility, the last of which is the "permitting" by various federal and state
environmental regulatory agencies. Id. at 623-24, 407 S.E.2d at 790. Each step, it noted,
required months to undertake and involved additional evaluation of the site and public hearings.
Most significant, the Commission could not make a final site selection until the permitting
process was complete. Id. at 624, 407 S.E.2d at 790. Accordingly, the preliminary steps "may
or may not have resulted in [a] final selection of [the Granville site]." Id.
Accordingly, the Court determined that the Complaint originally failed to state a claim:
In matters of this nature which seek solutions to extremely urgent problems, where the solutions are essential to protect the public health and safety, the courts should be reluctant to interfere until the administrative decision has been finalized. Here, as we have previously noted, a final site selection decision cannot be made by the Commission until a permit is issued.
Unless and until the Commission makes a final site selection decision, there is no justiciable issue and no genuine controversy between the parties. When no genuine controversy presently exists between the parties, the courts cannot and should not intervene. The rule applies with special force to prevent the premature litigation of constitutional issues.
Id. at 624-25, 407 S.E.2d at 790-91 (emphasis added).
The Supreme Court has reaffirmed its holding in Granville County, refusing to enjoin the
site selection process for a low-level radioactive waste facility, stating: "Our decision in
Granville County bars all site-selection-related litigation until site selection has been completed."
Richmond County v. N.C. Low-Level Radioactive Waste Mgm't Auth., 335 N.C. 77, 87, 436
S.E.2d 113, 119 (1993) (stating further that "[t]he harmful effects of premature litigation that we
addressed in Granville County with regard to the siting of a hazardous waste facility apply with
equal force to the siting of the low-level radioactive waste facility here").
12
The concerns addressed by the Supreme Court in Granville County are highly analogous
to those present in this case. Here, while it does not contain hazardous or radioactive waste, the
siting and continued operation of the C&D landfill undoubtedly serves a significant public
interest, and the process by which it is expanded is lengthy and highly regulated by the
administrative process. 4 As in Granville County, there has been no finalized site selection of the
proposed C&D landfill; nor have permits to construct been issued. In fact, DENR had not even
authorized the County to apply for a permit to construct the landfill. To this end, enjoining a
proposed waste facility at the zoning stage interferes with the administrative decision-making
process to site a landfill at the very earliest time and deprives counties and their citizens of a
requisite level of efficiency and certainty in pursuing solutions to a county's waste problems. In
short, allowing Plaintiffs to proceed will permit the interruption and cessation of the
administrative process to expand the landfill while prematurely litigating the constitutional issues
involved. In accordance with the principles set forth in Granville County, the Court should
determine Plaintiffs' attempt to enjoin the landfill at the zoning stage is non justiciable.
II. PLAINTIFFS' "CLAIM" UNDER 153A-136(C) FAILS TO STATE A CLAIM AND IS ALSO MOOT GIVEN THE DENIAL OF THE SPECIAL USE PERMIT.
N.C. Gen. Stat. § 153A-136 addresses "Regulation of Solid Wastes" and a county's role
in creating ordinances regulating waste activities. Subsection (c) applies to landfills that "receive
residential solid waste." In sum, it requires a Board of Commissioners to consider alternative
sites and socioeconomic and demographic data, and hold a public hearing prior to selecting or
approving a site for this type of landfill.
4 The General Statutes acknowledge the great importance of public waste facilities, and charge DENR with establishing a comprehensive statewide solid waste management program that is "designed to protect the public health, safety and welfare; preserve the environment; and provide for the greatest possible conservation of cultural and natural resources." N.G. Gen. Stat, 130A-294(a), (b).
13
As a threshold matter, this statute does not apply to C&D landfills, which do not accept
residential or household waste. See N.C. Gen. Stat. § 130A-290(4) (defining C&D waste as
"solid waste resulting solely from construction, remodeling, repair, or demolition operations on
pavement, buildings, or other structures," as compared to "municipal solid waste," defined as
"any solid waste resulting from the operation of residential, commercial, industrial,
governmental, or institutional establishments that would normally be collected, processed, and
disposed of through a public or private solid waste management services" (emphasis added));
15A N.C. Admin. Code 13B.0532(15) (stating that C&D solid waste does not include municipal
and industrial wastes that may be generated by the ongoing operations at buildings or structures);
15A N.C. Admin. Code 13B.1602(17) (defining MSW landfill unit as receiving "household
waste"); and 13B.1602(10) (including household waste as that from residences).
Even if the statute applied, it does not create a private cause of action, but merely speaks
to the procedures for building a landfill. Moreover, the statute categorically has nothing to do
with the County's rezoning of a piece of property. The statute and administrative regulations
reveal that verification of compliance with the statute would need to be submitted to DENR, at
the very earliest, with the site study, which never occurred here. N.C. Gen. Stat. § 130A-290;
15A N.C. Admin. Code 13B.0536. Compliance would be considered by DENR in the permitting
process. In any event, as the Planning Board denied the special use permit, this issue is moot.
III. PLAINTIFFS' FAILURE TO EXHAUST THEIR ADMINISTRATIVE REMEDIES UNDER THE FAIR HOUSING ACT REQUIRES DISMISSAL OF THE CLAIM AS A MATTER OF LAW.
North Carolina's Fair Housing Act is designed to provide a mechanism for investigating
and resolving complaints of discrimination in housing. N.C. Gen. Stat. § 41A-1 et seq. The Act
makes it unlawful to discriminate in housing because of race, color, religion, sex, national origin,
14
physical or mental handicap, or family status. Id. at § 41A-4. The enforcement provisions of the
law require persons alleging violations of the statute to file their complaints with the Human
Relations Commission ("the Commission"), where conciliation of the grievance is first
attempted. See N.C. Gen. Stat. § 41A-7. If those efforts fail, either the Commission or the
complainant may file a lawsuit in Superior Court. Prior to the Commission's involvement, the
Superior Court lacks jurisdiction to determine claims under the NCFHA. Because Plaintiffs filed
their Complaint directly in Superior Court without first filing a complaint with the Commission,
they did not exhaust their statutory remedies, and the NCFHA should be dismissed.
A. Because Plaintiffs Failed to File a Complaint With the Commission, They Did Not Exhaust Their Administrative Remedies Under the NCFHA, and the Superior Court Lacks Jurisdiction of Plaintiffs' NCFHA Claim.
Plaintiffs have not alleged that they filed a complaint with the Commission and it is
undisputed that they did not. However, it is well-established that when the Legislature has
provided an effective administrative remedy by statute, then that remedy is "exclusive." White v.
Trew, _ N.C. App. _, _ , 720 S.E.2d 713, 719 (2011). [A] party must pursue it and exhaust it
before resorting to the courts. Id. A failure to exhaust administrative remedies implicates
subject matter jurisdiction. Vanwijk v. Prof'l Nursing Servs., _ N.C. App. , , 713
S.E.2d 766, 768 (2011). Where a plaintiff has failed to exhaust its administrative remedies, his
action brought in the trial court should be dismissed for lack of subject matter jurisdiction. Id.
To this end, subject matter jurisdiction must be evident from the complaint, although the Court
may look outside the complaint if necessary. Harper v. City of Asheville, 160 N.C. App. 209,
217, 585 S.E.2d 240, 245 (2003) (plaintiff bears burden of proving subject matter jurisdiction).
Here, the Legislature provided an exclusive remedy under the NCFHA. Plaintiffs were
thus required to pursue and exhaust the remedy before resorting to filing with this Court.
15
1. The NCFHA's Plain Language Reveals the Exhaustion Requirement.
Whether the Court has jurisdiction to hear Plaintiffs' NCFHA claim is resolved by the
plain language of the statute regarding its procedural requirements. Section 41A-7(a) of the act
authorizes complainants to file a written NCFHA complaint with the Commission: "Any person
who claims to have been injured by an unlawful discriminatory housing practice or who
reasonably believes that he will be irrevocably injured by an unlawful discriminatory housing
practice may file a complaint with the North Carolina Human Relations Commission."
Under § 41A-7(a), the only time that a complainant may go directly to Superior Court
and bypass the Commission is: "at any time in which the Commission is not presently certified
by the U.S. Department of Housing and Urban Development in accordance with 42 U.S.C. §
3610(f) to have jurisdiction over the subject matter of the complaint." The statute clearly
provides that "[d]uring any such period in which the Commission is not certified . . . [a
complainant] may bring a civil action directly in superior court...." N.C. Gen. Stat. § 41A-7(a).
Plaintiffs make no allegation that the Commission was not certified when they filed this lawsuit.
2. Right-to-Sue Provisions Reinforce Exhaustion Requirement.
Moreover, the detailed procedural requirements—particularly the provisions regarding
"right-to-sue" letters—set out in other subsections of N.C. Gen. Stat. § 41A-7 reinforce that
filing with the Commission is first required. Indeed, to proceed on his own in a lawsuit in
Superior Court, a complainant must first receive a right-to-sue letter from the Commission.
Under § 41A-7(e), the Commission is to investigate each complaint and determine
whether there are reasonable grounds to believe that an unlawful discriminatory housing practice
has occurred or is about to occur. If the Commission finds no reasonable grounds, it must
16
dismiss the complaint and "issue to the complainant a right-to-sue letter which will enable him
to bring a civil action in superior court ...." Id. at § 41A-7(f) (emphasis added).
On the other hand, if the Commission does find reasonable grounds, it must try to
eliminate or correct the discriminatory housing practice by informal conference, conciliation, or
persuasion. Id. at § 41A-7(g). If conciliation fails, the complainant may make a written request
to the Commission for a right-to-sue letter, "which will enable him to bring a civil action in
superior court ...." Id. at § 41A-7(i) (emphasis added). A complainant may also request a
right-to-sue letter if the Commission has not issued a notice of conciliation failure within 130
days following the filing of a complaint. Id. This right-to-sue letter likewise "enable[s]" the
complainant to bring a civil action in Superior Court. Id. (emphasis added). Alternatively, if
conciliation fails and a right-to-sue letter is not requested, the Commission may sue on the
complainant's behalf in Superior Court s Id. at § 41A-7(k).
Taken together, the subsections of N.C. Gen. Stat. § 41A-7 make plain that a person may
file in Superior Court only after the Commission has a chance to reconcile the parties and resolve
the dispute, may a party file a civil lawsuit in Superior Court.
3. Construing the NCFHA as Permitting a Direct Claim in Superior Court Would Violate the Principles of Statutory Construction, and Render the Commission's Role Superfluous.
Plaintiffs' argument that they may elect to file with the Commission or file directly in
Superior Court is untenable. "[W]hen `a statute is intelligible without any additional words, no
additional words may be supplied. " First Mt. Vernon Indus, Loan Assn v. ProDev XXII, LLC,
5 Cases from other jurisdictions agree that a right-to-sue letter implicates a jurisdictional event. See, e.g., Davis v. N.C. Dept of Corr., 48 F.3d 134, 140 (4th Cir. 1995) ("a right to-sue [sic] letter is a jurisdictional prerequisite that must be alleged in a plaintiffs complaint. Thus, where neither the complaint nor the amended complaint alleges that the plaintiff has complied with these prerequisites, the plaintiff has not properly invoked the court's jurisdiction under Title VII." (internal citations and quotation marks omitted)).
17
N.C. App. _, , 703 S.E.2d 836, 840 (2011). Here, the plain language reveals that a
plaintiff may not sue directly in Superior Court unless the Commission is not certified.
Moreover, the language in the NCFHA evinces the intent of the statute, which is for the
Commission to resolve complaints if at all possible. "The principal goal of statutory construction
is to accomplish the legislative intent." Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d
513, 517 (2001). "The best indicia of that intent are the language of the statute ... , the spirit of
the act and what the act seeks to accomplish." Coastal Ready-Mix Concrete Co. v. Bd. of
Comm'rs of Nags Head, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980). "If possible, a statute
must be interpreted so as to give meaning to all its provisions." State v. Buckner, 351 N.C. 401,
408, 527 S.E.2d 307, 311 (2000). "Individual expressions must be construed as part of the
composite whole and be accorded only that meaning which other modifying provisions and the
clear intent and purpose of the act will permit." State v. Tew, 326 N.C. 732, 739, 392 S.E.2d
603, 607 (1990) (internal citation omitted).
To construe the NCFHA as allowing a complainant to by-pass the Commission not only
denies the "plain and definite meaning of the language" in the statute, but renders the
Commission's existence superfluous, thus defeating the Commission's purpose of investigating
and resolving disputes. Fowler v. Valencourt, 334 N.C. 345, 348, 435 S.E.2d 530, 532 (1993).
Significantly, construing the NCFHA to provide a choice of filing directly in Superior
Court would negate the subsections of the statute concerning right-to-sue letters, particularly §
41A-7(f) and (i). These subsections state that right-to-sue letters "enable" a complainant to sue
in Superior Court. But if a complainant were already "able" to file suit in Superior Court,
without ever filing with the Commission, then a right-to-sue letter would not actually "enable"
18
the complainant to file in Superior Court, as the statute says. 6 Simply stated, a "right-to-sue"
letter is meaningless if a right to sue in Superior Court already exists.
Rendering these subsections of the NCFHA meaningless would impermissibly do
"violence to the legislative language," and, thus such interpretation is untenable. Tew, 326 N.C.
at 739, 392 S.E.2d at 607. Thus, the NCFHA cannot be read as allowing alternative remedies;
the only rational construction of the NCFHA requires a complainant to file with the Commission.
B. The Federal Fair Housing Act Does Not Control this Case.
This Court should further reject any attempt by Plaintiffs to rely on interpretation of the
Federal Fair Housing Act ("FFHA"), as these laws contain significant differences. Unlike the
NCFHA, the FFHA contains a glaring distinction: an express provision stating that a plaintiff
need not exhaust his administrative remedies by filing an administrative claim with the
Department of Housing and Urban Development prior to filing a complaint in federal court.
Specifically, 42 U.S.C. § 3613(a)(2) states that "[a]n aggrieved person may commence a civil
action under this subsection whether or not a complaint has been filed under section 810(a) [42
USCS § 3610(a)] and without regard to the status of any such complaint." (Emphasis added.)
The NCFHA contains no language remotely similar to this federal provision; as explained above,
the NCFHA requires exhaustion of administrative remedies. Because of this critical distinction,
this Court should not look to the FFHA for guidance on NCFHA's procedural requirements.
North Carolina case law wisely cautions reliance on the FFHA, since the FFHA is not
analogous to the NCFHA with respect to pertinent procedural requirements. While the two acts
have similarities, the Court of Appeals has reinforced the autonomy of North Carolina's statute,
and rejected outright the argument that the Court should "adopt the entire body of federal law
6 Black's Law Dictionary defines "enable" as "[t]o give power to do something; to make able." Black's Law Dictionary 546 (7th ed. 1999). Webster's dictionary defines "enable," in pertinent part, as "providing with means or opportunity," "to make possible," "to give legal power."
19
interpreting the federal Fair Housing Act when interpreting our State Fair Housing Act." N. C.
Human Relations Council ex. rel. Leach v. Weaver Realty Co., 79 N.C. App. 710, 714, 340
S.E.2d 766, 768 (1986). The federal act should be considered "useful, although not controlling,
in interpreting the North Carolina State Fair Housing Act." Id. (emphasis added).
In Weaver Realty, the Court wholly rejected the argument that a provision of the FFHA
should apply where that provision was inconsistent with the NCFHA. The question involved
whether a plaintiff may establish a violation of the NCFHA by showing that policies and
practices have a racially discriminatory effect, even absent evidence of a discriminatory motive.
The Court held that the answer under the NCFHA would be different than under the FFHA,
explaining that "[t]he `adverse' or `disparate impact' theory through which a plaintiff may show
a violation of the federal Fair Housing Act using statistics, without showing racially biased
motivation, is contrary to the ordinary meaning of the terms in the North Carolina State Fair
Housing Act." Id. at 714-15, 340 S.E.2d at 768-69 (emphasis added).
Thus, this Court should reject any attempt by Plaintiffs to apply the federal law's non-
exhaustion provision to the present case, which is controlled by North Carolina's statute. Just
like in Weaver Realty, the federal and state statutes are simply incompatible the idea that a
plaintiff may file a complaint in Superior Court without exhausting his administrative remedies
is "contrary to the ordinary meaning of the terms" of the NCFHA. Id. at 714, 340 S.E.2d at 769.
In conclusion, the plain language of the NCFHA requires that a complainant exhaust his
administrative remedies. Plaintiffs have failed to exhaust their administrative remedies and
cannot rely on federal law to excuse this failure. The NCFHA claim should be dismissed.
20
IV. PLAINTIFFS' CLAIM UNDER THE NORTH CAROLINA CONSTITUTION SHOULD BE DISMISSED, AS STATE LAW PROVIDES PLAINTIFFS WITH ALTERNATE ADEQUATE REMEDIES.
A claim pursuant to the North Carolina Constitution is considered "extraordinary," and
accordingly, to sue directly under the North Carolina Constitution, a plaintiff must first allege
and establish that he has no other adequate remedy under state law. Copper v. Denlinger, 363
N.C. 784, 789, 688 S.E.2d 426, 429 (2010) (rejecting direct constitutional claim because a state
law remedy existed); Corum v. Univ. of North Carolina, 330 N.C. 761, 784, 413 S.E.2d 276, 291
(1992) (stating that judiciary "must bow to established claims and remedies where these provide
an alternative to the extraordinary exercise of its inherent constitutional power"). Simply put, if
another remedy is available to the plaintiff, he may not sue directly under the Constitution.
An adequate state remedy exists if, assuming the plaintiff's claim is successful, the
remedy would address the same injury alleged in the direct constitutional claim. Estate of
Fennell v. Stephenson, 137 N.C. App. 430, 437, 528 S.E.2d 911, 915-16 (2000), rev'd in part on
other grounds, 354 N.C. 327, 554 S.E.2d 629 (2001). Adequate remedies may be in the form of
a state tort claim, an administrative challenge or appeal, or a claim under a North Carolina
statute. See Alt v. Parker, 112 N.C. App. 307, 317-18, 435 S.E.2d 773, 779 (1993). In sum, the
remedy must simply "provide the possibility of relief under the circumstances." Craig v. New
Hanover County Bd. of Educ., 363 N.C. 334, 340, 678 S.E.2d 351, 355 (2009).
Our courts adhere firmly to the principles that a plaintiff must act to preserve the state
law remedy, and that he may not simply elect to pursue a constitutional claim in lieu of the
alternate state law remedy. The plaintiff's chance of success in the state law remedy—due to
either the plaintiff's failure to perfect the remedy or the difficulty of proof—is irrelevant so long
as an alternative cause of action exists. See Craig, 363 N.C. at 340, 678 S.E.2d at 355-356
21
(allowing claim where no remedy existed, but expressly distinguishing the holding from
situations where a plaintiff lost his state remedy because statute of limitations expired); Rousello
v. Starling, 128 N.C. App. 439, 447-449, 495 S.E.2d 725, 731-732 (1998) (rejecting argument
that state law remedies were inadequate because they did not provide for relief against preferred
defendant and required plaintiff to prove more difficult case); Alt, 112 N.C. App. at 317-18, 435
S.E.2d at 779 (plaintiffs claim for false imprisonment constituted adequate state law remedy
even though claim was fatally deficient); Estate of Wilkins v. Good, 1999 WL 33320960, at *8
(W.D.N.C. 1999) (dismissing constitutional claim where plaintiffs failed to comply with the
statute of limitations for their state law claim).
The North Carolina Supreme Court recently applied these principles at the Rule 12(b)(6)
stage in Copper v. Denlinger. In Copper, plaintiffs were minority students who alleged that the
school board and superintendent subjected minority students to more severe discipline for less
serious offenses than white students, and issued suspensions without due process of law. In
conjunction with the suspensions, the students claimed that the defendants' discriminatory
conduct violated the plaintiffs' federal and state constitutional rights. In dismissing the state
constitutional claims, the Court noted that two separate North Carolina statutes allowed an
appeal to the Board and to superior court from any final disciplinary decision, and the Court
determined that the students' administrative appeals constituted an adequate remedy. To this
end, the Court held that the plaintiffs failure to pursue an appeal barred the direct claims under
the North Carolina Constitution. 363 N.C. at 789, 688 S.E.2d at 429. It wrote, id,:
[T]he complaint contains no allegations suggesting that the student was somehow barred from the doors of either the courthouse or the Board. Nor does the complaint allege that he exhausted his administrative remedies, or even that it would have been futile to attempt to appeal his suspension to the Board. Thus, under our
22
holdings ... an adequate remedy exists at state law to redress the alleged injury, and this direct constitutional claim is barred.
Two principles emerge from the Court's jurisprudence on the issue of adequate state
remedy: (1) a plaintiff's failure to perfect his alternate state law remedy does not render that
remedy inadequate; and (2) plaintiff cannot reject a remedy and later claim entitlement to a
constitutional claim. Indeed, a litigant's failure to perfect its state law remedies does not render
the remedy "inadequate," for purposes of bringing a claim under the Constitution.
As set forth below, and even assuming Plaintiffs' claims surrounding the landfill's
expansion were justiciable, Plaintiffs have alternate and adequate remedies at state law for the
allegations in their Complaint. As such, the Court should dismiss Plaintiffs' constitutional claim.
A. Landfill: Plaintiffs' Constitutional Claim Related to the Landfill's Siting and Expansion is Barred, as Plaintiffs Have Adequate State Law Remedies.
Applying the above principles to this case, and momentarily setting aside issues of
justiciability, the Court should dismiss Plaintiffs' direct constitutional claims relating to the
landfill because alternate, adequate remedies exist under state law. As a threshold matter,
Plaintiffs have not alleged that they in fact lack an adequate state law remedy under which to
pursue relief for the allegations in the Complaint. (See Third Am. Compl.,¶ 23.) Under Copper,
this failure alone justifies dismissal of the constitutional claim. See Copper, 363 N.C. at 788,
688 S.E.2d at 428 ("To assert a direct constitutional claim ... a plaintiff must allege that no
adequate state remedy exists to provide relief for the injury. ").
Notwithstanding this failure, Plaintiffs do not lack an adequate state law remedy. The
constitutional claim is first barred by the existence of administrative challenges to the landfill's
expansion. Plaintiffs aggressively challenged the landfill's expansion through opposing the
county's application for the special exception permit. Plaintiffs' success in opposing the permit
23
required to expand the landfill demonstrates the application of the administrative process to their
current grievances, and the adequacy of Plaintiffs' administrative remedy. Further, if DENR
were ever to issue permits allowing the siting and construction of the landfill, Plaintiffs may
challenge the permit under the Administrative Procedure Act. See N.C. Gen. Stat. § 150B-23.
Indeed, as Copper made clear, when an administrative or alternate challenge to the
alleged discriminatory action exists, it serves as the adequate state law remedy to which the
plaintiff must first resort. See also Patterson v. City of Gastonia, N.C. App. , 725
S.E.2d 82, 91 (2012). These alternate remedies bar Plaintiffs' direct constitutional claims.
Plaintiffs' constitutional claim is barred further by their NCFHA claim. The allegations
forming the basis of Plaintiffs' fair housing claims are the same allegations offered to support
Plaintiffs' equal protection claims, and Plaintiffs argue that these allegations are sufficient to
state a claim under the NCFHA. (See Third Am. Cornpl., ¶ 22.) The two claims indeed seek to
address the same alleged harm—discrimination related to expansion of the landfill. Accordingly,
Plaintiffs' NCFHA claim was their stated adequate remedy at state law. 7 However. Plaintiffs
failed to perfect their claim under the NCFHA by a complaint with the Commission .
Under Copper and its predecessors, this fact is fatal to their constitutional claim, as a failure to
perfect the alternate state law remedy does not open the door to a constitutional claim. Plaintiffs'
constitutional claims concerning the proposed expansion of the landfill should thus be dismissed.
B. Water and Sewer: Plaintiffs' NCFHA Claim, and the Petition Process for Water and Sewer Services, Constitute Adequate Remedies.
Plaintiffs likewise rely on the very same allegations regarding the alleged denial of water
and sewer services to support both their equal protection and NCFHA claims. Id. Both claims
seek to remedy the alleged discrimination associated with the County's alleged failure to provide
7 If, on the other hand, Plaintiffs concede that the NCFHA does not apply to the allegations in their Complaint, the NCFHA claim would meet the same fate of dismissal.
24
water and sewer infrastructure within Royal Oak. Based on the above principles, the existence
of the NCFHA claim bars the equal protection claim premised on this theory.
Equally important, Plaintiffs make no allegation that they have formally petitioned the
County for services and were subsequently denied on the basis of their race. Plaintiffs are
undoubtedly aware of the petition process, which is public record, and allows communities to
formally request the provision of water and sewer services. Such process provides an
administrative procedure through which Plaintiffs can seek the relief for the purported
discrimination they have suffered—yet they have made no such effort to access this process.
Plaintiffs simply ignored the formal mechanisms of obtaining water and sewer services
available to them and instead filed a lawsuit in Superior Court. Plaintiffs' claim pertaining to the
purported denial of water and sewer should be dismissed.
V. PLAINTIFFS FAIL TO STATE A CLAIM UNDER THE CONSTITUTION FOR
A WRONGFUL DENIAL OF WATER AND SEWER SERVICES.
Plaintiffs' factual allegations, considered singly or together, in conjunction with
inferences logically drawn from these facts, do not state a claim for relief. Indeed, Plaintiffs'
Complaint does not allege any unconstitutional conduct by Defendant from which the conclusory
statements made in Plaintiffs' complaint could be inferred. Plaintiffs' only allegations relating to
their alleged requests for water and sewer claim they "repeatedly requested" water and sewer
services, and one time did so through a verbal statement at a 2011 Board of Commissioners'
meeting. (Third Am. Compl, ¶¶ 45, 101.) Plaintiffs simply declare that Defendant "denied"
their requests. These allegations are insufficient to state an equal protection claim.
As a threshold matter, citizens are not entitled to county-provided water and sewer
infrastructure as a matter of right. The General Assembly has recognized the complexities and
costs to counties of providing local infrastructure by declaring that "[ijn no case may a county be
25
held liable for damages for failure to furnish water or sewer services." N.C. Gen. Stat. § 153A-
283. The Supreme Court has likewise held that the furnishing of water service by a county does
not rise to the level of "property" protected by due process requirements. McNeill v. Harnett
County, 327 N.C. 552, 571, 398 S.E.2d 475, 485-86 (1990). As such, Plaintiffs are not entitled
to services merely because they have "requested" them.
Thus, while a citizen undeniably has a right not to be discriminated against on the basis
of his or her race, to state a claim for discrimination, he must allege more than that he simply
"requested" these services. Rather, to state a claim under the equal protection clause of the
North Carolina Constitution, Plaintiffs must allege that: (1) they have been treated differently
from others "similarly situated" to them, and (2) the unequal treatment is the result of intentional
or purposeful discrimination. Good Hope Hosp., Inc. v. N.C. H.H.S., Div. of Facility Servs., 174
N.C. App. 266, 274-75, 620 S.E.2d 873, 880-81 (2005) (dismissing equal protection claim). To
survive a Rule 12 motion to dismiss, Plaintiffs must plead sufficient facts to satisfy each
requirement. Id. The court must determine whether the complaint alleges the substantive
elements of a legally recognized claim and whether it gives sufficient notice of the events which
produced the claim to enable the adverse party to prepare for trial. Toomer v. Garrett, 155 N.C.
App. 462, 468, 574 S.E.2d 76, 83 (2002). While notice pleading does not require a detailed
summary of the facts supporting a claim, it requires more than vague and ambiguous assertions,
and courts will not make unreasonable factual inferences from such assertions. Id.
Here, Plaintiffs' Complaint contains only a legal conclusion that Plaintiffs' equal
protection rights were violated. Plaintiffs not only fail to plead any facts supporting their claim
of "purposeful discrimination," but Plaintiffs fail entirely to allege that they have been treated
differently than "similarly situated" citizens on the basis of their race; they only declare that the
26
County denies access to service to African-American homes "while providing that service to
white residents' homes." (Third Am. Compl., ¶ 106.)
When a complaint fails to allege that plaintiffs are similarly situated, an equal protection
claim is properly dismissed. See Reese v. Brooklyn, LLC, N.C. App. , 707 S.E.2d 249
(2011). For purposes of equal protection analysis, persons who are in "all relevant respects
alike" are "similarly situated." Clayton v. Branson, 170 N.C. App. 438, 457, 613 S.E.2d 259,
272 (2005). The only reference that Plaintiffs make regarding other communities in the County
is that James Hardy raised concern at a Board of Commissioners' meeting that a new,
predominantly white development of St. James "had access" to water and sewer services. Id. at ¶
46. However, this assertion establishes quite little. Plaintiffs do not contend that St. James (or
other white community) is similarly situated to Royal Oak in geography, size, population or cost
of placing infrastructure; nor do they allege the process or mechanism through which St. James
requested and received its services, or, who paid for placement of the infrastructure. Likewise,
the Complaint contains no suggestion that the two communities underwent a similar process to
request services and that St. James received some advantage over the similarly-situated
Plaintiffs. Plaintiffs' conclusory pleading, which alleges only that St. James has water and sewer
services and that Royal Oak does not, fails as a matter of law. See Van-Min Wang v. Univ. of
N.C.-Chapel Hill Sch. ofMed., 716 S.E.2d 646, 658 (2011) (citing with favor proposition that a
plaintiff relying on disparate treatment evidence "must show that she was similarly situated in all
material respects to the individuals with whom she seeks to compare herself')
In sum, Plaintiffs fail to allege even the general nature of the "relevant respects" in which
St. James is allegedly "similarly situated." Nor do Plaintiffs detail the method, time, or location
of their alleged "repeated requests" for water and sewer services, or the nature of Defendant's
27
denial(s). Consequently, the allegations of their Complaint provide no notice as to what actions
or transactions were allegedly discriminatory, and the equal protection claim related to the
provision of water and sewer services should be dismissed.
VI. DECLARATORY RELIEF IS NOT AVAILABLE TO PLAINTIFFS FOR THEIR NCFHA AND CONSTITUTIONAL CLAIMS.
Plaintiffs do not cite the Declaratory Judgment Act as the basis for their claims under the
NCFHA and the North Carolina Constitution. In their prayer for relief, however, Plaintiffs ask
the Court to "declare" the County's alleged actions in violation of the NCFHA and Constitution.
To the extent these are requests for declaratory judgments, they are improper.
The Declaratory Judgment Act is designed to provide an expeditious method of procuring
a judicial interpretation of written instruments such as wills, contracts, statutes, and insurance
policies, and the parties' rights thereunder. N.C. Gen. Stat. § 1-253 et seq. Accordingly,
generally only pure questions of law are appropriate to be determined under the Act. When there
are disputes of fact appearing on the face of the complaint that must be resolved by a fact-finder,
the cause of action is not proper under the Act. See Strickland v. Town of Aberdeen, N.C.
App. _, 477 S.E.2d 218 (1996) (affirming trial court's dismissal of negligence claim under Act
where complaint revealed factual issue as to defendant's negligence). Here, Plaintiffs' claims
under the NCFHA and Constitution rest on the assertion that the County intentionally
discriminated against Plaintiffs—an assertion which Defendant vigorously denies, and which
presents an unquestionable issue of fact to be determined prior to any application of the law.
Thus, these claims are not properly determined under the Act. 8
8 Similarly, in their prayer for relief Plaintiffs ask for a "declaration" that Defendant violated N.C. Gen. Stat. § 153A-136(c). Such a claim should be dismissed for the same reasons, and because it is moot.
28
VII. "ROCCA" LACKS STANDING TO SUE AND SHOULD BE DISMISSED.
A. "ROCCA" Cannot Show Its Legal Existence and Capacity to Sue.
Finally, should any of Plaintiffs' claims survive, ROCCA should still be dismissed as it
lacks standing to maintain this lawsuit, and lacked such standing when the lawsuit was filed.
Rule 9(a) requires that "[a]ny party not a natural person shall make an affirmative averment
showing its legal existence and capacity to sue." (Emphasis added.) An unincorporated
association may sue in its own name "only if the association alleges in its complaint the `specific
location of the recordation required by G.S. § 66-68." Cherokee Home Demonstration Club v.
Oxendine, 100 N.C. App. 622, 625, 397 S.E.2d 643, 645 (1990) (affirming dismissal of
unincorporated association's complaint for failure to comply with N.C. Gen. Stat. §§1-69.1, 66-
68). N.C. Gen. Stat. § 66-68 "requires an association to file a certificate in the office of the
register of deeds in the county where the association does business ...." 100 N.C. App. at 625,
397 S.E.2d at 645-46. "The statutory language of G.S. §1-69.1 is very clear and specific, i.e.,
any unincorporated association desiring to commence litigation in its commonly held name must
allege the location of the recordation required by G.S. § 66-68." Highlands Township Taxpayers
Ass'n v. Highlands Township Taxpayers Ass'n, Inc., 62 N.C. App. 537, 539, 303 S.E.2d 234, 236
(1983) (affirming summary judgment against unincorporated association for failure to comply
with "mandatory" requirements of N. C.G. S. § 1-69.1). "Strict construction of G.S. § 1-69.1
requires that before an unincorporated association may gain the privilege of instituting a lawsuit
in its common name, first there must be recordation of the necessary information required by
G.S. § 66-68 and then allegation of its specific location." Id.
ROCCA alleges plainly that it is an "unincorporated community association made up of
citizens and residents of Brunswick County, North Carolina." (Am. Cmplt, ¶ 5.) However,
29
ROCCA fails to allege: (1) the fact of a recordation pursuant to N.C. Gen. Stat. § 66-68; (2) the
location of any recordation pursuant to N.C. Gen. Stat. § 66-68, in satisfaction of N.C. Gen. Stat.
§ 1-69.1; and (3) that ROCCA is an unincorporated nonprofit association such that it is exempt
from these requirements. See N. Iredell Neighbors for Rural Life v. Iredell County, 196 N.C.
App. 68, 674 S.E.2d 436 (2009) (dismissing neighborhood association that failed to comply with
§ 1-69.1). The Brunswick County Register of Deeds has confirmed that ROCCA has not made
any such recordation. (See Affid. Brenda Clemmons.) Accordingly, in addition to the reasons
set forth above, ROCCA should be dismissed from this action.
B. "ROCCA" Has Not Alleged a Specific Legal Interest in Property to Show Standing to Challenge the Rezoning (First Claim for Relief).
A corporation has standing to challenge a zoning ordinance in a declaratory judgment
action where either (1) the corporation "has a specific legal interest directly and adversely
affected by the zoning ordinance"; or (2) if "all of the members/shareholders of the corporation
have a specific legal interest directly and adversely affected by the zoning ordinance." Ne.
Concerned Citizens, Inc, v. City of Hickory, 143 N.C. App. 272, 276-77, 545 S.E.2d 768, 772
(2001) (emphasis added) (summary judgment where plaintiff lacked standing to challenge
zoning ordinance). There is no allegation that ROCCA, itself, maintains a legal interest in the
property subject to the rezoning, nor is there an allegation that all members of ROCCA maintain
a legal interest in the property that is subject to the rezoning. Nor is there any allegation that all
members of ROCCA have specific legal interest, highlighted by the fact that two individual
members of ROCCA are separate plaintiffs. Without those allegations, ROCCA does not have
standing and its claims must be dismissed for this additional reason.
30
CONCLUSION
For the reasons stated above, Defendant respectfully asks this Court to grant its Motion to
Dismiss and for any other relief the Court deems just and proper.
This the 9th day of August, 2012.
WOMBLE CARLYLE SANDRIDGE & RICE, LLP
Jacqu4iine Terry Hughes, NCSB No. 25884 Julie B. Bradburn, NCSB No. 31412 Womble Carlyle Sandridge & Rice, LLP 150 Fayetteville St., Suite 2100 P.O. Box 831, Raleigh, NC 27602 Telephone: (919) 755-2169, Fax: (919) 755-6176 Email: jbradburngwcsr.com Attorneys for Defendant Brunswick County
31
WCSR 7363559v1
CERTIFICATE OF SERVICE
I hereby certify that on August 9, 2012, I served a copy of the foregoing document entitled DEFENDANT BRUNSWICK COUNTY'S BRIEF IN SUPPORT OF MOTION TO DISMISS upon all parties to this action via email to their attorneys of record as follows:
Elizabeth McLaughlin Haddix, Esquire (via email) Peter Gilbert, Esquire (via email) Mark Dorosin, Esquire (via email) UNC Center for Civil Rights 101 East Weaver Street Campus Box 3382 Carrboro,NC 27510 emclaugh(7a,email. unc. edu pgilbertnerail.unc.edu dorosin@email.unc.edu
Raymond E. Owens, Jr., Esquire (via email) Higgins & Owens, PLLC 5925 Carnegie Blvd Ste 530 Charlotte, NC 28209 rowens(Zl higginsowens.com
Jack Holtzman, Esquire Fair Housing Project, Legal Aid of NC (via email) Post Office Box 28068 Raleigh, NC 27611 jack ,nciustice.org
Attorneys for Plaintiff
Jacquel ne Terry Hughes, NCSB No. 25884 Julie B. Bradburn, NCSB No. 31412 Womble Carlyle Sandridge & Rice, LLP 150 Fayetteville St., Suite 2100 P.O. Box 831, Raleigh, NC 27602 Telephone: (919) 755-2169, Fax: (919) 755-6176 Email: jbradburn@wcsr.com Attorneys for Defendant Brunswick County
32
WCSR 7323420v1
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