Applewood Properties, LLC v. New South Properties, LLC

742 S.E.2d 776, 366 N.C. 518, 43 Envtl. L. Rep. (Envtl. Law Inst.) 20138, 2013 WL 2635556, 2013 N.C. LEXIS 496
CourtSupreme Court of North Carolina
DecidedJune 13, 2013
Docket161A12
StatusPublished
Cited by22 cases

This text of 742 S.E.2d 776 (Applewood Properties, LLC v. New South Properties, LLC) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Applewood Properties, LLC v. New South Properties, LLC, 742 S.E.2d 776, 366 N.C. 518, 43 Envtl. L. Rep. (Envtl. Law Inst.) 20138, 2013 WL 2635556, 2013 N.C. LEXIS 496 (N.C. 2013).

Opinions

[519]*519• JACKSON, Justice.

In this appeal we consider whether an injured person may bring a civil action against a defendant pursuant to the civil relief provision of the Sedimentation Pollution Control Act of 1973 (“SPCA”) when the defendant has received notices of noncompliance, but has not been cited for a violation of a relevant law, rule, order, or erosion and sedimentation control plan. We hold that before an injured person can have standing to bring a civil action pursuant to section 113A-66 of the SPCA, the defendant must have been cited for a violation of a law, rule, ordinance, order, or erosion and sedimentation control plan. Accordingly, we modify and affirm the opinion of the Court of Appeals majority.

On 1 September 2005, plaintiff Applewood Properties, LLC sold a parcel of land located adjacent to the Apple Creek Executive Golf Club, LLC to defendants New South Properties, LLC and Apple Creek Village, LLC for development as a residential community. Subsequently, New South hired defendant Urban Design Partners to design erosion control measures, site plans, storm water collection and control systems, and utilities for the project. On 15 September 2005, New South obtained approval of its erosion and sedimentation control plan from the Gaston County Natural Resources Department (“GNRD”). New South then hired defendant Hunter Construction Group, Inc. to prepare the parcel for construction of new homes in accordance with the approved plan. Hunter cleared and graded the parcel and built erosion control structures and devices, including a silt collection basin.

On 28 March 2006, the GNRD inspected the parcel and found that New South had “[f]ail[ed] to [t]ake [a]ll [reasonable [m]easures” to control erosion and sedimentation as required by Title 15A, Chapter 04B, Section .0105 of the North Carolina Administrative Code. The GNRD indicated in its report that corrective actions were necessary, including “a revision with an added berm with stone wier to the draw in the center of the property to reduce the concentrated flow to the basin that is it’s [sic] outlet.” The GNRD sent New South a “Notice of Non-Compliance,” which informed New South of its “[fjailure to take all reasonable measures” and mandated that it take the aforementioned corrective actions by 11 April 2006. New South forwarded the notice to Hunter and instructed the contractor to correct the problems. After inspecting the parcel again on 5 May 2006, the GNRD found that the site was in compliance with the SPCA, but indicated [520]*520that additional corrective actions were needed, including “[m]ak[ing] sure all basins are cleaned and maintained, per our conversation.”

On 27 June 2006, a dam that Hunter had constructed to form the silt collection basin ruptured, causing mud, water, and other debris to flood the golf course. The GNRD inspected the parcel and found that New South had taken “Insufficient Measures to Retain Sediment on Site” in violation of section 113A-57(3) of the North Carolina General Statutes and had “Fail[ed] to Take All Reasonable Measures” to control erosion and sedimentation. The GNRD noted in its report that sediment damage had occurred as a result of “Offsite sediment [being deposited] onto [the] neighboring golf course.” The GNRD issued a “Notice of Non-Compliance” to New South, which informed New South of these findings and mandated that the company take corrective action, including “Restor[ing] adaquate [sic] sediment control measures, to retain sediment on site” by 6 July 2006. New South continued to forward these notices to Hunter.

Representatives from Hunter visited the site to assess the damage, and they told New South’s project manager that “they were going to take care of it.” Although Hunter initially undertook some cleanup and repair work following the rupture, it ultimately suspended its efforts several weeks later before completing the work. As a result, the silt collection basin repeatedly overflowed in the ensuing months, depositing more mud and silt onto the golf course. The GNRD issued New South another “Notice of Non-Compliance” on 13 July 2006, indicating that the company had “Fail[ed] to submit [a] revised Plan” that showed the “changes to topography and drainage area” that had occurred on the parcel. On 23 August 2006, the GNRD again issued New South a “Notice of Non-Compliance,” indicating that the company had failed to: (1) “submit [a] revised Plan”; (2) “provide adequate ground cover”; (3) “take all reasonable measures”; and (4) “maintain erosion control measures.” The GNRD also mandated corrective actions, including submission of a revised plan.

New South submitted a revised plan to the GNRD, but on 8 September 2006, the GNRD “disapproved” the plan. Nonetheless, on 25 October 2006, the Gaston County Environmental Review Board “resolved that no further action [wa]s required on [the] site, provided that vegetation [wa]s established and [the] site [wa]s adequate to retain sediment on site for the purpose of water quality.” Meanwhile, the GNRD continued to issue “Noticefs] of Non-Compliance” to New South through March 2009. In addition, on 8 January 2007, the North Carolina Division of Water Quality issued New South a “Notice of Violation” for [521]*521failing to comply with the “State General Stormwater Permit” that was issued along with its approved erosion and sediment control plan.

As a result of the damage to the golf course, on 4 December 2006, plaintiffs filed an action against New South, Apple Creek Village, and Hunter, asserting claims of negligence, nuisance, trespass, violations of the SPCA, negligence per se, and intentional misconduct and gross negligence. Plaintiffs added Urban Design as a defendant on 17 April 2009. On 3 August 2009, Hunter moved for partial summary judgment on the SPCA claim. Apple Creek Village also moved for partial summary judgment, and New South moved for summary judgment on all claims against it. On 16 April 2010, the trial court granted these defendants’ motions for summary judgment on the SPCA claim, but denied the motions as to all other claims.

The remaining claims were heard in the Superior Court, Gaston County beginning on 19 April 2010. At the conclusion of the evidence, the jury found that plaintiffs were damaged by defendants’ negligence and concluded that plaintiffs were entitled to $675,000.00 in damages. On 10 June 2010, the trial court entered its judgment, awarding plaintiffs $675,000.00 in damages.

On 23 September 2010, plaintiffs appealed the trial court’s order granting defendants’ motions for summary judgment on the SPCA claim. Subsequently, plaintiffs filed a motion to withdraw their appeal against all defendants except Hunter. The Court of Appeals allowed plaintiffs’ motion on 1 July 2011. The Court of Appeals later affirmed the trial court’s order in a divided opinion. Applewood Props., LLC v. New S. Props., LLC, — N.C. App. —, 725 S.E.2d 360 (2012). The majority concluded that the SPCA did not apply because “a ‘land-disturbing activity’ requires an element.of deposition into a body of water” and there was no evidence in this case that sediment had been deposited into a body of water. Id. at —, 725 S.E.2d at 362. The dissent disagreed and argued that the relevant statutory provisions indicate that “a ‘land-disturbing activity’ subject to the provisions of the SPCA is one which ‘may cause or contribute to sedimentation,’ rather than one which actually does result in sedimentation.” Id.

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742 S.E.2d 776, 366 N.C. 518, 43 Envtl. L. Rep. (Envtl. Law Inst.) 20138, 2013 WL 2635556, 2013 N.C. LEXIS 496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/applewood-properties-llc-v-new-south-properties-llc-nc-2013.