Midgette v. Pate

380 S.E.2d 572, 94 N.C. App. 498, 1989 N.C. App. LEXIS 560

• Court: Court of Appeals of North Carolina
• Decided: July 5, 1989
• Docket: 888SC1006
• Status: Published

Opinion

ARNOLD, Judge.

Plaintiff appeals the trial court’s dismissing her complaint for failure to state a claim on which relief can be granted pursuant to N.C.R. Civ. P. 12(b)(6), N.C.G.S. § 1A-1.

A plaintiff’s complaint setting forth a claim for relief must include:

(1) A short and plain' statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief, and

(2) A demand for judgment for the relief to which he deems himself entitled.

N.C.G.S. § 1A-1, Rule 8(a)(1)(2); see generally Sutton v. Duke, 277 N.C. 94, 176 S.E. 2d 161 (1970).

As the defendants each made their motions pursuant to N.C.R. Civ. P. 12(b)(6) for failure to state a claim on which relief can be granted, the factual allegations of the complaint set forth above must be taken as true for purposes of this appeal. Smith v. Ford Motor Co., 289 N.C. 71, 80, 221 S.E. 2d 282, 288 (1976). “A claim should not be dismissed under Rule 12(b)(6) unless it appears that the plaintiff is entitled to no relief under any statement of facts which could be proved in support of the claim.” W. Shuford, N.C. Civil Practice and Procedure § 12-10 (1988).

Plaintiff’s complaints can be sorted into three subgroups: those which arise as result of the permits which were granted to the Pates; those which would be the result of a refusal by town officials to enforce the ordinance; and those which are connected to the alleged violations of the protective covenants.

The defendant Town officials correctly contend that the plaintiff may only proceed against them as set out in N.C.G.S. § 160A-388. Therefore, plaintiff’s complaints connected to the issuance of the permits are limited to the procedures outlined in N.C.G.S. § 160A-388:

(b) The board of adjustment shall hear and decide appeals from and review any order, requirement, decision, or determination made by an administrative official charged with the enforcement of any ordinance adopted pursuant to this Part.

An appeal may be taken by any person aggrieved or by an officer, department, board, or bureau of the city.

* * * *

(e) The concurring vote of four-fifths of the members of the board shall be necessary to reverse any order, requirement, decision, or determination of any administrative official charged with the enforcement of an ordinance adopted pursuant to this Part, or to decide in favor of the applicant any matter upon which it is required to pass under any ordinance, or to grant a variance from the provisions of the ordinance. Every decision of the board shall be subject to review by the superior court by proceedings in the nature of certiorari.

The board of adjustment is an administrative body with quasi-judicial power whose function is to review and decide appeals which arise from the decisions, orders, requirements or determinations of administrative officials, such as building inspectors and zoning administrators. Id. See In re Pine Hill Cemeteries, Inc., 219 N.C. 735, 15 S.E. 2d 1 (1941); see generally M. Brough, The Zoning Board of Adjustment in North Carolina 7-9 (1984). It is the job of the board of zoning adjustment to interpret the ordinance and to apply that interpretation when reviewing acts of administrators. See Harden v. Raleigh, 192 N.C. 395, 135 S.E. 151 (1926); Brough at 5. The enabling statute which grants power to local governments to enact zoning ordinances states that a board of zoning adjustment may be authorized to:

issue special use permits or conditional use permits in the classes of cases or situations and in accordance with the principles, conditions, safeguards, and procedures specified [in the local ordinance] and may impose reasonable and appropriate conditions and safeguards upon these permits. . . .

N.C.G.S. § 160A-381. A special use permit, like the one issued to the defendants Pate in this case, is allowed “to permit certain exceptional uses that the ordinance authorizes under stated conditions. Brough at 9 (emphasis in original).

N.C.G.S. § 388(b) confers on the board appellate jurisdiction to review the acts of those charged with enforcing the zoning ordinance. Tate v. Board of Adjustment of the City of Asheville, 83 N.C. App. 512, 513, 350 S.E. 2d 873, 874 (1986). Once the municipal official has acted, for example by granting or refusing a permit, “any person aggrieved” may appeal to the board of adjustment. N.C.G.S. § 160A-388(b).

Plaintiff has alleged the special damages required to assert standing under N.C.G.S. § 160A-388(b) as an aggrieved person. Heery v. Town of Highlands Zoning Board of Adjustment, 61 N.C. App. 612, 300 S.E. 2d 869 (1983). Thus, she could have contested the permits had she timely filed with the board of adjustment. N.C.G.S. § 160A-388(b). Plaintiff’s complaints specifically concerning defendants’ special use, or building permits, may only be remedied by first appealing to the board of zoning adjustment. She failed to do so and therefore she cannot now attack these permits.

However, plaintiff has stated a proper claim against the Town for mandamus by alleging that the zoning administrator failed to enforce the ordinance. Insofar as the complaint attacks the sale of memberships for use of the pool, the building of structures not covered by the permits, and parking, plaintiff has alleged that her requests to town officials have been ignored. Further, as there has been no decision by a zoning administrator from which she may appeal, she may not go forward under N.C.G.S. § 160A-388(b) to contest the use the Pates made of the pool after they were permitted to build it. Tate at 515, 350 S.E. 2d at 874.

In North Carolina the rule has been stated that “Mandamus will lie to compel the performance of a purely ministerial duty imposed by law.” Bryan v. City of Sanford, 244 N.C. 30, 35, 92 S.E. 2d 420, 423 (1956); see Lee v. Walker, 234 N.C. 687, 68 S.E. 2d 664 (1952) (mandamus appropriate to compel officials to issue zoning permit when plaintiff showed he had met all requirements for permit); Rebholz v. Floyd, 327 So. 2d 806, 808 (Fla. App. 1976); see generally A. Rathkopf, 3 The Law of Zoning and Planning § 44.01 et seq.

“Where the law prescribes and defines a duty with such certainty as to leave nothing to the exercise of judgment or discretion the act is ministerial . . . .” Harden at 397, 135 S.E. at 152. The legislature has prescribed the duties of local zoning inspectors including: “the issuance of orders to correct violations, the bringing of judicial actions against actual or threatened violations.” N.C.G.S. § 160A-412Í4); see generally P. Green, Legal Responsibilities of the Local Zoning Administrator in North Carolina, Institute of Government (1987). Though the zoning administrator may exercise discretion in assessing the alleged violations, this does not lessen the duty to investigate the charges of a plaintiff who has legal right to have the duty enforced:

Where a duty to make a decision is imposed upon a body or officer, even though discretion is involved in the determination, mandamus will lie to compel the body or officer to make the decision, since there is no discretion involved in whether action is to be taken. 3 Ratkkopf § 44.03[2].

Plaintiff asserts a legal right to enforce the ministerial duties of a zoning administrator if she has standing to assert the right and has performed any acts required to evoke action on the part of the officer. Id. at § 44.02; see also Heery at 614, 300 S.E. 2d at 870. Plaintiffs request that the alleged violations be corrected, the fact that she is an adjacent property owner subject to the same zoning restrictions as the defendants Pate, and the fact that she alleged special damages is sufficient to assert her legal right to enforcement of the ordinance. See id. Plaintiff has set forth adequate facts to state a claim that there have been violations of the zoning ordinance related to the use of the pool, parking, and fence, and that the zoning inspector has failed to make a determination concerning the violations and to pursue correction of the violations.

Finally, as against the Pates, we hold that plaintiff has sufficiently stated a claim that the Protective Covenants have been violated. Though plaintiff has neglected to include a complete copy of the covenants in the record, she does state the following violations of the covenant in her complaint:

a) They erected a building on the property not permitted by the covenants.

b) They failed to submit the construction plans and specifications and a plan showing the location of the structures to the architectural control committee.

c) They failed to meet the minimum setback requirements for the location of buildings, structures and fences on their property.

d) They use the property for other than residential purposes.

e) They are allowing a use of their property which has become an annoyance or nuisance to the neighborhood.

This portion of the complaint put the defendants on notice of the claim concerning violation of the covenants. N.C.G.S. § 1A-1, N.C.R. Civ. P. 8(a)(l)(2). In our view plaintiff’s complaint states a claim on the issue of whether there has been a violation of the covenants.

Our holding is that plaintiff has stated a claim for mandamus to compel the Town and its zoning administrator to scrutinize alleged violations of the zoning ordinance relating to the use of the pool, the fence, and parking, and to enforce the ordinance. Plaintiff has stated a claim against the Pates for alleged violations of protective covenants. Only that portion of the trial court’s order dismissing these two claims is reversed.

Affirmed in part and reversed in part.

Judges Greene and Lewis concur.