Ocean Acres Limited Partnership v. Dare County Board of Health

707 F.2d 103
CourtCourt of Appeals for the Fourth Circuit
DecidedMay 12, 1983
DocketNos. 82-1458, 82-1489
StatusPublished
Cited by5 cases

This text of 707 F.2d 103 (Ocean Acres Limited Partnership v. Dare County Board of Health) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ocean Acres Limited Partnership v. Dare County Board of Health, 707 F.2d 103 (4th Cir. 1983).

Opinions

CHAPMAN, Circuit Judge.

Plaintiff Ocean Acres Limited Partnership (Ocean Acres) appeals a district court decision granting the defendants’ motion for summary judgment. Plaintiff claims that its property has been taken without just compensation and that it has been deprived of property without due process of law. We affirm the district court’s conclusions, 514 F.Supp. 1117, that there are no genuine issues of material fact in regard to the inverse condemnation claim and that the due process claims are barred by the North Carolina three year statute of limitations for actions brought under 42 U.S.C. § 1983.

I

Ocean Acres was formed in 1972 for the purpose of developing a 165 acre tract of land in Dare County, part of North Carolina’s Outer Banks. The tract was located adjacent to Fresh Pond, which was at that time the source of fresh water for the towns of Nags Head and Kill Devil Hills. These towns and Dare County have experienced substantial growth since the late 1960’s because of the popularity of the area as a resort location.

In April 1972, the partnership's development plans calling for septic tanks were rejected by Dare County. Plaintiff was informed of the county’s action after an option held by the two general partners to purchase the tract had been exercised1 but before the closing had taken place. Representatives of Ocean Acres met with state and county health officials but were unable to change the requirement for a central sewerage system for a yet undetermined portion of the development. The lawyer of one of the general partners advised that a legal challenge to this decision could be mounted. The general partners chose instead to proceed with the closing. In June 1972, the Dare County Sanitarian issued a moratorium on the installation of septic tanks in a portion of the area proposed to be developed by Ocean Acres because of the proximity of the tract to Fresh Pond. Ocean Acres proceeded to develop its tract, installing a central sewerage system instead of septic tanks.2 Installation of the central sewerage system was completed in the spring of 1973. The septic tank moratorium remained in effect as a policy of the Dare County Board of Health until March 1978. In May 1978, the towns of Nags Head and Kill Devil Hills adopted ordinances incorporating septic tank restrictions.

Ocean Acres filed suit on June 6, 1979 naming as defendants Dare County, the [105]*105Dare County Board of Health, the Dare County sanitarian and the towns of Nags Head and Kill Devil Hills. Defendants other than Dare County and the County Board of Health were later dismissed on plaintiffs motion. In its complaint plaintiff claimed, inter alia, violations of the “taking clause” and of due process guarantees of the fifth and fourteenth amendments.

II

We agree with the district court that there are no genuine issues of material fact in regard to the “taking” claim. A use restriction on real property may constitute a taking if not reasonably necessary to the effectuation of a substantial public purpose or if it has an unduly harsh impact upon the owner’s use of the property. Penn Central Transportation Co. v. New York City, 438 U.S. 104, 127, 98 S.Ct. 2646, 2660, 57 L.Ed.2d 631 (1978). The preservation of a public water supply, especially in a rapidly developing area such as the Outer Banks, is a substantial public purpose. Although the plaintiff has alleged that the return on its investment was substantially lower than it had expected, it did make a profit. The septic tank ban thus does not constitute a “taking”. Andrus v. Allard, 444 U.S. 51, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979).

[L]oss of future profits — unaccompanied by any physical property restriction — provides a slender reed upon which to rest a takings claim. Prediction of profitability is essentially a matter of reasoned speculation that courts are not especially competent to perform. Further, perhaps because of its very uncertainty, the interest in anticipated gains has traditionally been viewed as less compelling than other property-related interests. (citations omitted) Id. at 66, 100 S.Ct. at 327.

When the benefit to the public of preserving a fresh water supply is balanced against the limited partnership’s expectations of profit, the balance does not weigh heavily enough in plaintiff’s favor to establish material issues of fact concerning a taking of property without just compensation. Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980); Andrus v. Allard, supra; Penn Central Transportation Co. v. New York City, supra.

III

The district court found that the due process claims were barred by the three year statute of limitations on actions brought under 42 U.S.C. § 1983 in North Carolina.3 Bireline v. Seagondollar, 567 F.2d 260 (4th Cir.1977), cert. denied, 444 U.S. 842, 100 S.Ct. 83, 62 L.Ed.2d 54 (1979). Ocean Acres contends that it should not be time barred from bringing its due process claims under either of two theories: that defendants’ actions amounted to fraudulent concealment or that the moratorium constituted a “continuing wrong.”

According to plaintiff, the statute of limitations should be tolled because defendants fraudulently concealed the real motive behind the septic tank ban. Plaintiff claims that the county also overstated the thoroughness of the investigation preceding the moratorium and the scientific basis of the septic tank ban. Accepting these statements as true, they do not amount to concealment that would have prevented the plaintiff from discovering “facts which are the basis of [its] cause of action despite the exercise of due diligence on [its] part.” Weinberger v. Retail Credit Co., 498 F.2d 552, 555 (4th Cir.1974). The existence of a possible cause of action was apparent to plaintiff when the general partner was advised by his lawyer that he could litigate the issues. The facts upon which the present cause of action is based were known to plaintiff more than three years prior to the filing of this action. Seven years elapsed between the moratorium and the suit.

IV

Ocean Acres also argues that plaintiff has a right to recover damages accruing [106]*106within three years prior to the filing of the lawsuit under the theory that the moratorium constituted a continuing wrong.4 Although it is indisputable that the moratorium was in existence until March 1978, this fact does not end the inquiry of whether the “continuing wrong” exception applies. Cooper v. United States, 442 F.2d 908 (7th Cir.1971).

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Bluebook (online)
707 F.2d 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ocean-acres-limited-partnership-v-dare-county-board-of-health-ca4-1983.