Constitutional – Due Process – County Regulations – Pool Fence – Sovereign Immunity – Excess Insurance

Ballard v. Shelley (Lawyers Weekly No. 011-028-18, 13 pp.) (Richard Dietz, J.) Appealed from Cabarrus County Superior Court (C.W. Bragg, J.) N.C. App.

Holding: Defendants allege that Cabarrus County reconsidered previously approved (and final) permit and code determinations without notifying defendants or permitting them an opportunity to contest the decision through available means. Defendants’ allegations are sufficient to state a claim for a due process violation.

We affirm the trial court’s dismissal of defendants’ tort claim against the county. We dismiss defendants’ appeal of the trial court’s dismissal of their declaratory judgment claim. We reverse the trial court’s dismissal of defendants’ due process claim.

This complicated case arose out of neighbors’ displeasure at defendants’ construction of a fence around their pool.

In a crossclaim against the county, defendants allege that the county approved their fence and found that it complied with applicable building code and permit requirements. Then, after the time to administratively challenge those code and permitting determinations expired, and under pressure from other county residents, the county “fabricated” code or permit violations and used these new violations to challenge the construction of the fence. Defendants further allege that the county pursued these new code or permit violations outside the normal administrative and judicial review process and without providing defendants with notice and an opportunity to be heard.

These allegations are sufficient to state a valid constitutional claim for violation of procedural due process rights.

Even though the county has purchased liability insurance, the policy is for excess liability coverage that only kicks in when a judgment is entered against the county or the county agrees to pay a claim with the insurer’s approval. Since defendants have not shown that either of these triggering events has occurred, the terms of the excess insurance policy do not waive the county’s governmental immunity. Therefore, the trial court properly dismissed defendants’ common law tort claims based on the county’s assertion of immunity.

Defendants concede that their declaratory judgment claim is “a reciprocal claim mirroring two other claims” asserted against them, both of which remain to be litigated. The dismissal of this sort of redundant declaratory judgment claim does not implicate substantial rights. Accordingly, we lack jurisdiction to address the trial court’s dismissal of defendants’ declaratory judgment claim.

Affirmed in part, dismissed in part, reversed and remanded in part.