Municipal — Subdivision Roads – Civil Practice – Mandatory Injunction – Prior Appeal

The parties have a long history of disagreement about exactly how to bring the roads of the defendant-developers’ subdivision into compliance with North Carolina Department of Transportation (DOT) standards. The trial court recognized this disagreement but failed to resolve the dispute when it ordered the developers “to submit to the [plaintiff] Town a proposed plan to bring [the subdivision] streets into compliance with NCDOT standards.” As the order is written, the developers cannot know exactly what DOT standards have not been met and what repairs the developers must make to bring the subdivision roads into compliance.

We affirm in part, but we reverse the trial court’s attorney’s fee order, and we remand the mandatory injunction for further findings of fact identifying the specific DOT standards that the developers have failed to meet and to provide a specific decree for repairs necessary to bring the subdivision roads into compliance.

Background

The developers sought to turn over maintenance of their subdivision’s roads to the town. Instead of accepting the roads, the town issued a notice of violation because the roads failed to meet DOT standards.

The developers challenged the notice of violation in court and lost at all levels. Nevertheless, the developers failed to bring the subdivision roads up to DOT standards, and the town assessed civil penalties based on the developers’ failure to make the repairs. The town brought this action to require the developers to repair the roads.

Civil Penalties

Based on this court’s decision in a prior appeal, the town had the authority by local ordinance to issue civil penalties for the developers’ failure to comply with the trial court’s prior judgment.

The town’s ordinance provides for appeal of a notice of violation. It does not, however, establish a right to appeal civil penalties.

The developers unsuccessfully appealed the judgment arising from the initial notice of violation. Pursuant to the town’s ordinances, no other avenue was available to the developers to challenge the town’s enforcement of that judgment in the form of civil penalties.

The trial court did not err by awarding summary judgment for civil penalties in the town’s favor.

Mandatory Injunction & Abatement

Our dissenting colleague asserts that the developers’ obligation to maintain the subdivision roads has not yet been established. This question was settled by this court’s prior opinion on this issue, and we cannot revisit it.

The town’s past communication with a DOT engineer about the street maintenance takeover process cannot relieve the developers of their obligation to maintain the subdivision roads, as it has been previously determined by this court on the same record relied upon by our dissenting colleague.

The record reveals the parties have a long history of disagreement about exactly how to bring the roads in compliance with DOT standards. The trial court recognized this disagreement could give rise to “a disputed fact[,] … that [the developers] made an effort to correct these [roads] and they’re now where they should be.” Nevertheless, the trial court failed to resolve this dispute.

The trial court’s order requires the developers “to submit to the Town a proposed plan to bring [the development] streets into compliance with NCDOT standards.” As written, the developers cannot know from the terms of the order itself exactly what the court is ordering them to do, namely what DOT standards have not been met and what repairs the developers must make to bring the development roads into compliance. The order must identify which DOT standards are at issue and what repairs are sufficient to bring the roads into compliance.

Attorneys’ Fees

The town was not authorized to impose penalties between 14 October 2016 and 8 June 2017, while the developers’ first lawsuit was on appeal.

The town’s agreement to dismiss the penalties imposed upon the developers from 14 October 2016 to 8 June 2017 during the pendency of the first appeal does not relieve the town of its liability for the developers’ attorney’s fees incurred contesting those penalties. We reverse the order denying the developers’ motion and remand to the trial court to determine and make appropriate findings regarding what attorney’s fees the developers reasonably incurred in challenging the civil penalties imposed during the pendency of their first appeal.

Affirmed in part, reversed in part, and remanded.

Dissent

(Tyson, J.): The town wrote DOT engineer Ritchie Hearne on 19 January 2006 stating that the town was “’willing to take the [subdivision] streets … into the Town with some verification from you. [We request] a letter from you stating that the roads … are built to NCDOT standards. When we receive this letter, we will proceed with adoption of said streets.’”

The real issue appears to be who is responsible for the repairs and maintenance for the normal wear and tear to the streets in the subdivision since Hearne’s letter dated 25 April 2006. If repairs were needed to meet DOT standards on that date, those would be the developers’ responsibility. The town had expressly agreed to be bound by Hearne’s determination of the developers’ compliance with DOT standards, which he certified, and to accept maintenance of the streets. The record does not show that the town inspected the development and provided the developers with a list of items that needed to be corrected, until over eight years later.

The town has collected ad valorem taxes from the developers and the property owners of the subdivision since bringing the subdivision into the town’s limits. The town cannot now shirk its maintenance and repair obligations for normal wear and tear to the streets and shift them onto the developers. Those obligations and costs are rightfully the town’s responsibility.

Town of Midland v. Harrell (Lawyers Weekly No. 011-068-22, 42 pp.) (Lucy Inman, J.) (John Tyson, J., concurring in part & dissenting in part) Appealed from Cabarrus County Superior Court (Martin McGee, J.) Anthony Fox and La-Deidre Matthews for plaintiff; James Scarbrough for defendants. 2022-NCCOA-167