Posted by: Patricia Salkin | August 17, 2018

NC Appeals Court Holds That Challenge to Repeal of Dune Protection Ordinance was Unripe

This post was authored by Amy Lavine, Esq.
The North Carolina Court of Appeals dismissed a declaratory judgment action regarding the repeal of a dune protection ordinance in its recent decision in Fleischhauer v. Town of Topsail Beach. The court found that the plaintiffs’ claims were unripe, and thus there was no justiciable case or controversy, because there had not yet been any final decision as to what development the town would permit on the affected oceanfront properties. Fleischhauer v. Town of Topsail Beach, 810 S.E.2d 416 (N.C. App. 3/6/18).

The plaintiffs owned properties that were separated from the Atlantic Ocean by a group of 28 undeveloped oceanfront lots, and they claimed that the town’s repeal of its Dune Protection Ordinance would result in development on the oceanfront lots and thereby create an increased potential for flood damage on their properties. The lawsuit sought a declaratory judgment that any excavation or manmade alterations of the dunes on the oceanfront lots would violate local ordinances, the town’s land use plan, and federal law. A temporary restraining order was issued that prohibited the town from issuing any building permits or otherwise allowing alteration of the dunes, but the trial court subsequently dismissed the plaintiffs’ complaint for lack of subject matter jurisdiction on the basis that the plaintiffs’ claims were unripe and failed to establish standing.

The court began its analysis with a review of the relevant coastal land regulation framework. The North Carolina Coastal Area Management Act, it noted, requires coastal property owners to obtain development permits from the Division of Coastal Management prior to developing oceanfront land, after which they’re required to obtain necessary zoning and building permits. In the Town of Topsail Beach, the local permitting process included compliance with the Flood Damage Prevention Ordinance, which provided that “[t]here shall be no alteration of sand dunes which would increase potential flood damage.” The town was had opted in to the National Flood Insurance Program, which required it to adopt minimum regulations to reduce the risk of flooding, including prohibiting man-made alterations to naturally occurring sand dunes that would increase potential flood risks.

With this regulatory framework in mind, the court affirmed the decision to dismiss on ripeness grounds, explaining that the “speculative possibility that land development might proceed in the future does not constitute a justiciable case or controversy.” The plaintiffs, the court noted, had requested declaratory relief that development of the oceanfront lots would violate various coastal laws and regulations, including the town’s Flood Damage Prevention Ordinance, the North Carolina Coastal Area Management Act, and the National Flood Insurance Program, yet they’d failed to make any showing that the town had made a final determination as to what development would be permitted on the oceanfront lots, if any. As the court pointed out, there wasn’t even any evidence that the owners of the oceanfront lots had submitted applications for zoning or development permits, nor had the town received any notification regarding changes to its status under the National Flood Insurance Program. “In essence,” the court explained, “plaintiffs ask us to rule that they may challenge the permissible uses of neighboring oceanfront lots based on a speculative possibility that development will proceed in the future.” The court declined to grant such a request, as any challenge would simply be unripe until the town had an opportunity to make a final decision on the issue.

The court also disagreed with the plaintiffs that the approval of a beach house on an oceanfront lot prior to the repeal of the Dune Protection Ordinance necessarily meant that the town would approve similar developments going forward. As the court explained, it would be “precipitous to presume Topsail Beach has made a final decision as to the permissible development of the oceanfront lots because defendant previously authorized a building permit for an oceanfront property.” As with their primary arguments in the case, the court found this claim to be too speculative to establish a justiciable case or controversy.

Fleischhauer v. Town of Topsail Beach, 810 S.E.2d 416 (N.C. App. 3/6/18).

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