STATE OF NORTH CAROLINA

COUNTY OF BRUNSWICK

THE ROYAL OAK CONCERNED CITIZENS ASSOCIATION, CURTIS MCMILLIAN and DENNIS MCMILLIAN,

Plaintiffs,

V.

BRUNSWICK COUNTY,

Defendant.

IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION

11-CVS-1301

DEFENDANT BRUNSWICK COUNTY'S BRIEF IN SUPPORT OF MOTION TO DISMISS

*************************************************************************

STATE OF NORTH CAROLINA

IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION

COUNTY OF BRUNSWICK

THE ROYAL OAK CONCERNED CITIZENS ASSOCIATION, CURTIS MCMILLIAN and DENNIS MCMILLIAN,

Plaintiffs,

V.

1 1-CVS-1301

DEFENDANT BRUNSWICK COUNTY'S BRIEF IN SUPPORT OF MOTION TO DISMISS

BRUNSWICK COUNTY,

Defendant.

TABLE OF CONTENTS

Page

STATEMENTOF THE CASE ....................................................................... ..............................1

FACTUALBACKGROUND ........................................................................................................2

TheExisting C&D Landfill ........................................................................ ..............................2

The County Rezones Land Adjacent to the Landfill .................................. ..............................3

SpecialUse Proceedings: Permit Denied ................................................... ..............................3

Plaintiffs' Complaint ................................................................................................................. 4

ReliefRequested ........................................................................................................................4

SUMMARYOF THE ARGUMENT ............................................................. ..............................5

ARGUMENT ..................................................................................................................................7

I. BECAUSE PLAINTIFFS' CLAIMS PERTAINING TO THE PLACEMENT AND EXPANSION OF THE LANDFILL ARE NOT JUSTICIABLE, THEY SHOULD BE DISMISSED ..........................................7

A. The Planning Board's Denial of the Special Use Permit Rendered the Claims Associated with the Landfill Non-Justiciable...................................................................................................7

B. Plaintiffs' Claims About the Landfill Were Non-Justiciable FromInception ........................................................................................11

II. PLAINTIFFS' "CLAIM" UNDER § 153A-136(C) FAILS TO STATE A CLAIM AND IS ALSO MOOT GIVEN THE DENIAL OF THE SPECIAL USE PERMIT ....................................................................................13

III. PLAINTIFFS' FAILURE TO EXHAUST THEIR ADMINISTRATIVE REMEDIES UNDER THE FAIR HOUSING ACT REQUIRES DISMISSAL OF THE CLAIM ..........................................14

A. Because Plaintiffs Failed to File a Complaint With the Commission, They Did Not Exhaust Their Administrative Remedies Under the NCFHA, and the Superior Court Lacks Jurisdiction of Plaintiffs' NCFHA Claim ..............................................15

1. The NCFHA's Plain Language Reveals the Exhaustion Requirement.................................................................................16

2. Right-to-Sue Provisions Reinforce Exhaustion Requirements................................................................................16

3. Construing the NCFHA as Permitting a Direct Claim in Superior Court Would Violate the Principles of Statutory Construction, and Render the Commission's RoleSuperfluous ..........................................................................17

B. The Federal Fair Housing Act Does Not Control this Case .................19

IV. PLAINTIFFS' CLAIM UNDER THE NORTH CAROLINA CONSTITUTION SHOULD BE DISMISSED, AS STATE LAW PROVIDES PLAINTIFFS WITH ADEQUATE REMEDIES ........................21

A. Landfill: Plaintiffs' Constitutional Claim Related to the Landfill's Siting and Expansion is Barred, as Plaintiffs Have AdequateState Law Remedies ...............................................................23

ii

B. Water and Sewer: Plaintiffs' NCFHA Claim, and the Petition Process for Water and Sewer Services, Constitute Adequate Remedies...................................................................................................24

V. PLAINTIFFS FAIL TO STATE A CLAIM UNDER THE CONSTITUTION FOR A WRONGFUL DENIAL OF WATER AND SEWER SERVICES ...........................................................................................25

VI. BECAUSE NO THERE IS NO DECLARATORY RELIEF AVAILABLE TO PLAINTIFFS FOR THEIR NCFHA AND CONSTITUTIONAL CLAIMS, THOSE CLAIMS SHOULD BE DISMISSED ..........................................................................................................28

VII. "ROCCA" LACKS STANDING TO SUE AND SHOULD BE DISMISSED ..........................................................................................................29

A. "ROCCA" Cannot Show Its Legal Existence and Capacity to Sue.............................................................................................................29

B. "ROCCA" Has Not Alleged a Specific Legal Interest in Property to Show Standing to Challenge the Rezoning ....................... 30

CONCLUSION............................................................................................................................31

iii

STATE OF NORTH CAROLINA

IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION

COUNTY OF BRUNSWICK

11-CVS-1301

THE ROYAL OAK CONCERNED CITIZENS ASSOCIATION, CURTIS MCMILLIAN and DENNIS MCMILLIAN,

Plaintiffs,

V.

BRUNSWICK COUNTY,

Defendant.

DEFENDANT BRUNSWICK COUNTY'S BRIEF IN SUPPORT OF MOTION TO DISMISS

STATEMENT OF THE CASE

The thrust of this case involves Plaintiffs' efforts to stop the proposed expansion of the

existing Brunswick County construction and demolition debris landfill. To accomplish this,

Plaintiffs took two approaches: (1) an administrative challenge to the permitting of the land for

special use as a landfill; and (2) filing the present lawsuit against Brunswick County challenging

the rezoning of property in issue and bringing claims under the North Carolina Constitution and

Fair Housing Act alleging racial discrimination.

On March 28, 2012, the Brunswick County Planning Board voted to deny the County's

application for a permit to expand the landfill onto the property. In short, Plaintiffs' efforts to

halt expansion of the landfill succeeded and rendered the present dispute regarding the landfill

non justiciable. Nonetheless, Plaintiffs maintain this lawsuit, which asks the Court to interfere

with any future administrative process of siting the landfill, and to do so on an advisory basis.

Plaintiffs' secondary allegations—that the absence of water and sewer services in a rural

area known as "Royal Oak" establishes discrimination on the part of the County—fail to survive

Rule 12's requirements. Indeed, Plaintiffs' Complaint reveals that Royal Oak has made no

formal efforts to obtain water and sewer services, and that Plaintiffs' conclusory allegations

serve to buttress their attempt to stop the landfill's expansion. As explained below, with the

exception of the administrative challenge to the rezoning of the parcels, all of Plaintiffs' claims

should be dismissed under Rule 12.

FACTUAL BACKGROUND

There are three plaintiffs in this case: Royal Oak Concerned Citizens Association,

or "ROCCA," Dennis McMillian, and Curtis McMillian. ROCCA is by admission "an

unincorporated community association" allegedly made up of citizens and residents of

Brunswick County. (Third Am. Compl., ¶ 5.) ROCCA's stated purpose is to protect the quality

of life and environment of the Royal Oak community. Id. Royal Oak, as defined by the

Plaintiffs, is made up of mostly African-American residents, and is located in a rural part of the

county constituting approximately four square miles. Id. at ¶¶ 5, 8.

ROCCA's existence is not recorded with the Register of Deeds and the Complaint makes

no allegation of such recording. Curtis McMillian owns property in Royal Oak; Dennis

McMillian has alleged only that he lives in the community. (Third Am. Compl., IT 9, 11.)

The Existing C&D Landfill

Since 1998, Brunswick County has operated a construction and demolition debris landfill

("C&D landfill" or "landfill") located in the center of the County. Prior to that time, from 1983

to 1997, the landfill was a municipal solid waste ("MSW") landfill which accepted common

household waste. Id. at ¶¶ 27, 29. at IT 27, 29. Construction and demolition debris is defined as

"solid waste resulting solely from construction, remodeling, repair or demolition operations on

pavement, buildings, or other structures but does not include inert debris, land-clearing debris or

yard debris." N.C. Gen. Stat. § 130A-290(a)(4).

2

The County Rezones Land Adjacent to the Landfill

Several years ago, the County began considering expanding the landfill to accommodate

its extensive growth. In June 2010, the County purchased two parcels of land adjacent to the

existing landfill: "Parcel 806" and "Parcel "058." (Third Am. Compl., ¶ 36.) Following the

requisite public hearings and proceedings, on April 4, 2011, the County approved the rezoning of

the parcels from "rural residential" classification to "industrial general." Id. at ¶ 63.

Plaintiffs filed their initial Complaint roughly two months later on June 3, 2011, and have

alleged broadly that proposed expansion of the landfill will greatly increase the traffic, noise,

pollution, and odor caused by the existing landfill. Id. at ¶¶ 89-93. Plaintiffs seek to enjoin the

Board's rezoning decision as well as the landfill's proposed expansion, claiming that the County

has historically burdened Royal Oak with other unwanted land uses. Such acts, Plaintiffs assert,

were motivated by racial discrimination. Id. at ¶¶ 109, 111.

Special Use Proceedings: Permit Denied

As part of its zoning ordinance, however, the County had to obtain a "special use" or

"special exception" permit from its Planning Board in order to expand the existing landfill onto

the two parcels. N.C. Gen. Stat. § 153A-345(c); Sect. 3.3 of Brunswick County Unified

Development Ordinance; Table of Uses.' Only if the special use permit was granted would the

County begin the long process of seeking state approval for the proposed expansion. Indeed, the

North Carolina Department of Environmental and Natural Resources ("DENR")—not the

County—is responsible for permitting and regulating landfills in North Carolina, including C&D

landfills. N.C. Gen. Stat. § 130A-294; 15A N.C. Admin. Code 13B.0531.

In a series of four administrative hearings in 2011 and 2012, Plaintiffs, through their

same attorneys, presented evidence and testimony in opposition to the issuance of the special use

1 A certified copy of the County's Unified Development Ordinance is already on file in this case.

3

permit. On March 28, 2012, the Planning Board denied the County's application for the permit.

(De£'s Motion to Dismiss, Exh. 1.) The County did not appeal the decision.

Plaintiffs' Complaint

Plaintiffs' 161 -paragraph Complaint sets forth two main factual grievances: first, that the

landfill's proposed expansion is part of the County's historical discrimination against African-

Americans and will cause additional harm past that caused by the existing landfill; and second,

that the County has denied Plaintiffs water and sewer services while disproportionately providing

those services to white residents. At its essence, the lawsuit is one seeking to enjoin the landfill,

and to complain of what Plaintiffs assert is historical discrimination by the County. Plaintiffs

bring four distinct causes of action:

1. A declaratory judgment that the rezoning of the two parcels is invalid.

2. Violation of the North Carolina Fair Housing Act ("NCFHA").

3. Violation of the Equal Protection Clause of the North Carolina Constitution.

4. Violation of N.C. Gen. Stat. § 153A-136(c).

Relief Requested

Plaintiffs request the Court provide the following relief:

1. Invalidate the rezoning decision.

2. Permanently enjoin the County from rezoning the two parcels to Industrial

General.

3. Permanently enjoin Defendant from expanding or intensifying the use of the

landfill.

4. Award Dennis and Curtis McMillian damages in excess of $10,000.00.

5. Declare the actions of the County in violation of the NCFHA.

6. Declare the actions of the County in violation of the North Carolina Constitution.

7. Declare the actions of the County in violation of N.C. Gen. Stat. § 153A-136(c).

Plaintiffs do not seek to compel the provision of water and sewer to Royal Oak.

0

SUMMARY OF THE ARGUMENT

As set forth below, with the limited exception of the challenge to the rezoning decision,

Plaintiffs' claims fail as a matter of law.

Plaintiffs' Claims Are Not Justiciable

First, to the extent it was ever justiciable, the Planning Board's denial of the requisite

permit needed to expand the landfill rendered all claims associated with the landfill's expansion

non justiciable. To this end, the extraordinary relief Plaintiffs seek—an order enjoining future

expansion of the landfill and declaring its proposed expansion illegal—impermissibly requests

what amounts to an advisory opinion from the Court as to speculative future occurrences.

Plaintiffs' equal protection and fair housing claims likewise rely primarily on allegations of

discrimination associated with the proposed expansion of the landfill. Because there is no

present action to expand the landfill, these claims no longer present justiciable controversies.

Plaintiffs' "claim" under N.C. Gen. Stat. § 153A-136(c) fails here too, as the statute does not

apply to C&D landfills, and in any event, relates only to Plaintiffs' assertion that Defendant did

not follow proper procedure to expand the landfill. It is thus non justiciable, too.

FHA: Jurisdiction Lacking for Failure to Exhaust Administrative Remedy

Assuming the claims under the NCFHA and North Carolina Constitution are justiciable,

Plaintiffs' claim under the NCFHA is fatally flawed as Plaintiffs failed to pursue and exhaust the

requisite administrative remedy under the statute by first filing a claim with the North Carolina

Human Relations Commission. The statutory directive of the NCFHA requires such exhaustion

before a plaintiff can file a lawsuit in Superior Court. Plaintiffs' failure to file a claim with the

Commission is thus fatal to their NCFHA claim as a matter of law.

5

Constitutional Claim Fails as Alternate Remedies Exist at State Law

Plaintiffs' failure to perfect their NCFHA claim simultaneously upends Plaintiffs' claim

under the North Carolina Constitution. Claims under the Constitution are considered

exceptional. Therefore, to pursue a direct claim under the North Carolina Constitution, our

courts adhere firmly to the requirement that a plaintiff allege and show that he does not have an

alternate remedy under state law. According to Plaintiffs, their allegations regarding the

placement and proposed expansion of the landfill and water/sewer services entitle them to relief

under the NCFHA. As such, Plaintiffs' claim under the NCFHA served as the alternate state

law remedy for their discrimination claims regarding the landfill and the purported denial of

water and sewer services. Plaintiffs cannot have both a claim under the NCFHA and the

Constitution. To this end, Plaintiffs' failure to preserve the NCFHA claim destroyed both

claims, as the law is clear that a plaintiff's failure to preserve the alternate state remedy—here

the NCFHA claim—does not render the alternate remedy inadequate, and thereby allow him to

pursue a constitutional claim.

Moreover, Plaintiffs have an adequate remedy to address their grievances through the

administrative process, as demonstrated by Plaintiffs' successful challenge to the special

exception permit. Likewise, Plaintiffs' Complaint fails to allege facts sufficient to state a claim

under the Constitution for denial of water and sewer services. The Complaint further reveals that

Plaintiffs have never formally requested such services from the County, and thus cannot pursue a

direct constitutional claim under this theory.

ROCCA Lacks Standing

Finally, the Complaint reveals not only that ROCCA failed to allege its associational

standing, but that ROCCA is not an entity capable of bringing a lawsuit in North Carolina. As an

0

unincorporated association, prior to filing its Complaint, ROCCA was required to record its

existence and allege the recordation pursuant to N.C. Gen. Stat. § 66-88 and 1-69.1. Because

ROCCA failed to do so, it lacks standing to maintain this lawsuit and should be dismissed.

ARGUMENT

I. BECAUSE PLAINTIFFS' CLAIMS PERTAINING TO THE PLACEMENT AND EXPANSION OF THE LANDFILL ARE NOT JUSTICIABLE, THEY SHOULD BE DISMISSED.

A. The Planning Board's Denial of the Special Use Permit Rendered the Claims Associated with the Landfill Non-Justiciable.

Plaintiffs ask this Court to take the extraordinary action of enjoining the proposed

expansion of the landfill on grounds it violates their rights under the North Carolina Constitution

and the NCFHA. Plaintiffs maintain this demand despite the fact that the Planning Board denied

the County's request for a special use permit to expand the landfill onto the property in question.

This permit is but an initial step in a long process to expand a landfill that is ultimately

regulated by the State of North Carolina. The permit was required in order for the County to

proceed with an application to DENR to expand the landfill, which may or may not have been

granted. The administrative process to expand a landfill begins with submission to DENR of a

detailed site study. 15A N.C. Admin. Code 13B.0536. If DENR finds the site suitable, it

authorizes the county to prepare an application for a permit to construct the landfill. Id. at .0535.

The application must include a facility plan and drawings, an engineering plan for initial phase

development, a construction quality assurance plan, an operation plan, monitoring plans, and a

closure and post-closure plan. DENR thereafter oversees the construction of the facility. If these

pre-operative requirements are met, DENR then issues a permit to operate. Id. at .0535-0546.

7

The County did not appeal the Planning Board's decision. Accordingly, to the extent the

claim was ever justiciable (as argued is Sect. B), Plaintiffs' claim that the proposed expansion of

the landfill violated their equal protection rights and the NCFHA is now moot. 2

It is well-established that when no present and genuine controversy exists between the

parties, the courts cannot and should not intervene. Granville County Bd. of Comm'rs v. N.C.

Hazardous Waste Mgm't Comm'n, 329 N.C. 615, 625, 407 S.E.2d 785, 791 (1991). The rule

applies with special force to prevent the premature litigation of constitutional issues. Id.

To this end, when during the course of litigation, "it develops that the relief sought has

been granted or that the questions originally in controversy between the parties are no longer at

issue, the case should be dismissed ...." Pearson v. Martin, 319 N.C. 449, 451, 355 S.E.2d

496, 497 (1987) (citation and quotation marks omitted). "That [an] action was brought as a

declaratory judgment action does not alter this result." Id., 355 S.E.2d at 498.

Issues of mootness and justiciability are especially salient when the litigation at hand

involves an administrative decision-making process regarding public waste facilities. These

principles are demonstrated in the North Carolina Supreme Court's decision in Granville County.

In Granville County, the plaintiff county sought a declaratory judgment and injunctive relief to

2 The Supreme Court has held: "consideration of matters outside the record is especially appropriate where it would disclose that the question presented has become moot, or academic." State ex rel. Utils. Comm 'n v. So. Bell, 289 N.C. 286, 288, 221 S.E.2d 322, 323 (1976); In re Stratton, 159 N.C. App. 461 (2003). Questions of mootness arising during the litigation are generally treated as motions under Rule 12(b)(1), subject matter jurisdiction. See Springer-Eubank v. Four County Elec. Membership Corp., 142 N.C. App. 496, 500, 543 S.E.2d 197, 201 (2001) ("we conclude the trial court was correct in determining it no longer had subject matter jurisdiction because the issue is moot"). Courts may consider matters outside of the pleadings to rule on a Rule I2(b)(1) motion without turning it into a motion for summary judgment. Harris v. Matthews, 361 N.C. 265, 271, 643 S.E.2d 566, 570 (2007). While some courts have framed the mootness issue as one of judicial restraint, the directive is clear that when a matter becomes moot, dismissal should not be delayed. In addition, the special use permit proceedings are public record. To avoid the unnecessary filing of voluminous documents, the Court can take judicial notice that the hearings occurred and of the undisputed decision by the Board to deny the permit. Not only are the records public, but the proceedings—in which both parties participated—were quasi-judicial in nature and determined matters closely related and important to the present litigation. See N.C.R. Evid. 201; State ex rel. Utils Conun'n, supra.; State v. King, N.C. App. , , 721 S.E.2d 327, 330 (2012); Simpson v. Simpson, _ N.C. App. _, 703 S.E.2d 890, 893-94 (2011).

prevent the defendant Commission from siting a hazardous waste treatment facility on a parcel of

land. 329 N.C. at 616-17, 407 S.E.2d at 786. The Commission was tasked by statute with

locating and managing hazardous waste sites in the state. Id. at 616, 407 S.E.2d at 786. Shortly

after its creation, North Carolina joined an interstate agreement which required the state to

construct and operate hazardous waste treatment facility under certain guidelines, and set

"milestone" scheduling for the siting, construction, and operation of this facility. Id. at 620, 407

S.E.2d at 788. Prior to the litigation, the Commission had taken the preliminary step of

identifying two sites that warranted on-site evaluation, including the site in Granville County.

Id. Numerous steps remained before the Commission could finally choose a site and begin

construction, including on-site evaluations of the various properties and submission of permit

applications to state and federal environmental agencies. Just before the on-site evaluation

process was to begin, the County filed suit. Id.

In response, the trial court issued an injunction prohibiting the Commission from taking

any further actions with respect to the siting of a facility at the Granville County location. Id. at

617, 407 S.E.2d at 786. The court's ruling was based upon its ex mero motu determination that

the interstate agreement violated Article I, Section 6 of the North Carolina Constitution. Id.

In the months following the trial court's ruling, however, the Commission downgraded

the Granville site from suitable to "potentially acceptable/high priority. "3 Id. at 621, 407 S.E.2d

at 788. As a result of these events, the state was unable to meet one of the milestones in the

interstate agreement and was eliminated from the agreement. Id. at 622, 407 S.E.2d at 789.

Following the expulsion, the General Assembly took no action. Id.

3 The Commission simultaneously named another Granville tract as a preferred site, but was unable to obtain fee simple title of the land. Id. at 621, 407 S.E.2d at 789.

E

Upon discretionary review directly to the Supreme Court, the Commission argued that

the case had become non justiciable. The Court agreed, stating that the downgrading of the

Granville site and the state's expulsion from the interstate agreement rendered the case moot. Id.

The present case is likewise non justiciable, as the administrative process to expand the

proposed landfill has stopped. While the County planned to propose to DENR a site for the

expansion, it never got that far, as it could not obtain the special use permit required to proceed

to the next administrative step of offering DENR a site plan. Indeed, the County was at the very

beginning of the administrative process to expand the landfill.

Thus, what remains of the controversy is Plaintiffs' anticipation that the County may

choose at some future date to reapply for the special use permit, and thereafter successfully apply

to DENR for construction permits. The Supreme Court has consistently has held that "future or

anticipated action of a litigant does not give subject matter jurisdiction to our courts under the

Declaratory Judgment Act." Town ofAyden v. Town of Winterville, 143 N.C. App. 136, 141, 544

S.E.2d 821, 824 (2001) (citation and quotation marks omitted). As such, Plaintiffs' speculation

will not support a present dispute for the Court's decision, as courts will "not issue anticipatory

judgments resolving controversies that have not arisen." Wendell v. Long, 107 N.C. App. 80, 83,

418 S.E.2d 825, 826 (1992) (dismissing claim where defendant's proposed construction of house

as seen on plat caused plaintiff to anticipate violation of restrictive covenants); City of Raleigh v.

Norfolk So. Ry. Co., 275 N.C. 454, 464, 168 S.E.2d 389, 396 (1969) (no justiciable controversy

where parties sought construction of proposed city ordinance that had not yet been passed at the

time suit was filed); Town of Pine Knoll Shores v. Carolina Water Serv., Inc., 128 N.C. App.

321, 323, 494 S.E.2d 618, 619 (1998) (dismissing complaint because justiciable controversy not

shown where town proposed to construct a water system).

10

Moreover, to continue with the case at this juncture would require the determination of

constitutional questions in contradiction of the Court's "established judicial policy [] to refrain

from deciding constitutional questions" unless clearly necessary. City of Greensboro v. Wall,

247 N.C. 516, 520, 101 S.E.2d 413, 416 (1958). Because the Court should dismiss a case where

events following the complaint render it non justiciable, especially in the face of constitutional

claims, to the extent Plaintiffs' claims regarding the proposed expansion of the landfill were ever

justiciable, they should be dismissed.

B. Plaintiffs' Landfill Claims Were Non-Justiciable From Inception.

The Supreme Court in Granville County did not stop after deciding the mootness issue,

but went further to determine that the trial court should not have issued the injunction at all. In

addressing the trial court's injunction against the Commission, the Court proceeded to offer

"guidance to the lower courts as to their proper and timely role" in the dispute, by addressing

whether the matter was justiciable to begin with given that when the injunction issued, the

administrative decision-making process controlling the siting of the facility was at its initial

stages and had not resulted in a final site selection. 329 N.C. at 623, 407 S.E.2d at 790. The

Commission had questioned the jurisdiction of the lower court to intervene in the middle of an

administrative decision-making process and to enjoin a state agency from taking the steps

necessary to reach a final decision on the selection of a site for a hazardous waste facility,

arguing that "the courts should not become prematurely involved in the administrative process

and interfere in a decision-making process by the Commission which has not yet culminated in a

final agency decision." Id.

In determining that the trial court erred in enjoining the Commission, the Court focused

on the great importance of promptly establishing a hazardous waste facility, and the multi-step

11

process of siting a facility, the last of which is the "permitting" by various federal and state

environmental regulatory agencies. Id. at 623-24, 407 S.E.2d at 790. Each step, it noted,

required months to undertake and involved additional evaluation of the site and public hearings.

Most significant, the Commission could not make a final site selection until the permitting

process was complete. Id. at 624, 407 S.E.2d at 790. Accordingly, the preliminary steps "may

or may not have resulted in [a] final selection of [the Granville site]." Id.

Accordingly, the Court determined that the Complaint originally failed to state a claim:

In matters of this nature which seek solutions to extremely urgent problems, where the solutions are essential to protect the public health and safety, the courts should be reluctant to interfere until the administrative decision has been finalized. Here, as we have previously noted, a final site selection decision cannot be made by the Commission until a permit is issued.

Unless and until the Commission makes a final site selection decision, there is no justiciable issue and no genuine controversy between the parties. When no genuine controversy presently exists between the parties, the courts cannot and should not intervene. The rule applies with special force to prevent the premature litigation of constitutional issues.

Id. at 624-25, 407 S.E.2d at 790-91 (emphasis added).

The Supreme Court has reaffirmed its holding in Granville County, refusing to enjoin the

site selection process for a low-level radioactive waste facility, stating: "Our decision in

Granville County bars all site-selection-related litigation until site selection has been completed."

Richmond County v. N.C. Low-Level Radioactive Waste Mgm't Auth., 335 N.C. 77, 87, 436

S.E.2d 113, 119 (1993) (stating further that "[t]he harmful effects of premature litigation that we

addressed in Granville County with regard to the siting of a hazardous waste facility apply with

equal force to the siting of the low-level radioactive waste facility here").

12

The concerns addressed by the Supreme Court in Granville County are highly analogous

to those present in this case. Here, while it does not contain hazardous or radioactive waste, the

siting and continued operation of the C&D landfill undoubtedly serves a significant public

interest, and the process by which it is expanded is lengthy and highly regulated by the

administrative process. 4 As in Granville County, there has been no finalized site selection of the

proposed C&D landfill; nor have permits to construct been issued. In fact, DENR had not even

authorized the County to apply for a permit to construct the landfill. To this end, enjoining a

proposed waste facility at the zoning stage interferes with the administrative decision-making

process to site a landfill at the very earliest time and deprives counties and their citizens of a

requisite level of efficiency and certainty in pursuing solutions to a county's waste problems. In

short, allowing Plaintiffs to proceed will permit the interruption and cessation of the

administrative process to expand the landfill while prematurely litigating the constitutional issues

involved. In accordance with the principles set forth in Granville County, the Court should

determine Plaintiffs' attempt to enjoin the landfill at the zoning stage is non justiciable.

II. PLAINTIFFS' "CLAIM" UNDER 153A-136(C) FAILS TO STATE A CLAIM AND IS ALSO MOOT GIVEN THE DENIAL OF THE SPECIAL USE PERMIT.

N.C. Gen. Stat. § 153A-136 addresses "Regulation of Solid Wastes" and a county's role

in creating ordinances regulating waste activities. Subsection (c) applies to landfills that "receive

residential solid waste." In sum, it requires a Board of Commissioners to consider alternative

sites and socioeconomic and demographic data, and hold a public hearing prior to selecting or

approving a site for this type of landfill.

4 The General Statutes acknowledge the great importance of public waste facilities, and charge DENR with establishing a comprehensive statewide solid waste management program that is "designed to protect the public health, safety and welfare; preserve the environment; and provide for the greatest possible conservation of cultural and natural resources." N.G. Gen. Stat, 130A-294(a), (b).

13

As a threshold matter, this statute does not apply to C&D landfills, which do not accept

residential or household waste. See N.C. Gen. Stat. § 130A-290(4) (defining C&D waste as

"solid waste resulting solely from construction, remodeling, repair, or demolition operations on

pavement, buildings, or other structures," as compared to "municipal solid waste," defined as

"any solid waste resulting from the operation of residential, commercial, industrial,

governmental, or institutional establishments that would normally be collected, processed, and

disposed of through a public or private solid waste management services" (emphasis added));

15A N.C. Admin. Code 13B.0532(15) (stating that C&D solid waste does not include municipal

and industrial wastes that may be generated by the ongoing operations at buildings or structures);

15A N.C. Admin. Code 13B.1602(17) (defining MSW landfill unit as receiving "household

waste"); and 13B.1602(10) (including household waste as that from residences).

Even if the statute applied, it does not create a private cause of action, but merely speaks

to the procedures for building a landfill. Moreover, the statute categorically has nothing to do

with the County's rezoning of a piece of property. The statute and administrative regulations

reveal that verification of compliance with the statute would need to be submitted to DENR, at

the very earliest, with the site study, which never occurred here. N.C. Gen. Stat. § 130A-290;

15A N.C. Admin. Code 13B.0536. Compliance would be considered by DENR in the permitting

process. In any event, as the Planning Board denied the special use permit, this issue is moot.

III. PLAINTIFFS' FAILURE TO EXHAUST THEIR ADMINISTRATIVE REMEDIES UNDER THE FAIR HOUSING ACT REQUIRES DISMISSAL OF THE CLAIM AS A MATTER OF LAW.

North Carolina's Fair Housing Act is designed to provide a mechanism for investigating

and resolving complaints of discrimination in housing. N.C. Gen. Stat. § 41A-1 et seq. The Act

makes it unlawful to discriminate in housing because of race, color, religion, sex, national origin,

14

physical or mental handicap, or family status. Id. at § 41A-4. The enforcement provisions of the

law require persons alleging violations of the statute to file their complaints with the Human

Relations Commission ("the Commission"), where conciliation of the grievance is first

attempted. See N.C. Gen. Stat. § 41A-7. If those efforts fail, either the Commission or the

complainant may file a lawsuit in Superior Court. Prior to the Commission's involvement, the

Superior Court lacks jurisdiction to determine claims under the NCFHA. Because Plaintiffs filed

their Complaint directly in Superior Court without first filing a complaint with the Commission,

they did not exhaust their statutory remedies, and the NCFHA should be dismissed.

A. Because Plaintiffs Failed to File a Complaint With the Commission, They Did Not Exhaust Their Administrative Remedies Under the NCFHA, and the Superior Court Lacks Jurisdiction of Plaintiffs' NCFHA Claim.

Plaintiffs have not alleged that they filed a complaint with the Commission and it is

undisputed that they did not. However, it is well-established that when the Legislature has

provided an effective administrative remedy by statute, then that remedy is "exclusive." White v.

Trew, _ N.C. App. _, _ , 720 S.E.2d 713, 719 (2011). [A] party must pursue it and exhaust it

before resorting to the courts. Id. A failure to exhaust administrative remedies implicates

subject matter jurisdiction. Vanwijk v. Prof'l Nursing Servs., _ N.C. App. , , 713

S.E.2d 766, 768 (2011). Where a plaintiff has failed to exhaust its administrative remedies, his

action brought in the trial court should be dismissed for lack of subject matter jurisdiction. Id.

To this end, subject matter jurisdiction must be evident from the complaint, although the Court

may look outside the complaint if necessary. Harper v. City of Asheville, 160 N.C. App. 209,

217, 585 S.E.2d 240, 245 (2003) (plaintiff bears burden of proving subject matter jurisdiction).

Here, the Legislature provided an exclusive remedy under the NCFHA. Plaintiffs were

thus required to pursue and exhaust the remedy before resorting to filing with this Court.

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1. The NCFHA's Plain Language Reveals the Exhaustion Requirement.

Whether the Court has jurisdiction to hear Plaintiffs' NCFHA claim is resolved by the

plain language of the statute regarding its procedural requirements. Section 41A-7(a) of the act

authorizes complainants to file a written NCFHA complaint with the Commission: "Any person

who claims to have been injured by an unlawful discriminatory housing practice or who

reasonably believes that he will be irrevocably injured by an unlawful discriminatory housing

practice may file a complaint with the North Carolina Human Relations Commission."

Under § 41A-7(a), the only time that a complainant may go directly to Superior Court

and bypass the Commission is: "at any time in which the Commission is not presently certified

by the U.S. Department of Housing and Urban Development in accordance with 42 U.S.C. §

3610(f) to have jurisdiction over the subject matter of the complaint." The statute clearly

provides that "[d]uring any such period in which the Commission is not certified . . . [a

complainant] may bring a civil action directly in superior court...." N.C. Gen. Stat. § 41A-7(a).

Plaintiffs make no allegation that the Commission was not certified when they filed this lawsuit.

2. Right-to-Sue Provisions Reinforce Exhaustion Requirement.

Moreover, the detailed procedural requirements—particularly the provisions regarding

"right-to-sue" letters—set out in other subsections of N.C. Gen. Stat. § 41A-7 reinforce that

filing with the Commission is first required. Indeed, to proceed on his own in a lawsuit in

Superior Court, a complainant must first receive a right-to-sue letter from the Commission.

Under § 41A-7(e), the Commission is to investigate each complaint and determine

whether there are reasonable grounds to believe that an unlawful discriminatory housing practice

has occurred or is about to occur. If the Commission finds no reasonable grounds, it must

16

dismiss the complaint and "issue to the complainant a right-to-sue letter which will enable him

to bring a civil action in superior court ...." Id. at § 41A-7(f) (emphasis added).

On the other hand, if the Commission does find reasonable grounds, it must try to

eliminate or correct the discriminatory housing practice by informal conference, conciliation, or

persuasion. Id. at § 41A-7(g). If conciliation fails, the complainant may make a written request

to the Commission for a right-to-sue letter, "which will enable him to bring a civil action in

superior court ...." Id. at § 41A-7(i) (emphasis added). A complainant may also request a

right-to-sue letter if the Commission has not issued a notice of conciliation failure within 130

days following the filing of a complaint. Id. This right-to-sue letter likewise "enable[s]" the

complainant to bring a civil action in Superior Court. Id. (emphasis added). Alternatively, if

conciliation fails and a right-to-sue letter is not requested, the Commission may sue on the

complainant's behalf in Superior Court s Id. at § 41A-7(k).

Taken together, the subsections of N.C. Gen. Stat. § 41A-7 make plain that a person may

file in Superior Court only after the Commission has a chance to reconcile the parties and resolve

the dispute, may a party file a civil lawsuit in Superior Court.

3. Construing the NCFHA as Permitting a Direct Claim in Superior Court Would Violate the Principles of Statutory Construction, and Render the Commission's Role Superfluous.

Plaintiffs' argument that they may elect to file with the Commission or file directly in

Superior Court is untenable. "[W]hen `a statute is intelligible without any additional words, no

additional words may be supplied. " First Mt. Vernon Indus, Loan Assn v. ProDev XXII, LLC,

5 Cases from other jurisdictions agree that a right-to-sue letter implicates a jurisdictional event. See, e.g., Davis v. N.C. Dept of Corr., 48 F.3d 134, 140 (4th Cir. 1995) ("a right to-sue [sic] letter is a jurisdictional prerequisite that must be alleged in a plaintiffs complaint. Thus, where neither the complaint nor the amended complaint alleges that the plaintiff has complied with these prerequisites, the plaintiff has not properly invoked the court's jurisdiction under Title VII." (internal citations and quotation marks omitted)).

17

N.C. App. _, , 703 S.E.2d 836, 840 (2011). Here, the plain language reveals that a

plaintiff may not sue directly in Superior Court unless the Commission is not certified.

Moreover, the language in the NCFHA evinces the intent of the statute, which is for the

Commission to resolve complaints if at all possible. "The principal goal of statutory construction

is to accomplish the legislative intent." Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d

513, 517 (2001). "The best indicia of that intent are the language of the statute ... , the spirit of

the act and what the act seeks to accomplish." Coastal Ready-Mix Concrete Co. v. Bd. of

Comm'rs of Nags Head, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980). "If possible, a statute

must be interpreted so as to give meaning to all its provisions." State v. Buckner, 351 N.C. 401,

408, 527 S.E.2d 307, 311 (2000). "Individual expressions must be construed as part of the

composite whole and be accorded only that meaning which other modifying provisions and the

clear intent and purpose of the act will permit." State v. Tew, 326 N.C. 732, 739, 392 S.E.2d

603, 607 (1990) (internal citation omitted).

To construe the NCFHA as allowing a complainant to by-pass the Commission not only

denies the "plain and definite meaning of the language" in the statute, but renders the

Commission's existence superfluous, thus defeating the Commission's purpose of investigating

and resolving disputes. Fowler v. Valencourt, 334 N.C. 345, 348, 435 S.E.2d 530, 532 (1993).

Significantly, construing the NCFHA to provide a choice of filing directly in Superior

Court would negate the subsections of the statute concerning right-to-sue letters, particularly §

41A-7(f) and (i). These subsections state that right-to-sue letters "enable" a complainant to sue

in Superior Court. But if a complainant were already "able" to file suit in Superior Court,

without ever filing with the Commission, then a right-to-sue letter would not actually "enable"

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the complainant to file in Superior Court, as the statute says. 6 Simply stated, a "right-to-sue"

letter is meaningless if a right to sue in Superior Court already exists.

Rendering these subsections of the NCFHA meaningless would impermissibly do

"violence to the legislative language," and, thus such interpretation is untenable. Tew, 326 N.C.

at 739, 392 S.E.2d at 607. Thus, the NCFHA cannot be read as allowing alternative remedies;

the only rational construction of the NCFHA requires a complainant to file with the Commission.

B. The Federal Fair Housing Act Does Not Control this Case.

This Court should further reject any attempt by Plaintiffs to rely on interpretation of the

Federal Fair Housing Act ("FFHA"), as these laws contain significant differences. Unlike the

NCFHA, the FFHA contains a glaring distinction: an express provision stating that a plaintiff

need not exhaust his administrative remedies by filing an administrative claim with the

Department of Housing and Urban Development prior to filing a complaint in federal court.

Specifically, 42 U.S.C. § 3613(a)(2) states that "[a]n aggrieved person may commence a civil

action under this subsection whether or not a complaint has been filed under section 810(a) [42

USCS § 3610(a)] and without regard to the status of any such complaint." (Emphasis added.)

The NCFHA contains no language remotely similar to this federal provision; as explained above,

the NCFHA requires exhaustion of administrative remedies. Because of this critical distinction,

this Court should not look to the FFHA for guidance on NCFHA's procedural requirements.

North Carolina case law wisely cautions reliance on the FFHA, since the FFHA is not

analogous to the NCFHA with respect to pertinent procedural requirements. While the two acts

have similarities, the Court of Appeals has reinforced the autonomy of North Carolina's statute,

and rejected outright the argument that the Court should "adopt the entire body of federal law

6 Black's Law Dictionary defines "enable" as "[t]o give power to do something; to make able." Black's Law Dictionary 546 (7th ed. 1999). Webster's dictionary defines "enable," in pertinent part, as "providing with means or opportunity," "to make possible," "to give legal power."

19

interpreting the federal Fair Housing Act when interpreting our State Fair Housing Act." N. C.

Human Relations Council ex. rel. Leach v. Weaver Realty Co., 79 N.C. App. 710, 714, 340

S.E.2d 766, 768 (1986). The federal act should be considered "useful, although not controlling,

in interpreting the North Carolina State Fair Housing Act." Id. (emphasis added).

In Weaver Realty, the Court wholly rejected the argument that a provision of the FFHA

should apply where that provision was inconsistent with the NCFHA. The question involved

whether a plaintiff may establish a violation of the NCFHA by showing that policies and

practices have a racially discriminatory effect, even absent evidence of a discriminatory motive.

The Court held that the answer under the NCFHA would be different than under the FFHA,

explaining that "[t]he `adverse' or `disparate impact' theory through which a plaintiff may show

a violation of the federal Fair Housing Act using statistics, without showing racially biased

motivation, is contrary to the ordinary meaning of the terms in the North Carolina State Fair

Housing Act." Id. at 714-15, 340 S.E.2d at 768-69 (emphasis added).

Thus, this Court should reject any attempt by Plaintiffs to apply the federal law's non-

exhaustion provision to the present case, which is controlled by North Carolina's statute. Just

like in Weaver Realty, the federal and state statutes are simply incompatible the idea that a

plaintiff may file a complaint in Superior Court without exhausting his administrative remedies

is "contrary to the ordinary meaning of the terms" of the NCFHA. Id. at 714, 340 S.E.2d at 769.

In conclusion, the plain language of the NCFHA requires that a complainant exhaust his

administrative remedies. Plaintiffs have failed to exhaust their administrative remedies and

cannot rely on federal law to excuse this failure. The NCFHA claim should be dismissed.

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IV. PLAINTIFFS' CLAIM UNDER THE NORTH CAROLINA CONSTITUTION SHOULD BE DISMISSED, AS STATE LAW PROVIDES PLAINTIFFS WITH ALTERNATE ADEQUATE REMEDIES.

A claim pursuant to the North Carolina Constitution is considered "extraordinary," and

accordingly, to sue directly under the North Carolina Constitution, a plaintiff must first allege

and establish that he has no other adequate remedy under state law. Copper v. Denlinger, 363

N.C. 784, 789, 688 S.E.2d 426, 429 (2010) (rejecting direct constitutional claim because a state

law remedy existed); Corum v. Univ. of North Carolina, 330 N.C. 761, 784, 413 S.E.2d 276, 291

(1992) (stating that judiciary "must bow to established claims and remedies where these provide

an alternative to the extraordinary exercise of its inherent constitutional power"). Simply put, if

another remedy is available to the plaintiff, he may not sue directly under the Constitution.

An adequate state remedy exists if, assuming the plaintiff's claim is successful, the

remedy would address the same injury alleged in the direct constitutional claim. Estate of

Fennell v. Stephenson, 137 N.C. App. 430, 437, 528 S.E.2d 911, 915-16 (2000), rev'd in part on

other grounds, 354 N.C. 327, 554 S.E.2d 629 (2001). Adequate remedies may be in the form of

a state tort claim, an administrative challenge or appeal, or a claim under a North Carolina

statute. See Alt v. Parker, 112 N.C. App. 307, 317-18, 435 S.E.2d 773, 779 (1993). In sum, the

remedy must simply "provide the possibility of relief under the circumstances." Craig v. New

Hanover County Bd. of Educ., 363 N.C. 334, 340, 678 S.E.2d 351, 355 (2009).

Our courts adhere firmly to the principles that a plaintiff must act to preserve the state

law remedy, and that he may not simply elect to pursue a constitutional claim in lieu of the

alternate state law remedy. The plaintiff's chance of success in the state law remedy—due to

either the plaintiff's failure to perfect the remedy or the difficulty of proof—is irrelevant so long

as an alternative cause of action exists. See Craig, 363 N.C. at 340, 678 S.E.2d at 355-356

21

(allowing claim where no remedy existed, but expressly distinguishing the holding from

situations where a plaintiff lost his state remedy because statute of limitations expired); Rousello

v. Starling, 128 N.C. App. 439, 447-449, 495 S.E.2d 725, 731-732 (1998) (rejecting argument

that state law remedies were inadequate because they did not provide for relief against preferred

defendant and required plaintiff to prove more difficult case); Alt, 112 N.C. App. at 317-18, 435

S.E.2d at 779 (plaintiffs claim for false imprisonment constituted adequate state law remedy

even though claim was fatally deficient); Estate of Wilkins v. Good, 1999 WL 33320960, at *8

(W.D.N.C. 1999) (dismissing constitutional claim where plaintiffs failed to comply with the

statute of limitations for their state law claim).

The North Carolina Supreme Court recently applied these principles at the Rule 12(b)(6)

stage in Copper v. Denlinger. In Copper, plaintiffs were minority students who alleged that the

school board and superintendent subjected minority students to more severe discipline for less

serious offenses than white students, and issued suspensions without due process of law. In

conjunction with the suspensions, the students claimed that the defendants' discriminatory

conduct violated the plaintiffs' federal and state constitutional rights. In dismissing the state

constitutional claims, the Court noted that two separate North Carolina statutes allowed an

appeal to the Board and to superior court from any final disciplinary decision, and the Court

determined that the students' administrative appeals constituted an adequate remedy. To this

end, the Court held that the plaintiffs failure to pursue an appeal barred the direct claims under

the North Carolina Constitution. 363 N.C. at 789, 688 S.E.2d at 429. It wrote, id,:

[T]he complaint contains no allegations suggesting that the student was somehow barred from the doors of either the courthouse or the Board. Nor does the complaint allege that he exhausted his administrative remedies, or even that it would have been futile to attempt to appeal his suspension to the Board. Thus, under our

22

holdings ... an adequate remedy exists at state law to redress the alleged injury, and this direct constitutional claim is barred.

Two principles emerge from the Court's jurisprudence on the issue of adequate state

remedy: (1) a plaintiff's failure to perfect his alternate state law remedy does not render that

remedy inadequate; and (2) plaintiff cannot reject a remedy and later claim entitlement to a

constitutional claim. Indeed, a litigant's failure to perfect its state law remedies does not render

the remedy "inadequate," for purposes of bringing a claim under the Constitution.

As set forth below, and even assuming Plaintiffs' claims surrounding the landfill's

expansion were justiciable, Plaintiffs have alternate and adequate remedies at state law for the

allegations in their Complaint. As such, the Court should dismiss Plaintiffs' constitutional claim.

A. Landfill: Plaintiffs' Constitutional Claim Related to the Landfill's Siting and Expansion is Barred, as Plaintiffs Have Adequate State Law Remedies.

Applying the above principles to this case, and momentarily setting aside issues of

justiciability, the Court should dismiss Plaintiffs' direct constitutional claims relating to the

landfill because alternate, adequate remedies exist under state law. As a threshold matter,

Plaintiffs have not alleged that they in fact lack an adequate state law remedy under which to

pursue relief for the allegations in the Complaint. (See Third Am. Compl.,¶ 23.) Under Copper,

this failure alone justifies dismissal of the constitutional claim. See Copper, 363 N.C. at 788,

688 S.E.2d at 428 ("To assert a direct constitutional claim ... a plaintiff must allege that no

adequate state remedy exists to provide relief for the injury. ").

Notwithstanding this failure, Plaintiffs do not lack an adequate state law remedy. The

constitutional claim is first barred by the existence of administrative challenges to the landfill's

expansion. Plaintiffs aggressively challenged the landfill's expansion through opposing the

county's application for the special exception permit. Plaintiffs' success in opposing the permit

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required to expand the landfill demonstrates the application of the administrative process to their

current grievances, and the adequacy of Plaintiffs' administrative remedy. Further, if DENR

were ever to issue permits allowing the siting and construction of the landfill, Plaintiffs may

challenge the permit under the Administrative Procedure Act. See N.C. Gen. Stat. § 150B-23.

Indeed, as Copper made clear, when an administrative or alternate challenge to the

alleged discriminatory action exists, it serves as the adequate state law remedy to which the

plaintiff must first resort. See also Patterson v. City of Gastonia, N.C. App. , 725

S.E.2d 82, 91 (2012). These alternate remedies bar Plaintiffs' direct constitutional claims.

Plaintiffs' constitutional claim is barred further by their NCFHA claim. The allegations

forming the basis of Plaintiffs' fair housing claims are the same allegations offered to support

Plaintiffs' equal protection claims, and Plaintiffs argue that these allegations are sufficient to

state a claim under the NCFHA. (See Third Am. Cornpl., ¶ 22.) The two claims indeed seek to

address the same alleged harm—discrimination related to expansion of the landfill. Accordingly,

Plaintiffs' NCFHA claim was their stated adequate remedy at state law. 7 However. Plaintiffs

failed to perfect their claim under the NCFHA by a complaint with the Commission .

Under Copper and its predecessors, this fact is fatal to their constitutional claim, as a failure to

perfect the alternate state law remedy does not open the door to a constitutional claim. Plaintiffs'

constitutional claims concerning the proposed expansion of the landfill should thus be dismissed.

B. Water and Sewer: Plaintiffs' NCFHA Claim, and the Petition Process for Water and Sewer Services, Constitute Adequate Remedies.

Plaintiffs likewise rely on the very same allegations regarding the alleged denial of water

and sewer services to support both their equal protection and NCFHA claims. Id. Both claims

seek to remedy the alleged discrimination associated with the County's alleged failure to provide

7 If, on the other hand, Plaintiffs concede that the NCFHA does not apply to the allegations in their Complaint, the NCFHA claim would meet the same fate of dismissal.

24

water and sewer infrastructure within Royal Oak. Based on the above principles, the existence

of the NCFHA claim bars the equal protection claim premised on this theory.

Equally important, Plaintiffs make no allegation that they have formally petitioned the

County for services and were subsequently denied on the basis of their race. Plaintiffs are

undoubtedly aware of the petition process, which is public record, and allows communities to

formally request the provision of water and sewer services. Such process provides an

administrative procedure through which Plaintiffs can seek the relief for the purported

discrimination they have suffered—yet they have made no such effort to access this process.

Plaintiffs simply ignored the formal mechanisms of obtaining water and sewer services

available to them and instead filed a lawsuit in Superior Court. Plaintiffs' claim pertaining to the

purported denial of water and sewer should be dismissed.

V. PLAINTIFFS FAIL TO STATE A CLAIM UNDER THE CONSTITUTION FOR

A WRONGFUL DENIAL OF WATER AND SEWER SERVICES.

Plaintiffs' factual allegations, considered singly or together, in conjunction with

inferences logically drawn from these facts, do not state a claim for relief. Indeed, Plaintiffs'

Complaint does not allege any unconstitutional conduct by Defendant from which the conclusory

statements made in Plaintiffs' complaint could be inferred. Plaintiffs' only allegations relating to

their alleged requests for water and sewer claim they "repeatedly requested" water and sewer

services, and one time did so through a verbal statement at a 2011 Board of Commissioners'

meeting. (Third Am. Compl, ¶¶ 45, 101.) Plaintiffs simply declare that Defendant "denied"

their requests. These allegations are insufficient to state an equal protection claim.

As a threshold matter, citizens are not entitled to county-provided water and sewer

infrastructure as a matter of right. The General Assembly has recognized the complexities and

costs to counties of providing local infrastructure by declaring that "[ijn no case may a county be

25

held liable for damages for failure to furnish water or sewer services." N.C. Gen. Stat. § 153A-

283. The Supreme Court has likewise held that the furnishing of water service by a county does

not rise to the level of "property" protected by due process requirements. McNeill v. Harnett

County, 327 N.C. 552, 571, 398 S.E.2d 475, 485-86 (1990). As such, Plaintiffs are not entitled

to services merely because they have "requested" them.

Thus, while a citizen undeniably has a right not to be discriminated against on the basis

of his or her race, to state a claim for discrimination, he must allege more than that he simply

"requested" these services. Rather, to state a claim under the equal protection clause of the

North Carolina Constitution, Plaintiffs must allege that: (1) they have been treated differently

from others "similarly situated" to them, and (2) the unequal treatment is the result of intentional

or purposeful discrimination. Good Hope Hosp., Inc. v. N.C. H.H.S., Div. of Facility Servs., 174

N.C. App. 266, 274-75, 620 S.E.2d 873, 880-81 (2005) (dismissing equal protection claim). To

survive a Rule 12 motion to dismiss, Plaintiffs must plead sufficient facts to satisfy each

requirement. Id. The court must determine whether the complaint alleges the substantive

elements of a legally recognized claim and whether it gives sufficient notice of the events which

produced the claim to enable the adverse party to prepare for trial. Toomer v. Garrett, 155 N.C.

App. 462, 468, 574 S.E.2d 76, 83 (2002). While notice pleading does not require a detailed

summary of the facts supporting a claim, it requires more than vague and ambiguous assertions,

and courts will not make unreasonable factual inferences from such assertions. Id.

Here, Plaintiffs' Complaint contains only a legal conclusion that Plaintiffs' equal

protection rights were violated. Plaintiffs not only fail to plead any facts supporting their claim

of "purposeful discrimination," but Plaintiffs fail entirely to allege that they have been treated

differently than "similarly situated" citizens on the basis of their race; they only declare that the

26

County denies access to service to African-American homes "while providing that service to

white residents' homes." (Third Am. Compl., ¶ 106.)

When a complaint fails to allege that plaintiffs are similarly situated, an equal protection

claim is properly dismissed. See Reese v. Brooklyn, LLC, N.C. App. , 707 S.E.2d 249

(2011). For purposes of equal protection analysis, persons who are in "all relevant respects

alike" are "similarly situated." Clayton v. Branson, 170 N.C. App. 438, 457, 613 S.E.2d 259,

272 (2005). The only reference that Plaintiffs make regarding other communities in the County

is that James Hardy raised concern at a Board of Commissioners' meeting that a new,

predominantly white development of St. James "had access" to water and sewer services. Id. at ¶

46. However, this assertion establishes quite little. Plaintiffs do not contend that St. James (or

other white community) is similarly situated to Royal Oak in geography, size, population or cost

of placing infrastructure; nor do they allege the process or mechanism through which St. James

requested and received its services, or, who paid for placement of the infrastructure. Likewise,

the Complaint contains no suggestion that the two communities underwent a similar process to

request services and that St. James received some advantage over the similarly-situated

Plaintiffs. Plaintiffs' conclusory pleading, which alleges only that St. James has water and sewer

services and that Royal Oak does not, fails as a matter of law. See Van-Min Wang v. Univ. of

N.C.-Chapel Hill Sch. ofMed., 716 S.E.2d 646, 658 (2011) (citing with favor proposition that a

plaintiff relying on disparate treatment evidence "must show that she was similarly situated in all

material respects to the individuals with whom she seeks to compare herself')

In sum, Plaintiffs fail to allege even the general nature of the "relevant respects" in which

St. James is allegedly "similarly situated." Nor do Plaintiffs detail the method, time, or location

of their alleged "repeated requests" for water and sewer services, or the nature of Defendant's

27

denial(s). Consequently, the allegations of their Complaint provide no notice as to what actions

or transactions were allegedly discriminatory, and the equal protection claim related to the

provision of water and sewer services should be dismissed.

VI. DECLARATORY RELIEF IS NOT AVAILABLE TO PLAINTIFFS FOR THEIR NCFHA AND CONSTITUTIONAL CLAIMS.

Plaintiffs do not cite the Declaratory Judgment Act as the basis for their claims under the

NCFHA and the North Carolina Constitution. In their prayer for relief, however, Plaintiffs ask

the Court to "declare" the County's alleged actions in violation of the NCFHA and Constitution.

To the extent these are requests for declaratory judgments, they are improper.

The Declaratory Judgment Act is designed to provide an expeditious method of procuring

a judicial interpretation of written instruments such as wills, contracts, statutes, and insurance

policies, and the parties' rights thereunder. N.C. Gen. Stat. § 1-253 et seq. Accordingly,

generally only pure questions of law are appropriate to be determined under the Act. When there

are disputes of fact appearing on the face of the complaint that must be resolved by a fact-finder,

the cause of action is not proper under the Act. See Strickland v. Town of Aberdeen, N.C.

App. _, 477 S.E.2d 218 (1996) (affirming trial court's dismissal of negligence claim under Act

where complaint revealed factual issue as to defendant's negligence). Here, Plaintiffs' claims

under the NCFHA and Constitution rest on the assertion that the County intentionally

discriminated against Plaintiffs—an assertion which Defendant vigorously denies, and which

presents an unquestionable issue of fact to be determined prior to any application of the law.

Thus, these claims are not properly determined under the Act. 8

8 Similarly, in their prayer for relief Plaintiffs ask for a "declaration" that Defendant violated N.C. Gen. Stat. § 153A-136(c). Such a claim should be dismissed for the same reasons, and because it is moot.

28

VII. "ROCCA" LACKS STANDING TO SUE AND SHOULD BE DISMISSED.

A. "ROCCA" Cannot Show Its Legal Existence and Capacity to Sue.

Finally, should any of Plaintiffs' claims survive, ROCCA should still be dismissed as it

lacks standing to maintain this lawsuit, and lacked such standing when the lawsuit was filed.

Rule 9(a) requires that "[a]ny party not a natural person shall make an affirmative averment

showing its legal existence and capacity to sue." (Emphasis added.) An unincorporated

association may sue in its own name "only if the association alleges in its complaint the `specific

location of the recordation required by G.S. § 66-68." Cherokee Home Demonstration Club v.

Oxendine, 100 N.C. App. 622, 625, 397 S.E.2d 643, 645 (1990) (affirming dismissal of

unincorporated association's complaint for failure to comply with N.C. Gen. Stat. §§1-69.1, 66-

68). N.C. Gen. Stat. § 66-68 "requires an association to file a certificate in the office of the

register of deeds in the county where the association does business ...." 100 N.C. App. at 625,

397 S.E.2d at 645-46. "The statutory language of G.S. §1-69.1 is very clear and specific, i.e.,

any unincorporated association desiring to commence litigation in its commonly held name must

allege the location of the recordation required by G.S. § 66-68." Highlands Township Taxpayers

Ass'n v. Highlands Township Taxpayers Ass'n, Inc., 62 N.C. App. 537, 539, 303 S.E.2d 234, 236

(1983) (affirming summary judgment against unincorporated association for failure to comply

with "mandatory" requirements of N. C.G. S. § 1-69.1). "Strict construction of G.S. § 1-69.1

requires that before an unincorporated association may gain the privilege of instituting a lawsuit

in its common name, first there must be recordation of the necessary information required by

G.S. § 66-68 and then allegation of its specific location." Id.

ROCCA alleges plainly that it is an "unincorporated community association made up of

citizens and residents of Brunswick County, North Carolina." (Am. Cmplt, ¶ 5.) However,

29

ROCCA fails to allege: (1) the fact of a recordation pursuant to N.C. Gen. Stat. § 66-68; (2) the

location of any recordation pursuant to N.C. Gen. Stat. § 66-68, in satisfaction of N.C. Gen. Stat.

§ 1-69.1; and (3) that ROCCA is an unincorporated nonprofit association such that it is exempt

from these requirements. See N. Iredell Neighbors for Rural Life v. Iredell County, 196 N.C.

App. 68, 674 S.E.2d 436 (2009) (dismissing neighborhood association that failed to comply with

§ 1-69.1). The Brunswick County Register of Deeds has confirmed that ROCCA has not made

any such recordation. (See Affid. Brenda Clemmons.) Accordingly, in addition to the reasons

set forth above, ROCCA should be dismissed from this action.

B. "ROCCA" Has Not Alleged a Specific Legal Interest in Property to Show Standing to Challenge the Rezoning (First Claim for Relief).

A corporation has standing to challenge a zoning ordinance in a declaratory judgment

action where either (1) the corporation "has a specific legal interest directly and adversely

affected by the zoning ordinance"; or (2) if "all of the members/shareholders of the corporation

have a specific legal interest directly and adversely affected by the zoning ordinance." Ne.

Concerned Citizens, Inc, v. City of Hickory, 143 N.C. App. 272, 276-77, 545 S.E.2d 768, 772

(2001) (emphasis added) (summary judgment where plaintiff lacked standing to challenge

zoning ordinance). There is no allegation that ROCCA, itself, maintains a legal interest in the

property subject to the rezoning, nor is there an allegation that all members of ROCCA maintain

a legal interest in the property that is subject to the rezoning. Nor is there any allegation that all

members of ROCCA have specific legal interest, highlighted by the fact that two individual

members of ROCCA are separate plaintiffs. Without those allegations, ROCCA does not have

standing and its claims must be dismissed for this additional reason.

30

CONCLUSION

For the reasons stated above, Defendant respectfully asks this Court to grant its Motion to

Dismiss and for any other relief the Court deems just and proper.

This the 9th day of August, 2012.

WOMBLE CARLYLE SANDRIDGE & RICE, LLP

Jacqu4iine Terry Hughes, NCSB No. 25884 Julie B. Bradburn, NCSB No. 31412 Womble Carlyle Sandridge & Rice, LLP 150 Fayetteville St., Suite 2100 P.O. Box 831, Raleigh, NC 27602 Telephone: (919) 755-2169, Fax: (919) 755-6176 Email: jbradburngwcsr.com Attorneys for Defendant Brunswick County

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CERTIFICATE OF SERVICE

I hereby certify that on August 9, 2012, I served a copy of the foregoing document entitled DEFENDANT BRUNSWICK COUNTY'S BRIEF IN SUPPORT OF MOTION TO DISMISS upon all parties to this action via email to their attorneys of record as follows:

Elizabeth McLaughlin Haddix, Esquire (via email) Peter Gilbert, Esquire (via email) Mark Dorosin, Esquire (via email) UNC Center for Civil Rights 101 East Weaver Street Campus Box 3382 Carrboro,NC 27510 emclaugh(7a,email. unc. edu pgilbertnerail.unc.edu dorosin@email.unc.edu

Raymond E. Owens, Jr., Esquire (via email) Higgins & Owens, PLLC 5925 Carnegie Blvd Ste 530 Charlotte, NC 28209 rowens(Zl higginsowens.com

Jack Holtzman, Esquire Fair Housing Project, Legal Aid of NC (via email) Post Office Box 28068 Raleigh, NC 27611 jack ,nciustice.org

Attorneys for Plaintiff

Jacquel ne Terry Hughes, NCSB No. 25884 Julie B. Bradburn, NCSB No. 31412 Womble Carlyle Sandridge & Rice, LLP 150 Fayetteville St., Suite 2100 P.O. Box 831, Raleigh, NC 27602 Telephone: (919) 755-2169, Fax: (919) 755-6176 Email: jbradburn@wcsr.com Attorneys for Defendant Brunswick County

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