Town of Nags Head v. Cherry, Inc.
723 S.E.2d 156
N.C. Ct. App.2012Background
- Plaintiff filed a 2010 verified complaint accusing defendant’s dwelling of structural damage and unsafe habitation since 2008, with conditions including utilities, sewage, erosion, and location on public trust land; Town manager declared the dwelling a public nuisance and gave 18 days to abate.
- Town Manager’s inspection enumerated deteriorated condition, lack of utilities, damaged sewage disposal, erosion, and location on wet beach/public trust area, supporting a nuisance finding and abatement demand.
- Plaintiff sought an abatement order compelling demolition/removal at defendant’s expense or allowing town entry to abate at defendant’s expense.
- Defendant moved to dismiss under Rule 12(b)(1) and (6); counterclaimed for inverse condemnation; plaintiff moved for summary judgment.
- Trial court denied 12(b)(1) motion, denied 12(b)(6) motions, and granted partial summary judgment on abatement under Town Ordinance 16-31(6).
- This appeal challenges the public trust standing to pursue abatement and the sufficiency of the nuisance/abatement grant under the local ordinance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Public trust standing to pursue abatement | Plaintiff contends it acts as a governmental agency, not enforcing State rights, and may bring action | Only the State, via the Attorney General, may enforce public trust rights; Town lacks standing | Rule 12(b)(1) dismissal affirmed (standing lacking); action dismissed as to public trust claim |
| Whether there is a genuine issue of material fact for nuisance under Town Ordinance 16-31(6)(b) | Plaintiff produced evidence showing a likelihood of injury from the dwelling’s condition | There is conflicting evidence on feasibility of reconstruction and risk; summary judgment improper | Summary judgment improper; material fact question exists; remand for proceedings on nuisance under 16-31(6)(b) |
Key Cases Cited
- Fabrikant v. Currituck Cty., 174 N.C. App. 30, 621 S.E.2d 19 (2005) (public trust rights require state action through Attorney General)
- Neuse River Found., Inc. v. Smithfield Foods, Inc., 155 N.C. App. 110, 574 S.E.2d 48 (2002) (only the State may bring public trust actions in representative capacity)
- Fish House, Inc. v. Clarke, 204 N.C. App. 130, 693 S.E.2d 208 (2010) (private parties may use public trust doctrine as a defense; State prosecutes offensively)
- Department of Transportation v. M.M. Fowler, Inc., 361 N.C. 1, 637 S.E.2d 885 (2006) (eminent domain principles and just compensation discussed in public trust context)