First Village Chapel Lawsuit Rejected; New One Filed
The Court of Appeals has rejected a lawsuit filed to stop approval of a 16,500-square-foot learning center to be built on Village Chapel property in the Village Green.
The dismissal comes on the heels of another lawsuit filed by three families in another attempt to stop development.
The most recent suit claims the defendants — the village of Pinehurst, Pinehurst Resort and The Village Chapel — have violated protections placed on the Village Green in the village center.
The attorney for the village says the new lawsuit filed by the same three families over development on the Village Green lacks merit.
“This is simply an effort to have a second bite at the apple because their first lawsuit on the identical issue was dismissed,” Village Attorney Mike Newman said.
The plaintiffs — Michael McCrann, Kelly McCrann, Henry Dirkmaat, Larilyn Dirkmaat, Robert C. Anderson and Anne M. Anderson — claim in the suit filed Sept. 27 in Moore Superior Court that the current owners of Pinehurst Resort didn’t inherit the same rights over the Village Green as previous owners had.
All three families own property near the Village Green.
In 1982, Diamondhead Corp. controlled the resort and gave two acres of the Village Green to The Village Chapel, with restrictions on the property that prohibits The Village Chapel from erecting a permanent structure on the site.
About 10 months later, Diamondhead gave the remaining 7.3 acres of the Village Green to the newly formed Pinehurst village government. That property also had similar restrictions.
ClubCorp (Pinehurst, Inc.) purchased the Pinehurst Resort in 1984 after Diamondhead (Pinehurst Inc.) went bankrupt.
The suit contends that in the bankruptcy the right to change any of the restrictions on the Village Green property was lost, and ClubCorp didn’t inherit those rights with the purchase of the resort.
About Dec. 8, 2008, Pinehurst, LLC — the current owner — signed a document that purports to release the condition that The Village Chapel may not erect any building or permanent structure on its property.
“They are not successors to Pinehurst Inc.,” Newman said of the complainants. “Under the deed that they are suing on, it (deed restrictions) is enforceable only by Pinehurst Inc. and its successors.
“We are the successors to Pinehurst Inc. They cite in the court of appeals case that there is a difference between Pinehurst Inc. and Pinehurst, Inc. and that’s absolutely correct, but what they didn’t include in the complaint is that the court of appeals, in the very next breath, said though they are separate companies existing at separate times, Pinehurst, Inc. is a successor to Pinehurst Inc. It’s already been ruled on, but they left that out.”
In August 2010, the Village Council voted unanimously to approve a special use permit allowing The Village Chapel to build a 16,500-square-foot learning center on the property after a series of public hearings. It would include 11 classrooms, a theater and a conference room.
Michael McCrann, himself a lawyer who lives near The Village Chapel, hired another lawyer and fought the expansion. He filed the first lawsuit in December to stop approval of the new building. Superior Court Judge James Webb ruled that opponents had filed their challenge a day too late.
On Tuesday, the N.C. Court of Appeals filed a written opinion upholding, without dissent, Webb’s ruling last December.
According to a summary of the case by the appeals court, McCrann left a telephone voice mail message on Aug. 25, 2010, requesting a copy of the final order for Newman, who had served as legal counsel for the village. The special use permit was granted by written order on Aug. 30, 2010. On that date, Newman mailed and faxed copies of the order to McCrann, according to the court.
McCrann received the mailed copy Sept. 2. On Sept. 30, the plaintiffs asked for a judicial review in Moore County Superior Court. On Oct. 12, the village filed a response contending that the opponents’ petition was filed too late to be considered.
A hearing was held Dec. 9, and Webb denied the opponents’ petition Dec. 28.
“The sole question before us is whether the trial court erred in denying the petition as time-barred,” the appeals court said in its ruling. “Because we conclude that the petition was not timely filed, we affirm.”
Leaving a telephone voice mail message isn’t good enough, the court said. It doesn’t meet legal requirements that no court has the power to waive.
“Any petition for review by the Superior Court shall be filed with the clerk of superior court within 30 days after the decision of the board is filed in such office as the ordinance specifies, or after a written copy thereof is delivered to every aggrieved party who has filed a written request for such copy with the secretary or chairman of the board at the time of its hearing of the case, whichever is later,” the appeals court said.
McCrann’s request for a copy of the Village Council’s order would have been on time if he had made a written “request for such copy with the secretary or chairman of the board at the time of its hearing of the case,” the court said. That would have put off the start of the 30-day filing period until he got a copy of the order.
“Indeed, petitioners acknowledge that they ‘did not strictly and technically’ follow the appeals procedure’ under the statute,” the court said.
But the plaintiffs contend that McCrann’s oral request via voice mail to Newman on Aug. 25 constituted “substantial compliance” with the statute, such that the 30-day filing period did not begin to run until McCrann received a copy of the order by mail Sept. 2.
“We are not persuaded,” the appeals court said.
McCrann’s request failed to comply with the statute in three ways, the court said. It was not made (1) in writing, (2) to “the secretary or chairman of the board” or (3) “at the time of its hearing of the case. Instead, McCrann’s request was made orally, to counsel who had represented Pinehurst in the hearing, and on the day after the hearing concluded.
The appeals court said that was not good enough. It said deadlines must be enforced even when they work to bar rightful claims, the court said, citing previous opinion in an Asheboro case.
“Statutes of limitations are inflexible and unyielding,” the ruling said. “They operate inexorably without reference to the merits of plaintiff’s cause of action. They are statutes of repose, intended to require that litigation be initiated within the prescribed time or not at all.
“The purpose of a statute of limitations is to afford security against stale demands, not to deprive anyone of his just rights by lapse of time. …
“In some instances, it may operate to bar the maintenance of meritorious causes of action. When confronted with such a cause, the urge is strong to write into the statute exceptions that do not appear therein. In such case, we must bear in mind Lord Campbell’s caution: ‘Hard cases must not make bad laws.’”
Webb had not a single day’s discretion when he had to consider whether this claim was barred by the statute of limitations.
“It is clear that a judge may not, in his discretion, interfere with the vested rights of a party where pleadings are concerned,” the court cited. “It is equally clear that the statute of limitations operates to vest a defendant with the right to rely on the statute of limitations as a defense.”
Even if the Court of Appeals applied a “substantial compliance” analysis to the requirements of the statute of limitations, McCrann and the others could not have prevailed.
“Petitioners not only failed to request the order in writing, they made the request to the wrong person and, even then, failed to make the request timely,” the court said.
Just because Newman and McCrann have a professional relationship of mutual courtesy does not mean there is any leeway in following statutory deadlines, the court said.
“Petitioners appear to suggest that professional and courteous conduct between counsel operates to waive statutory requirements,” the ruling said. “To be clear: it does not. We decline to hold that attorneys must take care not to be too cooperative, cordial, or professional in dealing with opposing counsel lest they inadvertently waive their clients’ statutory rights or protections. This argument is overruled, and the order of the trial court is affirmed.”
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