Court orders Currituck to allow completion of mega-house on OBX

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Shown here is a picture of Elizabeth LeTendre's rental house, as presented in the real estate market via the Internet. A Superior Court judge has told Currituck County she can be allowed to complete work on the structure while her lawsuit against the county is pending.

Bobby Hanig.jpg

By William F. West
Staff Writer

Sunday, July 9, 2017

COROLLA – A New England woman has won a ruling in Currituck County Superior Court allowing her, for the time being, to complete work on her massive ocean-side rental home in the off-road area of the Currituck Outer Banks.

In a 12-page preliminary cease-and-desist order handed down on June 5, Judge Walter Godwin told the county to rescind both a September 2016 stop-work order against Elizabeth LeTendre and a February notice of violation against her.

Additionally, Godwin said once LeTendre’s crews finish work on the house, which he said is approximately 95 percent complete, the county cannot withhold issuing her an occupancy certificate or any other approvals for the house.

Godwin, in his ruling, said LeTendre has the right to develop her property as she wishes, unless there is a valid zoning regulation prohibiting her from doing so. He also said she spent substantial amounts of money in relying on approval of a building permit issued by the county in the spring of 2015.

LeTendre, of Needham Heights, Mass., in late March filed a lawsuit in Superior Court against the county. The county is calling for the court to dismiss the suit, while LeTendre’s opposing neighbors, Marie and Michael Long, have filed papers with the court seeking to intervene.

No trial date is set in the civil case, but as part of the lawsuit, LeTendre’s attorneys, Gregory Wills of Grandy and Benjamin Sullivan of Charlotte, sought to get Currituck Superior Court to lift the stop-work order.

Judge Godwin on May 30 heard arguments from LeTendre’s attorneys, as well as from County Attorney Ike McRee, and Godwin also received extensive written affidavits from both sides.

LeTendre attorney Wills, when reached by phone recently about Godwin's ruling, said, “I can tell you my client is very pleased and feels vindicated by it.”

“We believe that that's what required under the law – and we believe it's what the county was aware of and approved,” Wills said. “It's not like there was any misunderstanding about what was happening.”

County Commission Chairman Bobby Hanig, when reached by phone recently, said he is “extremely disappointed” with Godwin's ruling.

“It's unfortunate that the judge didn't take time to read the information that was put in front of him,” Hanig said. “And by all accounts, it was very evident that he did not take the time to do that.”

Additionally, Hanig said he believes Godwin overruled an N.C. Court of Appeals judge who ruled in the LeTendre matter slightly more than a year ago and who is supposed to be above Godwin in judicial authority in the state.

“I don't know that that's legal,” Hanig said.

The case became a complex and lengthy one after LeTendre in April 2012 purchased the approximately 3½-acre off-road site just north of Malbon Drive. 

At first, she planned to build a house consisting of three separate wings, each slightly less than 5,000 square feet in size, with a 60-foot setback from the waterfront. That would put her in compliance with N.C. Coastal Management Act (CAMA) regulations.

Her plan called for the house to have uncovered and unenclosed decking.

Currituck Planning and Community Development Director Ben Woody advised LeTendre her plan would not qualify her house as a single-family structure and would not put her in line with the county's Unified Development Ordinance (UDO). Woody proposed the wings be connected with enclosed and air conditioned and heated hallways.

LeTendre amended her plan, which satisfied Woody, who in November 2013 signed a confirming letter.

The Longs, arguing they believed the house would not be a single-family dwelling, appealed to the Currituck Board of Adjustment, which upheld Woody’s letter. The Longs responded by going to Currituck Superior Court, which affirmed the adjustment board’s vote.

In December 2014, the Longs appealed to the N.C. Court of Appeals.

Godwin, in his ruling earlier last month, said the Longs, in appealing to the court in Raleigh, did not seek an order halting the Superior Court’s ruling that had upheld the adjustment board’s vote in favor of Woody's letter.

In March 2015, LeTendre sought and received a building permit from the county. 

Godwin, in his ruling earlier last month, described the situation he believed she faced at the time.

“LeTendre's decision to proceed with construction in the spring of 2015 was a reasonable decision based on the circumstances,” he said.

“Those circumstances required her to make a judgment call and to choose between two options that each carried risk and potential negative consequences,” he said.

Godwin said LeTendre faced “substantial harm” if she did not begin construction at that time. He said this included her likely losing her construction loan, as well as being unable to secure another loan.

He also said her home would have become at least $400,000 more expensive to construct if she delayed work.

LeTendre began construction in 2015 and the work continued into the first half of 2016.

In June 2016, a three-judge panel of the appellate court declared the county government had incorrectly permitted the LeTendre project. The appellate judges ruled they believe the house is comprised of three buildings and, as a result, does not fit the county UDO’s definition of a single-family dwelling.

Godwin said as a result of the appellate court’s decision, Currituck’s government now interprets the UDO as requiring the wings of the LeTendre house to be structurally dependent on each other to qualify as a single-family dwelling.

Godwin noted, however, the wings cannot be made structurally dependent because that would put the LeTendre house out of compliance with the CAMA requirement to have structurally independent wings.

Additionally, Godwin said he believes the provisions in the county’s UDO regarding the LeTendre case are an attempt to regulate matters already governed by the N.C. Building Code.

“Nothing in the building code requires the foundations of LeTendre’s home to be structurally integrated and nothing in the building code requires the wings of her home to be structurally dependent,” he said.

“The UDO provisions that bar her home from being a single-family detached dwelling therefore require her home to be constructed in a way that the building code does not require,” he said.

Godwin also went on to rule that LeTendre, as a result of being unable to complete the house and earn income from the property, has defaulted on her construction loan. He said her lender now has the power to call in the full amount of the loan at any time and for any reason.

“Meanwhile, the loss of this income from her home is irreparable because at the conclusion of this action, the amount of income that she had lost could not be calculated with sufficient certainty to allow her to be adequately compensated,” he said.

Godwin said he believes that is because there are no comparable rental properties in the area one can use to calculate LeTendre’s lost income with reasonable certainty.

In her lawsuit, LeTendre said she paid $530,000 for the property and has spent more than $4.6 million in construction costs.  

In the suit, she estimates she would have likely lost more than $1 million in rental income had she first waited for the ruling from the N.C. Court of Appeals.