N.C. Appeals Court rules against Currituck OBX mega-house
By William F. West
Sunday, June 3, 2018
CURRITUCK — The N.C. Court of Appeals has turned back a New England woman’s attempt to operate a massive ocean-side rental house in the off-road area of the northern Currituck Outer Banks.
A three-judge appellate panel, in a 73-page opinion issued on May 15, ruled against Elizabeth LeTendre in her lawsuit against Currituck County.
Appellate Judge Donna Stroud, joined by Judges John Arrowood and Mark Davis, reversed a decision by Superior Court Judge Walter Godwin, who in June 2017 had issued a preliminary cease-and-desist order in favor of LeTendre.
Stroud, in addition to stating Superior Court Judge Godwin erred in his ruling, ordered the case sent back to Currituck Superior Court for further proceedings.
Attorney Jonathan Hall of Raleigh, representing LeTendre on appeal, said Friday he intends to submit a petition to the N.C. Supreme Court for further review.
Superior Court Judge Godwin had rescinded a September 2016 stop-work order and a February 2017 notice of violation against Letendre, both issued by the county. Stroud, in her recent ruling, said she concluded LeTendre took “a calculated risk” to proceed with constructing the house, while earlier legal action by neighboring property owners Michael and Marie Long, against both LeTendre and the county, was pending before the appellate court.
The Longs have argued they believed LeTendre house was going to be comprised of three buildings and, as a result, wouldn't fit the definition of a single-family dwelling as specified in the Currituck Unified Development Ordinance.
In June 2016, a panel of three N.C. Court of Appeals judges sided with the Longs. Stroud issued the opinion in that case.
LeTendre, of Needham Heights, Mass., in April 2012, purchased the site, which is approximately 3½-acres and 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, with a 60-foot setback from the waterfront. That would put her in compliance with N.C. Coastal Management Act (CAMA) regulations.
Her plans called for the house to have uncovered and unenclosed decking. Ben Woody, who was Currituck’s planning and community development director at the time, advised LeTendre her plans wouldn’t conform to the UDO.
Woody proposed the wings be connected with enclosed and air conditioned and heated hallways. LeTendre amended her plans, which satisfied Woody, who in November 2013 signed a confirming letter.
The Longs 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. The couple next appealed to the Court of Appeals and got the favorable ruling in 2016.
Stroud, in her May 15 ruling, said LeTendre was warned – both by the attorney for the Longs and by then-Planning and Development Director Woody – about beginning construction before the appellate court handed down a ruling in the Long case.
“Plaintiff (LeTendre) knowingly chose to gamble that the order in Long would not be reversed and she lost that gamble,” Stroud said.
Stroud also dismissed an argument by LeTendre that either the county or the Longs should have sought an order from the judicial system against her to halt construction.
Stroud cited a 1986 N.C. Supreme Court case involving a zoning board of adjustment ruling as her reason why. The high court’s ruling in that case states the adjoining property owners shouldn't be called on to suffer to protect the financial investment of one who acts at risk with a warning of the possible consequences.
Letendre filed suit against the county in March 2017.
In the suit, she estimated had she waited for the appellate court to rule in the Long case, she would have likely lost more than $1 million in rental income. She also argued she had paid $530,000 for the property and had spent more than $4.6 million in construction costs.
Stroud, in her recent ruling, said, “The consequences of delaying construction may have also been harsh and plaintiff (LeTendre) had to make a difficult choice, but the choice was hers to make.”
Currituck Commission Chairman Bobby Hanig recently said over the phone he feels vindicated, as should fellow commissioners. Hanig also cited the difficulty of engaging in a public defense while the case was pending in the judicial system.
“And we just had to let that play out,” Hanig said. “And I commend the commissioners for holding fast in their decision to keep moving forward against the lawsuit.”
LeTendre attorney Hall countered Wednesday with a lengthy prepared statement.
Hall said the fact the county claims vindication with the recent appellate court decision is “deeply troubling” and argued he believed the county engaged in a “bait and switch.”
Hall said the county sat down with LeTendre at the beginning of the project and worked with her to develop plans that would comply with the county's own rules.
Hall also noted the plans being disputed are the exact ones on which the house was permitted and built.
Hall also expressed concern about what he believes is a dangerous legal precedent being set in the county suddenly changing its tune after having worked in lock step with a property owner.
“Do we really want to encourage scenarios where lawsuits and legal battles become the normal way of doing business? In this case, a three-year legal battle continues. The time has come for our county commissioners to lead the way and help us find a resolution,” Hall said.
County Attorney Ike McRee, reached by phone Thursday, was quick to counter Hall's argument.
“All that ignores a critical point, which is that the Court of Appeals in June 2016 said that the county and Ms. LeTendre were wrong,” McRee said.
Appellate Judge Stroud, in her recent ruling, noted after the ruling in 2016 in the Long case, both LeTendre and the county sought to find an acceptable revision to make the project fit within the UDO.
Stroud said possible changes were discussed.
She said they included moving the three buildings out of the CAMA setback area so they could be connected as one principal structure.
She also said they included re-configuring the side buildings to be smaller accessory buildings, with the middle building as the principal structure.
She said Letendre declined to make any changes.
Appellate Judge Stroud’s recent ruling can be viewed online at: https://caselaw.findlaw.com/nc-court-of-appeals/1895950.html