Town of Nags Head v. Tillett

315 S.E.2d 740 (1984)

TOWN OF NAGS HEAD v. Robert C. TILLETT; Zenova P. Tillett; Bradford Neil Loy; Peter L. Marshall and wife, Flora Costin Marshall; Dorothy Hand Wagoner and husband, James L. Wagoner, Sr.; Richard L. Russakoff and wife, Rise Gury Russakoff; James T. Ryce and wife, Susan Ryce; and E. Crouse Gray, Jr., Trustee.

No. 831SC789.

Court of Appeals of North Carolina.

June 5, 1984.

*742 Kellogg, White, Evans, Sharp & Michael by Thomas L. White, Jr., Manteo, for plaintiff-appellant.

Shearin & Archbell by Norman W. Shearin, Jr., Kitty Hawk, for defendants-appellees Loy, Marshall, Wagoner, Russakoff and Gray.

Leroy, Wells, Shaw, Hornthal & Riley by L.P. Hornthal, Jr., Elizabeth City, for defendants-appellees Ryce.

McCown & McCown by Wallace H. McCown, Manteo, for defendants-appellees Tillett.

ARNOLD, Judge.

The Town contends that the trial court erred in dismissing its declaratory judgment action and in ruling that it be enjoined from denying a building permit to defendants Ryce. We affirm the order as it dismisses the action. The Town is not empowered to obtain the relief it seeks. We vacate the judgment, however, as to its ruling enjoining the Town from denying the building permit.

The statute cited by the Town as authority for its action to invalidate the deeds and conveyances of defendants is G.S. 1-254, which states:

Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise, and obtain a declaration of rights, status, or other legal relations thereunder.

Although the Town is correct in its assertion that this statute permits the validity of a deed to be determined by a declaratory judgment action, we find that the Town went beyond the scope of any statutory authority in attempting to use such an action to have the various deeds in question declared null and void.

In the case of Farthing v. Farthing, 235 N.C. 634, 70 S.E.2d 664 (1952), the Supreme Court of North Carolina stated:

The Declaratory Judgment Act, G.S. Ch. 1, Art. 26, is designed to provide an expeditious method of procuring a judicial decree construing wills, contracts, and other written instruments and declaring the rights and liabilities of parties thereunder. It is not a vehicle for the nullification of such instruments. Id. at 635, 70 S.E.2d at 665.

Although in Farthing the Court was presented with the question of whether the Declaratory Judgment Act could properly be used to nullify a will, rather than a deed, we find the same rationale applies where a deed is asked to be declared "void, illegal and of no force and effect." Had the Town merely attempted to seek a declaration of the rights and liabilities of the parties with regard to the property in question this action may have been appropriate. To request the court to find that the conveyances are void as a matter of law, however, is beyond the scope of the Declaratory Judgment Act.

The statute which embodies the penalties for transferring lots in an unapproved subdivision is G.S. 160A-375, which provides:

If a city adopts an ordinance regulating the subdivision of land as authorized herein, any person who, being the owner or agent of the owner of any land located within the jurisdiction of that city, thereafter subdivides his land in violation of the ordinance or transfers or sells land by reference to, exhibition of, or any other use of a plat showing a subdivision of the land before the plat has been properly approved under such ordinance and recorded in the office of the appropriate register of deeds, shall be guilty of a misdemeanor.... The city may bring an action for injunction of any illegal subdivision, transfer, conveyance, or sale of land, and the court shall, upon *743 appropriate findings, issue an injunction and order requiring the offending party to comply with the subdivision ordinance.

We find that the Town's attempt to use this statute to nullify the deeds in question is misplaced. A case which sheds some light on this issue is Marriot Financial Services v. Capital Funds, 288 N.C. 122, 217 S.E.2d 551 (1975). In that case the plaintiff sought to rescind a conveyance from the defendant on the grounds that it was illegal and void because in violation of the Raleigh subdivision ordinance. In holding that the enabling legislation for that ordinance did not intend to invalidate conveyances of real property, the North Carolina Supreme Court stated the following:

Pursuant to the ordinance, anyone who described any land in a deed by reference to a subdivision plat which has not been properly approved and recorded is guilty of a crime, punishable as a misdemeanor. The offense is expressly designated, and punishment for its violation clearly stated. The General Assembly has carefully designated the offense, the offender, and the penalty and has made specific provisions to insure enforcement. The inference is "that the Legislature has dealt with the subject completely and did not intend, in addition thereto, that the drastic consequences of invalidity should be visited upon the victim of the offender by mere implication." To hold that the enactment, either expressly or by plain implication, indicates a legislative intent to invalidate the sale of property absent compliance with the subdivision ordinance would visit upon the unfortunate purchasers "a penalty far greater than, and out of all proportion to, the penalty imposed upon the wrongdoer himself." Id. at 134-35, 217 S.E.2d at 559-60 (quoting In re Estate of Peterson, 230 Minn. 478, 42 N.W.2d 59 (1950)).

Applying the Court's analysis to the case at bar, we conclude that G.S. 160A-375 does not provide the Town with a means of having the conveyances declared void and without force and effect.

Perhaps anticipating an unfavorable ruling, the Town sought in its declaratory judgment action not only to nullify the deeds, but also to enjoin defendants and their successors from conveying any of the property in a manner that would violate the subdivision ordinance. We find, however, that, again, G.S. 160A-375 provides no relief.

It is established law that an injunction will not lie to restrain an act which already has been completed at the time of the institution of the action. Nicholson v. State Education Assistance Authority, 275 N.C. 439, 168 S.E.2d 401 (1969). Since the conveyances complained of by the Town already had been completed at the time the action was filed, there was no act which the Town could rightfully have enjoined. In fact, similarly to the statute which is the subject of Marriot, supra, G.S. 160A-375 provides that those defendants alleged to have violated the subdivision ordinance may be guilty of misdemeanors. If so, the appropriate remedy for the Town is to have these defendants charged with misdemeanors in criminal court.

Moreover, the language of G.S. 160A-375 permitting the Town to seek an injunction "requiring the offending party to comply with the subdivision ordinance" is necessarily limited to any threatened future subdivisions or conveyances of the property. Since there is no suggestion in the record that any of defendants Marshall, Wagoner or Ryce, the current owners, intend to further subdivide the land, we must find that the statute is of no help to the Town in this action.

It appears to this Court that the Town is simply seeking to accomplish a result which it lacks the power to achieve. In fact, we are somewhat puzzled as to why the Town decided to undertake this action. Once defendants Ryce's request for a building permit was denied there was no need for further action by the Town, unless, of course, it wanted to file criminal charges as permitted by G.S. 160A-375. In fact, it would appear that any action involving *744 these parties would most logically have been initiated by defendants Ryce as a result of the Town's denial of their application for a building permit.

In conclusion, we find that the order of the trial court is affirmed as to its finding that the Town has failed to state a claim upon which relief could be granted. That portion of the judgment, however, which orders that the Town is "permanently enjoined from denying the defendants Ryce a building permit for their said property, or otherwise interfering with the lawful use of said property" is vacated. The Town may take "any appropriate action" under G.S. 160A-389 in order to prevent unlawful construction in violation of its subdivision ordinance. In the case at bar, the lot of defendants Ryce does not front along a public street for a distance of at least 50 feet as is required by Section 17-29(c) of the Town's subdivision ordinance. Furthermore, the lot does not abut a street having a width of not less than 20 feet and a right-of-way width of at least 40 feet as is required by Section 17-27. Perhaps most significantly, the subdivision of the lots making up the Tillett tract, including the lot of defendants Ryce, was never submitted to and approved by the Town as is required by Section 17-11 of the Town subdivision ordinance. This lot clearly did not meet the standards of the subdivision ordinance of the Town of Nags Head. In view of this fact, it was error for the trial court to require the Town to issue a building permit to defendants Ryce.

The order of the trial court is, therefore, affirmed as it dismisses the action and vacated as it enjoins the Town from denying the building permit to defendants Ryce.

Affirmed in part and vacated in part.

HEDRICK and PHILLIPS, JJ., concur.