Coulter v. City of Newton , 100 N.C. App. 523 ( 1990 )

ARNOLD, Judge.

In their first assignment of error, plaintiffs contend the trial court erred in granting summary judgment to defendants and in dismissing plaintiffs’ claim based on an alleged violation of N.C. Gen. Stat. § 143-318.11 (1987), otherwise known as the “open meetings law.” Although plaintiffs filed the motion for summary judgment, thé trial court after reviewing the pleadings, exhibits, affidavits of plaintiffs and the record of the Board’s proceedings entered summary judgment for defendants. “When appropriate, summary judgment may be rendered against the party moving for such judgment.” Blades v. City of Raleigh, 280 N.C. 531, 544, 187 S.E.2d 35, 43 (1972).

A careful reading of plaintiffs’ pleadings and brief indicates that the only purpose of this action is to test the legality of the Board’s 2 August 1988 action granting the conditional use permit. Plaintiffs’ case rests entirely on their argument that the City “illegally contracted” to furnish water service to the Little property.

Defendants, by their motion to dismiss filed on 25 October 1988, raised a statute of limitations defense pursuant to N.C. Gen. Stat. § 143-318.16A(b) (1987) against the suit challenging the action taken in executive session. That statute provides in part: “A suit seeking declaratory relief under this section must be commenced within 45 days following the initial disclosure of the action that the suit seeks to have declared null and void . . . .” Id. (emphasis added).

It is clear at the 22 June 1988 public hearing plaintiffs gained knowledge of the 24 April letter, which referred to the “action” taken by the Board of Aldermen in its executive session on 3 February 1987. The letter was introduced into evidence and read at the June public hearing. Plaintiffs were present at the hearing and represented by counsel. Disclosure to plaintiffs of the action complained of therefore occurred on 22 June 1988, more than sixty days prior, to 1 September 1988, the date plaintiffs filed their complaint. Thus, plaintiffs’ suit is barred by G.S. § 143-318.16A(b), and the trial court properly granted defendants’ motion dismissing plaintiffs’ first cause of action. See Northampton County Drainage District Number One v. Bailey, 92 N.C. App. 68, 72, 373 S.E.2d 560, 563 (1988).

Next plaintiffs contend that the trial court erred by upholding the Board’s action in granting the Littles a conditional use permit. “In reviewing the sufficiency and competency of the evidence at the appellate level, the question is not whether the evidence before the superior court supported that court’s order but whether the evidence before the town board was supportive of its action.” Concrete Co. v. Board of Commissioners, 299 N.C. 620, 626, 265 S.E.2d 379, 383 (1980). Plaintiffs argue that in approving the permit defendant City erred in finding that the permit application met the requirements of the Newton City Code. See Newton, N.C. City Code, § 26-54 (1976). According to the Code, a permit applicant must show as a precondition for approval of a permit application that plans for water and sewer systems have been approved by state, county and city authorities. Newton City Code, § 26-54(c)(5). Plaintiffs contend that given the alleged illegality of the agreement between the City and Mr. Little reached during the executive session the Littles have not met the Code requirements.

Nevertheless, even if plaintiffs are correct that the waterline commitment made at the 3 February 1987 executive session violated the open meetings law, a contention we have not addressed here, it does not prevent defendant City from later committing itself to furnish water to the Littles’ property. After a lengthy public hearing in 1987, a lawsuit and another public hearing on 22 June 1988, all the facts pertinent to this case were publicly presented, including the City’s proposal to furnish a waterline to the Littles’ property. That proposal was approved and ratified by the Board of Aldermen through its adoption at the 2 August 1988 public meeting of the resolution granting the conditional use permit to the Littles under certain terms and conditions specified. Among those terms and conditions was the commitment by the City to furnish water to the property. Approval and adoption of the waterline commitment was implicit in the decision of the Board to grant the conditional use permit. Therefore, evidence concerning the City Code requirement for providing adequate water and sewer services to the mobile home park was before the Board when it granted the permit.

The judgment below is affirmed.

Affirmed.

Chief Judge HEDRICK and Judge GREENE concur.