In Applewood Properties, LLC v. New South Properties, LLC, Case # 161A12 decided June 13, 2013, the North Carolina Supreme Court reviewed a suit arising out of the flooding of a golf course with mud, water and other debris. The Plaintiff filed suit under the North Carolina Sedimentation Pollution Control Act of 1973 (N.C.G.S. § 113A-50 et seq.). Construction and soil disturbing activity had taken place on property adjoining a golf course pursuant to an erosion and sedimentation control plan approved by the Gaston County Natural Resources Department. (GNRD) On more than one occasion, the GNRD had issued a “Notice of Non-Compliance” for failure to comply with the approved plan.
As a result of damage to the golf course, a suit was filed against the contractor and land owner asserting claims of negligence, nuisance, trespass, violations of the SPCA, negligence per se and intentional misconduct and gross misconduct. The trial court granted the Defendants’ motion for summary judgment on the SPCA claim and denied motions as to the other claims. The Plaintiffs appealed the trial court’s order granting the motion for summary judgment on the SPCA claim.
The Court of Appeals affirmed the trial court’s order dismissing the SPCA claim, concluding that the SPCA did not apply because “a land-disturbing activity requires an element of deposition into a body of water and there was no evidence in this case that sediment had been deposited into a body of water.”
The case was appealed to the North Carolina Supreme Court and the Court concluded that the Plaintiffs lacked standing to bring an SPCA claim. Emphasizing that N.C.G.S. § 113A-66(a) refers to any person injured by a violation of any ordinance, rule or order adopted by local government or approved plan is authorized to bring suit under the SPCA, the Court noted that there had been no citation for any violation.
The Court concluded that the legislature could have used the word “non-compliance” or other broad terms to describe the conduct necessary to trigger a cause of action but chose not to use such terms. The Court characterized the term “violation” as narrow and held that the legislature did not intend to make a Defendant subject to civil liability pursuant to the SPCA if the Defendants’ actions had not risen to the level of violation.
The opinion of the Supreme Court is a blow to efforts to control erosion and sedimentation in North Carolina. Even though the Court found that there had been repeated warnings about violations, neither Defendant was issued a “notice of violation” before the suit was brought.
The decision makes it much more difficult for persons injured by careless or indifferent developers to recover damages under the SPCA. Unless the county agency can be persuaded to issue a notice of violation no cause of action arises.
The lawyers at Cannon Law, P.C. are experienced in pursuing claims on behalf of parties who have suffered property damage or personal injury resulting from development on adjoining property. Although the Supreme Court has made it more difficult to recover under the SPCA, there are other causes of action that may be asserted. If you or your property has been injured as a result of construction, contact Cannon Law, P.C. as soon as possible in order to protect your rights under North Carolina law.