Property Rights Advocacy Group v. Town of Long Beach

LEVINSON, Judge.

Plaintiffs appeal from declaratory judgment entered 28 May 2004. For the reasons that follow, their appeal is dismissed.

In August 1998 the North Carolina General Assembly enacted Session Law 1998-83 (“Long Beach Act”), authorizing the Town of Long Beach to “pass ordinances providing for the development and operation of parks on municipal streets ... that dead-end on beaches, waterways, and at the ocean.” Thereafter, the Town of Long Beach enacted an ordinance (“first local ordinance”), designating as “public parks” all street ends that “dead-end into waterways in the Town of Long Beach.”

On 17 June 2002 plaintiffs filed a complaint against defendants, alleging, inter alia, that both the Long Beach Act and the first local ordinance violated N.C. Const. Art. II, § 24. Plaintiffs sought a declaratory judgment in accord with their legal position, and a permanent injunction prohibiting the Town from developing public street-end parks. Defendants denied that the Long Beach Act or the first local ordinance were unconstitutional.

On 31 January 2003, the trial court entered an order declaring in pertinent part that neither the Long Beach Act nor the local ordinance violated the North Carolina Constitution. Plaintiffs’ appeal to this Court was dismissed as interlocutory, see Prop. Rights Advocacy v. Beach, 163 N.C. App. 205, 592 S.E.2d 619 (2004) (unpublished opin*182ion). Plaintiffs then filed a motion for a permanent injunction and a declaratory judgment, both pertaining to the first local ordinance. In an order entered 28 May 2004 the trial court denied plaintiffs’ motion for a permanent injunction, declared both the Long Beach Act and the first local ordinance to be constitutional, and awarded costs to defendants. Plaintiffs timely appealed from this order.

On 13 July 2004, while plaintiffs’ appeal was pending, the Town repealed the first local ordinance, replacing it with a new ordinance (“second local ordinance”). The second local ordinance recognized the Town’s duty to follow relevant statutory and administrative procedures, and did not close any streets or create street-end public parks. Defendants later sought dismissal of plaintiffs’ appeal, arguing that it was rendered moot by repeal of the first local ordinance. Plaintiffs have opposed dismissal.

The issue of whether plaintiffs’ appeal should be dismissed implicates interconnected issues of jurisdiction, standing, and mootness. Plaintiffs argue that several issues regarding the constitutionality of the Long Beach Act, and the determination of their rights if the town creates street-end parks in the future, “remain ripe before this Court.” We disagree.

“Jurisdiction in North Carolina depends on the existence of a jus-ticiable case or controversy.” Creek Pointe Homeowner’s Ass’n v. Happ, 146 N.C. App. 159, 164, 552 S.E.2d 220, 225 (2001). “ ‘To satisfy the jurisdictional requirement of an actual controversy, it must be shown in the complaint that litigation appears unavoidable. Mere apprehension or the mere threat of an action or suit is not enough.’ ” State ex rel. Utils. Comm’n v. Carolina Water Serv., Inc., 149 N.C. App. 656, 658, 562 S.E.2d 60, 62-63 (2002) (quoting Wendell v. Long, 107 N.C. App. 80, 82-83, 418 S.E.2d 825, 826 (1992)).

Standing is another prerequisite to jurisdiction. “If a party does not have standing to bring a claim, a court has no subject matter jurisdiction to hear the claim.” Estate of Apple v. Commer. Courier Express, Inc., 168 N.C. App. 175, 177, 607 S.E.2d 14, 16 (citing Neuse River Found., Inc. v. Smithfield Foods, 155 N.C. App. 110, 113, 574 S.E.2d 48, 51 (2002)), disc. review denied, 359 N.C. 632, 613 S.E.2d 688 (2005). “ ‘Standing refers to whether a party has a sufficient stake in an otherwise justiciable controversy such that he or she may properly seek adjudication of the matter.’ ” Street v. Smart Corp., 157 N.C. App. 303, 305, 578 S.E.2d 695, 698 (2003) (quoting American *183Woodland Industries v. Tolson, 155 N.C. App. 624, 626, 574 S.E.2d 55, 57 (2002)). Accordingly, “[standing to challenge the constitutionality of a legislative enactment exists where the litigant has suffered, or is likely to suffer, a direct injury as a result of the law’s enforcement.” Maines v. City of Greensboro, 300 N.C. 126, 130-31, 265 S.E.2d 155, 158 (1980).

“Whenever, during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law.” In re Peoples, 296 N.C. 109, 147-48, 250 S.E.2d 890, 912 (1978). Repeal of a challenged law generally renders moot the issue of the law’s interpretation or constitutionality. See State v. McCluney, 280 N.C. 404, 407, 185 S.E.2d 870, 872 (1972) (holding that “repeal of [statute] renders moot the question of its constitutionality” and that “constitutionality of the [new] Act does not arise on this appeal[, and] . . . will be decided if and when it is presented.”).

The parties agree that the Town’s first local ordinance is no longer before this Court. Defendants argue that the relief sought by plaintiffs, a declaration that the first local ordinance is unconstitutional, “may not be granted in a declaratory judgment action where the ordinance no longer exists.” Plaintiffs concede the “Town’s repeal of the First ordinance removes it as an issue for consideration by this Court.” We conclude that issues pertaining to the first local ordinance are no longer before us.

We also conclude that the constitutionality of the Long Beach Act is not before us because there is no justiciable case or controversy concerning the Long Beach Act.

As discussed, the first local ordinance is no longer an issue. As the parties have conceded, the validity of the first ordinance necessarily relied upon the validity of the Long Beach Act. The second local ordinance does not create any public parks or close any public streets, and is not the subject of this litigation. Notwithstanding plaintiffs’ generalized concern that the municipality may, in the future, rely upon the Long Beach Act in such a way as to adversely affect their constitutional rights, such hypothetical circumstances do not constitute a justiciable case or controversy. And we are unpersuaded that the constitutionality of the Long Beach Act, standing alone, is, on the present facts, a cause for the courts. We conclude that there is no *184longer a justiciable case or controversy between the parties. Accordingly, this Court lacks subject matter jurisdiction to review the constitutionality of the Long Beach Act.

Finally, we conclude that the trial court’s award of costs was not preserved for appellate review. Plaintiffs assigned error to the award of costs solely on the grounds that there was no motion before the court asking for costs, and that the court had “no statutory authority” to tax costs to plaintiffs. Plaintiffs did not argue either issue in their appellate brief. “Questions raised by assignments of error . . . [but not] discussed in a party’s brief, are deemed abandoned.” N.C.R. App. P. 28(a).

For the reasons discussed above, we conclude that plaintiffs’ appeal must be

Dismissed.

Judge McGEE concurs. Judge HUNTER dissents.