Town of Midland v. Harrell

IN THE SUPREME COURT OF NORTH CAROLINA

No. 120A22

Filed 20 October 2023

TOWN OF MIDLAND, a North Carolina municipal corporation

v.
TONEY L. HARRELL and T.L. HARRELL’S LAND DEVELOPMENT COMPANY,
INC., a North Carolina business corporation

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 282 N.C. App. 354 (2022), affirming in part and reversing in

part orders entered on 17 August 2020 and 18 December 2020 by Judge Martin B.

McGee in the Superior Court, Cabarrus County, and remanding the case. Heard in

the Supreme Court on 14 March 2023.

Anthony Fox, Daniel Peterson, and Jasmine Little for plaintiff-appellee Town
of Midland.

Scarbrough, Scarbrough & Trilling, PLLC, by James E. Scarbrough and John
F. Scarbrough, for defendants-appellants Toney L. Harrell and T.L. Harrell’s
Land Development Company, Inc.

ALLEN, Justice.

The primary issue in this case is whether the Town of Midland satisfied certain

procedural requirements of state law and its own ordinances in filing a lawsuit

against defendant developers over their failure to repair the streets in a subdivision

located within the Town’s corporate limits. We hold that the Town complied with the

relevant provisions, and we therefore affirm the judgment of the Court of Appeals.

I. Background
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Opinion of the Court

Defendants Toney L. Harrell and T.L. Harrell’s Land Development Company

are the developers of Bethel Glen, a residential subdivision located inside the

corporate boundaries of the Town of Midland. In an earlier round of litigation,

defendants challenged a notice of violation (NOV) issued by the Town’s zoning

administrator on 18 March 2014. Harrell v. Midland Bd. of Adjustment (Midland I),

251 N.C. App. 526, 2016 N.C. App. LEXIS, at *8–9 (2016) (unpublished). The NOV

alleged that the subdivision’s streets were “in a state of continuous deterioration”

that could “pose a potential threat to public safety.” According to the NOV, the poor

condition of the streets violated the requirement in the Midland Development

Ordinance (MDO) that developers “maintain streets until acceptance by adoption of a

resolution accepting the street(s) for public maintenance.”

Defendants sought review by the Town’s board of adjustment, which upheld

the NOV. Id. at *9. After an appeal to the Superior Court, Cabarrus County, resulted

in an order affirming the board’s decision, defendants took their case to the Court of

Appeals. Id. On 30 December 2016, the Court of Appeals issued its opinion in Midland

I, affirming the trial court’s order and concluding that, because the Town had never

assumed responsibility for the subdivision’s roads, defendants remained under a

“continuing responsibility to maintain [those] roads.” Id. at *17, *21. On 8 June 2017,

this Court denied defendants’ petition for discretionary review. Harrell v. Midland

Bd. of Adjustment, 369 N.C. 751, 800 S.E.2d 418 (2017).

While defendants’ appeal in Midland I was pending at the Court of Appeals,

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Opinion of the Court

the Town’s zoning administrator issued civil citations to defendants on 14 October

2016, 10 December 2016, and 11 December 2016 imposing civil penalties of $100.00,

$300.00, and $500.00, respectively. Each citation alleged that the roads in Bethel

Glen remained in need of repair and stated that each day’s continuing violation of the

MDO constituted “a separate and distinct offense.” Thereafter, the zoning

administrator issued defendants a civil citation with a $500.00 civil penalty every day

from 12 December 2016 until 16 January 2017.

On 17 January 2017, the zoning administrator sent defendants a demand

letter informing them that they owed civil penalties totaling $18,900.00. The letter

threatened defendants with litigation unless they paid the civil penalties and brought

the subdivision’s roads into compliance with the MDO within thirty days. Defendants

took no action in response to the letter, and the zoning administrator issued

additional citations.

On 22 June 2017, the Town filed suit against defendants in the Superior Court,

Cabarrus County, seeking a mandatory injunction and an order of abatement

requiring defendants to repair the subdivision’s roads. The complaint further

requested that the court order defendants to pay the Town a total of $97,400.00 in

civil penalties, “plus interest, costs and attorneys’ fees as allowed by law.” In

calculating defendants’ civil penalties, the Town added to the $18,900.00 allegedly

due as of 17 January 2017 further penalties of $500.00 per day for each day between

17 January 2017 and 22 June 2017, the filing date of the action. The parties

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Opinion of the Court

subsequently filed motions for summary judgment. Before the trial court ruled on the

motions, defendants filed a motion to dismiss the complaint for lack of subject matter

jurisdiction pursuant to Rule 12(b)(1) of the Rules of Civil Procedure. The motion to

dismiss asserted that the trial court lacked subject matter jurisdiction because the

Town Council had not voted to authorize the lawsuit against defendants. On 10

September 2019, the Town Council passed a resolution “retroactively approv[ing] and

ratif[ying] the filing of the Complaint effective June 22, 2017.”

In two orders dated 17 August 2020, the trial court denied defendants’

summary judgment motion but granted the Town’s summary judgment motion and

entered a mandatory permanent injunction and an order of abatement that

essentially directed defendants to bring the roads in the Bethel Glen subdivision into

compliance with standards promulgated by the North Carolina Department of

Transportation. Defendants filed a notice of appeal to the Court of Appeals from those

orders. They also filed a motion for relief with the trial court, again claiming that it

lacked subject matter jurisdiction over the Town’s complaint. The motion for relief

further asserted that defendants were entitled to recover attorney’s fees from the

Town under N.C.G.S. § 6-21.7 because the Town had unlawfully continued to assess

civil penalties while defendants’ appeal in Midland I was pending.1

1 In their motion for attorney’s fees, defendants relied on the following language in

N.C.G.S. § 6-21.7 (2020): “In any action in which a city or county is a party, upon a finding
by the court that the city or county violated a statute or case law setting forth unambiguous
limits on its authority, the court shall award reasonable attorneys’ fees and costs to the party
who successfully challenged the city’s or county’s action. . . .”

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The trial court entered an order on 18 December 2020 denying the motion for

relief and noting that the Town had agreed to dismiss all civil penalties assessed prior

to this Court’s 8 June 2017 denial of defendants’ petition for discretionary review in

Midland I. Defendants filed a notice of appeal from the trial court’s order denying

their motion for relief.

On 15 March 2022, a divided panel of the Court of Appeals affirmed “the trial

court’s entry of summary judgment in the Town’s favor regarding civil penalties.”

Town of Midland v. Harrell, 282 N.C. App. 354, 370 (2022). The Court of Appeals

majority rejected defendants’ argument that the trial court lacked subject matter

jurisdiction. Under the majority’s reading of the MDO, the “Town Council was not

required to adopt a resolution before the Town filed its complaint.” Id. at 361–62.

The trial court’s mandatory permanent injunction and abatement order did not

survive appellate scrutiny, however. The Court of Appeals majority concluded that

the order was not detailed enough to satisfy Rule 65(d) of the Rules of Civil Procedure,

which requires “[e]very order granting an injunction . . . [to] be specific in terms” and

to “describe in reasonable detail, and not by reference to the complaint or other

document, the act or acts enjoined or restrained[.]” N.C. R. Civ. P. 65(d). The majority

remanded the order to the trial court with instructions that it “make further findings

of fact identifying the specific NCDOT standards that [defendants] ha[d] failed to

meet and . . . provide a specific decree for repairs necessary to bring the roads into

compliance.” Town of Midland, 282 N.C. App. at 368.

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Finally, the Court of Appeals majority reversed the trial court’s denial of

defendants’ request for attorney’s fees. The majority agreed with defendants that

state law did not allow the Town to impose civil penalties while defendants’ appeal of

the NOV was pending.2 Id. at 369. Although the Town later dismissed the penalties

unlawfully assessed during that period, its action did “not relieve the Town of its

liability [under N.C.G.S. § 6-21.7] for [defendants’] attorney’s fees incurred contesting

those penalties.” Id. at 370. The majority therefore remanded the matter so that the

trial court could “determine and make appropriate findings regarding what attorney’s

fees [defendants] reasonably incurred in challenging the civil penalties imposed

during the pendency of their first appeal.” Id.

The dissenting judge at the Court of Appeals would have held that the Town

2 In reaching this conclusion, the majority relied on the version of N.C.G.S. § 160A-

388(b1)(6) in effect during the pendency of defendants’ appeal in Midland I: “An appeal of a
notice of violation or other enforcement order stays enforcement of the action appealed from
unless the official who made the decision certifies to the board of adjustment after notice of
appeal has been filed that because of the facts stated in an affidavit, a stay would cause
imminent peril to life or property or because the violation is transitory in nature, a stay would
seriously interfere with enforcement of the ordinance.” N.C.G.S. § 160A-388(b1)(6) (2017).
The General Assembly subsequently repealed and recodified the provision as
N.C.G.S. § 160D-405(f): “An appeal of a notice of violation or other enforcement order stays
enforcement of the action appealed from and accrual of any fines assessed . . . .” An Act to
Clarify, Consolidate, and Reorganize the Land-Use Regulatory Laws of the State, S.L. 2019-
111, § 2.4, 2019 N.C. Sess. Laws 424, 459 (Reg. Sess. 2020). This language was further
amended by S.L. 2020-25, §10, 2020 N.C. Sess. Laws 152, 165 (2019) and S.L. 2022-62, §59(a),
2022 N.C. Sess. Laws. 72, 103–04 (Reg. Sess. 2022) and currently reads: “An appeal of a
notice of violation or other enforcement order to the board of adjustment and any subsequent
appeal in accordance with [N.C.]G.S. [§] 160D‑1402 stays enforcement of the action appealed
from and accrual of any fines assessed during the pendency of the appeal or during the
pendency of any civil proceeding authorized by law or related appeal.” N.C.G.S. § 160D-405(f)
(2023).

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lacked standing to file its complaint against defendants because the Town Council

did not adopt its resolution authorizing the lawsuit before the complaint was filed.

Id. at 371, 376–77 (Tyson, J., concurring in part and dissenting in part). In reaching

this conclusion, the dissenting judge noted that “subject matter jurisdiction is

determined by ‘the state of affairs existing at the time it is invoked.’ ” Id. at 376

(quoting Shearon Farms Townhome Owners Ass’n II v. Shearon Farms Dev., LLC,

272 N.C. App. 643, 655 (2020), disc. rev. denied, 377 N.C. 566 (2021)).

The dissenting judge agreed with the majority that the mandatory permanent

injunction and abatement order did not satisfy Rule 65(d) and that the Town was

liable for attorney’s fees. Id. at 377–78, 380. He argued, though, that the Court of

Appeals should reconsider whether defendants remained responsible for the roads in

the Bethel Glen subdivision. See id. at 379 (“The Town has collected ad valorem taxes

from [defendants] and the property owners of Bethel Glen subdivision since bringing

the subdivision into the Town’s limits. The Town cannot now shirk its maintenance

and repair obligations for normal wear and tear to the streets and shift them onto

[defendants].”).

On 19 April 2022, defendants filed a notice of appeal with this Court based on

the dissent in the Court of Appeals. See N.C.G.S. § 7A-30(2) (2021) (“[A]n appeal lies

of right to the Supreme Court from any decision of the Court of Appeals rendered in

a case . . . [i]n which there is a dissent when the Court of Appeals is sitting in a panel

of three judges.”). Because the dissenting judge agreed with the majority’s decision to

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remand the mandatory permanent injunction and abatement order and the attorney’s

fees issue to the trial court, the only matters before us are (1) the trial court’s subject

matter jurisdiction over the Town’s complaint and (2) defendants’ continued

responsibility for the roads in the Bethel Glen subdivision. See N.C. R. App. P. 16(b)

(“When the sole ground of the appeal of right is the existence of a dissent in the Court

of Appeals, review by the Supreme Court is limited to a consideration of those issues

that are (1) specifically set out in the dissenting opinion as the basis for that dissent,

(2) stated in the notice of appeal, and (3) properly presented in the new briefs . . . filed

in the Supreme Court.”).

II. Standard of Review

“Because standing is a question of law, we review the issue de novo.” Violette

v. Town of Cornelius, 283 N.C. App. 565, 569 (2022), disc. rev. denied, 384 N.C. 33

(2023). When reviewing a matter de novo, this Court “considers the matter anew and

freely substitutes its own judgment” for that of the lower courts. In re Greens of Pine

Glen Ltd. P’ship, 356 N.C. 642, 647 (2003).

III. Analysis

In their principal brief to this Court, defendants contend that the trial court

should have dismissed the Town’s lawsuit for lack of standing. According to

defendants, N.C.G.S. § 160A-12 required the Town Council to adopt a resolution

authorizing the lawsuit before the Town filed the complaint against defendants.

Defendants argue that, even if it were possible for the Town Council to delegate

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Opinion of the Court

approval authority to the zoning administrator, the MDO contains no such

delegation. They observe that the particular MDO provision under which the Town

proceeded does not expressly authorize the zoning administrator to initiate civil

actions. Defendants further argue that they should no longer bear responsibility for

the roads in the Bethel Glen subdivision. They allege that “the Town expressly agreed

to take over maintenance of the roads once it had confirmation that the roads had

been built to NCDOT standards [and t]he requested confirmation from NCDOT was

provided to the Town in [a] district engineer’s letter of April 25, 2006.”

In arguing that it had standing to file suit against defendants, the Town points

out that N.C.G.S. § 160A-12 allows a city council to act by ordinance or resolution.

When viewed in context, the Town insists, the pertinent MDO provisions clearly did

not require Town Council approval before the zoning administrator referred the

matter of defendants’ nonpayment of civil penalties to the Town’s attorney for

institution of a civil action. Additionally, because the Court of Appeals ruled in

Midland I that defendants remained responsible for the roads in the Bethel Glen

subdivision, the Town argues that defendants should be barred from raising that

issue in this case.

A. The Town’s Standing to File a Civil Action Against Defendants

“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.” Am. Woodland Indus. v. Tolson, 155 N.C. App. 624, 626 (2002). As we have

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explained elsewhere, “[t]he standing requirements articulated by this Court are not

themselves mandated by the text of the North Carolina Constitution.” Cmty. Success

Initiative v. Moore, 384 N.C. 194, 206 (2023). Rather, “[t]his Court has developed

standing requirements out of a ‘prudential self-restraint’ that respects the separation

of powers by narrowing the circumstances in which the judiciary will second guess

the actions of the legislative and executive branches.” Id. at 206–07 (quoting Comm.

to Elect Dan Forest v. Emps. Pol. Action Comm., 376 N.C. 558, 599 (2021)).

If a plaintiff does not have standing to assert a claim for relief, the trial court

lacks subject matter jurisdiction over the claim. Willowmere Cmty. Ass’n, Inc. v. City

of Charlotte, 370 N.C. 553, 561 (2018). “[S]tanding is measured at the time the

pleadings are filed.” Quesinberry v. Quesinberry, 196 N.C. App. 118, 123 (2009). In

other words, a plaintiff must have standing at the time of filing to have standing at

all. Subsequent events cannot confer standing retroactively. See Simeon v. Hardin,

339 N.C. 358, 369 (1994) (“When standing is questioned, the proper inquiry is

whether an actual controversy existed ‘at the time the pleading . . . is filed.’ ” (quoting

Sharpe v. Park Newspapers of Lumberton, Inc., 317 N.C. 579, 584 (1986))); Sharpe,

317 N.C. at 585 (“[T]he basic rule [is] that ‘the jurisdiction of a court depends upon

the state of affairs existing at the time it is invoked.’ ” (quoting In re Peoples, 296 N.C.

109, 144 (1978))).

In arguing that the Town lacked standing to file its complaint, both the dissent

in the Court of Appeals and defendants emphasize that the Town Council did not

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adopt a resolution authorizing the action until two years after the complaint was filed.

Town of Midland, 282 N.C. App. at 377 (Tyson, J., concurring in part and dissenting

in part). According to them, the Town’s failure to obtain the Town Council’s approval

prior to filing deprived the trial court of subject matter jurisdiction over the

complaint. We disagree.

“In North Carolina there is no legal distinction between a city, a town, or a

village. Each is a municipality . . . .” David M. Lawrence, An Overview of Local

Government, in County and Municipal Government in North Carolina 5 (2d ed. 2014).

Municipalities are entirely creations of the General Assembly and have only those

powers delegated to them by legislative enactments.3 King v. Town of Chapel Hill,

367 N.C. 400, 404 (2014). Such legislative enactments can take the form of local acts

or laws of statewide application.

Many of the statewide laws granting powers to municipalities reside in

Chapter 160A (titled “Cities and Towns”) of the General Statutes. See, e.g.,

N.C.G.S. § 160A-174(a) (2021) (“A city may by ordinance define, prohibit, regulate, or

abate acts, omissions, or conditions, detrimental to the health, safety, or welfare of

its citizens and the peace and dignity of the city, and may define and abate

nuisances.”). At the time of the events giving rise to this litigation, Chapter 160A

3 To create a municipality, “[t]he General Assembly incorporates an area by enacting

a local bill consisting of a charter for the new city [or town or village] and a description of
the . . . initial boundaries [of the city, town, or village].” Frayda S. Bluestein, Incorporation,
Annexation, and City-County Consolidation, in County and Municipal Government in North
Carolina 16 (2d ed. 2014).

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included extensive provisions conferring an array of powers on municipalities over

zoning and other land development matters. In 2019, the General Assembly enacted

legislation recodifying those provisions as Chapter 160D (titled “Local Planning and

Development Regulation”). See An Act to Clarify, Consolidate, and Reorganize the

Land-Use Regulatory Laws of the State, S.L. 2019-111, 2019 N.C. Sess. Laws 424,

439–539, as amended by An Act to Complete the Consolidation of Land-Use

Provisions into One Chapter of the General Statutes as Directed by S.L. 2019-111, as

Recommended by the General Statutes Commission, S.L. 2020-25, 2019 N.C. Sess.

Laws 152, 165 (Reg. Sess. 2020).

Chapter 160A likewise endows municipalities with substantial authority to

enforce their ordinances through criminal or civil proceedings. In general, if the text

of an ordinance so provides, a violation of the ordinance constitutes a Class 3

misdemeanor. N.C.G.S. §§ 14-4(a), 160A-175(b) (2021). On the civil side, “[a]n

ordinance may provide that violation [of its requirements] shall subject the offender

to a civil penalty to be recovered by the [municipality] in a civil action in the nature

of debt if the offender does not pay the penalty within a prescribed period of time.”

Id. § 160A-175(c). When an ordinance prohibits a condition on or use of real property,

a municipality may respond to violations by asking the proper court to issue “a

mandatory or prohibitory injunction and order of abatement commanding the

defendant to correct the unlawful condition . . . or cease the unlawful use.” Id. § 160A-

175(e). Because an ordinance “may provide, when appropriate, that each day’s

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continuing violation shall be a separate and distinct offense,” an offender who refuses

to correct a violation risks multiple criminal charges and mounting civil penalties. Id.

§ 160A-175(g).

Of particular importance to this case are the mechanisms by which

municipalities may exercise the regulatory and enforcement powers bestowed on

them by the General Assembly. According to N.C.G.S. § 160A-12, “[a]ll powers,

functions, rights, privileges, and immunities of the corporation shall be exercised by

the city council and carried into execution as provided by the charter or the general

law.” N.C.G.S. § 160A-12 (2023). When “[a] power, function, right, privilege, or

immunity . . . is conferred or imposed by charter or general law without directions or

restrictions as to how it is to be exercised or performed[, it] shall be carried into

execution as provided by ordinance or resolution of the city council.” Id.

In arguing that N.C.G.S. § 160A-12 required the Town Council to adopt a

resolution approving the lawsuit against defendants, both the dissent in the Court of

Appeals and defendants cite State ex rel. City of Albemarle v. Nance, 266 N.C. App.

353 (2019). There a private attorney claiming to represent the city filed a lawsuit

against the defendants alleging that their hotel constituted a public nuisance under

Chapter 19 of the General Statutes. City of Albemarle, 266 N.C. App. at 354. The trial

court granted the defendants’ motion to dismiss the lawsuit because the lawsuit had

not been authorized by a vote of the city council. Id. at 355. A panel of the Court of

Appeals unanimously affirmed. Id. at 360–62. The city’s ordinances stated that “the

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Council” could employ outside legal counsel. Id. at 359. Reading this ordinance

provision alongside N.C.G.S. § 160A-12, the Court of Appeals concluded that, “[i]n

order to bring suit through outside counsel, the city council must adopt a resolution.”

Id. at 361. Inasmuch as “[t]he City failed to follow the requirements of the statutes

and ordinances in effect or to provide evidence of outside counsel’s authority to file

suit on its behalf . . . [t]he trial court properly concluded [that] it lacked subject matter

jurisdiction to address the City’s claims against the [defendants].” Id. at 362.

This Court is not bound by City of Albemarle, but we do not read that decision

to hold that a municipality’s elected governing board must always act by resolution

to authorize a lawsuit. Section 160A-12 allows the board to act “by ordinance or

resolution.” (Emphasis added.) As the Court of Appeals majority in this case correctly

remarked, the city lost in City of Albemarle because, “[p]ursuant to its ordinances,

[the city council] was required to adopt a resolution to bring suit through outside

counsel.” Town of Midland, 282 N.C. App. at 362 (emphasis added). Hence, even if

we assume that City of Albemarle was rightly decided, no resolution by the Town

Council was needed to authorize the lawsuit in this case if the MDO allowed the Town

to file suit against defendants without one. We must therefore turn our attention to

the text of the MDO.

“The rules applicable to the construction of statutes are equally applicable to

the construction of municipal ordinances.” Cogdell v. Taylor, 264 N.C. 424, 428

(1965). Accordingly, when a court is called upon to interpret a municipal ordinance,

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“[t]he basic rule is to ascertain and effectuate the intention of the municipal

legislative body.” George v. Town of Edenton, 294 N.C. 679, 684 (1978). If the words

of the ordinance “are plain and unambiguous, the court need look no further” in

search of legislative intent. Westminster Homes, Inc. v. Town of Cary Zoning Bd. of

Adjustment, 354 N.C. 298, 304 (2001). On the other hand, “if the language is unclear,

judicial construction may be required.” Id. Judicial construction typically involves

examining the ordinance’s other provisions or the text of related ordinances for

evidence of what the ambiguous provision was intended to accomplish. See George,

294 N.C. at 684 (“We must therefore consider this section of the ordinance as a whole,

and the provisions in pari materia must be construed together[.]” (citations omitted)).

Here the key MDO provision in dispute reads in pertinent part:

If payment [of a civil penalty] is not received or equitable
settlement reached within thirty (30) days after demand
for payment is made, the matter shall be referred to legal
counsel for institution of a civil action in the appropriate
division of the General Courts of Justice for recovery of the
civil penalty. Provided, however, if the civil penalty is not
paid within the time prescribed, the Planning, Zoning, &
Subdivision Administrator may have a criminal summons
or warrant issued against the violator.

Town of Midland, N.C., Dev. Ordinance art. 23, § 23.7-6 (2021) [hereafter

nonpayment provision] (first emphasis added).

The use of the passive voice in the first sentence of the nonpayment provision

creates the need for judicial interpretation. The first sentence declares that at a

certain point the matter of nonpayment “shall be referred” to legal counsel for the

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filing of a lawsuit, but the text does not expressly assign responsibility for making

the referral. Id. Given this omission, we must look to other parts of the MDO for

guidance as we attempt to identify which official, if any, the Town Council

contemplated would make the referral.

When the nonpayment provision’s first and second sentences are read together,

they strongly imply that the duty of making the referral belongs to the zoning

administrator. The second sentence endows the zoning administrator with discretion

over whether to pursue criminal charges against offenders who fail to pay their civil

penalties. This is significant authority that the Town Council cannot have granted

lightly. Unquestionably, then, the Town Council had the zoning administrator in

mind when it adopted the nonpayment provision.

Other sections in Article 23 (titled “Administration and Enforcement”) of the

MDO reinforce this view. Perhaps most tellingly, subsection 23.2-1 provides: “Unless

specifically set forth otherwise in this ordinance, the Town of Midland [zoning

administrator] shall be the Enforcement Officer with the duty of administering and

enforcing the provisions of this Ordinance.” Id. § 23.2-1 (emphases added). Consistent

with this general assignment of responsibility, the zoning administrator’s primary

duties listed in subsection 23.2-2 include “enforc[ing] the provisions of [Article 23]”

and “us[ing] the remedies provided in [Article 23] to gain compliance.” Id. § 23.2-2(H),

(J). The act of referring nonpayment of civil penalties to the Town’s attorney for the

institution of a civil action certainly qualifies as an attempt to enforce Article 23 and

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obtain compliance with its provisions. Since the nonpayment provision does not direct

anyone else to make the referral mandated by its first sentence, the duty of making

that referral lies by default with the zoning administrator.

In arguing to the contrary, defendants assert expressio unius est exclusio

alterius, “i.e., the expression of one thing is the exclusion of another.” Baker v. Martin,

330 N.C. 331, 337 (1991). Under this canon of statutory construction, “when a statute

lists the situations to which it applies, it implies the exclusion of situations not

contained in the list.” Evans v. Diaz, 333 N.C. 774, 780 (1993). Defendants note that

various provisions in Article 23 expressly invest the zoning administrator with

specific enforcement powers and duties. E.g., Town of Midland, N.C., Dev. Ordinance

art. 23, §§ 23.6-3 (zoning administrator may deny permits), 23.6-4 (zoning

administrator may condition permits), 23.6-5 (zoning administrator may issue stop

work orders), 23.6-6 (zoning administrator may revoke permits), 23.7-5 (zoning

administrator must make written demand for payment of civil penalty).

Consequently, according to defendants, “[h]ad the Town Council desired to delegate

its authority to institute civil actions in zoning matters, it could have easily done so

in the same manner as the other tasks assigned to the Zoning Administrator.”

Canons of construction are interpretive guides, not metaphysical absolutes.

They should not be applied to reach outcomes plainly at odds with legislative intent.

We disagree with defendants’ application of expressio unius est exclusio alterius to the

nonpayment provision, in part because, as we have already remarked, subsection

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23.2-1 unambiguously charges the zoning administrator with administering and

enforcing Article 23 except where Article 23 expressly assigns a particular task to

someone else. See, e.g., id. § 23.5-4 (board of adjustment to hear appeal from NOV

within thirty-six days of receiving appeal in writing). Moreover, defendants ignore

the fact that other sections in Article 23 also employ the passive voice. For instance,

under subsection 23.7-2, if a person who has violated the MDO “fails to take corrective

action within the prescribed period of time, a civil penalty may be imposed . . . in the

form of a citation.” Id. § 23.7-2 (emphasis added). Were we to adopt the same approach

to subsection 23.7-2 that defendants urge for the nonpayment provision, we would

have to conclude that the use of the passive voice in subsection 23.7-2 means that the

zoning administrator is prohibited from imposing the civil penalties authorized

therein, a thoroughly implausible interpretation.

In their reply brief to this Court, defendants quote N.C.G.S. § 160D-402, which

the General Assembly enacted in 2019 as part of its recodification of the statutes

governing local government regulation of land development. Although

N.C.G.S. § 160D-402 did not become law until after the Town filed its lawsuit in 2017,

defendants maintain that the statute should inform our analysis.

Section 160D-402 sets out a nonexclusive list of duties that may be assigned to

employees charged with administering and enforcing a county or municipal

development ordinance. These duties include “recommending bringing judicial

actions against actual or threatened violations.” N.C.G.S. § 160D-402(b) (2021).

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According to defendants, “[b]y enacting N.C.G.S. § 160D-402, the General Assembly

has expressed its intent that municipalities may only delegate to zoning

administrators the authority to ‘recommend bringing judicial actions.’ The Town has

never had the authority to delegate to its Zoning Administrator the power to

unilaterally initiate judicial actions.”

Accepting defendants’ reading of N.C.G.S. § 160D-402 for the sake of

argument, we perceive no grounds for holding that the Town lacked standing to sue

defendants. The nonpayment provision does not endow the zoning administrator with

“the power to unilaterally initiate” civil actions to recover unpaid civil penalties.

Under its terms, the zoning administrator merely refers the matter to the Town’s

attorney. It is the nonpayment provision itself—not the zoning administrator—that

requires the Town’s attorney to file a complaint against the offender.

The MDO authorized the Town to file suit against defendants without first

obtaining approval of the Town Council. There is no merit to defendants’ argument

that the Town lacked standing.

B. Responsibility for Road Maintenance in Bethel Glen

As explained above, a different panel of the Court of Appeals concluded in

Midland I that defendants remained responsible for maintaining the roads in the

Bethel Glen subdivision inasmuch as the Town “had not taken [that]

responsibility . . . from [defendants].” Midland I, 2016 N.C. App. LEXIS 1351, at *17.

Here the dissenting judge at the Court of Appeals attempted to revive the issue of

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defendants’ ongoing responsibility for the roads, and defendants in their primary

brief to this Court argue that the Court of Appeals majority erred by continuing to

impose that duty on them.

The Court of Appeals majority considered itself bound by the earlier panel’s

ruling, observing that the panel had based its decision “on the same record relied

upon by our dissenting colleague.” Town of Midland, 282 N.C. App. at 365.

This Court previously upheld the Town’s notice of violation
against [defendants] and concluded [defendants] have an
“ongoing obligation to maintain the subdivision streets
pursuant to [Town] ordinance.” In re Harrell, 251 N.C. App.
526, 2016 WL 7984233, at *5 (emphasis added). This
Court’s prior determination that [defendants], and not the
Town, are obligated to maintain the subdivision roads until
the Town has approved a petition by [defendants] to
assume responsibility, is binding on our decision today. See
N.C. Nat’l Bank v. Va. Carolina Builders, 307 N.C. 563,
567, 299 S.E.2d 629, 631-32 (1983) (“Once a panel of the
Court of Appeals has decided a question in a given case that
decision becomes the law of the case and governs other
panels which may thereafter consider the case. Further,
since the power of one panel of the Court of Appeals is equal
to and coordinate with that of another, a succeeding panel
of that court has no power to review the decision of another
panel on the same question in the same case.”).

Id. (third alteration in original).

We agree with the Court of Appeals majority that it was bound by Midland I.

Nothing in the record indicates that the Town agreed to accept responsibility for the

roads in the Bethel Glen subdivision after the panel in Midland I issued its decision

in 2016. Furthermore, the question of defendants’ ongoing responsibility for the roads

was not properly before the Court of Appeals in this case because defendants did not

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argue it in their brief to that tribunal. See N.C. R. App. P. 28(a) (“The scope of review

on appeal is limited to issues so presented in the several briefs. Issues not presented

and discussed in a party’s brief are deemed abandoned.”).

IV. Conclusion

The Town complied with state law and the MDO when it filed suit against

defendants over their failure to maintain the roads in the Bethel Glen subdivision.

The Court of Appeals majority rightly determined that it was bound by the prior

decision of another panel holding defendants responsible for those roads. We

therefore affirm the judgment of the Court of Appeals.

AFFIRMED.

Justice RIGGS did not participate in the consideration or decision of this case.

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