State appeals court sides with Town of Carolina Beach over permit

Harris Teeter gets another one-year extension in Carolina Beach. (Photo: Matt Bennett/WWAY)

CAROLINA BEACH, NC (WWAY) — The long drawn-out legal battle between a proposed Harris Teeter and the Town of Carolina Beach may be over, after the NC Court of Appeals sided with a lower court’s ruling over a permit the Town of Carolina Beach issued to the developer of a competing grocery store.

According to the Opinion of the Court that was published Tuesday by the NC Court of Appeals, justices affirm that the superior court did not err in their ruling.

- Advertisement -

The case involved a conditional use permit the Town of Carolina Beach approved for Carolina Beach Development Company (CBDC) to develop a Publix grocery store in a shopping center owned by Wilmington Holding Company, which is adjacent to property owned by Jubilee Carolina.

On February 15, 2017, Jubilee applied for a conditional use permit to construct a Harris Teeter grocery store on its property. The application included a proposed site plan that included interconnectivity to access points between Wilmington Holding Company’s property and Jubilee’s property.

At a hearing held in April of 2017, Town Council approved Jubilee’s site plan and granted a conditional use permit.

Meanwhile, CBDC entered into a contract with WHC to purchase WHC’s property, adjacent to Jubilee’s proposed Harris Teeter site, and redevelop that property for a Publix grocery store.

In November of 2017, CBDC applied for a conditional use permit that excluded interconnectivity to Jubilee’s property. The Carolina Beach planning and zoning commission reviewed the application and recommended approving it, on the condition CBDC provide interconnectivity to Jubliee’s property once it was developed.

Two months later, Town Council held a public hearing for consideration of CBDC’s application. At the hearing, Jubilee stated its approval of CBDC’s application, if there was interconnectivity between their two properties.

However, CBDC indicated it did not intend to provide interconnectivity as the proposed Harris Teeter was an “economic competitor” and they would withdraw their application to build a Publix if interconnectivity was required.

Town Council ultimately approved CBDC’s permit, but did not adopt the planning and zoning commission’s recommendation to include interconnecitivty to Jubilee’s property, finding that “interconnectivity was not required under the Town’s ordinance.”

A month following council’s decision, Jubilee filed a petition for writ of certiorari, asking New Hanover County Superior Court to review the Town’s decision to grant the permit to build a Publix, claiming Jubilee had a statutory vested right to interconnectivity in its conditional use permit.

In May of 2018, a Superior Court judge found that Jubilee’s vested rights argument was not properly before the superior court, and upheld the decision to grant the CBDC permit  without interconnectivity.

Jubilee appealed.

In its appeal, Jubilee argued that the permit favored CBDC’s interests over Jubilee. Jubilee also claimed that it acquired a statutory vested right to interconnectivity and Town Council failed to consider that vested right before granting the CBDC permit.

The Town of Carolina Beach argued that Jubilee failed to assert the vested rights argument before Town Council, therefore, the appeals court does not have jurisdiction to analyze the issue.

In other words, a superior court judge and the appellate court can only review the evidence presented to the town board and whether the conditional use permit was properly denied. Because Jubilee never brought up the issue of vested rights to Town Council, the Court could not consider the argument of vested rights.

Jubilee only raised the issue of vested rights for the first time before superior court and not at the CBDC permit hearing before Town Council and it was “improper for Jubilee to assert the issue for the first time before the superior court,” the Opinion states.

Jubilee also argued that the superior court erred in affirming the Town’s decision to grant the permit because findings of fact were not supported and the council’s decision was arbitrary and capricious. Justices disagreed.

In March of 2019, an attorney for Harris Teeter asked for and received a one-year extension, saying the proposed store will have to be redesigned because they needed access to the Publix parking lot for delivery trucks.

The extension expires April of 2020.

The Publix opened in Carolina Beach in June.