ALBEMARLE — After a two-year battle with the owners and managers of the Heart of Albemarle Hotel, the City of Albemarle lost another court decision, this time at the N.C. Court of Appeals. The state’s second highest court, in a July 16 opinion, upheld a lower court ruling that the city did not have standing to sue the hotel because the city council did not first pass a resolution to approve the legal action, as is required by statute. The owners filed a countersuit in federal court on June 27, 2019.
Chucky Nance, a native of Albemarle, has owned the hotel with his wife, Jennifer, since 2012. The Nances used the property as a low-income, long-term rental location for part of that period. According to the city’s lawsuit, from January 2014 to April 2017, local law enforcement visited the site 79 times to deal with complaints of illegal activity.
Albemarle Police Chief R.D. Bowen sent a letter to Nance saying the property was in violation of the nuisance statute and demanded the nuisance be abated within 45 days, according to court documents.
The hotel complied with the letter, evicting their low-income tenants and terminating the manager, Charlene Smith, from her role overseeing the property. These actions were completed by April 21, 2017, before the 45-day period was over.
Four months after the property had been cleared, on Aug. 4, 2017, the city filed a lawsuit against the Nances, Smith, lenders Nancy Dry and First Bank, and deed of trust trustees James A. Phillips and Kristen Foyles alleging the hotel property was a “general nuisance.”
The case was tried in Stanly County Superior Court where the city voluntarily dismissed its claims against Phillips and Dry. The court dismissed the city’s claims against First Bank, Foyles and Smith and ultimately found that the city had no standing to bring the case because the city filed the case without first having the Albemarle City Council pass a resolution approving the action. According to statue cited by the court, a city can bring a nuisance complaint against a member of the community, but only after a resolution on the matter has been approved by the city council.
“The City conceded, and the trial court found as fact, that no such resolution had been presented to, heard, or adopted by the council,” the Court of Appeals opinion read.
The Nances did not contest that the city had the right to bring a nuisance claim, but only that they could do so without first passing a city council resolution. The city claimed they discussed the issue with the council in an off-the-record meeting and believed it was a law enforcement matter that didn’t need council approval.
“Everything we’ve done on an issue like that has been done in executive session, and I cannot even discuss it,” Albemarle City Council member Chris Bramlett told Stanly County Journal.
Mayor Ronnie Michael also declined comment, saying, “I can’t talk about it now, because we still have pending litigation.” Michael said it would depend on council decision whether or not there will be further legal action taken, and he expects that decision to be made shortly.
The city had also appealed the Superior Court’s dismissal of the case against Smith. The Court of Appeals upheld that dismissal determining that “Smith was no longer employed by nor a tenant or leasee of the Nances, was not present at the hotel, and was a private citizen when the Plaintiff brought its claim.”
The Court of Appeals opinion, which was authored by Judge John Tyson, with Judge Lucy Inman and Judge Reuben Young concurring for a unanimous decision, upheld the lower court’s earlier decision to dismiss the city’s claims against the Nances, saying, “The City’s arguments are overruled. The trial court’s order is affirmed.”
The Nances and Smith may not be free from further legal action on the subject depending on what the city decides to do on further appeals.
A countersuit by Chucky and Jennifer Nance was filed on June 27, 2019, against the City of Albemarle, Mayor Ronnie Michael, Planning Director Kevin Robinson, Police Chief Danny Bowen and Meredith Shoaf. The suit, which claims civil rights violations by the city, was filed in federal district court in North Carolina’s Middle District and will be heard by Judge William Osteen.