Center attorneys speak with ROCCA Clients at August 13 hearing in Brunswick County Superior Court
On August 13, 2012, CCR attorneys Elizabeth Haddix and Peter
Gilbert, with co-counsel Jack Holtzman of the Fair Housing Project of Legal Aid
of North Carolina on behalf the Royal Oak Concerned Citizens Association
(ROCCA), Curtis McMillian and Dennis McMillian, defended against Brunswick
County's motion to dismiss the ROCCA and McMillian claims filed over a year ago. Attorney Ray Owens from Higgens & Owens, PLLC is also co-counsel for Plaintiffs. Brunswick County is represented by the
law firm of Womble Carlyle Sandridge & Rice. Its motion to dismiss and several other
motions were heard before Judge Thomas Lock in Brunswick County Superior Court.
Senior Attorney Elizabeth Haddix and incoming
Community Development Fellow Bethan Eynon
talking with ROCCA president Lewis Dozier.
The County's principal alleged grounds for dismissal are
that ROCCA does not have standing to sue, and that Plaintiffs' state Fair
Housing Act claims fail because Plaintiffs did not first file an administrative
complaint with the North Carolina Human Relations Commission (HRC) and allow
that agency to complete an investigation before filing suit in court.
Plaintiffs' response is that the North Carolina Fair Housing
Act (NCFHA) allows a claimant both options: to file an administrative complaint
and/or file a complaint in court. The HRC also holds that same legal
opinion. (Read CCR's article, "The Exhaustion Requirement as a Barrier to Fair Housing Claims," published
in the Spring 2011 North Carolina State Bar Journal)
County attempted to characterize the lawsuit as being solely about the proposed
landfill, arguing that any claim concerning the landfill was rendered moot when
the Brunswick County Planning Board denied the County's application for a Special
Exception Permit. ("Brunswick County Planning Board's Denial of Landfill Permit is Final," May 11 post) The
County also argued that the controversy is not ripe until DENR issues final
permits for the landfill. Plaintiffs responded that the decision to place
another landfill in Royal Oak was but the latest act in a forty year pattern
and practice of discrimination challenged by the lawsuit, that Plaintiffs seek
remedies not only for the harm of the landfill, but for the denial of water and
sewer, the general rezoning, and decades of burdening the community with other
environmental hazards and unwanted land uses.
At the August 13 hearing, CCR and co-counsel also defended
against the County's Motion to Dismiss the complaint they filed in May, 2012 on
behalf of Mark Hardy, who cannot live in the home he owns in Royal Oak because
of the poor water quality, lack of access to public water and sewer, and
presence of the County's landfill and other unwanted land uses in Royal Oak.
Elizabeth Haddix and Bethan Eynon talk to ROCCA
resident and Plaintiff Curtis McMillan
ROCCA and the McMillians sought to add Mr. Hardy as a
plaintiff in their lawsuit, but that motion was denied in April, 2012. Mark Hardy therefore filed his own complaint,
alleging similar claims as those made by ROCCA and the McMillians under the
NCFHA, the Equal Protection Clause of the North Carolina Constitution, and
North Carolina's Environmental Justice Act, G.S. § 153A-136(c). Those claims assert that Brunswick County's
decisions to deny the plaintiffs access to water and sewer services, to rezone
land in their community from Rural Residential to Industrial General for the
purposes of expanding the existing landfill, as well as its decisions to
disproportionately burden Royal Oak with the County's solid waste facilities,
are all part of an historic pattern and practice of race discrimination.
The County moved to dismiss Mr. Hardy's complaint on res judicata grounds, arguing that the
denial of ROCCA's motion to add him as a plaintiff constitutes a final decision
on the merits of his NCFHA and Equal Protection claims. Mr. Hardy has responded that the doctrine of res judicata cannot apply where 1) Mr.
Hardy was not a party in the ROCCA motion, and 2) the denial of ROCCA's motion
to add him as a plaintiff does not, under North Carolina law, constitute a “final
decision on the merits” of his claims.
Royal Oak residents sitting outside the courtroom
before the hearing
The court also heard argument on Plaintiffs' Motion to Stay
the ROCCA litigation pending appeal of the July 7, 2012 Order denying
Plaintiffs access to information they believe to be crucial to proving their race
A decision from the August 13 hearing is expected within the
next week. Read Plaintiffs' motions and
Read more about Brunswick County through earlier posts on our blog.
Posted by Elizabeth M. Haddix on Wed. August 15, 2012 1:54 PM
Brunswick County, Community Inclusion, Environmental Justice, Fair Housing, Race Discrimination