Can a municipality grant a license to a private group to erect a guardhouse in a public right of way on land that the group does not own? The answer, according to the N.C. Court of Appeals, is no. In reaching its conclusion, the appellate court overturned a lower-court ruling allowing a guardhouse operated by a local homeowners association on the public right-of-way in Hickory.
In 1985, Moore’s Ferry Development Corporation built the first of two subdivisions called the Landing at Moore’s Ferry. Years later, a second subdivision with the same name was built in the same general area. Despite having the same name, the two residential areas did not originally connect to each other. By 1999, however, a proposal was before Hickory City Council to extend 42nd Avenue Drive, N.W. and link up the two developments. The homeowner’s association of the original Landing at Moore’s Ferry opposed the road, arguing that the two subdivisions were too dissimilar.
While the road extension was ultimately approved, city council reached agreement with the homeowner’s association about an alternative means of distinguishing the original subdivision. The city licensed the homeowners association to put up a guardhouse and operate it as a visitor’s information center at the new entrance. The guardhouse would be in the city’s right-of-way on property still owned by Moore’s Ferry Development Corporation. The company objected to this arrangement and sued, arguing that the city had no authority to enter into the license such a guardhouse. After losing in superior court, the company moved for review by the Court of Appeals.
N.C. General Statue § 160A-296(a)(6) allows cities to “regulate, license, and prohibit digging in the streets, sidewalks, or alleys, or placing therein or thereon any pipes, poles, wires, fixtures, or appliances of any kind either on, above, or below the surface.” Hickory argues that from this it has the authority to approve the guardhouse, as it qualifies as either a fixture or an appliance.
The Court of Appeals, however, found fault with this argument. Under the facts of the case, the court held that the guardhouse was not a fixture. In a legal sense, a fixture is “personal property that is attached to land or a building and that is regarded as an irremovable part of the real property.” The licensing agreement between the city and homeowners association provided that the guardhouse had to be removed after 90 days notice.
The court also held that a guardhouse cannot be considered an appliance, as the city also has argued.
“As we conclude that the structure is neither an appliance nor a fixture, N.C. Gen. Stat. § 160A-296(a)(6) does not provide defendant with statutory authority to permit Homeowners’ Association to build in the street right-of-way, ” wrote Judge Alan Thornburg for the court.
The Court of Appeals also rejected the argument that the city could approve the argument under its powers to grant easements. The court noted that an easement passes an interest in land, which is precisely what licensing agreement did not do.
The case is Moore’s Ferry Dev. Corp. v. City of Hickory, (03-1271).