State appellate court rules in favor of Carolina Beach and Publix in two-year Harris Teeter…

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The State Court of Appeals ruled in favor of Publix and the Town of Carolina Beach against Harris Teeter (Port City Daily/Michael Praats)

CAROLINA BEACH — It has been more than two years since the Town of Carolina Beach granted Publix permission to construct its store on the island, and more than two years since the developers of the proposed Harris Teeter have been fighting that decision — but it appears the legal battle is coming to a close.

The North Carolina Court of Appeals has ruled in favor of the town and Publix affirming the decision made in Superior Court that the town had not erred in issuing a permit to Publix.

So how did two grocery giants end up fighting over some land in a little beach town? It goes back years.

A long story…

Jubilee Carolina LLC is the developer and property owner of the Harris Teeter site (for simplicity this article will refer to this company as Harris Teeter and the respondents as the town and Publix). Despite promising a new grocery store on the island for years, nothing has ever come to fruition.

You can take a deep dive into the lawsuit over those unfilled promised here: Lawsuit alleges Harris Teeter never wanted Carolina Beach store, only to force residents across the bridge

A sign in a vacant, sometimes overgrown lot is all there is on the Harris Teeter property.

In February of 2017, Publix developers came before the Town Council requesting a permit to construct a store at the now-demolished Federal Point Shopping Center site. But Harris Teeter, which was represented by former State Senator Michael Lee, requested the town require interconnectivity between the two lots — a suggestion Publix refused.

Ultimately, Publix was granted the permit and Harris Teeter began its battle.

“On 8 February 2018, Jubilee filed a petition for writ of certiorari before the New Hanover County Superior Court seeking review of the decision to grant the CBDC Permit––specifically, asserting that the Town acted arbitrarily and capriciously, that the decision was not supported by substantial evidence, and that Jubilee had a statutory vested right to interconnectivity in its conditional use permit,” according to court documents.

Judge R. Kent Harrell ruled against Harris Teeter prompting the company to file an appeal at the state level.

Related: Harris Teeter asks court to revoke Federal Point Shopping Center permit

“Thus, on this record, the superior court properly applied the whole record test and did not err in finding and concluding that the Town Council’s decision was based on competent, material, and substantial evidence in the record and was not arbitrary and capricious,” the decision reads.

Appeals from the appellate court to the North Carolina Supreme Court are only allowed by right when there has been a dissenting opinion from a member of the three-judge panel. In this case, there was no dissent: Judges Stroud and Collins are listed as the concurring judges on the appeals case and both affirmed the lower court’s decision. The state Supreme Court does sometimes hear appeals from unanimous decisions at its discretion.

The entire decision can be found below.

18-1108-1 by Michael Praats on Scribd

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