State moves to dismiss affordable housing lawsuit filed by six Dare County towns

By on February 6, 2024

In the latest chapter of the legal fight over a state budget provision that restricts Dare County towns’ ability to regulate affordable housing, the office of North Carolina Attorney General Josh Stein has filed a motion to dismiss a lawsuit from those towns. Representatives of the municipal plaintiffs say that for now, that decision doesn’t generate major concerns nor require immediate action.

Amid widespread local anger over the measure that removes the towns’ authority to regulate affordable housing funded by $35 million in state money, all six Dare County towns filed suit in early October to challenge that provision.

In a statement released at that time, the plaintiffs asserted that the effect of the budget provision “is to require Plaintiffs to allow these Dare County Affordable Housing Projects to be constructed within a town or area of a private party’s choosing and to be completely exempt from certain zoning and regulatory controls that otherwise apply to all other development of property within Plaintiffs’ jurisdictions…”

Dare County itself was not part of the litigation. But on Jan. 2, the county commissioners passed a resolution stating the county would not use to that provision to try and build affordable housing projects—which is one of its top priorities.

“We certainly understand the position of our counterparts in the municipalities on potential sites that we have looked at,” said Dare County Commissioner Bob Woodard at the time. “And we certainly respect their position and what they’ve done.”

While the towns of Nags Head, Manteo and Kill Devil Hills had already rejected projects proposed by the county’s affordable housing development partners, the insertion of the budget provision further damaged the prospects for progress on the issue. The county has since opted for a new approach, convening the first meeting of a more broadly-based housing task force on Jan. 18.

In response to the attorney general’s motion to dismiss the suit, Nags Head Mayor Ben Cahoon said that “until a panel of judges is appointed, or there’s a reason for action, nothing happens.”

Two of the attorneys representing the plaintiff towns basically agreed that for now, the motion doesn’t change much.

“I am not concerned. Such motions are a common part of the judicial process,” said attorney Ben Gallop.

“By filing the Motion, the AG defending the case also gets to avoid responding to the factual allegations of the Complaint,” added attorney John Leidy. “Without specific factual response to the Complaint, we really know very little about the State’s position about our allegations in the lawsuit.”

Both men also stress the fact that the county did renounce the idea of using the contentious state budget item does not affect the towns’ lawsuit.

“While my client certainly appreciates the espoused intent of the County’s resolution, it’s unlikely that the resolution will actually result in the end of the lawsuit. Until a court strikes the legislation or the General Assembly repeals it, the legislation remains the law. Of course, the County could always join the suit with the towns and/or ask the General Assembly to repeal the legislation. That might accelerate the process,” said Gallup.

One thing we do know…is that the County’s resolution does not impact the existence of the Dare County Local Act that we are challenging,” noted Leidy.


  • Ann G. Sjoerdsma

    What towns do Gallop and Leidy represent?

    Tuesday, Feb 6 @ 3:55 pm
  • Mark Jurkowitz | Outer Banks Voice

    I think there are others, but Leidy is Nags Head and Gallop is Manteo.

    Tuesday, Feb 6 @ 4:27 pm
  • Sandy

    Local governments suing the state? These towns have been provided with bad legal advice. No matter what spin the lawyers try to put on it. They clearly don’t have an understanding of the state’s constitution nor the fact that NC is a Dillon Rule state. It makes no sense why a lawyer would call for the state to repeal a law when the state just filed a motion to dismiss the lawsuit as baseless. How does he have a license to practice law?

    Tuesday, Feb 6 @ 10:01 pm
  • Mark Jurkowitz | Outer Banks Voice

    Sandy, just for the record, the fact that the state filed a motion to dismiss the lawsuit does not necessarily mean that the suit will be dismissed.

    Wednesday, Feb 7 @ 8:36 am
  • G.L. Walters

    I don’t entirely understand all the pros/cons or ramifications of this bill or the complaints. But seems to me that as much as everyone realizes we need affordable housing, no one wants it in their backyard. To further the problem, we live on a sandbar with not a whole lot of backyards. Consequently, the problem doesn’t get solved. The Outer Banks isn’t the only place this happens.

    Wednesday, Feb 7 @ 7:36 am
  • Not a NIMBY issue

    This is not a NIMBY issue. Most people in Dare County would likely support housing that was owned by the employer and available only to their employees. County owned housing for county employees, town owned housing for town employees, hospital owned housing for hospital employees, etc. This would be housing that would truly be for our police officers, fire fighters, EMTs, etc. This already exists for US Park Service employees, Dare Education Foundation housing for school teachers, Kitty Hawk Kites housing for their employees, etc.

    The citizens of Dare County do not want taxpayer subsidized general occupancy housing that would be available to anyone from anywhere as long as they are below the income limits. A retired couple from Buffalo would get treated the same as a working couple from Manteo. These subsidized housing projects would encourage more non-locals and non-workers to move here which would increase the demand for local services and just make our local worker housing problems even worse.

    Wednesday, Feb 7 @ 9:21 am
  • Charles

    While we might not have alot of backyards on HI, they are doing their best to fill them with 8 bedroom beasts. Affordable living ?

    Only if you bring 30 people and stay for a week.

    Wednesday, Feb 7 @ 9:27 am
  • Wondering

    Commentary is appreciated, but could we have a link to the motion itself? Primary documents facilitate understanding.

    Wednesday, Feb 7 @ 10:02 am
  • Mark Jurkowitz | Outer Banks Voice

    The motion itself is literally a paragraph long. It asks for dismissal “due to a lack of subject matter jurisdiction, a lack of personal jurisdiction, failure to state a claim upon which relief can be granted and a failure to join necessary parties pursuant to Rule 19(d) of the North Carolina Rules of Civil Procedure.”

    Wednesday, Feb 7 @ 11:45 am
  • bchgrl

    This underhanded bit of legislation restricting towns from regulating multifamily development and then the removing the AEC from Jockeys Ridge State Park and other sites came awfully close together. Is someone planning an apartment complex at Jockeys Ridge or in Nags Head Woods?

    Wednesday, Feb 7 @ 10:57 am
  • Bev

    Since when did it become my responsibility to provide housing for others? No one provided me with a home or subsidized my mortgage. If businesses are having trouble finding homes for their employees, they should buy homes like they have done in the past.
    Government Subsidized Housing does NOT mean that a local will get the home. You can NOT discriminate. If Joe Blow from Cali comes and qualifies, he gets the home. Joe may get the home that local Sara wanted. Straight Facts.
    Name one Resort/Vacation area that has affordable housing. Vegas? Orlando? Myrtle Beach? If you find one, give them a call and ask for their model.

    Thursday, Feb 8 @ 11:29 am