## Facts

- Shell Island Homeowners Association represented unit owners of a resort condominium at Wrightsville Beach near Mason’s Inlet.
- In 1985, the State issued a CAMA minor development permit for construction of the resort based on an erroneous regulatory construction line; the location did not comply with inlet hazard development standards.
- CAMA regulations prohibited hardened erosion-control structures on ocean and inlet beaches, and the permit noted those restrictions.
- After construction, Mason’s Inlet migrated south, causing significant erosion near the resort.
- In 1995, the Association sought a CAMA permit to build a steel sheet-pile inlet migration barrier; the Division of Coastal Management denied the request.
- The Association filed multiple variance requests with the Coastal Resources Commission (CRC) seeking relief from CAMA’s restrictions; several were denied.
- On November 7, 1996, the Association sued, alleging that denial of variances effected an unconstitutional regulatory taking and challenging the constitutionality of the erosion-control regulations.
- During the dispute, the Association obtained a fourth variance allowing construction of a protective structure.

## Issues

1. Whether the later granting of a variance rendered the Association’s takings and related claims moot, depriving the trial court of subject-matter jurisdiction.
2. Whether the Association could raise, for the first time on appeal, a “physical invasion” takings theory based on inlet waters encroaching on its property.
3. Whether the Association’s broad constitutional challenge to CAMA’s hardened-structure restrictions presented a justiciable controversy in this posture.
4. Whether the case fit an exception to mootness: (a) capable of repetition yet evading review, or (b) voluntary cessation.

## Decision

- The Court of Appeals affirmed dismissal under Rule 12(b)(1) for lack of subject-matter jurisdiction.
- The court held the claims as pleaded were moot because the fourth variance eliminated the live controversy concerning earlier variance denials.
- The court declined to consider the “physical invasion” takings theory because it was not raised in the trial court and differed from the pleaded regulatory-taking theory.
- The court declined to decide the generalized constitutional challenges to the regulations because, in context, they were hypothetical and abstract rather than tied to a live dispute.
- The court rejected mootness exceptions, finding no showing that the dispute would evade review or that the agency’s action was a voluntary cessation of illegal conduct.

## Legal Principles

- North Carolina courts lack subject-matter jurisdiction where a case becomes moot; courts will not issue advisory opinions absent a live controversy.
- A party generally may not raise a new theory for the first time on appeal; preservation rules bar review of unraised arguments.
- Broad constitutional challenges are not justiciable when divorced from a concrete, live controversy affecting present rights.
- “Capable of repetition yet evading review” requires both a reasonable expectation of recurrence as to the same party and an action typically too short in duration to be fully litigated.
- “Voluntary cessation” does not apply where the government continues consistent enforcement of a regulatory program and the challenged conduct has not been abandoned as unlawful.

## Conclusion

Because the Association’s pleaded claims centered on earlier variance denials and a later variance granted the practical relief sought, the controversy was moot and properly dismissed for lack of jurisdiction; the court also enforced preservation rules against a newly asserted physical-invasion theory and found no applicable exception supporting review of otherwise nonjusticiable claims.


Shell Island Homeowners Ass’n, Inc. v. Tomlinson, 517 S.E.2d 406 (N.C. Ct. App. 1999)