An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-823

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

THE NORTH CAROLINA HUMAN RELATIONS 

COMMISSION,

On behalf of CINDY BLOCK, IAN 

BLOCK and JEREMY BLOCK,

Plaintiff

v. Wake County

No. 13 CVS 75

CARRIAGES AT ALLYN’S LANDING 

OWNERS ASSOCIATION, INC. and 

VICTOR JONES,

Defendants

Appeal by both plaintiff and defendants from order entered 

10 May 2013 by Judge Howard Manning in Wake County Superior 

Court. Heard in the Court of Appeals 11 December 2013.

Agency Counsel Richard Boulden, for plaintiffappellee/cross-appellant North Carolina Human Relations 

Commission.

Jordan Price Wall Gray Jones & Carlton, by Brian S. Edlin 

and J. Matthew Waters, for defendant-appellants/crossappellees.

CALABRIA, Judge.

Carriages at Allyn’s Landing Owners Association, Inc. (“HOA 

Board”) and Victor Jones (“Jones”) (collectively “defendants”) 
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appeal from an order purportedly conferring jurisdiction of the 

case on the North Carolina Office of Administrative Hearings 

(“NCOAH”). The North Carolina Human Relations Commission (“the 

Commission”) also appeals from the portion of the same order 

granting defendants’ motion to dismiss. We reverse.

In February 2009, complainants Cindy Block (“Mrs. Block”), 

Ian Block, and Jeremy Block (collectively “the Blocks”) 

purchased a townhome located in the Carriages at Allyn’s Landing 

community in Raleigh, North Carolina, subject to the same 

restrictive covenants that apply to all lots in the community. 

The Blocks sought HOA Board approval for a wheelchair ramp for 

Mrs. Block’s elderly mother, who lived in the townhome with the 

Blocks. The HOA Board approved the ramp, with conditions that 

the ramp be painted to match the siding of the townhome and that 

the Blocks remove it “if, and when, it is no longer needed[.]” 

Mrs. Block’s mother died in September 2010. In January 

2011, the HOA Board sent the Blocks a letter requesting removal 

of the ramp. However, Mrs. Block indicated to a member of the 

HOA Board that the Blocks intended to sell the townhome and 

market it as handicap-accessible. Several weeks later, Jones, 

the community property manager, received a handwritten note from 

Ian Block, stating his intention to keep the ramp. Ian Block’s 
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note included a letter from Academy Eye Associates that stated

Mrs. Block was congenitally visually impaired and legally blind, 

and recommended that “she be allowed to use and have handicapped 

ramp access maintained whenever and wherever possible.” The HOA 

Board subsequently consulted an attorney regarding the matter. 

On 25 February 2011, Jones, on behalf of the HOA Board,

notified the Blocks that the wheelchair ramp could remain on the 

property as long as a member of the family had a certifiable 

disability that required it. However, the HOA Board indicated 

that the ramp must be maintained in accordance with the 

community’s restrictive covenants, including painting the ramp 

to match the siding of the townhome. In addition, the HOA Board 

required removal of the ramp when the Blocks sold the townhome 

“unless the new owner has a certifiable disability that requires

a wheelchair ramp.”

In a letter dated 8 March 2011, the Commission informed 

defendants that the Blocks had filed a housing discrimination 

complaint with the Commission, alleging, inter alia, that 

defendants had engaged in discrimination and refused to make 

reasonable accommodations for Mrs. Block’s disability. An 

investigation by the Commission found reasonable grounds to 

believe unlawful discriminatory housing practices had occurred 
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regarding some of the Blocks’ claims, but that there were no 

reasonable grounds to support the Blocks’ allegations that 

defendants had coerced, intimidated, threatened, or interfered 

with the Blocks’ housing rights in violation of N.C. Gen. Stat. 

§ 41A-4(e) and § 818 of the Federal Fair Housing Act. Although 

the Commission attempted conciliation between the parties, those 

attempts failed. Subsequently, the Blocks were informed in the 

Commission’s conciliation failure letters of their election of 

remedies. 

On 24 October 2012, the Blocks timely notified the 

Commission of their election to have the Commission file a civil 

action on their behalf in State Superior Court. The Commission 

filed a complaint on behalf of the Blocks in Wake County 

Superior Court on 7 January 2013, alleging, inter alia, 

defendants’ actions constituted an illegal discriminatory 

housing practice against the Blocks’ request for a reasonable 

accommodation to keep the ramp without an obligation to remove 

it. The Commission sought compensatory and punitive damages as 

well as injunctive relief. Defendants filed a motion to dismiss

the complaint. After a hearing, the trial court granted 

defendants’ motion to dismiss, finding that the Commission’s 

action was untimely filed. Under the default forum provisions 
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of the Fair Housing Act, the trial court directed the Commission 

“to apply to the Director of the Office of Administrative 

Hearings for the cause to be heard under the procedures set 

forth in N.C.G.S. § 41A-7(l),” and the Blocks’ motion to 

intervene was denied as moot. The Commission and defendants 

both appeal.

The Commission argues (1) that the trial court erred in 

granting defendants’ motion to dismiss; and (2) that if an 

action is dismissed for failure to file within the statutory 

time period, the Commission must proceed with the action before 

the NCOAH. Defendants argue that the trial court erred by 

directing the Commission to pursue a hearing before the NCOAH 

after dismissing the Commission’s complaint for failing to 

commence the action within 60 days of the Blocks’ election, 

because the NCOAH does not have subject matter jurisdiction over 

an untimely filed action. 

Whether the time provisions for filing an action pursuant 

to N.C. Gen. Stat. § 41A-7 (2013) are jurisdictional in nature 

depends on the legislative intent. Comm’r of Labor v. House of 

Raeford Farms, 124 N.C. App. 349, 353, 477 S.E.2d 230, 232

(1996). The statute provides, in pertinent part, the 

requirements when the Commission elects to file a civil action: 
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“[i]f an election is made . . . no later than 60 days after the 

election is made the Commission shall commence a civil action in 

superior court in its own name on behalf of the complainant.” 

N.C. Gen. Stat. § 41A-7(k)(2) (2013). 

The legislative intent of a particular provision in a 

statute is either mandatory or directory, and is usually 

ascertained “not only from the phraseology of the provision, but 

also from the nature and purpose, and the consequences which 

would follow its construction one way or the other.” N.

Carolina State Art Soc., Inc. v. Bridges, 235 N.C. 125, 130, 69 

S.E.2d 1, 5 (1952). Our Courts have held that “where a statute 

lacks specific language requiring an agency to take express 

action during a statutory review period . . . such statutory 

language is merely directory, rather than mandatory.” N.

Carolina State Bd. of Educ. v. N. Carolina Learns, Inc., ___ 

N.C. App. ___, ___, 751 S.E.2d 625, 630 (2013) (citing State v. 

Empire Power Co., 112 N.C. App. 265, 435 S.E.2d 553 (1993)).

In State v. Empire Power, the Utilities Commission failed 

to hold a hearing within the statutory three month time period. 

This Court held that time periods are generally considered to be 

directory rather than mandatory “unless the legislature 

expresses a consequence for failure to comply within the time 
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period.” 112 N.C. App. at 277, 435 S.E.2d at 559 (citations 

omitted). Similarly, this Court has also held that a statute 

that failed to provide a result in the event the Commissioner of 

Labor failed to comply with a 90-day time period was directory. 

House of Raeford, 124 N.C. App. at 355-56, 477 S.E.2d at 234. 

This Court also expressed concern regarding interpreting 

statutes to allow an agency delay to prejudice the claims of 

private citizens. Id. at 356, 477 S.E.2d at 234. 

Defendants contend that the plain and unambiguous language 

of the statute, specifically the use of the word “shall,” 

indicates that the statutory time period is mandatory. However, 

the word “shall” was included in the statute in House of 

Raeford, and that statute was held to be directory specifically

because the statute failed to provide any consequences for 

failing to comply within the time period. Id. at 355-56, 477 

S.E.2d at 233. 

Defendants also cite HCA Crossroads Residential Ctrs., Inc. 

v. N. Carolina Dept. of Human Res., 327 N.C. 573, 398 S.E.2d 466 

(1990) and Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 580 

S.E.2d 757 (2003) to support their contention that the 60-day 

period is mandatory rather than directory. 
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In HCA Crossroads, the statute provided a maximum 150-day 

review period for applications for certificates of need, and 

required that a certificate of need be either issued or rejected 

within that period. 327 N.C. at 577, 398 S.E.2d at 469. Our 

Supreme Court found that the state agency waived its 

jurisdiction by failing to act where the statutory language 

indicated that the Department lost subject matter jurisdiction 

to reject an application once the review period ended. 327 N.C. 

at 577, 398 S.E.2d at 469. This Court has interpreted HCA 

Crossroads to apply to statutes “which contain specific language 

requiring express action to be taken during a statutory review 

period.” N. Carolina Learns, ___ N.C. App. at ___, 751 S.E.2d 

at 630.

In Brackett, the individual complainant filed an action 

alleging a violation of the North Carolina Retaliatory 

Employment Discrimination Act pursuant to a right-to-sue letter. 

158 N.C. App. at 254, 580 S.E.2d at 759. The complainant’s 

action was dismissed because he failed to file within the 

pertinent 180-day statutory period. Id. However, this Court 

held that the rationale of House of Raeford did not apply in 

that case, noting that House of Raeford concerned governmental 
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authorities processing private claims. Id. at 256, 580 S.E.2d 

at 760.

In the instant case, the Blocks did not request a right-tosue letter, but instead elected that the Commission file a civil

action on their behalf by notifying the Commission in a letter 

dated 24 October 2012. The Commission filed the complaint on 7 

January 2013, a date that is more than 60 days after the 

election was made. The trial court granted defendants’ motion 

to dismiss because the Commission failed to file their complaint 

“in accordance with the time set in N.C.G.S. § 41A-7(k)(2)[.]” 

The statute states that when a complainant elects to have the 

Commission commence a civil action, “no later than 60 days after 

the election is made the Commission shall commence a civil 

action in superior court in its own name on behalf of the 

complainant.” N.C. Gen. Stat. § 41A-7(k)(2). However, N.C. 

Gen. Stat. § 41A-7(k) does not expressly provide for any 

consequences should the Commission fail to file a complaint on 

the complainant’s behalf within the 60-day period. Rather, the 

statute requires that the Commission file an action after a 

complainant has made an election, with no specific consequences. 

The instant case concerns a government entity processing a 

private claim for private complainants. While the Commission 
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should have filed the complaint within the 60-day period, the 

language of the statute does not provide for any consequences, 

let alone dismissal of a complaint, for an action filed outside 

the 60-day period. In addition, to bar a complainant’s action 

based upon the inaction of the Commission would effectively 

allow the Commission’s inaction or late action to prejudice the 

claims of private complainants. House of Raeford, 124 N.C. App. 

at 356, 477 S.E.2d at 234. Accordingly, we hold that N.C. Gen. 

Stat. § 41A-7(k) is directory rather than mandatory, and 

therefore defendants’ motion to dismiss should have been denied. 

Since we reverse the trial court’s order granting defendants’ 

motion to dismiss, it is unnecessary to address the parties’ 

remaining arguments.

Reversed.

Judges BRYANT and GEER concur.

Report per Rule 30(e).