Quasi-Judicial Proceedings

Judicial Review of Quasi-Judicial Decisions: N.C.G.S. Section 160A-393

Late last year, the General Assembly adopted S.L. 2009-421 (S. 44) to create N.C.G.S. §160A-393. Effective January 1, 2010, that section codifies the specific framework guiding judicial appeals of quasi-judicial decision concerning or relating to development regulation ordinances. This was the General Assembly’s third shot at such a statute, which, as the saying goes, was a charm.

The new law applies to appeals of quasi-judicial decisions rendered on or after the January 1, 2010 “by decision-making boards when that appeal is to superior court and in the nature of certiorari as required by this Article.” The “Article” being N.C.G.S. Chapter 160A, Article 19 for cities and N.C.G.S. Chapter 153A, Article 18 for counties, which implies that the law is limited to decisions made pursuant to development regulation ordinances adopted pursuant to these Articles. The lines are not entirely clear and neat, however, and it remains to be seen whether these provisions would apply to quasi-judicial decisions delivered under other statutory authorizations, such as under the general police powers.

The statute articulates a definition of quasi-judicial land use decisions with its roots in North Carolina jurisprudence: “A decision involving the finding of facts regarding a specific application of an ordinance and the exercise of discretion when applying the standards of the ordinance.” This definition includes local government decisions involving variances, special and conditional use permits, and appeals of administrative determinations. Site plan approvals and subdivision plat decisions are likewise quasi-judicial, according to N.C.G.S. §160A-393, if the governing ordinance’s standards for approval include discretionary as well as objective standards.

In addition to defining the types of determinations to which it applies, N.C.G.S. §160A-393 also outlines the parties maintaining standing to appeal these decisions, the method for appeal, the record on appeal, the scope of judicial review, and the spectrum of available relief. The statute specifies that appeals “shall be initiated by filing with the superior court a petition for writ of certiorari,” and requires that the petition contain the facts establishing standing, the grounds of the alleged error, the facts supporting any alleged conflict of interest at the decisionmaking stage, and the relief sought from the court. As to standing, the statute affords the following three categories of persons, associations, or cities standing to file a petition: (1) those who applied for approval or otherwise have a property interest in the project or property, (2) other persons who will suffer “special damages” as a result of the decision, which are defined by a long line of North Carolina caselaw, and (3) the local government whose board made the decision being appealed (only if the local government is appealing, of course). Litigants should play close attention to the language of the statute with respect to the persons or entities named in litigation and the manner of filing a proper petition for writ of certiorari.

Of significant interest, N.C.G.S. §160A-393 codifies the scope of review to be used by the courts in reviewing a quasi-judicial decision, which aims to settle some disparity in the existing North Carolina caselaw. The rerviewing court is to consider, but it not bound by, the interpretations of the quasi-judicial decisionmaker and may consider whether the appealed determination was:

–In violation of constitutional provisions;

–In excess of statutory authority;

–Inconsistent with procedures set by statutes or the ordinance involved;

–Affected by error of law;

–Unsupported by substantial, competent evidence in the record; or

–Arbitrary or capricious.

The court will apply the scope of review to the record established before the quasi-judicial body, which “shall consist of all documents and exhibits submitted to the decision-making board whose decision is being appealed, together with the minutes of the meeting or meetings at which the decision being appealed was considered.” The record may include audio and video as well as verbatim transcripting, and the record may be supplemented in the court’s discretion. Once again, litigants should pay close attention to the procedures concerning development and presentation of the record on appeal, as a sleepy approach in this regard can sink even the best of arguments.

Lastly, N.C.G.S. §160A-393 paints the remedies available for consideration by the court on appeal of a quasi-judicial ruling, which include appropriate injunctive relief. A court may affirm or reverse the original quasi-judicial decision, or the court may remand the matter either with instructions or with a direction for further proceedings. If the court does not affirm the appealed decision in its entirety, the remand may include an order to issue the proper approvals or to revoke the approvals.

Mike Thelen is an associate in Womble Carlyle’s Real Estate and Real Estate Litigation practice groups. He regularly represents a wide variety of clients, from local governments to businesses, in both state and federal venues throughout North Carolina.

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