What we haven’t discussed is the standard of judicial review applicable to these appeals. Generally speaking, the superior court to which the quasi-judicial decision is appealed will apply one of two standards of review. If errors of law are alleged on appeal, the court will conduct a de novo review whereby the court will review the matter as though it was never considered by the local government board. On the other hand, the reviewing court will employ the whole record test if it is alleged on appeal that the quasi-judicial decision was not supported by the evidence or the decision was arbitrary and capricious. And if both types of allegations are made–errors of law AND arbitrary or unsupported by the evidence? Well, the trial court will apply the proper standard to its corresponding allegation.
But consider this recent unpublished case from the North Carolina Court of Appeals. In Jobe v. Town of Haw River, an individual petitioned the Town’s “Planning and Zoning Board” for a special use permit to construct and operate “a construction and demolition debris recycling center and a concrete plant” in Alamance County. The Planning and Zoning Board recommended approval and the Town Council set the permit for a September public hearing. After extensive public comment, but no sworn testimony, the Town Council continued the meeting until October. In October, with only the petitioning individual offering sworn testimony, the Town Council granted the special use permit.
Ctizens opposing the permit requested a writ of certiorari, the proper mechanism for appealing a quasi-judicial decision, alleging the Town Council’s approval of the permit was “contrary to the ting ordinances, was both arbitrary and capricious, and not based upon competent evidence in the record.” The court issued the writ and, subsequently, affirmed the Town Council’s approval of the special use permit. In its order, the trial court “fail[ed] to mention, nor does the record sufficiantly indicate, that the trial court applied the whole record test in determining whether the decision of the Council was arbitrary and capricious.” Only de novo review was, in fact, accounted for.
The Court of Appeals pump-faked with a discussion about the proper standard of review, as well as the trial court’s error in this regard, and proceeded to consider the merits. The Court reversed the trial court’s affirmation of the Town Council’s action, concluding that the trial court “committed reversible error when failing to vacate the [Town Council’s] arbitrary and capricious decision.” The Court reasoned that (1) October meeting, a continuation of the September meeting, failed to comply with the Town’s own ordinance requirements with regard to notice, and (2) as a result, the trial court’s reliance on sworn testimony from that improperly-noticed October hearing was entirely misplaced.
Parties and boards alike should take care to follow the proper procedures when operating in what will promise to be a divisive political context, such as the building of a “construction and demolition debris recycling center and a concrete plant.” Whoa. This applicant may return to the permitting process–it will depend on the language of the local ordinance–but, in the event he does, he’s certainly learned to cover his legal bases.
Mike Thelen is a lawyer in Womble Carlyle’s Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.
Categories: Quasi-Judicial Proceedings