Earlier this month, in an unpublished decision, the North Carolina Court of Appeals once again highlighted the unforgiving nature of the statutes governing appeals “in the nature of certiorari” of quasi-judicial decisions by a local government.
Philadelphus Presbyterian Foundation, Inc. v. Robeson County Bd. of Adjustment, COA13-777 (January 7, 2014) is decided on the heels of another unpublished decision, to which Philadelphus Presbyterian cites to a significant extent, Whitson v. Camden County Bd. of Commissioners, COA12-1282 (July 16, 2013).
The Philadelphus Presbyterian case involves the appeal of a dismissal by the trial court of an appeal of a conditional use permit issued by Robeson County for the construction of a sand mining and processing facility. A number of neighbors appealed the County’s quasi-judicial decision to issue the conditional use permit to applicant Buie Lakes Plantation, LLC.
The Court of Appeals states the core issue at the opinion’s outset:
The Pursuant to N.C. Gen. Stat. §160A-393(e), “[i]f the petitioner is not the applicant before the decision-making board whose decision is being appealed, the petitioner shall . . . name that applicant as a respondent.” As a result, in order to properly challenge the issuance of the conditional use permit at issue here, Petitioners were required to file their petition in a timely manner, which they appear to have done, and to name Buie Lakes as a party respondent, which they did not do.
The trial court dismissed the petition “for failure of the Petitioners to join a necessary party”, which in this case was the permit applicant: Buie Lakes. The Court’s analysis centers on the legal point that naming the conditional use permit applicant in an appeal of a permit, like the filing of an appeal in a timely manner, is a prerequisite to the Court’s exercise of subject matter jurisdiction over the quasi-judicial decision. In short, the Petitioner’s failure to name the conditional use permit applicant as a party to its appeal “deprived the reviewing court of any jurisdiction to hear and determine the issues raised in the petition.” The Court reminds the litigants that when hearing a matter “in the nature of certiorari“, such as an appeal of a quasi-judicial decision, the trial court’s jurisdiction “should be analyzed in the same manner as the extent to which an appellate court obtains jurisdiction over an appeal from the General Court of Justice or an administrative agency.” Perfecting an appeal, the Court warns, is critical.
Ok, but what about the Petitioner’s efforts before the trial court to amend orally their petition to add conditional use permit applicant Buie Lakes, which the trial court denied? Quite simply, the Court concludes that because the trial court lacked subject matter jurisdiction in the first instance, the trial court also “lacked the authority to allow them to amend their petition to cure this defect”. Most notably, the Court is unpersuaded by older precedent referenced by Petitioners and points to the recently-enacted statute — N.C.G.S. 160A-393 — which was not in effect at the time of older precedent and which clearly requires that Buie Lakes have been named as a respondent, here: “If the petitioner is not the applicant before the decision-making board whose decision is being appealed, the petitioner shall also name that applicant as a respondent.”
Finally, in response to efforts by Petitioners to invoke and benefit from the North Carolina Rules of Civil Procedure, the Court keeps out of the argument that the Rules of Civil Procedure apply in certiorari proceedings conducted pursuant to N.C. Gen. Stat. § 160A-393, “which, as we have already noted, bear a much greater resemblance to appellate proceedings than to ordinary civil actions”. Certain Rules do apply, the Court notes, to certiorari proceedings but the Rule Petitioners seek to apply — Rule 15(a) — is not determined to be one such Rule.
Look to the statutes, Elaine, look to the statutes.
Mike Thelen practices in Womble, Carlyle’s Real Estate Litigation and Land Use practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development matters in both state and federal venues throughout North Carolina. Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw and “like” us on Facebook here.
Categories: Quasi-Judicial Proceedings