Quasi-Judicial Proceedings

Appellate Court Addresses Judicial Discretion As to Record on Appeal from Quasi-Judicial Decision

Last week, the North Carolina Court of Appeals addressed some unique issues with respect to the trial court record in an appeal of a quasi-judicial proceeding.

Petitioners — neighbors challenging the approval of the construction of a “monopine” cell phone tower on church property — took issue with (1) the incomplete nature of the audio recording of the quasi-judicial proceedings before the Durham City-County Board of Adjustment, and (2) supplementation by the trial court of the record of the quasi-judicial proceedings with photo evidence that was not before the Board of Adjustment.

The result of Fehrenbacher v. City of Durham, No. COA14-712 (February 3, 2015) is that the trial court has flexibility in limiting or expanding the quasi-judicial record from which is taken an appeal in the nature of certiorari.

Incomplete Audio Recording

North Carolina State law defines the “record” in an appeal of a quasi-judicial decision to “consist of all documents and exhibits submitted to the decisionmaking board whose decision is being appealed, together with the minutes of the meeting or meetings at which the decision being appealed was considered. Upon request of any party, the record shall also contain an audio or videotape of the meeting or meetings at which the decision being appealed was considered if such a recording was made.”  NCGS 160A-393(i).

Petitioners argue that a “recording malfunction resulted in the inadvertent exclusion of substantial portions of their own testimony from the record, a problem exacerbated by the fact that the minutes of the Board’s meeting do not include any summary of the evidence or arguments they presented.” Thus, Petitioners continue, the Court of Appeals “should reverse the trial court’s decision and remand the matter back to the Board of Adjustment for a new, full hearing.”

The Court of Appeals disagrees with Petitioners’ assertion.  Firstly, the Court determines that Petitioners could not point to any evidence missing as a result of the incomplete recording that did not make its way into the record in another fashion, such that “the record adequately conveyed the substance of [Petitioners’] missing audio testimony.”

Secondly, and more interestingly to me,  the Court of Appeals determines that the incomplete audio recording is not part of the record because “the record need only contain an audio recording of the meeting ‘if such a recording was made’.”  And, since no such recording was “made”, no such recording can be a part of the “record”.

The record, therefore, is limited.

Supplementation of the Record
State law allows the supplementation of the record “on a limited range of issues including whether the parties have standing, whether conflicts of interest compromised the [Board of Adjustment’s] impartiality, violations of procedural due process rights, and allegations that the [Board of Adjustment] exceeded its statutory authority.”  
Petitioners contend that the trial court erred when it supplemented the record with “photographic simulations of the proposed monopine tower” that were not before the Board of Adjustment because these photos were not necessary for the trial court to address the above-named “limited range of issues”.   
The Court of Appeals allows the photographic evidence to supplement the record.  In doing so, the Court refuses the Petitions’ “selective reading” of NCGS 160A-393(i) and instead relies on the language from NCGS 160A-393(j) that “[t]he parties may agree, or the court may direct, that matters unnecessary to the court’s decision be deleted from the record or that matters other than those specified herein be included.”  In other words, the Court continues, NCGS 160A-393(j) “is not the only provision of [NCGS 160A-393] that vests discretionary authority in the trial court to supplement the record.”
The record, therefore, can be supplemented.


Finally, cheers to Judge Stephens for this delightful, um, saw:  “In other words, we believe that by focusing so narrowly on ‘uses,’ Petitioners’ argument misses the proverbial forest for the literal monopine.”

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.

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