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.
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.
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.
Categories: Quasi-Judicial Proceedings