Case Law Update – When It Helps to Read the Statute

Quasi-judicial proceedings are quite common in land use decisions.  They are proceedings where the local board loosely follows the rules of the courtroom in order to determine if the applicant has presented sufficient evidence on which the board can make the necessary findings to issue a variance or a special use permit or to overturn a decision made by a planning staff member.

However, until a mere four years ago there were no codified rules for appealing these decisions into superior court.  None.  We basically knew that we had to file a petition for a writ of certiorari, a request that the court order the government to send its record up for judicial review.   But how you filed the petition and who were the parties and who issued the writ, and whether it could be issued ex parte and whether there were times you could go outside the record were undetermined and unknown.  It was difficult to argue that somebody did an appeal the wrong way.

Then, in 2009 (thanks mainly to the efforts of my friend and the first dean of N.C.’s land use bar, Mike Brough) the General Assembly enacted G.S. 160A-393.  “393” as it is colloquially called, spells out the rules for appealing QJPs from the local board to superior court.

But now that we have clear rules . . .  it’s advisable to follow them.

A recent unpublished opinion from the N.C. Court of Appeals (Philadelphus Presbyterian Foundation, et. al. v. Robeson County), makes it clear that the penalty for not following the rules can be dismissal of your case. In Philadelphus, several citizens protested the issuance of a conditional use permit to Buie Lakes Plantation, LLC, for the construction of a sand mining and processing facility.

Petitioners named the Board of Adjustment, the Board of Commissioners and Robeson County as respondents, even though neither of the boards were proper parties.  However, they failed to name the applicant, which was a necessary party.

Pursuant to G.S. 160A-393(e), “if the petitioner is not the applicant . . . the petitioner shall name the applicant as a respondent.”  When the matter came on for hearing, the county moved for dismissal because the petitioners failed to name a necessary party as required by the rules.  The judge agreed and dismissed their case.

Rules (and statutes) matter.

One particular thing about this case caught my eye, a second thing reminds us why the quality of judges matters, and a third thing excited me because it was a rare judicial acknowledgement of the hybrid nature of these types of proceedings.

First, what caught my eye was that the Court quoted as one authority the case Ball v. Randolph County, a case I was grateful to win for my client, Mr. Ball, in 1998.  The case was my first opportunity for oral argument before the N.C. Supreme Court.  While it’s not the first time the case has been cited by an appellate court, it’s nice now and then to feel as though you’ve made a contribution to the jurisprudence of the state.  (I’m also grateful that sixteen years later, Randolph County is my client, not my opposing party)

Second, if you read lots of appellate opinions you learn to appreciate the quality of judges and the differences in their styles.  This opinion was written by Judge Jim Ervin from Morganton, son of a former 4th Circuit Judge and grandson of a former U.S. Senator and N.C. Supreme Court Justice.  Judge Ervin’s opinions often resemble mathematical equations.  He provides all the legal and factual building blocks needed in simple and direct statements, and then explains how the only position logically reachable is the one he reaches.  Lawyers trying to decipher how he reached his position never have to guess.

Sidebar: The Court of Appeals judge who is arguably the judge most appreciated by the land use bar is Judge Robert N. Hunter (from Greensboro). Judge Hunter has shown time and again that he is sensitive to the use and abuse of power in the hands of local governments who would use delineated powers expansively rather than within appropriate limits and with caution.  Judges Ervin and Hunter are running for the same seat on the N.C. Supreme Court. It is too bad both of them cannot win.  End side bar.

Third, I was excited to read this sentence: “Although the filing of a certiorari petition certainly bears some resemblance to the institution of a civil action . . . the analogy between an appeal and a request for certiorari review . . .  is clearly the correct one.”

The context of the above sentence was a discussion of the reviewing court’s jurisdiction to hear an appeal when the notice of appeal was not timely filed.  But the importance of that sentence is this: lawyers handling these types of cases (I seldom have fewer than five going at any point in time) often are without a clear road map for handling nuanced procedural matters that were not anticipated and therefore not covered by “393.”  Until “393” is expanded, we need to know whether we look to the Rules of Civil Procedure (used in the trial courts) or the Rules of Appellate Procedure (used on appeal from trial courts) as our guide for how to proceed in those situations not anticipated by the statute.

I have argued in the past that QJPs are NOT governed by the Rules of Civil Procedure.  Rather, these proceedings are governed exclusively by “393,” and the Rules of Civil Procedure are used only in those situations clearly specified in the statute.

Whether I am right or wrong is a question to be answered one day by a statutory revision or a case that wends its way though the appellate process.

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Comments
One Response to “Case Law Update – When It Helps to Read the Statute”
  1. Dan Porter says:

    The same result from Judge McCullough in Whitson vs Camden county, July 16, 2013.

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