Senate Bill 212-Second Edition

GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2007

S 2

SENATE BILL 212

Judiciary I (Civil) Committee Substitute Adopted 5/22/07

Short Title: Land-Use Permit Appeals.		(Public)
Sponsors:
Referred to:

February 20, 2007

A BILL TO BE ENTITLED

an act TO CLARIFY THE LAW REGARDING APPEALS OF QUASI‑JUDICIAL DECISIONS MADE UNDER ARTICLE 19 OF CHAPTER 160A AND ARTICLE 18 OF CHAPTER 153A OF THE GENERAL STATUTES.

The General Assembly of North Carolina enacts:

SECTION 1.(a) Part 3 of Article 19 of Chapter 160A of the General Statutes is amended by adding a new section to read:

"§ 160A‑393. Appeals in the nature of certiorari.

(a) Applicability. – This section applies to appeals of quasi‑judicial decisions of decision‑making boards when that appeal is to superior court and in the nature of certiorari as required by this Article.

(b) For purposes of this section, the following terms mean:

(1) Decision‑making board. – A city council, planning board, board of adjustment, or other board making quasi‑judicial decisions appointed by the city council under this Article.

(2) Person. – Any legal entity authorized to bring suit in the legal entity's name.

(c) Filing the Petition. – An appeal in the nature of certiorari shall be initiated by filing with the superior court a petition for writ of certiorari. The petition shall:

(1) State the facts that demonstrate that the petitioner has standing to seek review.

(2) Set forth the grounds upon which the petitioner contends that an error was made. The facts, if any, in support of allegations that the votes of one or more members of the decision‑making board were affected by impermissible bias or conflict of interest shall be set forth with particularity.

(3) Set forth the relief the petitioner seeks.

(c) Standing. – A petition may be filed under this section only by a petitioner who has standing to challenge the decision being appealed. The following persons shall have standing to file a petition under this section:

(1) Any person meeting any of the following criteria:

a. Has an ownership interest, leasehold interest, or other interest created by easement, restriction, or covenant in the property that is the subject of the decision being appealed.

b. Has an option or contract to purchase the property that is the subject of the decision being appealed.

c. Was an applicant before the decision‑making board whose decision is being appealed.

(2) Any person with an ownership interest or leasehold interest in property any portion of which is located within 100 feet of the boundary of the property that is the subject of the decision being appealed.

(3) Any other person who will suffer special damages as the result of the decision being appealed. For purposes of this subdivision, 'special damages' mean a substantial harm suffered by a person that is demonstrably different in nature or degree shared by the community as a whole.

(4) An association to which owners or lessees of property in a designated area belong by virtue of their ownership of property in that area or through the payment of regular dues, only if any of the members of the association would have standing as an individual to challenge the decision being appealed.

(d) Respondent. – The respondent named in the petition shall be the city whose decision‑making board made the decision that is being appealed. 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. Any petitioner may name as a respondent any person with an ownership or leasehold interest in the property that is the subject of the decision being appealed who participated in the hearing before the decision‑making board.

(e) Writ of Certiorari. – Upon filing the petition, the petitioner shall present the petition and a proposed writ of certiorari to the clerk of court of the county in which the matter arose. The writ shall direct the respondent city to prepare and certify to the court the record of proceedings below within a specified date. The writ shall also direct that the petitioner shall serve the petition and the writ upon each respondent named therein in the manner provided for service of a complaint under Rule 4j of the Rules of Civil Procedure. No summons shall be issued. The clerk shall issue the writ without notice to the respondent or respondents if the petition has been properly filed and the writ is in proper form. A copy of the executed writ shall be filed with the court.

(f) Answer to the Petition. – The respondent may, but need not, file an answer to the petition. Except, if the respondent contends that any petitioner lacks standing to bring the appeal, that contention must be set forth in an answer served on all petitioners at least 30 days prior to the hearing on the petition.

(g) Intervention. – Rule 24 of the Rules of Civil Procedure shall govern motions to intervene as a petitioner or respondent in an action initiated under this section with the following exceptions:

(1) Any person described in subdivision (c)(1) of this section may intervene as a matter of right.

(2) Any person, other than one who may intervene as a matter of right, who seeks to intervene as a petitioner must demonstrate that the person would have had standing to challenge the decision being appealed in accordance with subdivisions (c)(2) and (c)(3) of this section.

(3) Any person seeking to intervene as a respondent must demonstrate that the person would have had standing to file a petition in accordance with subsection (c) of this section if the decision‑making board had made a decision that is consistent with the relief sought by the petitioner(s).

(h) The Record. – The record shall consist of all documents and exhibits submitted to the decision‑making 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. Any party may also include in the record a transcript of the proceedings, which shall be prepared at the cost of the party choosing to include it. The 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. The record shall be bound and paginated or otherwise organized for the convenience of the parties and the court. A copy of the record shall be served by the municipal respondent upon all petitioners within three days after it is filed with the court.

(i) Hearing on the Record. – The court shall hear and decide all issues raised by the petition by reviewing the record submitted in accordance with subsection (h) of this section. Except that the court may, in its discretion, allow the record to be supplemented with affidavits, testimony of witnesses, or documentary or other evidence if, and to the extent that, the record is not adequate to allow an appropriate determination of the following issues:

(1) Whether a petitioner or intervenor has standing.

(2) Whether, as a result of impermissible conflict as described in G.S. 160A‑381(d) or G.S. 160A‑388(e1) or conflict of interest as described in G.S. 14‑234, the decision‑making body was not sufficiently impartial to comply with due process principles.

(3) Whether the decision‑making body erred for the reasons set forth in sub‑subdivisions a. and b. of subdivision (1) of subsection (j) of this section.

(j) Scope of Review. –

(1) When reviewing the decision of a decision‑making board under the provisions of this section, the trial court shall ensure that the rights of petitioners have not been prejudiced because the decision‑making body's findings, inferences, conclusions, or decisions were:

a. In violation of constitutional provisions, including those protecting procedural due process rights.

b. In excess of the statutory authority conferred upon the city or the authority conferred upon the decision‑making board by ordinance.

c. Inconsistent with applicable procedures specified by statute or ordinance.

d. Affected by other error of law.

e. Unsupported by substantial competent evidence in view of the entire record.

f. Arbitrary or capricious.

(2) When the issue before the trial court is whether the decision‑making board erred in interpreting an ordinance, the trial court may review that issue de novo, and freely substitute its own judgment for that of the decision‑making board.

(3) The term "competent evidence," as used in this subsection, shall not preclude reliance by the decision‑making board on evidence that would not be admissible under the rules of evidence as applied in the trial division of the General Court of Justice if (i) the evidence was admitted without objection, or (ii) the evidence appears to be sufficiently trustworthy and was admitted under such circumstances that it was reasonable for the decision‑making board to rely upon it. The term "competent evidence" shall not be deemed to include the opinion testimony of lay witnesses as to any of the following:

a. The use of property in a particular way would affect the value of other property.

b. The increase in vehicular traffic resulting from a proposed development would pose a danger to the public safety.

c. Matters about which only expert testimony would generally be admissible under the rules of evidence.

(k) Decision of the Trial Court. – Following its review of the decision‑making board in accordance with subsection (j) of this section, the trial court may affirm the decision, reverse the decision and remand the case with appropriate instructions, or remand the case for further proceedings. If the court does not affirm the decision below in its entirety, then the court shall be guided by the following in determining what relief should be granted to the petitioners:

(1) If the court concludes that the error committed by the decision‑making board is procedural only, the court may remand the case for further proceedings to correct the procedural error.

(2) If the court concludes that the decision‑making board has erred by failing to make findings of fact such that the court cannot properly perform its function, then the court may remand the case with appropriate instructions so long as the record contains substantial competent evidence that could support the decision below with appropriate findings of fact. However, findings of fact are not necessary when the record sufficiently reveals the basis for the decision below or when the material facts are undisputed and the case presents only an issue of law.

(3) If the court concludes that the decision by the decision‑making board is not supported by substantial competent evidence in the record or is based upon an error of law, then the court may remand the case with an order that directs the decision‑making board to take whatever action should have been taken had the error not been committed or to take such other action as is necessary to correct the error. Specifically:

a. If the court concludes that a permit was wrongfully denied because the denial was not based on substantial competent evidence or was otherwise based on an error of law, the court shall remand with instructions that the permit be issued.

b. If the court concludes that a permit was wrongfully issued because the issuance was not based on substantial competent evidence or was otherwise based on an error of law, the court shall remand with instructions that the permit be revoked.

(l) Ancillary Injunctive Relief. – Upon motion of a party to a proceeding under this section, and under appropriate circumstances, the trial court may issue an injunctive order requiring any other party to that proceeding to take certain action or refrain from taking action that is consistent with the court's decision on the merits of the appeal."

SECTION 1.(b) Article 18 of Chapter 153A of the General Statutes is amended by adding a new section to read:

"§ 153A‑349. Appeals in the nature of certiorari.

(a) Whenever appeals of quasi‑judicial decisions of decision‑making boards are to superior court and in the nature of certiorari as required by this Article, the provisions of G.S. 160A‑393 shall be applicable to those appeals.

(b) For purposes of this section, as used in G.S. 160A‑393, the term "city council" shall be deemed to refer to the "board of commissioners," and the term "city" shall be deemed to refer to the "county".

(c) For purposes of this section, the "impermissible conflict as described in G.S. 160A‑381(d) or G.S. 160A‑388(e1)" of G.S. 160A‑393(i)(2) shall mean "impermissible conflict as described in G.S. 153A‑340(g) or G.S. 153A‑345(e1)"."

SECTION 2.(a) Part 2 of Article 19 of Chapter 160A of the General Statutes is amended by adding a new section to read:

"§ 160A‑377. Appeals of decisions on subdivision plats.

(a) When a subdivision ordinance adopted under this Part provides that the decision whether to approve or deny a preliminary or final subdivision plat is to be made by a city council or a planning board, other than a planning board comprised solely of members of a city planning staff, and the ordinance authorizes the council or planning board to make a quasi‑judicial decision in deciding whether to approve the subdivision plat, then that quasi‑judicial decision of the council or planning board shall be subject to review by the superior court by proceedings in the nature of certiorari. The provisions of G.S. 160A‑381(c), 160A‑388(e2), and 160A‑393 shall apply to those appeals.

(b) When a subdivision ordinance adopted under this Part provides that a city council, planning board, or staff member is authorized to make only an administrative or ministerial decision in deciding whether to approve a preliminary or final subdivision plat, then any party aggrieved by that administrative or ministerial decision may seek to have the decision reviewed by filing an action in superior court seeking appropriate declaratory or equitable relief. Such an action must be filed within the time frame specified in G.S. 160A‑381(c) for petitions in the nature of certiorari.

(c) For purposes of this section, an ordinance shall be deemed to authorize a quasi‑judicial decision if either of the following apply:

(1) The city council or planning board is authorized to decide whether to approve or deny the plat based upon all of the following:

a. Whether the application complies with the specific requirements set forth in the ordinance.

b. Whether the application complies with one or more generally stated standards requiring a discretionary decision to be made by the city council or planning board.

(2) The city council or planning board is authorized to approve the subdivision plat subject to conditions that impose requirements or limitations on the subdivision in addition to those set forth in the ordinance."

SECTION 2.(b) Part 2 of Article 18 of Chapter 153A of the General Statutes is amended by adding a new section to read:

"§ 153A‑336. Appeals of decisions on subdivision plats.

(a) When a subdivision ordinance adopted under this Part provides that the decision whether to approve or deny a preliminary or final subdivision plat is to be made by a board of commissioners or a planning board, other than a planning board comprised solely of members of a county planning staff, and the ordinance authorizes the board of commissioners or planning board to make a quasi‑judicial decision in deciding whether to approve the subdivision plat, then that quasi‑judicial decision of the board of commissioners or planning board shall be subject to review by the superior court by proceedings in the nature of certiorari. The provisions of G.S. 153A‑340(f), 153A‑345(e2), and 153A‑349 shall apply to those appeals.

(b) When a subdivision ordinance adopted under this Part provides that a board of commissioners, planning board, or staff member is authorized to make only an administrative or ministerial decision in deciding whether to approve a preliminary or final subdivision plat, then any party aggrieved by that administrative or ministerial decision may seek to have the decision reviewed by filing an action in superior court seeking appropriate declaratory or equitable relief. Such an action must be filed within the time frame specified in G.S. 153A‑340(f) for petitions in the nature of certiorari.

(c) For purposes of this section, an ordinance shall be deemed to authorize a quasi‑judicial decision if either of the following apply:

(1) The city council or planning board is authorized to decide whether to approve or deny the plat based upon all of the following:

a. Whether the application complies with the specific requirements set forth in the ordinance.

b. Whether the application complies with one or more generally stated standards requiring a discretionary decision to be made by the city council or planning board.

SECTION 3. G.S. 63‑34 reads as rewritten:

"§ 63‑34. Judicial review.

(a) Any person aggrieved by any decision of the board of appeals, or any taxpayer, or any officer, department, board, or bureau of the political subdivision, may present to the superior court a verified petition setting forth that the decision is illegal, in whole or in part, and specifying the grounds of the illegality. Such petition shall be presented to the court within 30 days after the decision is filed in the office of the board. Such petition shall comply with the provisions of G.S. 160A‑393.

(b) ~~Upon presentation of such petition the court may allow a writ of certiorari directed to the board of appeals to review such decision of the board.~~ The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board and on due cause shown, grant a restraining order.

(c) The board of appeals shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by the writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.

~~(d)~~ The court shall have exclusive jurisdiction to affirm, modify, or set aside the decision brought up for review, in whole or in part, and if need be, to order further proceedings by the board of appeals. The findings of fact by the board, if supported by substantial evidence, shall be accepted by the court as conclusive, and no objection to a decision of the board shall be considered by the court unless such objection shall have been urged before the board, or if it was not so urged, unless there were reasonable grounds for failure to do so.

(e) Costs shall not be allowed against the board of appeals unless it appears to the court that it acted with gross negligence, in bad faith, or with malice, in making the decision appealed from."

SECTION 4. G.S. 162A‑93(b) reads as rewritten:

"(b) The provisions of subsection (a) shall not apply if the city council adopts an annexation ordinance including an area served by a district and finds, after a public hearing, that adequate fire protection cannot be provided in the area because of the level of available water service. Notice of the public hearing shall be provided by first class mail to each affected customer and by publication in a newspaper having general circulation in the area, each not less than 10 days before the hearing. The clerk's certification of the mailing shall be deemed conclusive in the absence of fraud. Any resident of the annexed area aggrieved by such a finding of the council may file a petition for review in the superior court in the nature of certiorari, within 30 days after the finding. The petition for review in the nature of certiorari shall comply with G.S. 160A‑393."

SECTION 5. This act becomes effective January 1, 2008, and applies to appeals filed on or after that date.