In 2009, the North Carolina General Assembly adopted Senate Bill 44, an act that codified the case law regarding quasi-judicial land use proceedings, including the proper standards and procedures for judicial review. See N.C. Gen. Stat. § 160A-393. Quasi-judicial land use decisions include, among other things, decisions involving variances, special and conditional use permits, and appeals of administrative decisions. See N.C. Gen. Stat. § 160A-393(b)(3). The adoption of this new statute took the effort of many accomplished land use attorneys and interested stakeholders. In fact, discussions regarding the need for this legislation originated before my legal career even began. So, when I read a recent Court of Appeals decision involving the denial of a special use permit by a quasi-judicial body, I was befuddled as to why the opinion did not contain a single citation to G.S. § 160A-393.
In Blair Investments, LLC v. Roanoke Rapids City Council, et al. (filed December 17, 2013), the petitioner sought a special use permit to construct a cell phone tower. After considering the evidence presented by the applicant, planning department and concerned neighbors, the Roanoke Rapids City Council denied the special use permit on the grounds that the proposed tower would “endanger the public or safety” and would “not be in harmony with the surrounding area.” The Superior Court affirmed the Council’s decision. On appeal, however, the Court of Appeals reversed the Council’s decision on the grounds that the applicant had met its burden of making a prima facie showing of entitlement to the special use permit and the testimony of the concerned neighbors were speculative opinions, unsupported by any documentary or testimonial evidence. Therefore, the Court held the Council’s decision was not supported by substantial, competent, and material evidence and remanded the case with instructions that the special use permit be granted.
To be clear, I take no issue with the Court’s ultimate decision in Blair. The Court appropriately reviewed the record and made the correct determination based on the facts and evidence that were before the Council. I also take no issue with the overall legal principles and case law cited by the Court in Blair. I do find it perplexing, however, that in discussing the appeal procedure, scope of review and its ultimate disposition of the case, the Court cited to a number of cases decided prior to the adoption of G.S. § 160A-393, but did not cite to or discuss 160A-393 at all. As already discussed, the purpose of adopting 160A-393 was to codify prior case law and establish the black letter law governing the review of quasi-judicial decisions. Perhaps the failure to recognize or cite to 160A-393 was an oversight by the lawyers who argued the case or perhaps it simply slipped by the law clerks working on the opinion. I can’t imagine, however, the statutory framework for reviewing quasi-judicial decisions was completely ignored by the Court intentionally.
Many might consider this article to be a technical assault on an otherwise good appellate opinion. While I believe it to be a substantive omission, my true reason for writing this article is to hopefully ensure that this fancy new statute at least gets dropped in a future footnote. Too many people worked too hard for it not to.
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