Hirschman v. Chatham Cnty.

250 N.C.App. 349

792 S.E.2d 211

Daniel HIRSCHMAN, Jason & Joan Hickey, William Hlavac, Christopher & Amy Gamber, James Miller, Jeffrey C. Pugh and Janice M. Rivero, Petitioners,

v.CHATHAM COUNTY, Respondent.

No. COA16–292

Court of Appeals of North Carolina.

Filed: November 15, 2016

The Brough Law Firm, PLLC, Chapel Hill, by G. Nicholas Herman, for petitioners.

Poyner Spruill, LLP, Rocky Mount, by Richard J. Rose, for respondent Chatham County.

Smith Moore Leatherwood, LLP, Raleigh, by Karen M. Kemerait and M. Gray Styers, Jr., for respondents New Cingular Wireless PCS, LLC and American Tower, LLC.

ELMORE, Judge.

Daniel Hirschman, Jason and Joan Hickey, William Hlavac, Christopher and Amy Gamber, James Miller, and Jeffrey C. Pugh and Janice M. Rivero (petitioners) appeal from the Chatham County Superior Court's order dismissing with prejudice their petition for writ of certiorari. After careful review, we affirm.

I. Background

According to the petition, on 30 April 2014, American Tower, LLC and AT&T Mobility (the applicant) applied to Chatham County (respondent) for a conditional-use permit to erect and operate a monopole telecommunications tower. The Chatham County Board of Commissioners (BOC) held a quasi-judicial hearing on the matter on 16 June 2014, and it forwarded the application to the county planning board for a recommendation. On 5 August 2014, the county planning board recommended that the conditional-use permit be approved. The BOC held a meeting on 15 September 2014 in which it granted the conditional-use permit by adopting a resolution. The BOC's decision was filed with the clerk of the BOC on 6 October 2014.

Petitioners are citizens and residents of Chatham County who live "within plain view" of the proposed tower. On 31 October 2014, petitioners filed a "Petition for Review in the Nature of Certiorari," seeking review of the BOC's decision to grant the applicant a conditional-use permit. Petitioners alleged that they had standing to bring the petition because they were "owners of residences and lots in close proximity to the tower site such that the tower will be plainly visible from [p]etitioners’ properties," and they "will sustain a diminution in the fair market values of their properties and an impairment of the residential integrity and character of their community."

On 10 November 2014, the Chatham County Superior Court issued a writ of certiorari. Respondent filed a response to the petition and a motion to dismiss, arguing that the petition was deficient in that petitioners failed to name the applicant as a respondent as required by N.C. Gen. Stat. § 160A–393(e). Thus, respondent claimed that the superior court lacked jurisdiction. Second, respondent argued that petitioners lacked standing because there was no evidence to establish that they would suffer special damages. On 30 April 2015, petitioners filed a "motion for entry of consent order allowing motion to intervene, or, in the alternative, for an order to include the applicant and other parties designated in the consent order [to] be added as respondents."

After a hearing on respondent's motion, the trial court entered an order concluding that it lacked subject matter jurisdiction over the cause "because the appeal was not properly perfected in accordance with N.C. Gen. Stat. § 160[A]–393(e) in that the [p]etitioners were not the applicants before the decision-making board whose decision is being appealed, and the [p]etitioners failed to name the applicants, AT&T and American Towers, as respondents in their petition." Accordingly, the trial court granted respondent's motion to dismiss and dismissed the petition with prejudice. Petitioners appeal.

II. Analysis

"The appellate court reviews de novo an order of the trial court allowing a motion to dismiss for lack of subject matter jurisdiction[.]" Cooke v. Faulkner , 137 N.C.App. 755, 757, 529 S.E.2d 512, 513 (2000) (citation omitted).

Petitioners argue that their failure to name the applicant as a respondent in the petition did not deprive the trial court of subject matter jurisdiction, relying exclusively on our holding in MYC Klepper/Brandon Knolls L.L.C. v. Board of Adjustment for City of Asheville , 238 N.C.App. 432, 436–37, 767 S.E.2d 668, 671 (2014). Respondent claims that the trial court correctly dismissed the petition because petitioners failed to comply with N.C. Gen. Stat. § 160A–393(e), which constituted a jurisdictional defect. Alternatively, pursuant to Rule 10(c)¹ of the North Carolina Rules of Appellate Procedure, respondent argues that the petition must be dismissed because petitioners lack standing.

When deciding special use permits or conditional use permits, the board of county commissioners or planning board shall follow quasi-judicial procedures.... Every such decision of the board of county commissioners or planning board shall be subject to review of the superior court in the nature of certiorari consistent with G.S. 160A–388.

N.C. Gen. Stat. § 153A–340(c1) (2015). Section 160A–388(e2)(2) provides: "Every quasi-judicial decision shall be subject to review by the superior court by proceedings in the nature of certiorari pursuant to G.S. 160A–393." N.C. Gen. Stat. § 160A–388(e2)(2) (2015). Furthermore, "[a] petition for review shall be filed with the clerk of superior court by the later of 30 days after the decision is effective or after a written copy thereof is given in accordance with subdivision (1) of this subsection." Id.

N.C. Gen. Stat. § 160A–393, entitled "Appeals in the nature of certiorari," 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." N.C. Gen. Stat. § 160A–393(a) (2015) ; see also 2009 N.C. Sess. Law 2009–421 ("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."). "An appeal in the nature of certiorari shall be initiated by filing with the superior court a petition for writ of certiorari." N.C. Gen. Stat. § 160A–393(c). Relevant here, subsection (e), entitled "Respondent" provides:

The respondent named in the petition shall be the city whose decision-making board made the decision that is being appealed, except that if the petitioner is a city that has filed a petition pursuant to subdivision (4) of subsection (d) of this section, then the respondent shall be the decision-making board. 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 ....

N.C. Gen. Stat. § 160A–393(e) (emphasis added). "Our appellate courts have consistently held that the use of the word ‘shall’ in a statute indicates what actions are required or mandatory." Morningstar Marinas/Eaton Ferry, LLC v. Warren Cnty. , 233 N.C.App. 23, 28, 755 S.E.2d 75, 79, disc. review denied , 367 N.C. 508, 758 S.E.2d 862 (2014), and aff'd , 368 N.C. 360, 777 S.E.2d 733 (2015).

Here, respondent directs our attention to two unpublished opinions that have addressed this precise issue. In Whitson v. Camden County Board of Commissioners , COA12–1282, 2013 WL 3770664, at *1 (N.C. Ct. App. July 16, 2013), the Camden County Board of Commissioners approved Camden Plantation Properties, Inc.’s application for a conditional-use permit. Mr. Whitson, a nearby landowner, filed a petition for writ of certiorari, seeking review of the board's decision. Id. Pursuant to the county's motion, the superior court dismissed the petition because Mr. Whitson failed to name the applicant as a respondent in his petition, as required by statute. Id. On appeal, this Court observed that "[a]s the trial court concluded, ‘ [N.C. Gen. Stat.] § 160A–393(e) is jurisdictional in nature.’ " Id. at *2. Citing the "clear and unambiguous" language in N.C. Gen. Stat. § 160A–393(e), we concluded that the trial court properly dismissed the petition. Id.

In Philadelphus Presbyterian Foundation, Inc. v. Robeson County Board of Adjustment , COA13–777, 2014 WL 47325, at *1 (N.C. Ct. App. Jan. 7, 2014), disc. review denied , 367 N.C. 504, 758 S.E.2d 873 (2014), this Court similarly affirmed a trial court's order for the same reason. The Robeson County Board of Commissioners approved Buie Lakes Plantation, LLC's application for a conditional-use permit. Id. The petitioners, a number of individuals and two corporations, filed a petition for writ of certiorari, seeking review of the board's decision. Id. The petitioners did not name the applicant, Buie Lakes, as a respondent. Id. The named respondents moved to dismiss the petition, which the superior court allowed because the petitioners failed to name the applicant as a respondent in the petition, as required by statute. Id. at *2.

On appeal, this Court acknowledged that Whitson was not binding, but we concluded that

it is consistent with and compelled by our decision in McCrann v. Village of Pinehurst , 216 N.C.App. 291, 716 S.E.2d 667 (2011), in which the petitioner's challenge to the issuance of a conditional use permit was not filed within the thirty day period specified in N.C. Gen. Stat. § 160A–388(e2) and in which we held that this deficiency, like the failure to note an appeal in a timely manner, deprived the reviewing court of any jurisdiction to hear and determine the issues raised in the petition....

Although the filing of a certiorari petition certainly bears some resemblance to the institution of a civil action, as Petitioners implicitly assert, the analogy between an appeal and a request for certiorari review made in McCrann is clearly the correct one. In such certiorari proceedings, the "superior court is not a trier of fact, but assumes the posture of an appellate court." In re Appeal of Willis , 129 N.C.App. 499, 500, 500 S.E.2d 723, 725 (1998).... For that reason, we conclude that the extent to which a trial court obtains jurisdiction to

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