§ 160A-393. Appeals in the nature of certiorari. - North Carolina Statutes

§ 160A‑393.  Appeals inthe nature of certiorari.

(a)        Applicability. – Thissection applies to appeals of quasi‑judicial decisions of decision‑makingboards when that appeal is to superior court and in the nature of certiorari asrequired by this Article.

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

(1)        Decision‑makingboard. – A city council, planning board, board of adjustment, or other boardmaking quasi‑judicial decisions appointed by the city council under thisArticle or under comparable provisions of any local act or any interlocalagreement authorized by law.

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

(3)        Quasi‑judicialdecision. – A decision involving the finding of facts regarding a specific applicationof an ordinance and the exercise of discretion when applying the standards ofthe ordinance. Quasi‑judicial decisions include decisions involvingvariances, special and conditional use permits, and appeals of administrativedeterminations. Decisions on the approval of site plans are quasi‑judicialin nature if the ordinance authorizes a decision‑making board to approveor deny the site plan based not only upon whether the application complies withthe specific requirements set forth in the ordinance, but also on whether theapplication complies with one or more generally stated standards requiring adiscretionary decision on the findings of fact to be made by the decision‑makingboard.

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

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

(2)        Set forth thegrounds upon which the petitioner contends that an error was made.

(3)        Set forth withparticularity the allegations and facts, if any, in support of allegationsthat, as the result of impermissible conflict as described in G.S. 160A‑388(e1),or locally adopted conflict rules, the decision‑making body was notsufficiently impartial to comply with due process principles.

(4)        Set forth the reliefthe petitioner seeks.

(d)        Standing. – Apetition may be filed under this section only by a petitioner who has standingto challenge the decision being appealed. The following persons shall havestanding to file a petition under this section:

(1)        Any person meetingany of the following criteria:

a.         Has an ownershipinterest in the property that is the subject of the decision being appealed, aleasehold interest in the property that is the subject of the decision beingappealed, or an interest created by easement, restriction, or covenant in theproperty that is the subject of the decision being appealed.

b.         Has an option orcontract to purchase the property that is the subject of the decision beingappealed.

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

(2)        Any other person whowill suffer special damages as the result of the decision being appealed.

(3)        An incorporated orunincorporated association to which owners or lessees of property in adesignated area belong by virtue of their owning or leasing property in thatarea, or an association otherwise organized to protect and foster the interestof the particular neighborhood or local area, so long as at least one of themembers of the association would have standing as an individual to challengethe decision being appealed, and the association was not created in response tothe particular development or issue that is the subject of the appeal.

(4)        A city whosedecision‑making board has made a decision that the council believesimproperly grants a variance from or is otherwise inconsistent with the properinterpretation of an ordinance adopted by that council.

(e)        Respondent. – Therespondent named in the petition shall be the city whose decision‑makingboard made the decision that is being appealed, except that if the petitioneris a city that has filed a petition pursuant to subdivision (4) of subsection(d) of this section, then the respondent shall be the decision‑makingboard. If the petitioner is not the applicant before the decision‑makingboard whose decision is being appealed, the petitioner shall also name thatapplicant as a respondent. Any petitioner may name as a respondent any personwith an ownership or leasehold interest in the property that is the subject ofthe decision being appealed who participated in the hearing, or was anapplicant, before the decision‑making board.

(f)         Writ ofCertiorari. – Upon filing the petition, the petitioner shall present thepetition and a proposed writ of certiorari to the clerk of superior court ofthe county in which the matter arose. The writ shall direct the respondentcity, or the respondent decision‑making board if the petitioner is a citythat has filed a petition pursuant to subdivision (4) of subsection (d) of thissection, to prepare and certify to the court the record of proceedings belowwithin a specified date. The writ shall also direct that the petitioner shallserve the petition and the writ upon each respondent named therein in themanner provided for service of a complaint under Rule 4(j) of the Rules ofCivil Procedure, except that, if the respondent is a decision‑makingboard, the petition and the writ shall be served upon the chair of thatdecision‑making board. Rule 4(j)(5)d. of the Rules of Civil Procedureshall apply in the event the chair of a decision‑making board cannot befound. No summons shall be issued. The clerk shall issue the writ withoutnotice to the respondent or respondents if the petition has been properly filedand the writ is in proper form. A copy of the executed writ shall be filed withthe court.

(g)        Answer to thePetition. – The respondent may, but need not, file an answer to the petition, exceptthat, if the respondent contends that any petitioner lacks standing to bringthe appeal, that contention must be set forth in an answer served on allpetitioners at least 30 days prior to the hearing on the petition.

(h)        Intervention. – Rule24 of the Rules of Civil Procedure shall govern motions to intervene as apetitioner or respondent in an action initiated under this section with thefollowing exceptions:

(1)        Any person describedin subdivision (1) of subsection (d) of this section shall have standing tointervene and shall be allowed to intervene as a matter of right.

(2)        Any person, otherthan one described in subdivision (1) of subsection (d) of this section, whoseeks to intervene as a petitioner must demonstrate that the person would havehad standing to challenge the decision being appealed in accordance withsubdivisions (2) through (4) of subsection (d) of this section.

(3)        Any person, otherthan one described in subdivision (d)(1) of this section, who seeks tointervene as a respondent must demonstrate that the person would have hadstanding to file a petition in accordance with subdivisions (2) through (4) ofsubsection (d) of this section if the decision‑making board had made adecision that is consistent with the relief sought by the petitioner.

(i)         The Record. – Therecord shall consist of all documents and exhibits submitted to the decision‑makingboard whose decision is being appealed, together with the minutes of themeeting or meetings at which the decision being appealed was considered. Uponrequest of any party, the record shall also contain an audio or videotape ofthe meeting or meetings at which the decision being appealed was considered ifsuch a recording was made. Any party may also include in the record atranscript of the proceedings, which shall be prepared at the cost of the partychoosing to include it. The parties may agree, or the court may direct, thatmatters unnecessary to the court's decision be deleted from the record or thatmatters other than those specified herein be included. The record shall bebound and paginated or otherwise organized for the convenience of the partiesand the court. A copy of the record shall be served by the municipalrespondent, or the respondent decision‑making board, upon all petitionerswithin three days after it is filed with the court.

(j)         Hearing on theRecord. – The court shall hear and decide all issues raised by the petition byreviewing the record submitted in accordance with subsection (h) of thissection. Except that the court may, in its discretion, allow the record to besupplemented with affidavits, testimony of witnesses, or documentary or otherevidence if, and to the extent that, the record is not adequate to allow anappropriate determination of the following issues:

(1)        Whether a petitioneror intervenor has standing.

(2)        Whether, as a resultof impermissible conflict as described in G.S. 160A‑388(e1), or locallyadopted conflict rules, the decision‑making body was not sufficientlyimpartial to comply with due process principles.

(3)        Whether the decision‑makingbody erred for the reasons set forth in sub‑subdivisions a. and b. ofsubdivision (1) of subsection (k) of this section.

(k)        Scope of Review.

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

a.         In violation ofconstitutional provisions, including those protecting procedural due processrights.

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

c.         Inconsistent withapplicable procedures specified by statute or ordinance.

d.         Affected by othererror of law.

e.         Unsupported bysubstantial competent evidence in view of the entire record.

f.          Arbitrary orcapricious.

(2)        When the issuebefore the court is whether the decision‑making board erred ininterpreting an ordinance, the court shall review that issue de novo. The courtshall consider the interpretation of the decision‑making board, but isnot bound by that interpretation, and may freely substitute its judgment asappropriate.

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

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

b.         The increase invehicular traffic resulting from a proposed development would pose a danger tothe public safety.

c.         Matters about whichonly expert testimony would generally be admissible under the rules ofevidence.

(l)         Decision of theCourt. – Following its review of the decision‑making board in accordancewith subsection (k) of this section, the court may affirm the decision, reversethe decision and remand the case with appropriate instructions, or remand thecase for further proceedings. If the court does not affirm the decision belowin its entirety, then the court shall be guided by the following in determiningwhat relief should be granted to the petitioners:

(1)        If the courtconcludes that the error committed by the decision‑making board isprocedural only, the court may remand the case for further proceedings tocorrect the procedural error.

(2)        If the courtconcludes that the decision‑making board has erred by failing to makefindings of fact such that the court cannot properly perform its function, thenthe court may remand the case with appropriate instructions so long as therecord contains substantial competent evidence that could support the decisionbelow with appropriate findings of fact. However, findings of fact are notnecessary when the record sufficiently reveals the basis for the decision belowor when the material facts are undisputed and the case presents only an issueof law.

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

a.         If the courtconcludes that a permit was wrongfully denied because the denial was not basedon substantial competent evidence or was otherwise based on an error of law,the court may remand with instructions that the permit be issued, subject toreasonable and appropriate conditions.

b.         If the courtconcludes that a permit was wrongfully issued because the issuance was notbased on substantial competent evidence or was otherwise based on an error oflaw, the court may remand with instructions that the permit be revoked.

(m)       Ancillary InjunctiveRelief. – Upon motion of a party to a proceeding under this section, and underappropriate circumstances, the court may issue an injunctive order requiringany other party to that proceeding to take certain action or refrain fromtaking action that is consistent with the court's decision on the merits of theappeal.  (2009‑421,s. 1(a).)