Azar v. Town of Indian Trail Bd. of AdjustmentÂ
257 N.C. App. 1
| N.C. Ct. App. | 2017Background
- Chris Azar owned property in Indian Trail and previously obtained special-use permits for multi-family development (granted 2004; renewed 2006, 2012).
- In 2016 Azar sought another renewal; the Town of Indian Trail Board of Adjustment held a hearing and denied the renewal (votes recorded on four ordinance factors).
- Azar received written notice of denial on December 15, 2016, and filed a petition for judicial review (writ of certiorari) on January 5, 2017 naming the Town of Indian Trail Board of Adjustment as respondent and citing N.C. Gen. Stat. § 150B-45.
- The Board moved to dismiss under Rules 12(b)(6) and 12(b)(7), arguing (inter alia) that municipal zoning review must name the city as respondent under N.C. Gen. Stat. § 160A-393(e) and that the APA provision cited (§ 150B-45) did not apply.
- Azar filed an amended petition on March 29, 2017 that named the Town as respondent; the superior court granted the Board’s motion to dismiss, holding the original petition failed to name the Town and the March amendment was untimely (beyond the 30-day statutory window).
- Azar appealed; the Court of Appeals affirmed, focusing on failure to join the Town and relation-back limits for adding a new party.
Issues
| Issue | Plaintiff's Argument (Azar) | Defendant's Argument (Board/Town) | Held |
|---|---|---|---|
| Whether Azar’s original petition properly named the required respondent | Naming the Board of Adjustment was sufficient / defect curable | Statute requires the city (Town) be named as respondent; Board is not the proper respondent | The statute (§160A-393(e)) requires the city be named; original petition failed to name the Town — dismissal proper |
| Whether the March 29, 2017 amendment naming the Town relates back to the January 5 filing so as to be timely | Relation-back under Rule 15(c) applies; amendment should be treated as timely | Relation-back does not apply to adding a new party-defendant; amendment adds a new party and is untimely beyond the 30-day limit | Relation-back does not apply to adding a new party; amended petition did not relate back and was time-barred |
| Whether the Town waived the defect by participating (or by other conduct) | Any participation cured the joinder defect (relying on MYC Klepper) | Town did not participate in defense of merits; merely filing for extension does not waive the defense | Town did not participate in a way that waived joinder defect; defense was preserved |
| Whether the petition was governed by the APA (§150B-45) instead of the municipal zoning statute (§160A-393) | The original petition cited §150B-45 | Zoning appeals must proceed under §160A-393; APA provision does not apply to local government quasi-judicial zoning decisions | Court did not decide this issue because dismissal on joinder/timeliness grounds was dispositive |
Key Cases Cited
- Leary v. N.C. Forest Prods., 157 N.C. App. 396, 580 S.E.2d 1 (de novo review of pleadings on motion to dismiss)
- MYC Klepper/Brandon Knolls L.L.C. v. Bd. of Adjustment for City of Asheville, 238 N.C. App. 432, 767 S.E.2d 668 (city’s participation can cure failure to name proper respondent)
- Piland v. Hertford Cty. Bd. of Comm’rs., 141 N.C. App. 293, 539 S.E.2d 669 (relation-back does not apply when amendment effectively adds a new defendant)
- Crossman v. Moore, 341 N.C. 185, 459 S.E.2d 715 (relation-back rule does not apply to naming a new party-defendant)
- Howell v. Fisher, 49 N.C. App. 488, 272 S.E.2d 19 (dismissal for failure to join a necessary party is proper when defect cannot be cured)
- Booker v. Everhart, 294 N.C. 146, 240 S.E.2d 360 (definition of a necessary party)