*1 THE COURT OF IN CNTY. v. WARREN FERRY, MARINAS/EATON MORNINGSTAR is not retro- year is made and January 1 of in which it effective as of 105-287(c). active.” N.C.G.S.
Affirmed.
Judges ELMOREand DAVISconcur. MARINAS/EATON Petitioner LLC, MORNINGSTAR FERRY, v. KEN WARREN COUNTY KRULIK, NORTH CAROLINA WARREN COUNTY, HIS OFFICIAL CAPACITY, IN ADMINISTRATOR, PLANNING AND ZONING
No. COA13-458 18 March Filed zoning dispute zoning
1. Mandamus —writ mandamus — to Board administrator —transmission writ mandamus by issuing a did not err The trial court zoning dispute. The with a petitioner in connection favor of petitioner’s appeal statutory duty to transmit had a administrator petitioner’s Adjustment (BOA) and the Board of BOA, not the to made legal was a BOA petitioner’s appeal administrator; placing the act of any discretion did not involve in nature and was ministerial administrator; had a petitioner part of the placed agenda; BOAand appeal transmitted its to have remedy. available was and mandamus to dismiss —failure of mandamus —motion Mandamus —writ untimely appeal necessary circumvent party attempt join dispute involving zoning case err in a trial did not court petitioner’s petition to dismiss respondents’ motion denying necessary join a fail to did not Petitioner for writ of mandamus. applicable to this action was not 160A-393 and N.C.G.S. Furthermore, petitioner mandamus. untimely substance appeal attempt take an appealing was instead but Determination.
16 November dissenting.
Judge ELMORE THE IN COURT OF APPEALS LLC WARREN CNTY. *2 (2014)] 23
[233 Appeal by respondents September by from order entered 13 Judge Hobgood County Superior Robert H. in Warren in Court. Heard Appeals Court November 2013. Robinson, Hinson, RA., by Bradshaw & Carmichael, John H. for
petitioner-appellee. by Firm, PLLC, Turrentine, Turrentine Law Karlene S. for respondents-appellants. DAVIS,Judge. County (“Mr.
Warren and Ken Krulik Krulik”), capacity his official County Planning as Warren Zoning (collectively and Administrator “Respondents”), appeal from the trial court’s a order writ of man- damus in favor of Ferry, Marinas/Eaton LLC(“Momingstar”) dispute. connection with a review, After careful we affirm the trial court’s order. Background
Factual The facts relevant to this are as Momingstar oper- follows: parcel ates full-service marina on a 5.03 acre (“the Momingstar of land Property”) Ferry located Littleton, at 1835Eaton Road in North Carolina. The Momingstar Property is zoned commercial in the Lakeside Business District under the Warren (“the Ordinance”). Its slips dry commercial marina offers wet storage for boats and a Momingstar Property fuel dock. The is located off a small cove of Lake approximately Gaston 145 feet across the cove from land owned Oaks, East (“East Oaks”). Approximately LLC 8.5 acres of the East property Oaks is zoned residential (“the Residential Property”) under Adjacent the Ordinance. Property the Residential parcel is a 1.91 acre of land owned East Oaks and zoned (“the commercial Commercial Property”). The Property improved Commercial storage with a boat building operates East dry facility. Oaks storage
East Oaks permit filed a for a conditional use build 36 Property. townhouses the Residential petition, In its East Oaks plan proposed included site for the use showing townhouses, roads, and (“the Drive”) a drive that connects the Property Commercial Property. and the Residential The record indicates that the Drive was to purpose be used for the of transporting dry storage boats from the facil- ity Property located on the Commercial to the boat launch area located Property. on the Residential THE OF
IN COURT Adjustment (“BOA”) ruled County Board of Before the permit, Mr. Krulik reviewed use petition conditional East Oaks’ April (“the on 21 and issued formal the Ordinance permitted use were a finding that townhouses April Determination”), Oaks dwelling. As East single-family district as a residential permit and secured application for conditional use withdrew its permit to construction. begin standard BOA, to the appealed East portions Drive nor the asserting that neither the townhouses Because permitted under Ordinance. plan site were Oaks’ *3 portion of expressly the Drive did address April not Determination Mr. requested May 2011, Momingstar plan, Oaks’ site East proposed whether East Oaks’ as to issue a formal determination Krulik a use of the Residential commercial of the Drive would constitute use 10 June In an email dated of the Ordinance. Property in violation this a determination on going am to make responded, “I not Mr. Krulik town- my determination it not relevant issue .... [because] permit.” permitted use or houses appeal and voted Momingstar’s 2011, the BOA heard August On 15 East to revoke April unanimously the 21 Determination to reverse petition filed September East Oaks permit. On Oaks’ judicial Superior County Court writ of in Warren for certiorari On Determination. reversing of the BOA’sdecision review con- entered a Hobgood H. Honorable Robert 14 October County agreed to reinstate whereby East Oaks and Warren sent order interpretation of adopt Krulik’s zoning permit and Mr. East Oaks’ pursuant to property develop the Oaks to as to allow East Ordinance so order, to the consent not plan. Momingstar was its site ‘per- “Momingstar is not a of law as matter trial court concluded and that the 153A-345(b)” pursuant to N.C. Gen. Stat. aggrieved’ son authority to jurisdiction or no County Adjustment had “Warren Momingstar.” hear peti- 2011,Momingstar filed its initial earlier, on October
One week requested compel Krulik to issue the Mr. mandamus to for writ of tion they answer, Respondents’ In the Drive. regarding determination formal also mandamus but petition for writ of right denied November Krulik dated 16 from Mr. determination attached formal part, stated, pertinent Determination”), (“the 16 November specific make a I did not [w]hile drive/easement of the concrete the use as to whether IN THE OF COURT LLC a commercial property use of the East Oaks constitutes Ordinance, my violation issuance of the East Oaks zoning permit... necessarily required I that determine the property submitted use permit entire covered County is not restricted the Warren Ordinance. private The drive is shown as a “20’wide access ease- development plans. County’s ment” on East Oaks’ Warren regulate does easements they varying zoning jurisdictions. whether cross my . . . knowledge, attempt by there been no [T]o regulate Warren through such easements its regulations. After Mr. Krulik Determination, issued 16 November petition dismissed its for prejudice. writ of mandamus without Thereafter, Momingstar noticed its of the 16 November (“the By Appeal”). January Drive letter dated 17 County’s attorney advised Momingstar Appeal that the Drive placed would not May On 14 filed another for writ of County Superior mandamus in Warren — n Court, seeking compel time the Drive Appeal on the BOA’s a hearing September on the merits. On 13 2012, Judge Hobgood granted Momingstar’s petition and issued writ *4 Respondents ordering place the on the BOA’s agenda. Respondents timely filed a notice of Court.
Analysis matter, As an Respondents initial argue that the 16 November Determination was anot “new” determination from which Momingstar merely could to the BOA because it echoed Mr. 21 Krulik’s disagree. Determination. We 21 April explic- Determination did not itly address Moreover, petition the use of the Drive. in its first for writ of mandamus, alleged: “As of Petition, the date of this Mr. Krulik has requested not issued the formal [regarding determination Respondents the allegation admitted this in their answer Drive].” and — — then referencing provided November Determination “such formal determination Thus, is hereto attached.” we consider Mr. Krulik’s 16 November letter to be a formal determination from which Momingstar may appeal.
[1] We now turn our attention whether the criteria for the issu ance of writ of mandamus were satisfied. “Awrit of mandamus is an 27 OF APPEALS
IN THE COURT
FERRY, LLC 23
corporation,
court, offi
board,
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extraordinary court order
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imposed
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(2011) (cita
S.E.2d
App. 313,
Comm’rs,
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quotation marks
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discretion;”
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453-54,
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Here, Respondents’ contention is appeal Mr. Krulik’s standing to appropriate because lacked legal and, as did not have “clear November However, appeal placed agenda. BOA’s because right” to have its statutory Mr. we believe that Krulik had or nonexistence of stand- that the existence appeal to the BOAand BOA, by made we affirm ing that must be is a compelling issuing a writ of mandamus trial court’s order pro- action, Stat. 153A-3451 relevant to this N.C. Gen. At all times vided, part, as follows: relevant pursuant to author- adopted
(b) zoning A ordinance... ity provide that board of granted in this Part shall appeals from and review adjustment hear decide shall decision, made any order, requirement, or determination charged with the enforcement official an administrative any officer, Any aggrieved or person of that ordinance. county may take an department, board, or bureau prescribed by Appeals within times appeal. shall be taken rule, by filing with the adjustment general board taken and with the board whom the officer from *5 appeal, specifying grounds the adjustment of of a notice appeal the is taken shall The from whom thereof. officer period pres- during the the time relevant to § N.C. Stat. 153A-345was in effect Gen. governs to repealed. § N.C. Stat. 160A-388now but since Gen. ent action been adjustment. county boards of IN THE COURT OF APPEALS PERRY, LLC all papers forthwith transmit to the board constituting upon appealed the record from was taken. (emphasis added). N.C. Gen. Stat. 153A-345(b) purpose § The of N.C. Stat. provide review, Gen. 153A-345is “to provid- § and statutes ing for liberally review of administrative decisions should be construed preserve Cty. Mecklenburg, Mize v. right.” effectuate that App. 279, 283, (1986). 341 S.E.2d any provision
Neither Gen. Stat. nor § 153A-345 other of North upon Carolina law zoning confers power administrator make decision as to whether BOA from zoning “person aggrieved” decision is standing purposes. North does, Carolina law however, mandate that administrator transmit the an appeal record of BOA if is within taken prescribed period. time Pursuant to N.C. Gen. Stat. 153A-345(b), § administrator has discretion regarding perform no whether to his transmitting the record to the BOA once the has been quoted Instead, above, noticed. expressly the statute states that the zoning administrator from taken “shall forth- being whom the papers the board all the constituting upon the record appealed which action from was taken.” N.C. 153A-345(b) Gen. Stat. (emphasis added). County Zoning Warren accor- dance 153A-345(b) §with provides also “[a]ppeals interpretation enforcement and . . this ordinance . shall be filed with the Zoning Administrator, who shall transmit all such records Adjustment.” County, N.C., Zoning Ordinance (emphasis IX-4 added). appellate consistently
Our courts have held that the use of the word “shall” a statute what See required indicates actions are mandatory. or Multiple Dep’t Claimants v. N.C. & Servs., Health Human 361 N.C. 646 S.E.2d (2007) (“It is well established that ‘shall’ the word generally imperative mandatory.” or (citations quotation marks Internet E., Communications, Inc. Inc., v. Duro omitted)); 401, 405-06, (2001) (“The word ‘shall’is defined as ‘must’ laws, ‘used regulations, express or directives to what is manda ” tory.’ (citation omitted)). As we act placing conclude Momingstar’s appeal on the BOA is ministerial in nature and does any part not involve discretion on administrator. We also hold that legal right has a to have its placed transmitted the BOA and appealed November Determination on 14 December 2011. In accordance
IN THE COURT OF APPEALS FERRY, App. (2014)] [233 Ordinance, Momingstar County Zoning provisions with the of the Warren Krulik, appeal whom the was appeal with the officer from filed its Mr. appeal. $150.00 taken, filing fee for the See and included a N.C., (“Appeals IX-4 from the enforcement County, Zoning § Zoning . interpretation . . shall filed with the of this ordinance $150.00 to Administrator_”); (listing IX-2 as fee for id. § complied requirements taking BOA). with the Because appeal placed agenda. BOA’s appeal, it to have its on the an had following of shall have the (“The id. at IX-3 Board § See any appeal from and review powers and duties .. . hear and decide [t]o by decision, any order, requirement, determination made or Adjustment shall fix rea- Administrator.”); (“The id. at IX-4 time, days, hearing appeal-”). to for the sonable exceed taken, appeal from whom the was Krulik, as the officer Mr. statutory appeal the BOA. This duty to had a therefore “shall,” by and did mandatory, indicated the use the word was as comply Mr.Krulik failed to of discretion. Because not involve the exercise unwillingness his statutory made clear mandate and instead only remedy. Momingstar’s so, was available do mandamus ability by Mr. Krulik’s refusal appeal to foreclosed the BOA Moreover, Momingstar could not place the directly to zoning administrator’s decision appeal the substance of the subject judicial BOA decisions are superior court because the board 153A-345(e2)(“Each decision review. See N.C. Gen. Stat. by by superior proceedings the nature subject court to review (emphasis added)). of certiorari.” place Momingstar’s compelling Respondents to
The trial court’s order Momingstar to circumvent BOA does not allow fully contrary, recognizes To the its order requirement standing. that it 153A-345,Momingstar must establish §with that in accordance party in to have the merits of its aggrieved order heard correctly provides that the determination We the BOA. believe the order be made must whether express opinion as to whether by Mr. Krulik. We no BOA rather than possess standing because that Momingstar does does is not before us. issue Forsyth Cty. Adjust.,
Smith v. Bd. of upon concluding that man- relies (2007), case the dissent petition for a writ of did not involve a appropriate, was not damus authority way administra- any or in address Rather, the issue in Smith standing. to make a determination tor IN THE OF COURT LLC v. WARREN CNTY. superior correctly was whether the court dismissed *7 appeal from a BOA standing. decision for lack of Id. at 652 S.E.2d 357. This Court concluded application that the the to BOA appealing zoning special the had alleged officer’s decision damages required as petitioner qualify the “person aggrieved.” order for to as a 654-55, Id. at S.E.2d at suggesting
We do not read Smith as that a officer would have authority the to refuse an simply to the BOAbased appellant his own standing. belief lacked agree We cannot with holding dissent that our in Smith somehow confers a gatekeeper role given onto officers that such role is nowhere conferred or, matter, statute for that our Rather, identified in decision in that case. we believe that Smith is consistent with the notion that it is the BOA that has the determining party of requisite whether has made the showing standing of appeal may such that the merits of the be reached.
Standing question Cty. Zoning is of law. Cook v. Union Bd. of Adjust., App. 582, 588, 464 (2007). A determi- standing nation of involves a particular “whether a litigant proper party is a legal position.” to assert a Id. As we are unable conclude that a authority officer is vested with the make such regarding standing, particularly determinations where result, here, very as would be to insulate that same officer’s decision from review.
[2] Respondents also contend that their motion to dismiss the for improperly writ mandamus was (1) Momingstar denied because join necessary party failed to (East Oaks); (2) Momingstar’s peti tion merely attempt for mandamus was bypass the fact that the period time appealing or the consent order reinstating already passed. determination had per Weare not arguments. suaded either of these necessary party
“A presence required is one whose complete is for a claim, determination of the and is one whose interest is such that no decree can affecting party.” be rendered Aux, without McCraw App. 717, 719, S.E.2d denied, disc. review explained S.E.2d 362 As (2010). above, pres we have ent action Momingstar attempted commenced when 16 November Determination and Mr. Krulik refused the BOA’s Momingstar then sought writ of mandamus directing Respondents perform ministerial, nondiscretionary task placing for a hearing. The order OF APPEALS
IN THE COURT FERRY, LLC CNTY. v. WARREN any con- way substantive issues in no addressed the merits aggrieved was an cerning (1) whether permitted is under use of the Drive appeal; (2) whether East Oaks’ notes, Rather, as the Warren Ordinance.2 Momingstar and present purely procedural issue between “a Respondents.” Stat. 160A- that under N.C. Gen. nevertheless assert required respondent. to name East Oaks as See 393, Momingstar was petitioner applicant (“Ifthe 160A-393(e)(2013) N.C. Gen. Stat. § appealed, the being board whose decision is decision-making before the respondent.”). However, .petitioner applicant shall also name specifically limited to scope N.C. Stat. 160A-393is Gen. superior decision-making boards to the nature certiorari *8 thus, apply present action for mandamus. and, courts does applies quasi- (“This section 160A-393(a) Gen. Stat. superior court judicial decision-making when that is to boards agree . . with the trial .”). . As we and in the nature of certiorari Adjustment County Board court’s conclusion that “the Oaks, necessary parties to this mandamus action. are not and East compelled to this mandamus parties sought to be take The Respondents.” action are the Respondents improperly denied
Finally, argue that the trial court only sought mandamus because their motion dismiss April untimely attempt appeal of the substance of to take an correctly that action for manda- Respondents state Determination. “[a]n extraordinary appeal. may for an This be used as a substitute mus an administrative remedy proper to review or reverse is not a instrument jurisdiction.” within its final action on matter which has taken board 559, 570, S.E.2d Architecture, 273 N.C. v. N.C. Bd. Snow omitted). quotation marks, and italics (1968) (citations, previously discussed, Determination However, as the November Drive, specifically addresses the April unlike the Determination concerning Drive. Once fact, was, a formal determination attempted made, Momingstar the 16 November prevented Mr. Krulik timely appeal BOA but was bring Respondents’ argument agree doing so. We therefore cannot explains Order “[t]his order mandamus 2. The trial court’s Adjustment but hearing the Warren conducted directs that concerning merits of the case.” that Board does not direct THE IN COURT OF APPEALS IXC WARREN CNTY. Momingstar’s petition for purpose was filed “for the sole of getting around deadline [for Determination] passed.” which had Accordingly, argument is overruled.
Conclusion above, For the reasons stated we affirm the trial court’s order issu- ing a writ of mandamus compelling
appeal on the BOA’s Because we hold that prop- the trial court erly mandamus, issued writ we also affirm the trial court’s denial of Respondents’ attorneys’ motion for fees.
AFFIRMED.
Judge McCULLOUGH concurs.
ELMORE, Judge, dissenting. respectfully I disagree majority’s with the conclusion that Mr. Krulik statutory had a to transmit the to the Board pursuant (BOA) Gen. result, Stat. § 153A-345.As I would reverse trial court’s order granting writ mandamus. I concur in all aspects other majority opinion. majority is correct in that N.C. Gen. Stat. 153A-345mandates any person aggrieved by a zoning decision shall be afforded statu
tory right of review before the BOA. This “person Court has defined a aggrieved” adversely as “one respect affected in of legal rights, or suf *9 fering from infringement an legal rights.” Cnty. or denial of Johnston City Wilson, v. 136 N.C. 826, 829 (2000) (cita quotations tions and omitted). “It appeal may is well that settled an aggrieved taken party real in interest.” Id. majority
While the
argues
Forsyth
that Smith v.
County Bd. of
inapposite
to the outcome of
case,
the instant
I disagree.
App. 651,
IxvSmith,
IN THE COURT OF LLC WARREN CNTY. decision had decreased allege decision failed to Officer’s future, petitioner’s property or would do so in the the value of the therefore, show, damages; she did special petitioner allege, “failed to Zoning Id. Officer to standing not have [BOA].” 654-55, S.E.2d at is vested with Zoning Officer suggesting
I read Smith as appealing par- appeal to the BOAif the authority to refuse to transmit an namely special application any allegations damages, ty’s is devoid of special damages in an property alleging value. Without decrease it appeal, appealing cannot demonstrate application for may unilaterally dismiss Officer aggrieved, and therefore purview Simply put, to fall under the standing. for want of it must have shown that 153A-345,Momingstar N.C. Gen. Stat. special by alleging damages could have done aggrieved, it However, Momingstar 16 November determination. in its special damages, Momingstar is alleging do neglected to so. Without 153A-354, had no and it N.C. Gen. Stat. “aggrieved” under compelled appeal. Thus, Mr. Krulik was the BOA’s not demonstrate Further, Momingstar could standing, without Because right” to for writ of mandamus. “clear mandamus, trial court erred satisfy the first element failed to Accordingly, order should petition. the trial court’s granting its be reversed.