Willis v. City of Southport Board of Adjustment

500 S.E.2d 723, 129 N.C. App. 499, 1998 N.C. App. LEXIS 644
CourtCourt of Appeals of North Carolina
DecidedMay 19, 1998
DocketCOA96-1496
StatusPublished
Cited by34 cases

This text of 500 S.E.2d 723 (Willis v. City of Southport Board of Adjustment) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Willis v. City of Southport Board of Adjustment, 500 S.E.2d 723, 129 N.C. App. 499, 1998 N.C. App. LEXIS 644 (N.C. Ct. App. 1998).

Opinions

JOHN, Judge.

Respondents City of Southport Board of Adjustment (the Board) and City of Southport (the City) appeal the trial court’s 4 October 1996 order setting aside the Board’s determination that petitioners Robert and Mary Jo Willis were in violation of a City zoning ordinance (the ordinance). For the reasons set forth herein, we reverse the trial court’s order and remand for entry of a new order to include specification of the standard of review utilized by that court.

In view of our disposition of this matter, a detailed recitation of background information is unnecessary. Suffice it to state that on 3 May 1995 petitioners appealed the Board’s determination they were in violation of the ordinance by filing in Brunswick County Superior Court a Petition for Writ of Certiorari and Complaint for Declaratory [500]*500Judgment. Following a hearing, the trial court set aside the Board’s decision 4 October 1996 in an order finding as fact the “absence of defined criteria or objective standards” in the record to support the Board’s “erroneous” conclusions, and holding the conclusions to be “arbitrary and not supported by the record.” Respondents timely appealed to this Court.

A legislative body such as the Board performs a quasi-judicial function when hearing evidence and determining whether a local ordinance has been violated. See Concrete Co. v. Bd. of Comm’rs, 299 N.C. 620, 625, 265 S.E.2d 379, 382 (1980) (board of aldermen performs quasi-judicial function “when it hears evidence to determine the existence of facts and conditions upon which the ordinance expressly authorizes it to issue a conditional use permit”). Accordingly, the Board’s decisions are “subject to review by the superior court by proceedings in the nature of certiorari,” N.C.G.S. § 153A-345(e) (1991), wherein the superior court is not a trier of fact, but assumes the posture of an appellate court. Mize v. County of Mecklenburg, 80 N.C. App. 279, 284, 341 S.E.2d 767, 770 (1986).

The North Carolina Administrative Procedure Act (APA) governing judicial review of agency rulings expressly excludes from its purview the decisions of local municipalities. Concrete Co., 299 N.C. at 624, 265 S.E.2d at 382. Nonetheless, the principles of the APA are “highly pertinent” to the process of judicial review as applied to decisions of municipal bodies such as the Board. See id. at 625, 265 S.E.2d at 382. Accordingly,

the task of a court reviewing a decision ... made by a town board sitting as a quasi-judicial body includes:
(1) Reviewing the record for errors in law,
(2) Insuring that procedures specified by law in both statute and ordinance are followed,
(3) Insuring that appropriate due process rights of a petitioner are protected including the right to offer evidence, cross-examine witnesses, and inspect documents,
(4) Insuring that decisions of town boards are supported by competent, material and substantial evidence in the whole record, and
(5) Insuring that decisions are not arbitrary and capricious.

[501]*501Id. at 626, 265 S.E.2d at 383. The scope of judicial review, however, “is limited to errors alleged to have occurred before the local board.” Tate Terrace Realty Investors, Inc. v. Currituck County, 127 N.C. App. 212, 218, 488 S.E.2d 845, 848, disc. review denied, 347 N.C. 409, 496 S.E.2d 394 (1997):

If [petitioner] argues the [board’s] decision was based on an error of law, then “de novo" review is required .... If, however, [petitioner] questions (1) whether the [board’s] decision was supported by the evidence or (2) whether the [board’s] decision was arbitrary or capricious, then the reviewing court must apply the “whole record” test.

In re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993) (citations omitted). Further,

“De novo” review requires a court to consider a question anew, as if not considered or decided by the [board] .... The “whole record” test requires the reviewing court to examine all competent evidence (the “whole record”) in order to determine whether the [board] decision is supported by “substantial evidence.”

Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994) (citations omitted).

However, while “[t]he nature of the contended error dictates the applicable scope of review,” Utilities Comm’n v. Oil Co., 302 N.C. 14, 21, 273 S.E.2d 232, 236 (1981), this rule

should not be interpreted to mean the manner of . . . review is governed merely by the label an appellant places upon an assignment of error; rather, [the court] first determine^] the actual nature of the contended error, then proceed[s] with an application of the proper scope of review.

Amanini, 114 N.C. App. at 675, 443 S.E.2d at 118.

While the APA specifically guides the superior court’s review of quasi-judicial decisions, Concrete Co., 299 N.C. at 624, 265 S.E.2d at 382, the statute does not designate the standard to be employed by our appellate courts in reviewing subsequent appeals from the superior court. Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118. Nonetheless, our Supreme Court recently declared that appellate courts, in considering decisions of the superior court regarding agency decisions, are to

[502]*502“examine^ the trial court’s order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly. ”

Act-Up Triangle v. Comm’n for Health Servs., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini, 114 N.C. App. at 675, 443 S.E.2d at 118-19)). We believe appellate review of a superior court judgment on a writ of certiorari regarding the action of a quasi-judicial body (such as the Board herein), being derivative of the power of the superior court to review the action, Sherrill v. Town of Wrightsville Beach, 76 N.C. App. 646, 649, 334 S.E.2d 103, 105 (1985), is “likewise governed by analogy to the APA.” Tate Terrace, 127 N.C. App. at 219, 488 S.E.2d at 849.

Accordingly, the threshold issue in the case sub judice is whether the trial court “exercised the appropriate scope of review.” Act-Up, 345 N.C. at 706, 483 S.E.2d at 392.

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Bluebook (online)
500 S.E.2d 723, 129 N.C. App. 499, 1998 N.C. App. LEXIS 644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willis-v-city-of-southport-board-of-adjustment-ncctapp-1998.