Morningstar Marinas/Eaton Ferry, LLC v. Warren County , 368 N.C. 360 ( 2015 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 131A14
FILED 6 NOVEMBER 2015
MORNINGSTAR MARINAS/EATON FERRY, LLC,
Petitioner
v.
WARREN COUNTY, NORTH CAROLINA and KEN KRULIK, WARREN
COUNTY PLANNING AND ZONING ADMINISTRATOR, in his official capacity,
Respondents
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, ___ N.C. App. ___, 755 S.E.2d 75 (2014), affirming an order
entered on 13 September 2012 by Judge Robert H. Hobgood in Superior Court,
Warren County. Heard in the Supreme Court on 16 February 2015.
Robinson Bradshaw & Hinson, P.A., by John H. Carmichael, for petitioner-
appellee.
Turrentine Law Firm, PLLC, by Karlene S. Turrentine, for respondent-
appellants.
JACKSON, Justice.
In this case we consider whether a zoning officer may refuse to transmit an
appeal from his own zoning determination to the county board of adjustment for its
review. We conclude that a zoning officer does not have this authority and therefore
that the Superior Court, Warren County, properly entered an order compelling
respondents to place petitioner’s appeal on the agenda of the Warren County Board
of Adjustment (the Board).
MORNINGSTAR MARINAS/EATON FERRY, LLC V. WARREN COUNTY
Opinion of the Court
Morningstar Marinas (petitioner) owns land abutting Lake Gaston in Warren
County, where it operates a commercial marina known as Eaton Ferry. Petitioner’s
property is zoned for business development pursuant to the Warren County Zoning
Ordinance (the Ordinance). East Oaks, LLC (East Oaks) owns land approximately
145 feet away, across a small cove. Pursuant to the Ordinance, 8.5 acres of that
property are zoned as residential and 1.91 acres are zoned for commercial use. The
commercial portion of the property is improved with a boat storage building and a
parking lot.
In April 2011, East Oaks filed a petition seeking a conditional use permit to
develop a townhouse community (the Townhouse Project) on the residential portion
of the property. The site plan for the Townhouse Project showed a proposed access
easement for a driveway (the Drive) connecting the boat storage building on the
commercial portion of the property to a boat launch area on Lake Gaston located on
the residential portion of the property. The Drive was to be utilized to transport boats
from the boat storage facility to the boat slips and launching area on the residential
property.
On 21 April 2011, before the Board had an opportunity to rule on the petition,
Warren County Planning and Zoning Administrator Ken Krulik issued a formal
determination concluding that townhouses were a permitted use in the subject
residential district and therefore, a conditional use permit was not required. As a
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Opinion of the Court
result, East Oaks withdrew its application for a conditional use permit and obtained
a zoning permit to develop the townhouses.
Petitioner appealed Krulik’s 21 April formal determination to the Board and
argued that the Townhouse Project did not constitute a permitted use in the East
Oaks residential property pursuant to the Ordinance. As Krulik’s formal
determination did not specifically address the Drive portion of the site plan,
petitioner wrote Krulik a letter requesting that he issue a formal determination
pursuant to the Ordinance regarding whether the Drive constituted a commercial use
of the East Oaks residential property in violation of the Ordinance. Krulik responded
by e-mail that he would not make a determination on the Drive, explaining that it
was “not a relevant issue to [his] determination on townhouses as a permitted use or
issuing the zoning permit.”
When the Board heard petitioner’s appeal in August 2011, it overturned
Krulik’s interpretation of the Ordinance and revoked the zoning permit previously
issued to East Oaks. On 12 September, East Oaks successfully petitioned the
superior court for a writ of certiorari to review the Board’s order. On 14 October 2011,
East Oaks and Warren County entered into a consent order, approved by the court,
in which East Oaks and Warren County agreed that the zoning permit issued based
upon Krulik’s interpretation of the Ordinance would be reinstated, thereby allowing
East Oaks to continue the Townhouse Project. The consent order, to which petitioner
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Opinion of the Court
was not a party, also stated the trial court’s conclusions of law that “Morningstar is
not a ‘person aggrieved’ pursuant to N.C. Gen. Stat. §153A-345(b)” and that the Board
“had no jurisdiction or authority to hear the appeal of Morningstar.”
Meanwhile, on 7 October 2011, petitioner filed its first petition for writ of
mandamus with the Superior Court, Warren County, in which it requested that the
court compel Krulik to issue a formal determination regarding the Drive. Warren
County and Krulik (respondents) filed an answer in which they contended that
petitioner lacked standing to appeal and to petition for the writ of mandamus.
Respondents also attached a determination letter from Krulik dated 16 November
2011, which stated in pertinent part:
While I did not make a specific determination as to
whether the use of the concrete drive/easement constitutes
a commercial use of the East Oaks Property in violation of
the Ordinance, my issuance of the East Oaks’ zoning
permit . . . necessarily required that I determine the
submitted use of the entire property covered by the permit
is not restricted by the Warren County Zoning Ordinance.
The drive is shown as a “’20 [foot] wide private access
easement” on East Oaks’ development plans. Warren
County’s Ordinance does not specifically regulate
easements—whether or not they cross varying zoning
jurisdictions . . . [T]o my knowledge, there has been no
attempt by Warren County to regulate such easements
through its zoning regulations.
In light of Krulik’s determination regarding the Drive, petitioner voluntarily
dismissed its mandamus action without prejudice and on 14 December 2011, noticed
its appeal to the Board from Krulik’s 16 November determination. Petitioner again
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Opinion of the Court
asserted that “the Drive constitutes a commercial use of the East Oaks Property,
which is zoned Residential District, in violation of the Ordinance.”
In January 2012, the county attorney informed petitioner that she had advised
Krulik not to place the December appeal from Krulik’s November 2011 determination
on the Board’s agenda because, inter alia, the Board “has no authority or jurisdiction
to hear an appeal by [petitioner] because East Oaks’ permit issue has been settled
by” the 14 October 2011 consent order between East Oaks and Warren County.
Petitioner filed another petition for writ of mandamus in Superior Court,
Warren County, requesting that the court compel respondents to place the 14
December 2011 appeal on the Board’s next available agenda for a hearing. Petitioner
asserted that the consent order, to which it was not a party and which dealt with a
separate issue, did not concern the subject of the instant appeal, which involved the
Drive. Respondents again argued in their response to the petition that “Petitioner-
Morningstar was neither an aggrieved party to the ‘Prior Action’ nor an aggrieved
party to this action . . . . As such Petitioner-Morningstar has no standing to appeal
the actions of the Planning and Zoning Administrator, nor to bring this action for
mandamus.”
On 13 September 2012, the court granted the petition and issued a writ of
mandamus ordering respondents to place the appeal on the Board’s agenda for a
hearing on the merits. The court added that its order “only direct[ed] that a hearing
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be conducted by the [Board] but [did] not direct that Board concerning the merits of
the case.” Respondents appealed the order to the Court of Appeals, which affirmed
the trial court’s order in a divided opinion. Morningstar Marinas/Eaton Ferry, LLC
v. Warren County, ___ N.C. App. ___, 755 S.E.2d 75 (2014).
Notwithstanding respondents’ contention that petitioner lacked standing, the
majority determined that Krulik had a mandatory statutory duty to transmit
petitioner’s appeal to the Board pursuant to section 153A-345, and that “the
existence—or nonexistence—of standing is a legal determination that must be made
by the [Board].” Id. at ___, 755 S.E.2d at 78. The majority further concluded that
petitioner had complied with the requirements for taking an appeal as set forth in
the Ordinance and that petitioner thus had a right to have its appeal placed on the
Board’s agenda. Id. at ___, 755 S.E.2d at 79. In addition, the majority determined
that “mandamus was [petitioner’s] only available remedy.” Id. at ___, 755 S.E.2d at
80. Accordingly, the majority held that the trial court did not err by granting the
petition for writ of mandamus. Id. at ___, 755 S.E.2d at 81.
The dissent disagreed with the majority that section 153A-345 required Krulik
to transmit the appeal to the Board and for that reason would have reversed the trial
court’s order. Relying upon Smith v. Forsyth County Board of Adjustment, 186 N.C.
App. 651, 652 S.E.2d 355 (2007), the dissent asserted that a party must first
demonstrate that it has standing to appeal pursuant to section 153A-345 in order for
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Opinion of the Court
the statute to compel a zoning officer to transmit an appeal to the Board. Id. at ___,
755 S.E.2d at 82. (Elmore, J., dissenting). According to the dissent, Smith suggests
that a zoning officer “is vested with authority to refuse to transmit an appeal to the
[Board] if the appealing party’s application [does not allege any] special damages”
demonstrating that it is “aggrieved” pursuant to section 153A-354. Id. at ___, 755
S.E.2d at 82. Therefore, the dissenting judge believed that a zoning officer “may
unilaterally dismiss the appeal for want of standing.” Id. at ___, 755 S.E.2d at 82.
The dissent concluded that because petitioner neglected to allege special damages in
its appeal from the 16 November determination, petitioner failed to show that it was
“aggrieved” and thus had no standing to appeal to the Board. Id. at ___, 755 S.E.2d
at 82. For that reason the dissent would have held that petitioner had not met the
first requirement for issuance of a writ of mandamus that the party seeking relief
“demonstrate a clear legal right to the act requested.” In re T.H.T., 362 N.C. 446,
453, 665 S.E.2d 54, 59 (2008) (citation omitted). Nonetheless, the dissenting judge
“concur[red] in all other aspects of the majority opinion.”1 Id. at ___ N.C. App. at ___,
755 S.E.2d at 81. Respondents filed their appeal of right based on the dissenting
opinion.
1 Accordingly, the other holding by the Court of Appeals dealing with attorney’s fees
is not before this Court on appeal. The Court denied respondents’ petition for discretionary
review of that and other issues.
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Opinion of the Court
“The writ of mandamus is an order from a court of competent jurisdiction to a
board, corporation, inferior court, officer or person commanding the performance of a
specified official duty imposed by law.” Sutton v. Figgatt, 280 N.C. 89, 93, 185 S.E.2d
97, 99 (1971) (citations omitted). A writ of mandamus is an appropriate remedy when
the following circumstances are present: (1) the party seeking relief has “a clear legal
right to the act requested”; (2) the respondent has “a legal duty to perform the act
requested”; (3) performance of the act at issue is “ministerial in nature and [does] not
involve the exercise of discretion”; (4) the respondent did not perform the act
requested and the time for performance of the act has expired; and (5) no “alternative,
legally adequate remedy” is available. In re T.H.T., 362 N.C. at 453-54, 665 S.E.2d
at 59 (citations omitted).
Respondents argue based upon the dissent that the trial court erred by
granting petitioner’s request for writ of mandamus because petitioner lacks standing
as a party “aggrieved” to appeal Krulik’s 16 November determination; therefore
petitioner does not have “a clear legal right” to have its appeal placed on the Board’s
agenda. We agree with the Court of Appeals’ conclusion that Krulik is bound by
statute to transmit petitioner’s appeal to the Board and that the legal determination
whether petitioner has standing falls within the province of the Board. As a result,
we hold that petitioner has a clear legal right to have its appeal transmitted to the
Board and placed on the agenda, and we affirm the Court of Appeals’ determination
that mandamus was proper. In reaching this conclusion, we do not decide whether
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Opinion of the Court
petitioner, in fact, has standing because that decision first must be made by the Board
of Adjustment.
Subsection 153A-345(b)2 of the North Carolina General Statutes, which
governed county board of adjustment appeals at all times relevant to this matter,
states that
the board of adjustment shall hear and decide appeals from
and review any order, requirement, decision, or
determination made by an administrative official charged
with the enforcement of that ordinance. Any person
aggrieved or any officer, department, board, or bureau of
the county may take an appeal. Appeals shall be taken
within times prescribed by the board of adjustment by
general rule, by filing with the officer from whom the
appeal is taken and with the board of adjustment a notice
of appeal, specifying the grounds thereof. The officer from
whom the appeal is taken shall forthwith transmit to the
board all the papers constituting the record upon which
action appealed from was taken.
2 This statute was repealed by the General Assembly, effective 1 October 2013, but
was in effect during the relevant time period of the present case. N.C.G.S. § 160A-388 now
governs appeals to county boards of adjustment. See N.C.G.S. § 153A-345.1 (2013) (making
the provisions of section 160A-388 applicable to counties). Significantly, the revised statute
requires that
[t]he official who made the decision shall transmit to the board
all documents and exhibits constituting the record upon which
the action appealed from is taken. The official shall also provide
a copy of the record to the appellant and to the owner of the
property that is the subject of the appeal if the appellant is not
the owner.
Id. § 160A-388(b1)(5) (2013). In addition, the revisions now mandate that the appeal itself
be filed “with the [county] clerk,” id. § 160A-388(b1)(1), a procedure that is more analogous
to notices of appeal filed pursuant to both Chapter 150B and in the General Court of
Justice. See N.C. R. App. P. 3(a).
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Opinion of the Court
N.C.G.S. § 153A-345(b) (2012). “It is well established ‘that the word “shall” is
generally imperative or mandatory’ ” when used in our statutes. Multiple Claimants
v. N.C. Dep’t of Health & Human Servs., 361 N.C. 372, 378, 646 S.E.2d 356, 360 (2007)
(quoting State v. Johnson, 298 N.C. 355, 361, 259 S.E.2d 752, 757 (1979)). Our
reading of subsection 153A-345(b) does not deviate from this precedent. The statute
specifically states that “[t]he officer from whom the appeal is taken shall forthwith
transmit to the board all the papers constituting the record upon which action
appealed from was taken.” N.C.G.S. § 153A-345(b) (emphasis added). The statute
does not establish any exception or other circumstances in which the officer may
decline to transmit the appropriate materials. Accordingly, when Morningstar
appealed Krulik’s 16 November determination in its 14 December letter to Krulik, it
was mandatory that Krulik immediately transmit the appeal to the Board.
Although subsection 153A-345(b) clearly includes the standing requirement
that only a “person aggrieved . . . may take an appeal,” neither the statute nor the
Ordinance includes any language suggesting that this determination is to be made
by a zoning officer. We have stated that, “[i]n general, the zoning administrator is a
purely administrative or ministerial agent following the literal provisions of the
ordinance.” County of Lancaster v. Mecklenburg County, 334 N.C. 496, 507, 434
S.E.2d 604, 612 (1993) (citation omitted). Consistent with subsection 153A-345(b),
the Ordinance states that “[a]ppeals from the enforcement and interpretation of this
ordinance . . . shall be filed with the Zoning Administrator, who shall transmit all
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such records to the Board of Adjustment.” Warren County, N.C., Zoning Ordinance
§ IX-4 (2010). The Ordinance further indicates that “[t]he Board of Adjustment shall
fix a reasonable time, not to exceed 30 days, for the hearing of the appeal.” Id. The
plain language in both the statute and the Ordinance mandates that the zoning
officer forward the documents constituting the record to the Board—an act that is
ministerial in nature, involving no discretion. Conversely, “[w]hether a party has
standing is a question of law.” McCrann v. Pinehurst LLC, 225 N.C. App. 368, 372,
737 S.E.2d 771, 775, disc. rev. denied, 366 N.C. 593, 743 S.E.2d 221 (2013). In light
of the ministerial role of the zoning officer in the appeal process, as designated and
required by subsection 153A-345(b), we conclude that these officers are not vested
with authority to dismiss or foreclose an appeal based upon their legal determination
that the appealing party lacks standing. Moreover, we do not believe the statute was
intended to permit zoning officers to single-handedly block appeals from their own
zoning determinations. The county board of adjustment, not the zoning officer,
determines the fate of such an appeal.
Our decision does not address the issue of whether petitioner in fact has
standing, nor does it allow petitioner to evade the standing requirement. Although
subsection 153A-345(b) requires petitioner to demonstrate to the Board that it is an
aggrieved party before its challenge can be heard on the merits, in any event,
petitioner has a clear legal right to have its appeal transmitted to the Board.
Respondents do not dispute that petitioner complied with the requirements for taking
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an appeal pursuant to both subsection 153A-345(b) and the Ordinance. Subsection
153A-345(b) requires a zoning officer to transmit an appeal to the applicable board of
adjustment, without consideration of that zoning officer’s judgment regarding
whether or not the petitioner possesses standing to appeal. By refusing to place
petitioner’s appeal on the Board’s agenda, Krulik failed to comply with this statutory
mandate.
Accordingly, as to the issue on direct appeal based upon the dissenting opinion,
we affirm the Court of Appeals’ determination that the trial court did not err by
granting mandamus and by ordering respondents to place petitioner’s appeal on the
Board’s agenda. This case is remanded to the Court of Appeals for further remand to
the trial court for any additional proceedings necessitated by and consistent with this
opinion.
AFFIRMED AND REMANDED.
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