Butterworth v. The City of Asheville , 247 N.C. App. 508 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-919
Filed: 17 May 2016
Buncombe County, No. 14 CVS 05202
HOPE C. BUTTERWORTH and husband, LUKE T. BUTTERWORTH; MICHAEL D.
SKRZYNSKI; SUZANNE A. FULLAR; KERRY BRIGHT and wife, STEPHANIE
LeGRAND; LAURENCE H. VICKERS and wife, KAREN T. VICKERS; H. PETER
LOEWER and wife, JEAN LOEWER, Petitioners,
v.
THE CITY OF ASHEVILLE and FARMBOUND HOLDINGS, LLC, Respondents.
Appeal by Petitioners from order entered 24 April 2015 by Judge Mark E.
Powell in Buncombe County Superior Court. Heard in the Court of Appeals 9
February 2016.
Roberts & Stevens, P.A., by F. Lachicotte Zemp, Jr., and Eric P. Edgerton, for
Petitioners.
City of Asheville City Attorney’s Office, by City Attorney Robin T. Currin and
Assistant City Attorney Catherine A. Hofmann, and McGuire Wood & Bissette,
P.A., by Joseph P. McGuire, for Respondents.
DILLON, Judge.
The subject matter of this appeal is a proposed residential subdivision being
developed by Farmbound Holdings, LLC (the “Developer”), which was approved by
the City of Asheville’s Planning and Zoning Commission (the “Commission”).
Petitioners are individuals who reside near the proposed development. Petitioners
(the “Neighbors”) appeal from the trial court’s order dismissing their action against
BUTTERWORTH V. CITY OF ASHEVILLE
Opinion of the Court
the City of Asheville (“the City”) and the Developer. For the following reasons, we
reverse the order of the trial court and remand the matter to the trial court for
remand to the Commission for further proceedings.
I. Background
In May of 2014, the Developer submitted an application to the City to develop
a major residential subdivision known as the Brynn Subdivision. In its application,
the Developer requested that the subdivision be approved with a modification which
would allow for the city streets within the proposed subdivision to be narrower in
width than otherwise required by City regulations.
In October of 2014, the Commission convened a public meeting and heard a
presentation by the City urban planner explaining the proposed project as well as the
report of the City’s Technical Review Committee recommending that the subdivision
be approved with the modification. The Commission also allowed for public comment
from concerned citizens who opposed approval, including the Neighbors. Ultimately,
though, the Commission voted to approve the Brynn Subdivision preliminary plat,
five to one (5-1), with the requested street-width modification.
In December of 2014, the Neighbors filed a petition for certiorari in Buncombe
County Superior Court, seeking review of the Commission’s decision. Respondents
each filed an answer and moved for dismissal.
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Opinion of the Court
On 24 April 2015, after a hearing on the matter, the trial court entered its
written order granting Respondents’ motions to dismiss. The Neighbors timely filed
written notice of appeal to our Court from the trial court’s dismissal.
II. Analysis
In their sole argument on appeal, the Neighbors contend that the trial court
erred in concluding that the City was not required to afford them all fair trial rights
before approving the Developer’s subdivision preliminary plat. Specifically, the
Neighbors contend that the approval of the street-width modification required the
Commission to exercise discretion and, therefore, rendered the Commission’s
approval process quasi-judicial in nature, and not ministerial/administrative in
nature. We hold that the Commission’s approval of the plat in this case was, in fact,
quasi-judicial in nature and that, therefore, the Neighbors1 were deprived of certain
due process rights in the approval process. Accordingly, we reverse the order of the
trial court for remand to the Commission for further proceedings consistent with this
opinion.
A. The Commission is Authorized to Approve Subdivision Applications.
Our General Assembly has empowered municipalities to regulate the
subdivisions within their territorial jurisdiction. River Birch Assocs. v. City of
Raleigh, 326 N.C. 100, 107, 388 S.E.2d 538, 542 (1990). Specifically, N.C. Gen. Stat.
1 Neither party argues the Neighbors’ standing in this matter.
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Opinion of the Court
§ 160A-373 allows a municipality to exercise its power to approve subdivisions
through either “(1) [t]he city council, (2) [t]he city council on recommendation of a
designated body, or (3) [a] designated planning board, technical review committee, or
other designated body or staff person.” N.C. Gen. Stat. § 160A-373 (2014).
With regard to a proposed subdivision requiring the extension of public and
private streets, Asheville has elected the third option provided under our General
Statutes. Specifically, Asheville’s City Code of Ordinances delegates the power to
approve a proposed subdivision which requires the extension of a public or private
street to the Commission.2 Asheville City Code of Ordinances § 7-5-8(a)(3)(d)(1)
(2014).
B. The Due Process Required in the Commission’s Decision Process Depends upon
Whether its Decision was Quasi-judicial or Administrative in Nature.
Our Supreme Court has observed that the decision by a local government to
approve or deny a particular land use is typically characterized as being one of four
types – legislative, advisory, quasi-judicial, or administrative. See County of
Lancaster v. Mecklenburg, 334 N.C. 496, 507, 434 S.E.2d 604, 612 (1993). As in
County of Lancaster, the question in the present case is whether the Commission’s
2 A proposed subdivision which involves the extension of public or private streets is deemed a
“major” subdivision under Asheville’s Code. Asheville City Code of Ordinances § 7-5-8(a)(1) (2014).
“Minor” subdivisions are dealt with separately in the Code and need only be approved by City staff,
see id. § 7-5-8(b)(4), as they “do not require the extension of public streets or private streets built to
City of Asheville standards,” see id. § 7-5-8(b)(1).
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Opinion of the Court
approval of the subdivision plat is “properly characterized as a quasi-judicial decision
or as an administrative [] decision.” Id.
The level of due process required to be afforded by the Commission in deciding
a land use request depends upon whether its decision process is quasi-judicial or
administrative in nature. See, e.g., Sanco of Wilmington Serv. Corp. v. New Hanover
County, 166 N.C. App. 471, 475, 601 S.E.2d 889, 892-93 (2004) (comparing
administrative and quasi-judicial land use decisions). Specifically, our Supreme
Court has recognized, “[d]ue process requirements mandate that certain quasi-
judicial [land use] decisions comply with all fair trial standards when they are made.”
County of Lancaster, 334 N.C. at 506, 434 S.E.2d at 611 (emphasis added). The
Supreme Court has described these “fair trial standards” as embracing “an
evidentiary hearing with the right of the parties to offer evidence; cross-examine
adverse witnesses; inspect documents; have sworn testimony; and have written
findings of fact supported by competent, substantial, and material evidence.” Id. at
507-08, 434 S.E.2d at 612. In contrast, an administrative land use decision does not
require this level of due process and may be made “without a hearing at all[.]” Id. at
508, 434 S.E.2d at 612.
Our Supreme Court has differentiated between quasi-judicial decisions and
administrative decisions as follows: In making quasi-judicial decisions, the decision-
maker must “exercise discretion of a judicial nature”; and in the land use context,
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Opinion of the Court
“these quasi-judicial decisions involve the application of zoning policies to individual
situations, such as variances, special and conditional use permits, and appeals of
administrative determinations.” Id. at 507, 434 S.E.2d at 612. In sum, the Court has
stated that such quasi-judicial decisions “involve two key elements: the finding of
facts regarding the specific proposal and the exercise of some discretion in applying
the standards of the ordinance.” Id. Further, as explained by the Court, such quasi-
judicial decisions may not be delegated to an individual administrator, see id. at 509,
434 S.E.2d at 613, but rather must be made by the municipality’s governing council,
board of adjustment or – as in the case of Asheville – a designated planning board,
see N.C. Gen. Stat. § 160A-373.
By contrast, administrative decisions are “routine” and “nondiscretionary,” and
may be delegated to a single individual. County of Lancaster, 334 N.C. at 507, 434
S.E.2d at 612. Moreover, while the decision-maker “may well engage in some fact
finding [in making an administrative decision] . . . this involves determining objective
facts that do not involve an element of discretion.” Id. (internal marks and citation
omitted).
This is not to say that every decision to allow a modification in a subdivision
proposal is quasi-judicial in nature. That is, the decision to allow a modification may
be administrative in nature if the decision process does not involve the exercise of
discretion but rather involves the application of specific, neutral, and objective
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Opinion of the Court
criteria as set out in the municipality’s governing code. See id. at 510, 434 S.E.2d at
614 (explaining that a decision which requires the application of objective standards
is administrative). However, where the decision requires the exercise of discretion in
applying generally stated standards, the decision is of a quasi-judicial nature. As our
General Assembly has provided,
an ordinance shall be deemed to authorize a quasi-
judicial decision if the city council or planning board is
authorized to decide whether to approve or deny the plat
based not only upon whether the application complies with
the specific requirements set forth in the ordinance, but
also on whether the application complies with one or
more generally stated standards requiring a
discretionary decision to be made by the city council or
planning board.
N.C. Gen. Stat. § 160A-377(c) (2014) (emphasis added).
C. The Commission Viewed its Decision as Ministerial/Administrative in Nature
and Not Quasi-judicial in Nature.
Asheville’s Code grants the Commission the authority to allow modifications
to the minimum subdivision standards required under the Code. Asheville City Code
of Ordinances § 7-5-8(c)(1) (2014). Specifically, the Code states that such
modifications may be allowed in cases of “physical hardship,” defining cases of
physical hardship as
those cases where because of the topography of the tract to
be subdivided, the condition or nature of adjoining areas,
or the existence of other unusual physical characteristics,
strict compliance with the provisions of [the] chapter would
cause unusual and unnecessary hardship on the
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Opinion of the Court
subdivision of the property by [the] property owner or
developer.
Id. § 7-5-8(c)(2). In the event of a case of substantial hardship and the grant of a
modification, the Code empowers the Commission to impose such conditions on the
property owner or developer “as will ensure the purposes of the standards or
requirements waived.” Id. § 7-5-8(c)(3).
Asheville’s Code, however, also provides that the Commission’s process in
deciding whether to approve a preliminary plat “shall be ministerial in nature,”
without making any separate provision for those cases which involve approving a
modification due to a physical hardship. Id. § 7-5-8(a)(3)(d)(1). Instead, the Code
simply states that the Commission must schedule a public hearing to receive
comments regarding a proposed project upon receipt of a major subdivision
preliminary plat from the Technical Review Committee,3 and that, in the event the
preliminary plat as submitted is denied, the Commission must “set forth in writing
the reasons for denying approval of the plat.” Id.
In the present case, the record of the proceedings before the Commission
reveals that the Commission acted in a ministerial/administrative capacity, believing
that it did not have the authority to reject the plat with the modification where City
staff had already recommended approval. That is, it appears that the Commission
3 The Technical Review Committee is tasked with the initial stage of review of new major
subdivision applications and their compliance with applicable regulations. Asheville City Code of
Ordinances § 7-5-8(a)(3)(d) (2014).
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Opinion of the Court
was under the impression that modifications pursuant to § 7-5-8(c) of the City Code
were administrative rather than quasi-judicial in nature, as the text of § 7-5-
8(a)(3)(d)(1) of the City Code would seem to dictate. Specifically, the record of the
Commission’s hearing demonstrates as follows: Existing City standards required a
minimum forty-five (45) foot right-of-way for certain new streets, but the proposed
subdivision’s streets had only a twenty-five (25) foot right-of-way. Nevertheless, the
Commission was under the impression that the requested modification was part of
the Technical Review Committee’s initial review; that there had been compliance
with the process in place for an applicant to request such a modification; that City
staff had recommended approval of the modification or alternately had already
approved the modification; and that the matter had, therefore, already been resolved
prior to the Commission’s approval of the plat, which was merely ministerial, as
required by the Code.
D. The Commission’s Decision to Approve the Developer’s Proposed Subdivision
with the Modification was, in fact, Quasi-judicial in Nature.
Notwithstanding the provisions of the Asheville Code suggesting otherwise,
the decision regarding the Developer’s proposed modification required a
determination of whether the Developer would suffer “physical hardship” if the
modification was not allowed. See id. § 7-5-8(c)(2). We hold that this determination
required an exercise of discretion in the application of this generally stated standard,
rendering the Commission’s decision quasi-judicial in nature. See N.C. Gen. Stat.
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Opinion of the Court
§ 160A-377(c) (2014). Our conclusion is in spite of the language in Asheville’s Code
stating that review before the Commission “shall be ministerial.” See Asheville City
Code of Ordinances § 7-5-8(a)(3)(d)(1) (2014). Indeed, our General Assembly has
provided that “an ordinance shall be deemed to authorize a quasi-judicial decision if
the . . . planning board is authorized to decide whether to approve or deny the plat
based . . . on whether the application complies with one or more generally stated
standards.” N.C. Gen. Stat. § 160A-377(c) (2014).
Here, determining the presence of “physical hardship” as defined in § 7-5-
8(c)(2) of Asheville’s Code required the exercise of judgment and discretion in
applying the relevant “generally stated standard[][.]” See id. That is, the decision
did not require the mere application of specific, neutral, and objective criteria, which
would render the decision administrative in nature. Therefore, we hold that the
Commission’s approval of the Developer’s plat with the street-width modification was
a quasi-judicial decision. In approving the plat, the Commission was required to
determine whether the Developer would suffer “physical hardship” without the
modification, a decision which required the exercise of judgment and discretion in
applying this general standard.4
4 Generally speaking, the weighing by a local government board of various burdens of a
proposed use of land not strictly complying with local regulations to determine whether certain of the
associated burdens constitute an undue hardship on a particular party requires application of a
general standard – undue hardship – to a set of individualized circumstances, and the exercise of
judgment and discretion. See Harrison v. City of Batesville, 73 So. 3d 1145, 1152-56 (2011) (Mississippi
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Opinion of the Court
E. The Trial Court Erred in Dismissing the Petition for Certiorari, and Remand to
the Commission is Necessary.
Having found that the Commission’s decision to approve the proposed
subdivision was quasi-judicial in nature, we hold that the trial court erred in
dismissing the Neighbor’s petition for certiorari, and remand the matter to the trial
court for further remand to the Commission so that a hearing with “fair trial
standards” can be had.
While review of quasi-judicial decisions by local land use authorities is first to
superior court and in the nature of certiorari, see id. § 153A-336(a); id. § 160A-377(a);
id. § 153A-349(a); id. §§ 160A-393(a), (b)(3), our Court reviews the decisions of trial
courts in such cases to determine whether (1) the trial court’s review was within the
appropriate scope of review and (2) whether the review was correct, see Fehrenbacher
v. City of Durham, ___ N.C. App. ___, ___, 768 S.E.2d 186, 191 (2015). Moreover, the
nature of the decision by the local authority, not the label assigned to it, controls.
Guilford Fin. Servs., LLC v. City of Brevard, 150 N.C. App. 1, 6, 563 S.E.2d 27, 31
(2002), rev’d on other grounds, 356 N.C. 655, 576 S.E.2d 325 (2003) (per curiam).
Our Supreme Court has held that the appropriate scope of review on a petition
for certiorari from a decision by a local governmental authority regarding otherwise
Supreme Court reviewing quasi-judicial application of such a standard); Matthew v. Smith, 707 S.W.2d
411, 414-18 (1986) (Missouri Supreme Court: same); Oklahoma City v. Harris, 126 P.2d 988, 991-92
(1941) (Oklahoma Supreme Court: same); Brandon v. Bd. of Comm’rs of Town of Montclair, 124 N.J.L.
135, 139-41 (1940) (New Jersey Supreme Court: same).
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Opinion of the Court
non-compliant land use includes the following issues where the local authority is
acting in a quasi-judicial capacity:
(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.
Coastal Ready-Mix Concrete Co., Inc. v. Bd. of Comm’rs of Town of Nags Head, 299
N.C. 620, 626, 265 S.E.2d 379, 383 (1980).
Under the whole record test, which our Court has held is one of the standards
of review applicable to these decisions, if the petitioner is alleging that the decision
by the local authority was arbitrary and capricious, its findings of fact are binding on
appeal if they are supported by substantial, competent evidence, provided such
evidence was presented to the local authority before the decision was made. Blue
Ridge Co., L.L.C. v. Town of Pineville, 188 N.C. App. 466, 469, 655 S.E.2d 843, 846
(2008). However, where the petitioner is alleging that the decision was based on legal
error, de novo review, the other relevant standard, is applicable. Id. at 469, 655
S.E.2d at 845-46. Our Court has held that “[t]he superior court may apply both
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Opinion of the Court
standards of review if required, but the standards should be applied separately to
discrete issues.” Id. at 469-70, 655 S.E.2d at 846.
In the present case, the Neighbors alleged in their petition for certiorari, which
they labeled in the alternative as a complaint seeking a declaratory judgment and
injunctive relief, that the Commission failed to comply with the due process
requirements for quasi-judicial proceedings, alleging additionally that in doing so the
Commission acted arbitrarily and capriciously. Therefore, under Blue Ridge Co., the
allegations in the Neighbors’ petition required the trial court to review the
Commission’s decision under both the de novo and whole record standards. Id. at
469-70, 655 S.E.2d at 845-46. The trial court, however, did neither, apparently
simply agreeing with the Respondents’ position in their answers and motions to
dismiss, ordering that the Neighbors’ petition be dismissed without addressing any
of the relevant issues set out by our Supreme Court in Coastal Ready-Mix Concrete,
or making any findings or conclusions indicating its rationale for so ruling.
In any event, we hold that the trial court on remand shall remand the case to
the Commission to conduct further proceedings which provide the Neighbors with the
level of due process required for quasi-judicial proceedings before that Commission.5
5 Our holding is not to be construed to deem all allowances of modifications, variances, or
special uses, whether under Asheville’s Code or any other local land use regulation, as quasi-judicial
decisions. Instead, our holding here is confined to the modification authorized by § 7-5-8(c) of the
Asheville City Code, where a modification is required for approval of an otherwise non-compliant
preliminary plat. For example, although § 7-7-8(c)(6) of the City Code, applicable to conditional use
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Opinion of the Court
See Humble Oil & Ref. Co. v. Bd. of Aldermen of Town of Chapel Hill, 248 N.C. 458,
470, 202 S.E.2d 129, 137 (1974).
III. Conclusion
For the reasons stated herein, we reverse the order of the trial court and
remand the matter for further proceedings.
REVERSED AND REMANDED.
Judges BRYANT and ZACHARY concur.
zoning, authorizes the City planning and development director to allow “minor modifications” to
approved conditional use zoning ordinances, such modifications are prescribed by specific, neutral, and
objective criteria, such as the limitation of a deviation not in excess of “up to ten percent or 24 inches
. . . from the approved setback,” or a reduction of no more than “25 percent in the number of parking
spaces required[.]” See Asheville City Code of Ordinances § 7-7-8(c)(6) (2014). Whereas § 7-5-8(c) of
the City Code authorizes a modification requiring application of the physical hardship standard
without any other guiding standards, minor modifications under § 7-7-8(c)(6) are guided by clear
standards. See id. Therefore, our review of a minor modification under § 7-7-8(c)(6), unlike a more
general modification under § 7-5-8(c), would, like the legislative action empowering the planning and
development director to authorize it, be deferential, presuming its validity. See County of Lancaster
v. Mecklenburg, 334 N.C. 496, 510 n. 7, 434 S.E.2d 604, 614 n. 7 (1993).
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