A recent N.C. Court of Appeals decision expanded upon and clarified when a prior quasi-judicial decision is binding on future boards.
Disclosure: It was my privilege to have served as co-counsel at the board level and as lead litigation counsel for the petitioners in this case. While I don’t believe the commentary below exhibits bias, disclosure of my representation is proper.
In Mt. Ulla Historical Preservation Society, et. al. v. Rowan County, the Society, Miller Air Park and about two dozen citizens appealed a 2011 decision by the Rowan County Board of Commissioners, who found that a 1200 foot broadcast tower met the standards for a conditional use permit. Specifically, petitioners challenged the board’s finding that the use would not materially endanger the public safety of planes from nearby Miller Air Park.
A key problem with the 2011 decision was that it was contrary to a 2005 Rowan County decision concerning the same company’s application for the same tower in the same location. In 2005, the county found – based on evidence presented – that a 1350 foot tower would endanger local air traffic. The ONLY difference between the 2005 and 2011 tower applications is that the tower proposed in 2011 had been lowered by 150 feet (from 1350 to 1200).
The implication of this 150 foot difference was critical to the understanding of how quasi-judicial decisions become binding on future zoning boards under N.C. law. For those of us who live in the world of quasi-judicial decisions, this is a big issue.
The broadcast company and the county argued that the 150 foot decrease in height was equal to the height of a 15 story building and therefore the second application was “materially different” and eligible to be reconsidered by the county. Their reasoning was essentially that “15 stories” sounded big and significant, so therefore it must be materially different than the application previously denied.
Miller Air Park pilots and other opponents countered that, at 1200 feet, the tower – two miles away but still smack dab in the middle of their extended runway – was still more than 550 feet taller than the evidence in 2005 suggested it could be and still be safe for local air traffic. The new application was therefore ineligible for reconsideration because the new application was NOT materially different.
So why the emphasis on whether the change in height was “materially different?”
A board of adjustment, or any governmental body acting in a quasi-judicial capacity, makes decisions based on evidence. Our courts have long held that when there is a final judgment on the merits, a second lawsuit involving the same parties and the same claim cannot be re-litigated. There are no do-overs. Courts speak but once.
This legal principle is called “res judicata.” Roughly translated, “the matter has been adjudicated.”
Courts have also long held that res judicata applies to quasi-judicial proceedings. The problem, however, is that the two controlling cases in North Carolina were heard by our Supreme Court in 1928 and 1936, and neither case provided guidance on when a subsequent case can be considered sufficiently different that the next zoning board can re-hear and reconsider it.
When a reviewing court can’t determine an issue because there is no relevant statute and no controlling opinion from a previous North Carolina court, it looks to see if other states have addressed the question and, if so, whether there is a prevailing view.
And that is exactly what Judge Calabria, the author of this opinion, did in this case. She (and judges Bryant and Hunter) adopted the prevailing view from other states that the second application must have addressed “the circumstance or condition that induced the prior denial.”
Stated in different words, the change must “vitiate or materially affect the reasons which produced and supported” the original denial.
During oral argument one of the judges asked me whether any significant change in the second application was sufficient. I answered with this analogy. If a proposed chemical plant was denied a special use permit because there was evidence of danger to neighbors’ wells, the company could not return with a building of a different height, additional landscaping and redesigned road access and claim it was a new application.
However, the company could return for reconsideration if it could show that, in the meantime, all neighbors were hooked up to municipal water lines and no longer used their wells. Why? Because this change in a critical fact would address the reason for the first denial.
Similarly, if Miller Air Park were to close, the broadcasting company would be free to return for a re-do.
The Court also noted that whether the second application is materially different is a factual determination made by the reviewing board, and it is subject to the “whole record review” standard where the Court defers to the findings of the board.
This Court got it right, and from now on in North Carolina, the Mt. Ulla case will be cited as the controlling opinion on when a change in a proposal is sufficiently different and an application previously denied may return for a second consideration.
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