A recent N.C. Court of Appeals decision asked all the right questions about a zoning administrator’s authority to make discretionary decisions related to standing. And with one exception, found in the dissent, the Court gave all the right answers.

In Morningstar Marinas, et. al. v. Warren County and Ken Krulik, Warren County Planning and Zoning Administrator in His Official Capacity, you will encounter about 6 pages of facts that boil down to this: Morningstar Marinas asked Mr. Krulik, the zoning administrator, for an official interpretation of a zoning matter.

Making official interpretations of zoning ordinances or zoning matters is one of the necessary things that, by statute, zoning administrators do.

Mr. Krulik issued his decision, and Morningstar filed the necessary paperwork to appeal his decision to the Board of Adjustment. Hearing appeals of zoning administrators’ decisions is one of the necessary things that, by statute, BOAs do.

But instead of sending the appeal to the Board, Mr. Krulik decided that the BOA did not have authority to hear this appeal because, as Mr. Krulik further decided, Morningstar did not have standing to appeal his decision. Even Mr. Krulik’s decision that Morningstar had no standing could not be appealed to the Board because, by Mr. Kruliks’s personal determination, Morningstar had no standing.

Morningstar then filed an action for a Writ of Mandamus with the superior court, and the judge properly issued the writ, ordering Mr. Krulik to send the appeal to the Board of Adjustment. If Morningstar had no standing, then the BOA would make appropriate findings which would be appealable to superior court.

Writs of mandamus hardly ever pop up in zoning cases, but the discussion of the writ merged nicely into the Court’s discussion of the zoning administrator’s statutory authority.

A Writ of Mandamus is a judicial order to a lower tribunal or governmental employee to perform a certain task. A writ is appropriate when the task is ministerial, not discretionary; the person petitioning for the writ has a right to have the task performed; and the person (Mr. Krulick) has an obligation to do it.

The Court of Appeals correctly explained that the question whether a litigant is an aggrieved party with standing to appear before a BOA is a question of law, and zoning administrators are not empowered by any statute to make these decisions. Boards of Adjustment, on the other hand, are. It is merely the zoning administrator’s job to forward the case to the BOA, and if the party’s standing is at issue, then the BOA decides.

Judge Davis then wrote this sentence, which I placed three stars beside on my hard copy of the case: “We are unable to conclude that a zoning officer is vested with the authority to make such legal determinations regarding standing, particularly where the result, as here, would be to insulate the very same officer’s decision from review.”

Sidebar: In almost any context you can imagine, the judge whose decision you appeal is not the same judge who grants you permission to appeal his or her decision. The concept is so basic it is almost axiomatic. End side bar.

In this blog I have previously lauded Judge Robert N. Hunter’s view that, in our system of government, power is never assumed and is closely scrutinized, and a person (or city or county or agency), has the power granted by statute and no more (my summation, not his). Judge Davis’s analysis could not have been more logically developed, and he arrived at a decision that I’m sure Judge Hunter would have concurred with had he been on the same panel.

However, where the Court got the case wrong was in the dissent, which made both a legal and a factual error.

First, Judge Elmore used a pre-Mangum case to discuss who has standing. As a short history, an old case (Jackson v. Guilford County) was expansively read by future courts for the proposition that one must show a decline in property value in order to have standing in a zoning case. Mangum v. Bd. Of Adjustment got us back on track and said that there are other factors a court can and should consider when determining standing.

Second, Judge Elmore (who, in his defense, was not a zoning attorney before moving to the bench) correctly states that a party must allege how they have standing on appeal. His factual error was to assume that this showing is made when appealing from a zoning administrator to a BOA rather than a BOA to superior court.

In 29 years I have litigated or handled zoning cases in over 150 cities and counties, and I have never seen a planning department appeal form which provides a place for an appellant to explain why or how they have standing to get before the BOA. Typically, you give your name and address and the decision you are appealing and why you think the decision was wrong That’s it. And even when you reach the BOA your standing is not an issue boards typically discuss or weave into their decision. Standing can be made the issue, and in that circumstance the board could address it. Standing only necessarily becomes an issue when you decide to appeal to the superior court, now governed by N.C. Gen. Stat. § 160A-393.

Judge Elmore’s dissent gave Warren County the automatic right to appeal to the N.C. Supreme Court, and it did appeal. If the Supreme Court follows his lead it will (1) partially unravel Mangum; (2) make standing an issue in the zoning appeal process at a point where it is not now an issue; (3) force Boards of Adjustment to deal with standing issues when they need not be addressed; and (4) grant powers to zoning administrators to become gatekeepers as to who gets to challenge their decisions.

And that is dangerous.

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Tom Terrell

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes…

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes parts of Virginia and South Carolina. His many clients are involved in commercial and residential real estate, solid waste hauling and disposal, telecommunications, quarries/asphalt and miscellaneous litigation related to permit denials, vested rights and rezonings.

He has published numerous articles and speaks regularly to legal, governmental and business groups on a variety of issues related to land use and zoning.

Mr. Terrell has served as a leader in numerous civic and legal endeavors, including Chairman of the Board of Trustees of the N.C. State Health Plan, Chairman of the Board of Trustees of Winston-Salem State University, and service on the Board of Directors of the UNC-CH General Alumni Association, Board of Directors of the High Point Chamber of Commerce, Board of Visitors of Guilford College and Board of Center Associates of the Center for Creative Leadership, and as a founding member of the N.C. Bar Association Zoning, Planning and Land Use Section.

More information can be found at https://www.foxrothschild.com/thomas-e-terrell-jr/.

Mr. Terrell can be contacted at mailto:tterrell@foxrothschild.com.