(A) Appeal to Superior Court. Every decision of the Board of Adjustment, including granting or denying special use permits or variances and appeals of administrative determinations, shall be subject to review by the Superior Court of Craven County by proceedings in the nature of certiorari.
(B) Statutes of limitation. Unless specifically provided otherwise, a petition for review of a quasi-judicial decision shall be filed with the Clerk of Superior Court by the later of 30 days after:
(1) A written copy of the Board of Adjustment’s decision has been filed in the office of the Zoning Administrator; or
(2) A written copy of the Board of Adjustment’s decision has been given in accordance with § 159.12(C). When first-class mail is used to deliver notice, three days shall be added to the time to file the petition.
(C) Filing the petition. An appeal in the nature of certiorari shall be initiated by filing with the County Superior Court a petition for writ of certiorari. The petition shall:
(1) State the facts that demonstrate that the petitioner has standing to seek review;
(2) Set forth the grounds upon which the petitioner contends that an error was made;
(3) Set forth with particularity the allegations and facts, if any, in support of allegations that, as the result of impermissible conflict as described in G.S. § 160D-109, or other conflict rules contained within the City of Havelock Code of Ordinances, the Board of Adjustment was not sufficiently impartial to comply with due process principles; and
(4) Set forth the relief the petitioner seeks.
(D) Standing. A petition may be filed under this section only by a petitioner who has standing to challenge the decision being appealed. The following persons shall have standing to file a petition under this section:
(1) Any person possessing any of the following criteria:
(a) An ownership interest in the property that is the subject of the decision being appealed, a leasehold interest in the property that is the subject of the decision being appealed, or an interest created by easement, restriction or covenant in the property that is the subject of the decision being appealed.
(b) An option or contract to purchase the property that is the subject of the decision being appealed.
(c) An applicant before the decision-making board whose decision is being appealed.
(2) Any other person who will suffer special damages as the result of the decision being appealed;
(3) An incorporated or unincorporated association to which owners or lessees of property in a designated area belong by virtue of their owning or leasing property in that area, or an association otherwise organized to protect and foster the interest of the particular neighborhood or local area, so long as at least one of the members of the association would have standing as an individual to challenge the decision being appealed, and the association was not created in response to the particular development or issue that is the subject of the appeal; and
(4) The city, when the Board of Adjustment has made a decision that the Board of Commissioners believes improperly grants a variance from or is otherwise inconsistent with the proper interpretation of the UDO or any other ordinance adopted by the Board of Commissioners. The appeal of decision shall be filed in Superior Court of Craven County.
(E) Respondent.
(1) The respondent named in the petition shall be the city, except that if the petitioner is the city and they filed a petition pursuant to division (D)(4) above, then the respondent shall be the Board of Adjustment.
(2) If the petitioner is not the applicant before the Board of Adjustment whose decision is being appealed, the petitioner shall also name that applicant as a respondent.
(3) Any petitioner may name as a respondent any person with an ownership or leasehold interest in the property that is the subject of the decision being appealed who participated in the hearing, or was an applicant, before the Board of Adjustment.
(F) Writ of certiorari.
(1) Upon filing the petition, the petitioner shall present the petition and a proposed writ of certiorari to the County Clerk of Superior Court. The writ shall direct the city, or the respondent decision-making board if the petitioner is the city (pursuant to division (D)(4) above), to prepare and certify to the court the record of proceedings below within a specified date.
(2) The writ shall also direct that the petitioner shall serve the petition and the writ upon each respondent named therein in the manner provided for service of a complaint under Rule 4(j) of the Rules of Civil Procedure, except that, if the respondent is a decision-making board, the petition and the writ shall be served upon the Chair of that decision-making board. Rule 4(j)(5)d. of the Rules of Civil Procedure shall apply in the event the Chair of a decision-making board cannot be found. No summons shall be issued.
(3) The clerk shall issue the writ without notice to the respondent or respondents if the petition has been properly filed and the writ is in proper form. A copy of the executed writ shall be filed with the court.
(4) Upon the filing of a petition for writ of certiorari, a party may request a stay of the execution or enforcement of the decision of the Board of Adjustment pending superior court review. The court may grant a stay in its discretion and on conditions that properly provide for the security of the adverse party. A stay granted in favor of the city shall not require a bond or other security
(G) Response to the petition. The respondent may, but need not, file a response to the petition, except that, if the respondent contends for the first time that any petitioner lacks standing to bring the appeal, that contention must be set forth in a response served on all petitioners at least 30 days prior to the hearing on the petition. If it is not served within that time period, the matter may be continued to allow the petitioners time to respond.
(H) Intervention. Rule 24 of the Rules of Civil Procedure shall govern motions to intervene as a petitioner or respondent in an action initiated under this section with the following exceptions.
(1) Any person described in division (D)(1) above shall have standing to intervene and shall be allowed to intervene as a matter of right.
(2) Any person, other than one described in division (D)(1) above, who seeks to intervene as a petitioner must demonstrate that the person would have had standing to challenge the decision being appealed in accordance with divisions (D)(2) through (4) above.
(3) Any person, other than one described in division (D)(1) above, who seeks to intervene as a respondent must demonstrate that the person would have had standing to file a petition in accordance with divisions (D)(2) through (4) above if the decision-making board had made a decision that is consistent with the relief sought by the petitioner.
(I) The record.
(1) The record shall consist of all documents and exhibits submitted to the decision-making board whose decision is being appealed, together with the minutes of the meeting or meetings at which the decision being appealed was considered.
(2) Upon request of any party, the record shall also contain an audio or videotape of the meeting or meetings at which the decision being appealed was considered if such a recording was made. Any party may also include in the record a transcript of the proceedings, which shall be prepared at the cost of the party choosing to include it. The parties may agree, or the court may direct, that matters unnecessary to the court’s decision be deleted from the record or that matters other than those specified herein be included.
(3) The record shall be bound and paginated or otherwise organized for the convenience of the parties and the court. A copy of the record shall be served by the municipal respondent, or the respondent decision-making board, upon all petitioners within three days after it is filed with the court.
(J) Hearing on the record. The court shall hear and decide all issues raised by the petition by reviewing the record submitted in accordance with division (I) above. Except that the court shall allow the record to be supplemented with affidavits, testimony of witnesses, or documentary or other evidence if, and to the extent that, the petition raises any of the following issues, in which case the rules of discovery set forth in the North Carolina Rules of Civil Procedure apply to the supplementation of the record of these issues:
(1) Whether a petitioner or intervener has standing;
(2) Whether, as a result of impermissible conflict as described in G.S. § 160D-109, or Chapter 153 of the UDO, the decision-making body was not sufficiently impartial to comply with due process principles; and
(3) Whether the decision-making body erred for the reasons set forth in divisions (K)(1)(a) and (b) below.
(K) Scope of review.
(1) When reviewing the decision of a decision-making board under the provisions of this section, the court shall ensure that the rights of petitioners have not been prejudiced because the decision-making body’s findings, inferences, conclusions or decisions were:
(a) In violation of constitutional provisions, including those protecting procedural due process rights;
(b) In excess of the statutory authority conferred upon the city or the authority conferred upon the decision-making board by ordinance;
(c) Inconsistent with applicable procedures specified by statute or ordinance;
(d) Affected by other error of law;
(e) Unsupported by substantial competent evidence in view of the entire record; or
(f) Arbitrary or capricious.
(2) When the issue before the court is whether the decision-making board erred in interpreting an ordinance, the court shall review that issue de novo. The court shall consider the interpretation of the decision-making board, but is not bound by that interpretation, and may freely substitute its judgment as appropriate.
(3) The term COMPETENT EVIDENCE as used in this section, shall not preclude reliance by the decision-making board on evidence that would not be admissible under the rules of evidence as applied in the trial division of the General Court of Justice if: the evidence was admitted without objection; or the evidence appears to be sufficiently trustworthy and was admitted under circumstances that it was reasonable for the decision-making board to rely upon it. The term COMPETENT EVIDENCE as used in this section, shall not be deemed to include the opinion testimony of lay witnesses as to any of the following:
(a) The use of property in a particular way would affect the value of other property;
(b) The increase in vehicular traffic resulting from a proposed development would pose a danger to the public safety; and/or
(c) Matters about which only expert testimony would generally be admissible under the rules of evidence.
(L) Decision of the court. Following its review of the decision-making board in accordance with division (K) above, the court may affirm the decision, reverse the decision and remand the case with appropriate instructions, or remand the case for further proceedings. If the court does not affirm the decision below in its entirety, then the court shall be guided by the following in determining what relief should be granted to the petitioners:
(1) If the court concludes that the error committed by the decision-making board is procedural only, the court may remand the case for further proceedings to correct the procedural error.
(2) If the court concludes that the decision-making board has erred by failing to make findings of fact such that the court cannot properly perform its function, then the court may remand the case with appropriate instructions so long as the record contains substantial competent evidence that could support the decision below with appropriate findings of fact. However, findings of fact are not necessary when the record sufficiently reveals the basis for the decision below or when the material facts are undisputed and the case presents only an issue of law.
(3) If the court concludes that the decision by the decision-making board is not supported by substantial competent evidence in the record or is based upon an error of law, then the court may remand the case with an order that directs the decision-making board to take whatever action should have been taken had the error not been committed or to take such other action as is necessary to correct the error. Specifically:
(a) If the court concludes that a permit was wrongfully denied because the denial was not based on substantial competent evidence or was otherwise based on an error of law, the court may remand with instructions that the permit be issued, subject to reasonable and appropriate conditions; and
(b) If the court concludes that a permit was wrongfully issued because the issuance was not based on substantial competent evidence or was otherwise based on an error of law, the court may remand with instructions that the permit be revoked.
(M) Ancillary injunctive relief. Upon motion of a party to a proceeding under this section, and under appropriate circumstances, the court may issue an injunctive order requiring any other party to that proceeding to take certain action or refrain from taking action that is consistent with the court’s decision on the merits of the appeal. (2009 421, s. 1(a).)
(Ord. passed 7-25-2011; Ord. 21-O-04, passed 6-28-2021; Ord. 23-O-07, passed 4-10-2023)