A. Applicability. This section applies to appeal of quasi-judicial decisions of decision-making boards when that appeal is in the nature of certiorari as required by G.S. Chapter 160D.
B. Filing the Petition. An appeal in the nature of certiorari shall be initiated by filing a petition for writ of certiorari with the superior court of McDowell County. The petition shall do all of the following:
1. State the facts that demonstrate that the petitioner has standing to seek review.
2. Set forth allegations sufficient to give the court and parties notice of the grounds upon which the petition 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 an impermissible conflict as described in G.S. 160D-109, the decision-making body was not sufficiently impartial to comply with due process principles.
4. Set forth the relief the petitioner seeks.
C. Standing. A petition may be filed under G.S.160D-1402 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.
i. Any other person who will suffer special damages as the result of the decision being appealed.
ii. 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 had 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.
iii. The town, if the governing body of the town believes its decision-making board made a decision that improperly granted a variance from or is otherwise inconsistent with the proper interpretation of a development regulation adopted by the town's governing body.
D. Respondent. The respondent named in the petition shall be the local government whose decision-making board made the decision that is being appealed, except that if the petition is a local government that has filed a petition pursuant to subdivision (iv) of subsection (c) above, then the respondent shall be the decision-making board. If the petitioner is not the applicant before the decision-making board whose decision is being appealed, the petitioner shall also name that applicant as a respondent. 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 decision-making board.
E. Writ of Certiorari. Upon filing the petition, the petitioner shall present the petition and a proposed writ of certiorari to the clerk of superior court of Buncombe County. The writ shall direct the respondent local government, or the respondent decision-making board, to prepare and certify to the court the record of proceedings below within a specified date. 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 North Carolina Rules of Civil Procedure, except that, if the respondent is a decision-making board, the petition and 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 the decision-making board cannot be found. No summons shall be issued. 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. 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 quasi-judicial board pending superior court review. The court may grant a stay in its discretion, and on such conditions that properly provide for the security of the adverse party. A stay granted in favor of a local government shall not require a bond or other security.
F. 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 petitions 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 petitioners time to respond pursuant to subsection (j) below.
G. Intervention. Rule 24 of the North Carolina Rules of Civil Procedure shall govern motions to intervene as a petitioner or respondent in an action initiated under this section except that the exceptions noted in G.S. 160D-1402(g) shall apply.
H. The Record. The record shall consist of the decision and 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. 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 that matters unnecessary to the court's decision be deleted from the record or that matters other than those specified herein be included. 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 local government respondent, or the respondent decision-making board, upon all petitioners within three (3) days after it is filed with the court.
I. Hearing on the Record. The court shall hear and decide all issues raised by the petition by reviewing the record submitted in accordance with G.S. 160D-1402(h) and section (h) above. The court may, in its discretion, allow the record to be supplemented with affidavits, testimony of witnesses, or documentary or other evidence if, and to the extent that, the record is not adequate to allow an appropriate determination of the following issues:
1. Whether the petitioner or intervenor has standing.
2. Whether, as a result of impermissible conflict as described in G.S. 160D-109 or locally adopted conflict rules, the decision-making board was not sufficiently impartial to comply with due process principles.
3. Whether the decision-making board erred for the reasons set forth in G.S. 160D-1402(j)(1)(a) and (b).
J. Scope of Review.
1. When reviewing the decision under the provisions of G.S. 160D-1402, the court shall ensure that the rights of petitioners have not been prejudiced because the decision-making board's findings, inferences, conclusions, or decisions were:
a. In violation of constitutional provisions, including those protecting procedural due process rights.
b. In excess of statutory authority conferred upon the local government 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 competent, material, and substantial evidence in view of the entire record.
f. Arbitrary or capricious.
i. 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.
ii. 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 North Carolina General Court of justice if (i) the evidence was admitted without objection or (ii) the evidence appears to be sufficiently trustworthy and was admitted under such 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 law witnesses as to any of the following:
a) The use of the property in a particular way affects the value of other property.
b) The increase in vehicular traffic resulting from a proposed development poses a danger to the public safety.
c) Matters about which only expert testimony would generally be admissible under the rules of evidence.
K. Decision of the Court. Following its review of the decision-making board in accordance with G.S. 160D- 1402(j), 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 determine 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 competent, material, and substantial evidence in the record or is based upon error at 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 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 competent, material, and substantial 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.
b. If the court concludes that a permit was wrongfully issued because the issuance was not based upon competent, material, and substantial evidence or was otherwise based on an error of law, the court may remand with instructions that the permit be revoked.
L. Effect of Appeal on Ancillary Injunctive Relief.
1. If a development approval is appealed, the applicant shall have the right to commence work while the appeal is pending. However, if the development approval is reversed by a final decision of any court of competent jurisdiction, the applicant shall not be deemed to have gained any vested rights on the basis of actions taken prior to or during the pendency of the appeal and must proceed as if no development approval has been granted.
2. Upon motion of a party to a proceeding under G.S. 160D-1402, 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.
M. Joinder. A declaratory judgment brought under G.S.160D-1401 or other civil action relating to the decision at issue may be joined with a petition for writ of certiorari and decided in the same proceeding.
Final decisions may be appealed to the McDowell County Superior Court within 30 days of notice or the effective date of the decision pursuant to N.C.G.S. 160A-388 and 160A-393.
(Ord. No. O-21-06-15-5, §1, 6-15-21)