NC Appeals Court Holds Res Judicata Applies to Quasi-Judicial Zoning Hearings

Davidson County Broadcasting, Inc. (DCBI), sought to construct a 1,350-foot radio tower on property owned by Richard and Dorcas Parker. The Board denied DCBI’s application because it posed “an air safety hazard” to a nearby private airport. DCBI and the Parkers appealed the Board’s decision twice, but it was affirmed both times. DCBI then applied to the Board to build a 1,200-foot radio tower in essentially the same location as the first proposed tower. DCBI also applied for a “supplemental application to include property owned by Maurice E. Parker and May Lee Parker as a fall zone.” After a hearing, the Board found that the new proposed tower would not create a hazardous safety condition and granted the conditional use permit. Petitioners then filed a writ seeking review of the approval arguing that the new tower application was barred by res judicata and collateral estoppel. The Rowan County Superior Court reversed the Board’s approval of the new tower application finding that it was barred by res judicata and collateral estoppel, and DCBI appealed.

Relevant to the court’s analysis, was its determination that the hearing the Board held in consideration of the new tower application constituted a quasi-judicial hearing. The question then became whether res judicata bars a quasi-judicial proceeding, and if so under what conditions would it apply. The court looked to In re Broughton Estate, 210 N.C. 62 (1936), as its basis for finding that res judicata could preclude the defense of res judicata in quasi-judicial decisions. In Broughton, the court held that a “material change” was required to preclude such a defense. The court then defined “material change” as one “which precludes the use of the defense of res judicata . . . when the specific facts or circumstances which led to the prior quasi-judicial land use decision have changed to the extent that they ‘vitiate the reasons which produced and supported’ the prior decision, such that the application can no longer be characterized as the same claim.”

Therefore, because the original tower application was denied because the tower was determined to be a safety hazard to the airport, DCBI needed to “have materially changed the design of the proposed tower in such a way as to vitiate the concerns regarding air safety,” which led to the denial of the original tower. The 150-foot decrease in the tower’s height constituted a change from the original application, but the court found that “the Board’s finding in the instant case that there was a material change in the [new] application was not supported by the evidence.” Essentially, the court found that the safety evidence presented against the original tower application could have been equally applicable to the new tower. Thus, the court found that the difference in height did not constitute a material change such that “res judicata barred the Board from reconsidering its previous decision,” and that the superior court correctly found that the Board should have dismissed the new application based on res judicata.

Mount Ulla Historical Preservation Society, Inc., v. Rowan County, 2014 WL 619584 (N.C. App. 2/18/2014)

The opinion can be accessed at: http://scholar.google.com/scholar_case?case=16339647009176621264&hl=en&as_sdt=6&as_vis=1&oi=scholarr