Posted by: Patricia Salkin | November 28, 2015

NC Supreme Court Holds in Mandamus Suit that Neighbor Had Clear Legal Right to Have Its Appeal Transmitted to Board of adjustment and Placed on Board’s Agenda

Morningstar Marinas (petitioner) owned land abutting Lake Gaston in Warren County, where it operated a commercial marina known as Eaton Ferry. Petitioner’s property was zoned for business development pursuant to the Warren County Zoning Ordinance. East Oaks, LLC owned land approximately 145 feet away, across a small cove. Under the Ordinance, 8.5 acres of that property were zoned as residential and 1.91 acres were zoned for commercial use. In April 2011, East Oaks filed a petition seeking a conditional use permit to develop a townhouse community (the Townhouse Project) on the residential portion of the property. The site plan for the Townhouse Project showed a proposed access easement for a driveway (the Drive) connecting the boat storage building on the commercial portion of the property to a boat launch area on Lake Gaston located on the residential portion of the property. However, before the Board had an opportunity to rule on the petition, Warren County Planning and Zoning Administrator Ken Krulik issued a formal determination concluding that townhouses were a permitted use in the subject residential district and therefore, a conditional use permit was not required. As a result, East Oaks withdrew its application for a conditional use permit and obtained a zoning permit to develop the townhouses.

Petitioner appealed Krulik’s formal determination to the Board and argued that the Townhouse Project did not constitute a permitted use in the East Oaks residential property pursuant to the Ordinance. Petitioner filed petition for writ of mandamus, seeking to compel county planning and zoning administrator to place, on Board of Adjustment’s agenda, neighbors appeal from administrator’s determination that easement connecting landowner’s residential and commercial properties did not constitute a commercial use of residential property. The Superior Court, Warren County, issued the writ of mandamus, and Krulik appealed. The Court of Appeals affirmed, and Krulik petitioned for discretionary review, which was denied.

Respondents argued the trial court erred by granting petitioner’s request for writ of mandamus because petitioner lacked standing as a party “aggrieved” to appeal Krulik’s determination. Although subsection 153A–345(b) clearly included the standing requirement that only a “person aggrieved … may take an appeal,” neither the statute nor the Ordinance included any language suggesting that this determination is to be made by a zoning officer. Here, the plain language in both the statute and the Ordinance mandated that the zoning officer forward the documents constituting the record to the Board: an act that is ministerial in nature, involving no discretion. Therefore, the court concluded that these officers are not vested with authority to dismiss or foreclose an appeal based upon their legal determination that the appealing party lacks standing. Accordingly, the court affirmed the Court of Appeals’ determination that the trial court did not err by granting mandamus and by ordering respondents to place petitioner’s appeal on the Board’s agenda.

Morningstar Marinas/Eaton Ferry, LLC v Warren County, 2015 WL 6777106 (NC 11/6/2015)

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