Posted by: Patricia Salkin | January 4, 2018

NC Appeals Court Holds Town Did Not Waive Owner’s Failure to Join Town as Necessary Party to the Action

This post was authored by Matthew Loeser, Esq.

Chris Azar was granted a special use permit for a multi-family housing project in 2004. The special use permit was renewed in 2006 and a second time in 2012. In 2016, the Town’s Board of Adjustment denied Appellant’s request to renew his special use permit. Azar appealed from the Superior Court’s order granting the Town of Indian Trail Board of Adjustment’s motion to dismiss his petition for judicial review of the Town of Indian Trail’s denial of a special use permit.

The trial court dismissed Appellant’s amended petition due to his failure to state a claim, and for Appellant’s failure to join the Town as a necessary party in his original petition. Here, N.C. Gen. Stat. § 160A-393(e) required the Town, and not the Town’s Board of Adjustment, to be named as the respondent in the petition for judicial review. Furthermore, the Town had not participated in the hearings of this action to waive Appellant’s failure to join them as a necessary party. The court held that even though the Town filed a motion for an extension of time to respond to Appellant’s initial petition, this action did not waive the defense of failure to join a necessary party.

Lastly, Appellant was required to show the amended petition naming the Town related back to the filing of his initial petition, in order for his amended petition not to be barred under the 30-day period for filing petitions for judicial review of quasi-judicial zoning decisions. Here, the Board was a different party from the Town. Thus, Appellant’s amended petition did not relate back to his original filing. Accordingly, the superior court’s grant of the Board’s motion to dismiss for failure to join a necessary party was affirmed.

Azar v Town of Indian Trail Board of Adjustment, 809 SE 2d 17 (NC App. 12/29/2017)

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