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In re Appeal of Willis

North Carolina Court of Appeals
May 1, 1998
129 N.C. App. 499 (N.C. Ct. App. 1998)


applying review of agency decisions to that of municipal bodies

Summary of this case from Taylor v. Town of River Bend


No. COA96-1496

Filed 19 May 1998

Zoning § 121 (NCI4th) — superior court order — reversal of board of adjustment — characterization of issues and standard of review The trial court's order setting aside a board of adjustment's determination that petitioners are in violation of a city zoning ordinance is reversed and remanded for entry of a new order characterizing the issues before the court and setting forth the standard of review applied by the court in resolving each of those issues.

Judge LEWIS dissenting.

Appeal by respondents from order entered 4 October 1996 by Judge William C. Gore, Jr. in Brunswick County Superior Court. Heard in the Court of Appeals 27 August 1997.

Robert W. Kilroy for petitioners-appellees.

Heller and Serra, by Robert K. Serra, and Fairley, Jess Isenberg, by Michael R. Isenberg, for respondents-appellants.

Respondents City of Southport Board of Adjustment (the Board) and City of Southport (the City) appeal the trial court's 4 October 1996 order setting aside the Board's determination that petitioners Robert and Mary Jo Willis were in violation of a City zoning ordinance (the ordinance). For the reasons set forth herein, we reverse the trial court's order and remand for entry of a new order to include specification of the standard of review utilized by that court.

In view of our disposition of this matter, a detailed recitation of background information is unnecessary. Suffice it to state that on 3 May 1995 petitioners appealed the Board's determination they were in violation of the ordinance by filing in Brunswick County Superior Court a Petition for Writ of Certiorari and Complaint for Declaratory Judgment. Following a hearing, the trial court set aside the Board's decision 4 October 1996 in an order finding as fact the "absence of defined criteria or objective standards" in the record to support the Board's "erroneous" conclusions, and holding the conclusions to be "arbitrary and not supported by the record." Respondents timely appealed to this Court.

A legislative body such as the Board performs a quasi-judicial function when hearing evidence and determining whether a local ordinance has been violated. See Concrete Co. v. Bd. of Comm'rs, 299 N.C. 620, 625, 265 S.E.2d 379, 382 (1980) (board of aldermen performs quasi-judicial function "when it hears evidence to determine the existence of facts and conditions upon which the ordinance expressly authorizes it to issue a conditional use permit"). Accordingly, the Board's decisions are "subject to review by the superior court by proceedings in the nature of certiorari," N.C.G.S. § 153A-345(e) (1991), wherein the superior court is not a trier of fact, but assumes the posture of an appellate court. Mize v. County of Mecklenburg, 80 N.C. App. 279, 284, 341 S.E.2d 767, 770 (1986).

The North Carolina Administrative Procedure Act (APA) governing judicial review of agency rulings expressly excludes from its purview the decisions of local municipalities. Concrete Co., 299 N.C. at 624, 265 S.E.2d at 382. Nonetheless, the principles of the APA are "highly pertinent" to the process of judicial review as applied to decisions of municipal bodies such as the Board. See id. at 625, 265 S.E.2d at 382. Accordingly,

the task of a court reviewing a decision . . . made by a town board sitting as a quasi-judicial body includes:

(1) Reviewing the record for errors in law,

(2) Insuring that procedures specified by law in both statute and ordinance are followed,

(3) Insuring that appropriate due process rights of a petitioner are protected including the right to offer evidence, cross-examine witnesses, and inspect documents,

(4) Insuring that decisions of town boards are supported by competent, material and substantial evidence in the whole record, and

(5) Insuring that decisions are not arbitrary and capricious.

Id. at 626, 265 S.E.2d at 383. The scope of judicial review, however, "is limited to errors alleged to have occurred before the local board." Tate Terrace Realty Investors, Inc. v. Currituck County, 127 N.C. App. 212, 218, 488 S.E.2d 845, 848, disc. review denied, 347 N.C. 409, 496 S.E.2d 394 (1997):

If [petitioner] argues the [board's] decision was based on an error of law, then " de novo" review is required. . . . If, however, [petitioner] questions (1) whether the [board's] decision was supported by the evidence or (2) whether the [board's] decision was arbitrary or capricious, then the reviewing court must apply the "whole record" test.

In re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993) (citations omitted). Further,

" De novo" review requires a court to consider a question anew, as if not considered or decided by the [board] . . . . The "whole record" test requires the reviewing court to examine all competent evidence (the "whole record") in order to determine whether the [board] decision is supported by "substantial evidence."

Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994) (citations omitted).

However, while "[t]he nature of the contended error dictates the applicable scope of review," Utilities Comm'n v. Oil Co., 302 N.C. 14, 21, 273 S.E.2d 232, 236 (1981), this rule

should not be interpreted to mean the manner of . . . review is governed merely by the label an appellant places upon an assignment of error; rather, [the court] first determine[s] the actual nature of the contended error, then proceed[s] with an application of the proper scope of review.

Amanini, 114 N.C. App. at 675, 443 S.E.2d at 118 .

While the APA specifically guides the superior court's review of quasi-judicial decisions, Concrete Co., 299 N.C. at 624, 265 S.E.2d at 382, the statute does not designate the standard to be employed by our appellate courts in reviewing subsequent appeals from the superior court. Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118. Nonetheless, our Supreme Court recently declared that appellate courts, in considering decisions of the superior court regarding agency decisions, are to

"examine the trial court's order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly."

Act-Up Triangle v. Comm'n for Health Servs., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini, 114 N.C. App. at 675, 443 S.E.2d at 118-19). We believe appellate review of a superior court judgment on a writ of certiorari regarding the action of a quasi-judicial body (such as the Board herein), being derivative of the power of the superior court to review the action, Sherrill v. Town of Wrightsville Beach, 76 N.C. App. 646, 649, 334 S.E.2d 103, 105 (1985), is "likewise governed by analogy to the APA." Tate Terrace, 127 N.C. App. at 219, 488 S.E.2d at 849.

Accordingly, the threshold issue in the case sub judice is whether the trial court "exercised the appropriate scope of review." Act-Up, 345 N.C. at 706, 483 S.E.2d at 392. Absent a declaration by the superior court denominating its process of review, see Amanini, 114 N.C. App. at 675, 443 S.E.2d at 118 , we look to the parties' "characterization of the alleged error on appeal [to the trial court] ." Id.

In their briefs to the trial court regarding the petition for certiorari, the parties presented arguments on the questions of 1) whether the evidence supported the Board's decision or whether that decision was arbitrary and capricious, and 2) whether the Board's decision was based upon errors of law. Accordingly, the trial court should have applied the whole record test to resolve the former issues, and de novo review to resolve the latter. See Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118.

The trial court set aside the ruling of the Board, citing the lack of "defined criteria or objective standards" within the record to support the Board's "erroneous" and "arbitrary" conclusions. The order of the court further provided that it was "[b]ased upon [the court's] review of the stipulated record in this matter," indicating the court employed the whole record test in reaching its decision. See Act-Up, 345 N.C. at 706-07, 483 S.E.2d at 392 (record indicated superior court applied whole record standard of review because its order stated Commission's decision "`was supported upon the whole record'"). However, the trial court's order also asserted its right to "substitute its judgment [for that of the Board] as to conclusions of law," suggesting it may also have applied de novo review. See Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118 (trial court must apply de novo review to resolve whether agency decision was based upon error of law).

Therefore, while the court's order in effect set out the applicable standards of review, it failed to delineate which standard the court utilized in resolving each separate issue raised by the parties. Moreover, while the court may have disagreed with the parties' characterization of the issues, it failed to specify its own "determin[ation of] the actual nature of the contended error" before proceeding with its review. Amanini, 114 N.C. App. at 675, 443 S.E.2d at 118. As a result of these omissions, this Court is unable to make the requisite threshold determination that the trial court "exercised the appropriate scope of review," id. at 675, 443 S.E.2d at 118-19, and we decline to speculate in that regard. It follows that we likewise are unable to determine whether the court properly conducted its review. See Act-Up, 345 N.C. at 706, 483 S.E.2d at 392.

Based on the foregoing, therefore, the order of the trial court is reversed and this matter remanded to that court for entry of a new order in accordance with our opinion herein and specifically setting forth, inter alia, the court's characterization of the issues before it and the standard of review it applied in resolving those issues. The court may in its discretion receive additional evidence and hear further argument from the parties, but is not required to do so. See Smith v. Smith, 111 N.C. App. 460, 517, 433 S.E.2d 196, 230 (1993), rev'd on other grounds, 336 N.C. 575, 444 S.E.2d 420 (1994) (on remand, "court shall rely on the existing record . . . but may hear additional arguments from the parties and take such additional evidence as [it] finds necessary to correct the errors identified herein").

Reversed and remanded.

Judge SMITH concurs.

Judge LEWIS dissents.

Summaries of

In re Appeal of Willis

North Carolina Court of Appeals
May 1, 1998
129 N.C. App. 499 (N.C. Ct. App. 1998)

applying review of agency decisions to that of municipal bodies

Summary of this case from Taylor v. Town of River Bend

In Willis, the petitioners sought a writ of certiorari and declaratory judgment in Superior Court, asserting that a city board of adjustment ("the Board") erroneously found the petitioner in violation of an ordinance.

Summary of this case from Hedgepeth v. N.C. Div. of Servs
Case details for

In re Appeal of Willis

Case Details


Court:North Carolina Court of Appeals

Date published: May 1, 1998


129 N.C. App. 499 (N.C. Ct. App. 1998)
500 S.E.2d 723

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