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In re Appeal of Robert O. Willis

May 19, 1998

IN THE MATTER OF THE APPEAL OF ROBERT O. WILLIS AND WIFE, MARY JO WILLIS, PETITIONERS, AND CITY OF SOUTHPORT BOARD OF ADJUSTMENT AND CITY OF SOUTHPORT, RESPONDENTS, ROBERT O. WILLIS AND MARY JO WILLIS, PLAINTIFFS,
v.
CITY OF SOUTHPORT BOARD OF ADJUSTMENT AND CITY OF SOUTHPORT, DEFENDANTS.



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.

The opinion of the court was delivered by: John, Judge.

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 ...


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