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Azar v. Town of Indian Trail Board of Adjustment

Court of Appeals of North Carolina

December 19, 2017

CHRIS AZAR, Petitioner,
v.
TOWN OF INDIAN TRAIL BOARD OF ADJUSTMENT, Respondent.

          Heard in the Court of Appeals 29 November 2017.

         Appeal by petitioner from order entered 4 April 2017 by Judge Kevin M. Bridges in Union County No. 17 CVS 45 Superior Court.

          Steven D. Starnes for petitioner-appellant.

          Middlebrooks Law PLLC, by James G. Middlebrooks, for respondent-appellees.

          TYSON, JUDGE.

         Chris Azar ("Appellant") appeals from the superior court's order granting the Town of Indian Trail Board of Adjustment's motion to dismiss Appellant's petition for judicial review of the Town of Indian Trail's denial of a special use permit. We affirm.

         I. Background

         Appellant owns a parcel of real property located within the jurisdictional limits of the Town of Indian Trail (the "Town"). Appellant has long intended to build town homes upon this property. Around 2003, the Town advised Appellant to petition to rezone his property from Light Industrial to Multi-Family, which was allowed. Subsequently, Appellant applied to the Town for and was granted a special use permit for a multi-family housing project in 2004. The special use permit was renewed in 2006 and again in 2012.

         In 2016, Appellant requested another renewal of the special use permit. The Town's Board of Adjustment conducted a hearing on 27 October 2016 to decide whether to grant Appellant's renewal request. The Town's Board of Adjustment denied Appellant's request to renew his special use permit. The Board of Adjustment voted on four factors specified in the town zoning ordinance to determine whether Appellant's special use permit request should be granted.

         On the first factor of "Not Materially Endanger the Public Health or Safety[, ]" "[t]he Board voted 5 to 0 that the proposed [special use permit] request would materially endanger the public health or safety." On the second factor of "Not Substantially Injure the Value of Adjoining or Abutting Property[, ]" "[t]he Board voted 3 to 2 that the proposed [special use permit] request would substantially injure the value of adjoining or abutting property."

         On the third factor of "Be in Harmony With The Area In Which It Is To Be Located[, ]" "[t]he Board voted 5 to 0 that the proposed [special use permit] request would be in harmony with the area in which it is to be located." On the fourth factor of "Be in General Conformity With The Town of Indian Trail Comprehensive Plan or Other Adopted Plans[, ]" "[t]he Board voted 5 to 0 that the proposed [special use permit] request would be in general conformity with the Town of Indian Trail Comprehensive Plan or other adopted [plan]."

         Appellant received written notice of the Board of Adjustment's denial of his special use permit request on 15 December 2016. On 5 January 2017, Appellant filed a petition for judicial review under writ of certiorari of the decision to deny the special use permit. Appellant's petition named the Board of Adjustment, but not the Town, as the respondent to the action. Appellant's petition stated that he was seeking judicial review pursuant to " N.C. G.S. 150B-45[, ]" which is the portion of the North Carolina Administrative Procedure Act statute providing for judicial review of administrative decisions of state agencies. See N.C. Gen. Stat. § 150B-1 et seq. (2015).

         The Board of Adjustment moved to dismiss Appellant's petition pursuant to both Rules 12(b)(6) and 12(b)(7) of the North Carolina Rules of Civil Procedure, for the failure to state a claim upon which relief can be granted, and the failure to join a necessary party, respectively. N.C. Gen. Stat. § 1A-1, Rules 12(b)(6) and 12(b)(7) (2015). The Board of Adjustment asserted the following bases in its motion to dismiss: (1) the superior court lacked jurisdiction to review Appellant's petition under N.C. Gen. Stat. § 150B-45, because that statute does not apply to local governmental units; (2) Appellant failed to name the Town as the respondent to the action pursuant to N.C. Gen. Stat. § 160A-393(e) (2015); and (3) Appellant failed to file a proper petition for writ of certiorari within 30 days of 15 December 2016 pursuant to N.C. Gen. Stat. §§ 160A-388(e2)(2) and -393 (2015).

         Appellant filed an amended petition for judicial review under writ of certiorari pursuant to N.C. Gen. Stat. § 160A-393 naming the Town as the respondent on 29 March 2017. Respondent Town asserts this later filed amended ...


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