in the Court of Appeals 29 November 2017.
by petitioner from order entered 4 April 2017 by Judge Kevin
M. Bridges in Union County No. 17 CVS 45 Superior Court.
D. Starnes for petitioner-appellant.
Middlebrooks Law PLLC, by James G. Middlebrooks, for
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.
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.
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
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
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]."
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.
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).
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 ...