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Dellinge v. Lincoln County

Court of Appeals of North Carolina

July 16, 2019

GARY DELLINGER, VIRGINIA DELLINGER and TIMOTHY S. DELLINGER, Petitioners,
v.
LINCOLN COUNTY, LINCOLN COUNTY BOARD OF COMMISSIONERS and STRATA SOLAR, LLC, Respondents, and MARK MORGAN, BRIDGETTE MORGAN, TIMOTHY MOONEY, NADINE MOONEY, ANDREW SCHOTT, WENDY SCHOTT, ROBERT BONNER, MICHELLE BONNER, JEFFREY DELUCA, LISA DELUCA, MARTHA MCLEAN, CHARLEEN MONTGOMERY, ROBERT MONTGMERY, DAVID WARD, Intervenor Respondents.

          Heard in the Court of Appeals 23 April 2019.

          Appeal by petitioners from order entered 21 May 2018 by Judge Karen Eady-Williams in Lincoln County No. 17 CVS 788 Superior Court.

          Sigmon, Clark, Mackie, Hanvey & Ferrell, P.A., by Jason White, for petitioner-appellants.

          The Deaton Law Firm, PLLC, by Wesley L. Deaton, Megan H. Gilbert and Jacob R. Glass, for respondent-appellee Lincoln County and Lincoln County Board of Commissioners.

          Scarbrough & Scarbrough, PLLC, by James E. Scarbrough and Sean A. McLeod, for intervenor respondent-appellees.

          TYSON, JUDGE.

         Gary Dellinger, Virginia Dellinger, and Timothy S. Dellinger ("Petitioners") appeal from an order affirming the quasi-judicial decision of the Lincoln County Board of Commissioners ("the Board") to deny the issuance of a conditional use permit. We reverse and remand.

         I. Background

         This case returns to this Court a second time. Dellinger v. Lincoln Cty., 248 N.C.App. 317, 789 S.E.2d 21, disc. review denied, 369 N.C. 190, 794 S.E.2d 324 (2016). A more detailed recitation of the facts of this matter can be found in this Court's opinion from the first appeal. Id. at 318-21, 789 S.E.2d at 24-25.

         Petitioners own approximately fifty-four acres of real property located in Lincoln County, North Carolina. In 2013, Petitioners contracted with Strata Solar, LLC ("Strata") to lease a portion of the property for the installation of a solar farm. Strata applied for a conditional use permit, which the Board denied. On appeal, the superior court concluded the Board did not make sufficient findings of fact concerning the impact of the proposed solar farm on surrounding property values, and remanded the matter to the Board to make additional findings. After remand, the superior court affirmed the Board's decision, which had concluded Strata had failed to provide substantial, material, and competent evidence that the proposed solar farm would not substantially injure the value of adjoining or abutting property.

         On appeal, this Court concluded Petitioner had "produced substantial, material, and competent evidence to establish its prima facie case of entitlement for issuance of the conditional use permit." Id. at 327, 789 S.E.2d at 29. This Court also concluded the Board had "incorrectly implemented a 'burden of persuasion' upon Strata Solar after . . . it presented a prima facie case, rather than shifting the burden to the Intervenors-Respondents to produce rebuttal evidence contra to overcome Strata Solar's entitlement to the conditional use permit." Id. at 330, 789 S.E.2d at 30. This Court unanimously reversed the superior court's order and remanded the matter for further proceedings. Id. at 330-31, 789 S.E.2d at 31. The Intervenors filed a petition for discretionary review with the Supreme Court, which was denied. Dellinger v. Lincoln Cty., 360 N.C. 190, 794 S.E.2d 324 (2016).

         Upon remand, the Intervenors filed a motion to dismiss for lack of subject matter jurisdiction, due to Strata exiting from the solar farm project on Petitioners' land. Strata had sent notice of its intention to withdraw its application for the conditional use permit in February 2017. The superior court denied Intervenors' motion and remanded the matter to the Board, in accordance with this Court's opinion. Intervenors filed another motion to dismiss before the Board, which was also denied.

         The Intervenors filed a motion to recuse Commissioner Mitchem. Petitioners filed a motion to recuse Commissioner Permenter. The Board denied both of the motions. The Board concluded Petitioners had established a prima facie case of entitlement to a conditional use permit, but the Intervenors had produced sufficient evidence contra to overcome it. By a 4-1 vote, the Board denied the application for the conditional use permit.

         Petitioners appealed to the superior court. The superior court affirmed the Board's denial of Petitioners' motion to recuse Commissioner Permenter. The superior court concluded the Intervenors had presented competent, material, and substantial evidence to rebut Petitioner's prima facie case and the Board's decision to deny the application for the conditional use permit was not arbitrary and capricious. The superior court affirmed the Board's decision. Petitioners appeal.

         II. Jurisdiction

         Intervenors argue this matter should be dismissed for lack of subject matter jurisdiction, as Strata's withdrawal of its application renders this matter moot. This issue was raised before and denied by both the superior court and the Board. Intervenors failed to appeal the Board's denial of their motion to dismiss when this matter again returned to the superior court. Intervenors filed neither a motion to dismiss, a cross-appeal, nor a petition for writ of certiorari in this Court. However, "a party may present for review the question of subject matter jurisdiction by raising the issue in his brief." Carter v. N.C. State Bd. for Prof'l Eng'rs, 86 N.C.App. 308, 310, 357 S.E.2d 705, 706 (1987) (citing N.C. R. App. P. 10(a)).

          N.C. Gen. Stat. § 160A-388, applied to counties under § 153A-345.1(a), provides that "[e]very quasi-judicial decision shall be subject to review by the superior court by proceedings in the nature of certiorari pursuant to G.S. 160A-393." N.C. Gen. Stat. § 160A-388(e2)(2) (2017). This statute includes judicial review for the grant or denial of conditional use permits. Coastal Ready-Mix Concrete Co. v. Bd. of Comm'rs, 299 N.C. 620, 623, 265 S.E.2d 379, 381 (1980).

         "Standing is a necessary prerequisite to a court's proper exercise of subject matter jurisdiction." Cook v. Union Cty. Zoning Bd. of Adjustment, 185 N.C.App. 582, 588, 649 S.E.2d 458, 464 (2007) (citation omitted). N.C. Gen. Stat. § 160A-393 grants standing to "any person" who "[h]as an ownership interest in the property that is the subject of the decision being appealed" as well as "an applicant before the decision-making board whose decision is being appealed." N.C. Gen. Stat. § 160A-393(d)(1) (2017).

         "Additionally, it is the general rule that once jurisdiction attaches, it will not be ousted by subsequent events." Finks v. Middleton, 251 N.C.App. 401, 408, 795 S.E.2d 789, 795 (2016) (citation and internal quotation marks omitted). "Jurisdiction is not a light bulb which can be turned off or on during the course of the trial. Once a court acquires jurisdiction over an action it retains jurisdiction over that action throughout the proceeding." Quesinberry v. Quesinberry, 196 N.C.App. 118, 123, 674 S.E.2d 775, 778-79 (2009) (citation omitted).

         Both Strata and Petitioners had standing to appeal the quasi-judicial decision of the Board. N.C. Gen. Stat. § 160A-393(d)(1). Because Petitioners, as owners of the property, continue to seek appellate review and issuance of a conditional use permit for their property, this Court retains subject matter jurisdiction, and this matter is not moot. See Finks, 251 N.C.App. at 408, 795 S.E.2d at 795.

         The order from the superior court is a final judgment and provides Petitioners with an appeal of right to this Court. N.C. Gen. Stat. § 7A-27(b) (2017).

         III. Issues

         Petitioners argue: (1) the denial of Petitioners' motion to recuse Commissioner Permenter deprived Petitioners of their constitutional right to a quasi-judicial proceeding before a fair and impartial decision-maker; and, (2) the Intervenors failed to produce competent, material, and substantial evidence contra to overcome Petitioners' prima facie showing of an entitlement to a conditional use permit.

         IV. Standard of Review

         "A legislative body such as the Board, when granting or denying a conditional use permit, sits as a quasi-judicial body." Sun Suites Holdings, LLC v. Bd. of Aldermen, 139 N.C.App. 269, 271, 533 S.E.2d 525, 527 (2000) (citation omitted). Its decisions are reviewable by the superior court sitting "as an appellate court, and not as a trier of facts." Id. (citations omitted).

         "When a party alleges an error of law in the [Board's] decision, the reviewing court examines the record de novo, considering the matter anew." Humane Soc'y of Moore Cty. v. Town of S. Pines, 161 N.C.App. 625, 629, 589 S.E.2d 162, 165 (2003) (citations omitted). Whether competent, material, and substantial evidence was presented is a question of law, which is reviewed de novo. Blair Invs., LLC v. Roanoke Rapids City Council, 231 N.C.App. 318, 321, 752 S.E.2d 524, 527 (2013). "The [county's] ultimate decision about how to weigh that evidence is subject to whole record review." Am. Towers, Inc. v. Town of Morrisville, 222 N.C.App. 638, 641, 731 S.E.2d 698, 701 (2012).

         "This Court's task on review of the superior court's order is twofold: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly." SBA, Inc. v. City of Asheville City Council, 141 N.C.App. 19, 23, 539 S.E.2d 18, 20 (2000) (citations and internal quotation marks omitted).

         V. ...


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