GARY DELLINGER, VIRGINIA DELLINGER and TIMOTHY S. DELLINGER, Petitioners,
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.
in the Court of Appeals 23 April 2019.
by petitioners from order entered 21 May 2018 by Judge Karen
Eady-Williams in Lincoln County No. 17 CVS 788 Superior
Sigmon, Clark, Mackie, Hanvey & Ferrell, P.A., by Jason
White, for petitioner-appellants.
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.
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.
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.
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
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).
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.
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.
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.
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.
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).
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. §
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).
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.
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).
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.
Standard of Review
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
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
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).