Mr. Newby noted that they are asking the Board to consider a special question before it moves forward with the application filed. Mr. Newby presented the Board with case law, a copy of the cases is attached with the original Minutes. The application is a second application submitted by the Applicants for a special use for recreational use. The first application was heard and denied by the Board. The Order has been appealed by the Applicants and is pending in Superior Court on a Petition of Certiorari. Mr. Newby questioned whether the Board has jurisdiction to hear this application. The Superior Court has taken jurisdiction over the first application. The question is whether the Applicant can appeal an order from a special use and then file a new application for the Board to consider while the previous application is pending in Superior Court. There is not a case directly on point that would direct the Board in their decision. The Board of Adjustment sits as a quasi-judicial body and acts in that function when it hears special uses. Once the decision is appealed to Superior Court, that Court sits as an appellate branch which means it is not going to retry the case in Superior Court. It will take the record that has been filed in Superior Court and, based on that record, will determine if the Board was correct or incorrect in their decision or return it to the Board for further findings of fact. In North Carolina law, this happens all the time. Trial Courts have cases appealed to the Court of Appeals. The Trial Court loses authority to do anything with the case while it is pending the Appellate Court except for some very minor exceptions. The same application applies to this Board since you acted as the Court in making your decision. Mr. Newby also stated that res judicata means the Board has already decided an issue, the Board of Adjustment, by making their decision, it decided about that special use on that tract of land. Mount Ulla Historical Preservation Society, Inc., et al. vs. Rowan County, Davidson County Broadcasting, Inc., Richard and Dorcas Parker, and Maurice E. and Mary Lee Parker, held that once the Board decided it could not go back and change that decision because there was no new evidence that would show a reason to change its decision. Carl W. Meares, Jr. vs. Town of Beaufort is a case close to this particular special use permit. It was appealed to the Superior Court and the Court heard an application for another special use and the Court said they could; however, it was for a different use. If you take that with the Board’s having already decided on this particular use, the Pope’s could have filed an application for another type of special use, it would have been a different issue. You have already decided on the Motorcross track. In John H. Council Vs. Town of Boone Board of Adjustment the Court allowed some “wheeling and dealing” and found that the Court could allow a resolution of the case but that was more interesting when you talk about intervention of parties, and in the Applicant’s situation you have intervention, as the opposition is attempting to intervene in the superior court proceeding.
Mr. Newby requested that the Board defer this application until such time as the Superior Court matter is resolved. This can be resolved by either granting or denying the use or returning the matter back to this Board for further hearing or by dismissing the Applicants’ petition. This does not preclude the Applicants from coming back before this Board, but it precludes them from “getting two bites from the same apple.” Based on these facts, Mr. Newby recommends that the Board not hear this application until the first application is resolved by the Superior Court.
Joel Bondurant, an attorney with the Guilford County Bar, appeared on behalf of the Applicants, Ryan and Amanda Pope. Mr. Bondurant submitted to the Board a memorandum, and statutes and case law, a copy of these documents is included with the original Minutes. Mr. Bondurant noted that in determining these issues we have to rely on statutes and case law. He noted that the General Assembly has not treated Quasi-Judicial as Trial Court decisions the same as other types of judicial decisions in North Carolina. Mr. Bondurant noted N.C.G.S. 1-294 and the “stay” rules applicable when considering the jurisdictional consequences of an appeal from a trial division to an appellate division. Mr. Bondurant does not find a jurisdiction impediment in this application. Mr. Bondurant noted that res judicata is an entirely different document and has nothing to do with jurisdiction and is a defense that some people can raise and cannot be decided at the moment as it will depend on the nature of the evidence submitted in support of an application. The Applicants will not come to the Board with the same evidence, they have an impact statement and a noise analysis to present. The res judicata cannot be decided at this moment. The Applicants are ready to move forward and have evidence to support their application. Mr. Bondurant stated that the Applicants had to appeal within 30 days from the time the Order was entered and there is a legal question of whether the Board erred in their votes with the Applicants’ first application. This is the only issue that was appealed to Superior Court. The question for the Board to consider is whether the Applicants can now meet the standards. There is nothing to prevent the Board from moving forward with this application.
Mr. Meredith noted that the Board members are “lay people” and presenting case law and statutes for the to consider within ten minutes is not something that they can quickly digest. The concern is the possibility of the Judge’s decision, overruling the Board’s decision, or the Court sending the application back to the Board for hearing.
Mr. Bondurant argued the issue of mootness. If the Court agrees with the Applicants and the permit is granted, then there are no further issues to be resolved in Court and it would be dismissed. Assume that the Board schedules the hearing for October and the Board decides that the application is approved, then the Superior Court matter is moot. The Applicants are asking the Superior Court to simply decide whether there should have been another vote in June. Mr. Bondurant noted that the Applicants did not want to spend more money to file the Petition; however, there was a deadline to file. If the Superior Court rules against the Applicants then they can ask the Court of Appeals to decide. The Applicants felt that they were in a tough spot, they are invested in this application and they feel that this would be good for the County. Mr. Bondurant noted that the Superior Court process could take up to a year to receive a decision.
Mr. Newby clarified for the Board the reason for these arguments and whether the Board has jurisdiction to hear this application.
Drew Nelson appeared on behalf of the opposition and addressed the Board. He stated that this to some degree, is an issue between the Applicants and the Board. He is seeking to intervene in the Superior Court matter and has filed a Motion to Intervene. This Motion will likely be heard in October. Mr. Nelson feels that there is one issue before the Board, is there jurisdiction over the current application. He agrees with Mr. Newby based on North Carolina appellate law structure. This Board acts as a trial level court, they make findings of fact, conclusions of law and decisions. It is his contention that as long as things are pending in Superior Court this Board does not have jurisdiction to act and should not hear this application. Mr. Nelson stated that the Superior Court matter could have been dismissed and the Applicants then file a second application for the Board to consider. The next stage of this application is whether this application has legal standing to be heard as it is presented.
Mr. Newby spoke to the Ordinance and stated that once a matter is appealed, there is a stay in place and you cannot impose additional fines or enforcement actions except some very tightly drawn exceptions. He stated that it is clear that when a higher body takes a matter over, the stay is also in place, and there can be no further proceedings by the Board until that matter is resolved by the higher body. Mr. Newby stated that the issue is whether this Board can decide a new application when the Applicants appealed and then refiled for a hearing on the same issue. He contends that the new application cannot be heard. There is a 30-day timeframe to file an appeal to an Order; however, there is no timeframe to file an application. You can file an application after the appeal is resolved in Superior Court. Mr. Newby noted that a second application puts additional pressure on this Board and staff to resolve the issue so that they do not have to go to Superior Court. Mr. Newby noted that as Mr. Bondurant stated, the Applicants can appeal to the Court of Appeals if they do not like the Superior Court’s decision. There is no stopping the Applicants from continuing to file applications when they are not satisfied with the Board’s decision. Mr. Bondurant has a dual track at this point. Mr. Newby advised the Board on the process of the Superior Court procedure and this application should they vote to suspend this application pending hearing in Superior Court. Mr. Newby stated that this Board needs to decide based on practical wisdom as much as legal wisdom.
Mr. Bondurant advised the Board that it would not be in the Applicants’ best interest to dismiss the Superior Court matter so that this application can be heard. Mr. Bondurant stated again his interpretation of the Legislature and N.C.G.S. 160D-1402 and 160D-405 which were provided for the Board regarding the “stay” effect. He contends that res judicata has nothing to do with jurisdiction.
Chairman Meredith noted that he and Mr. Russell have been members of this Board for 35 plus years and an issue of this same nature has never come before this Board.
The Board had further discussion regarding past experiences with Superior Court proceedings and their thoughts on the proceedings.
Vice-Chairman Temple moved to suspend hearing the application for a special use permit to operate a recreational facility submitted by Ryan and Amanda Pope on July 26, 2021 and defer hearing this application due to the identical application previously heard by this Board which is the subject of the Petition of Certiorari filed and pending in the Davidson County Superior Court Division, File No. 21 CVS 1701. Mr. Russell seconded this motion. The motion carried unanimously (4-0).
Organization Board of Adjustment
Number BOA - 9/2021
Date Thursday, 09/16/2021