The N.C. Court of Appeals has ruled that county commissions and city councils may not hear appeals from neighbors in land subdivision cases unless local ordinances give local residents the right to object.
Sanco of Wilmington Service Corporation wanted to build a new condominium complex in New Hanover County. In 2001, it applied to subdivide land it owned to build 427 condominiums. The Technical Review Committee of the New Hanover County Planning Board OK’d the request Aug. 22, 2001.
Shortly after the approval, a group called Concerned Citizens for Neighborhood Preservation wrote the planning department requesting a public hearing on the matter. On Oct 1, 2001, over Sanco’s objection, the New Hanover County Commission conducted the hearing, and, after hearing from all sides, decided that Sanco should be allowed to build 213 units on the site. At the hearing, the commission chairman described the proceeding as “an administrative action, not a quasi-judicial action.”
Sanco sought judicial review of the commission’s action. After Superior Court Judge Jay Hockenbury ruled in Sanco’s favor, New Hanover County appealed.
The Court of Appeals ruled that the Superior Court was correct in finding for Sanco.
“We hold that the ordinance at issue in this case was clearly ministerial, ” wrote Judge Rick Elmore for the appellate court. “As such, once the petitioner [Sanco] had complied with the terms of [the ordinance], it was entitled to the permit as a matter of law, and moreover the Board of Commissioners had no legal authority under the ordinance to hear the matter unless and until the plat applicant, rather than a third party such as Concerned Citizens, appealed from the TRC.”
Elmore noted that the New Hanover County ordinance did not contain any requirement for public hearings or public comment on Sanco’s application. The regulations also contained no mention of the role or rights of adjacent property owners in the process.
“The plain language of the statute only addresses the rights of the applicant and the corresponding duty of the Planning Board. Indeed, by repeatedly using the word ‘shall’ the ordinance mandates certain specific actions of the county. To read the right to appeal mentioned… as applying to other parties, e.g. Concerned Citizens, would require us to read into the ordinance rights of and involvement by individuals, classes, or other third parties about whom the ordinance is otherwise silent.”
The Court of Appeals has previously ruled in a 2001 case from Greensboro, Nazziola v. Landcraft Props., Inc., that there is no requirement in state law for public comment in land subdivision (plat) cases.
“While the Greensboro ordinance differed from the ordinance in the case sub judice by specifically stating that only the applicant possesses a right to appeal to the City Council, the holding in Nazziola nevertheless indicates that a plat approval procedure may be perfectly valid and appropriate without public comment even from the adjacent property owners, ” noted the appeals court. “It is simply not permissible for a local governmental body to deploy novel, ad hoc procedures not previously authorized in an ordinance.”
New Hanover County amended its regulations in late 2001 to allow for appeals from applicants, officials, or departments of New Hanover County, or “persons with a significant identifiable interest in the proposed plan, greater than that of the public at large, including but not limited to, adjacent property owners.”
The case is Sanco of Wilmington Serv. Corp. v. New Hanover Cty., (03-602).
Link to case here.
Mike Lowrey is associate editor of Carolina Journal.