Agenda - Planning Commission - 05/01/2014

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Zoning Bulletin April 10, 2014 1 Volume 8 1 Issue 7 Citation: Mount Ulla Historical Preservation Soc., Inc. v. Rowan County, 2014 WL 619584 (N.C. Ct. App. 2014) NORTH CAROLINA (02/18/14) —This case addressed the issue of whether, in the context of quasi-judicial land use decisions (i.e., land use decisions of a public administrative agency, which has powers and procedures resembling those of a court of law or judge), a "material change" in . the facts or circumstances which led to the prior quasi-judicial land use decision, precludes the use of the defense of res judicata (i.e., defense argu- ment that the decision was already judged on its merits and therefore cannot be judged again). The case also addressed the definition of such "material change," as well as what test a court must use when reviewing a board's de- termination as to whether there had been a material change. The Background/Facts: In January 2005, Davidson County Broadcast- ing, Inc. ( "DCBI ") applied to the Rowan County (the "County ") Board of Commissioners (the `Board ") for a conditional use permit ( "CUP ") (the "2005 CUP ") to construct a 1,350 -foot radio tower on property owned by Richard and Dorcas Parker (the "Parkers "). Ultimately, the Board voted to deny the CUP because the proposed tower would "pose an air safety haz- ard" to a nearby private airport. DCBI and the Parkers appealed the Board's decision, which was affirmed by the superior court and then again by the court of appeals. Then, in May 2010, DCBI again applied to the Board for a CUP for a 1,200 -foot radio tower (the "2010 CUP ") in substantially the same proposed location as in the 2005 CUP application. The Mt. Ulla Historical Preserva- tion Society, Inc., the Miller Air Park Owners Association, and several dozen private individuals (the "Petitioners ") asked the Board to dismiss the 2010 CUP. The Petitioners contended that the 2010 CUP was barred by the doctrine of res judicata. "Under the doctrine of res judicata, a final judgment on the merits in a prior action in a court of competent jurisdiction precludes a second suit involving the same claim between the same parties or those in privity with them.. . The purpose of the doctrine of res judicata is to protect litigants from the burden of relitigating previously decided matters and to promote judicial economy by preventing unnecessary litigation." The Board denied the Petitioners' motion and eventually approved the CUP. The Petitioners later appealed the Board's approval of the CUP to the superior court. Again, they argued that the 2010 CUP application was barred by res judicata. The superior court agreed. The County then appealed the superior court's decision. The County contended that the doctrine of res judicata applied to quasi-judicial land use decisions, such as the one here, "only when the applicant is attempting to `reopen and rehear the case upon the identical facts presented in the former record.' " Here, the County contended that the lowering of the tower by 150 feet in the 2010 CUP application was a "material change that would preclude the use of res judicata." © 2014 Thomson Reuters 3