Agenda - Planning Commission - 03/03/2016

Home

Zoning Bulletin January 10, 2016 1 Volume 10 1 Issue 1 The PZA appealed. He argued that Morningstar was not an aggrieved party here and therefore lacked standing (i.e., the legal right to appeal the PZA's Drive Determination). The Court of Appeals affirmed the trial court's order. Notwithstanding the PZA's contention that Morningstar lacked standing, the court found that the PZA had a mandatory statutory duty to transmit Morningstar's appeal to the Board pursuant to subsection 153A -345(b) of the North Carolina General Statutes, and that "the existence—or nonexistence—of standing is a legal de- termination that must be made by the [Board]." Subsection 153A -345(b) of the North Carolina General Statutes governs county board of adjustment appeals and states, in relevant part, that any person aggrieved from a determination of a zoning administrator may appeal to the board of adjustment by filing with the officer from whom the appeal is taken and with the board of adjustment a notice of appeal, specifying the grounds thereof The statute further provides that "[t]he officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which action appealed from was taken." (N.C.G.S. § 153A -345(b).) The PZA appealed. On appeal, he argued that a party must first demonstrate that he or she has standing to appeal in order for the statute to compel a zoning officer to transmit an appeal to a board of adjustment. The PZA argued that a zoning officer "is vested with authority to refuse to transmit an appeal to the [Board] if the appealing party's application [does not allege any] special dam- ages" demonstrating that it is "aggrieved" pursuant to section 153A-354. Therefore, the PZA argued, a zoning officer "may unilaterally dismiss the ap- • peal for want of standing." DECISION: Judgment of Court of Appeals affirmed, andmatter remanded. The Supreme Court of North Carolina held that a zoning officer does not have the authority to refuse to transmit an appeal to a board of adjustment. Rather, held the court, a zoning officer is bound by statute to transmit an appeal to the board of adjustment and that the legal determination as to whether the petitioner has standing falls within the province of the board of adjustment. In so holding, the court looked at the plain language of the statute. The court found that "[a]lthough subsection 153A -345(b) clearly includes the standing requirement that only a `person aggrieved . . . may take an appeal,' neither the statute nor the Ordinance include[d] any language suggesting that [such] deter- mination [was] to be made by a zoning officer." The court said that, in general, the zoning administrator is a purely administrative or ministerial agent follow- ing the literal provisions of the ordinance. The court noted that the plain language in both the statute and the Ordinance mandated that the zoning officer forward the documents constituting the record to the Board—an act that is ministerial in nature, involving no discretion. The court emphasized that since a zoning officer's role is solely ministerial, it has not authority to rule on ques- tions of law, such as with making a legal determination that the appealing party lacks standing. The county board of adjustment, not the zoning officer, determines the fate of appeals, said the court. Accordingly, the court held that although subsection 153A -345(b) required Morningstar to demonstrate to the Board that it was an aggrieved party before © 2016 Thomson Reuters 9