Batch v. Town of Chapel Hill

• Citation: 376 S.E.2d 22,92 N.C.App. 601
• Decision Date: 07 February 1989
• Docket Number: No. 8815SC340,8815SC340
• Court: Court of Appeal of North Carolina (US)
• Parties: Deidre V. BATCH v. TOWN OF CHAPEL HILL.

Page 22

376 S.E.2d 22

92 N.C.App. 601

Deidre V. BATCH v. TOWN OF CHAPEL HILL.

No. 8815SC340.

Court of Appeals of North Carolina.

Feb. 7, 1989.

Michael B. Brough & Associates by Michael B. Brough and Frayda S. Bluestein, Durham, for appellee.

Ralph D. Karpinos, Town Atty. for the Town of Chapel Hill, Chapel Hill, and Hunter & Wharton by John V. Hunter III, Raleigh, for defendant-appellant.

ARNOLD, Judge.

Summary judgment granted by the trial court recognized plaintiff's claims for violation of due process, taking, temporary taking, town action which exceeded statutory authority, inverse condemnation, and damages under 42 U.S.C. §§ 1983, 1988. Issues for decision by this Court are whether the trial court properly entertained the motion for summary judgment and, if so, whether it determined correctly that there existed no genuine issue as to any material fact and that the plaintiff was entitled to judgment as a matter of law.

Procedure

As an initial matter it is necessary to resolve whether the trial court erred in allowing the plaintiff to proceed in one action with a petition for certiorari and a complaint. We find that it was an acceptable way to proceed under the North Carolina Rules of Civil Procedure.

Generally, North Carolina allows for liberal joinder of claims:

A party asserting a claim for relief as an original claim, counterclaim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal or equitable, as he has against an opposing party.

N.C. Rules of Civ.Proc. 18(a). The rule has been interpreted as removing "all restrictions on the number or kinds of claims that may be joined by a party ... it should no longer be possible to have a misjoinder of claims or causes of action as under the former practice." Shuford, N.C. Civ.Prac. & Proc. § 18-3 (3rd Ed.1988).

Proper procedure in this case can be distinguished from zoning case denials because the statutory scheme governing zoning ordinances provides that when a municipality denies a special use or conditional use permit, "every such decision of the city council shall be subject to review by the superior court by proceedings in the nature of certiorari." N.C.G.S. §§ 160A-381, 160A-388. See Coastal Ready-Mix Concrete Co. v. Board of Commissioners, 299 N.C. 620, 265 S.E.2d 379, reh. denied, 300 N.C. 562, 270 S.E.2d 106 (1980) (conditional use permit denied); see Charlotte Yacht Club v. County of Mecklenburg, 64 N.C.App. 477, 307 S.E.2d 595 (1983) (denial of special use permit affirmed).

There is no similar statutory mandate for review of town decisions on subdivision applications. See N.C.G.S. §§ 160A-371-376. Further, the North Carolina Supreme Court in Town of Nags Head v. Tillett, 314 N.C. 627, 336 S.E.2d 394 (1985), cautioned against relying on "the broad enforcement provisions of N.C.G.S. 160A-389, a zoning statute, as the statutory basis for denying a building permit to one whose lot violates ... subdivision requirements." Tillett at 631, 336 S.E.2d at 397. Similarly, it would be incorrect to limit review of subdivision application denials based on the procedure authorized for zoning application denials.

Though it is true that the Town of Chapel Hill Development Ordinance 7.6.1.11 allows for superior court review "in the nature of certiorari" within thirty days, this provision cannot limit plaintiff's right to bring a complaint against the Town. "Authority to establish rules governing the procedure and practice in superior courts is vested in the General Assembly unless such authority is delegated to the Supreme Court." N.C. Const. art. IV, § 13. (2). See White Oak Properties v. Town of Carrboro, 313 N.C. 306, 311, 327 S.E.2d 882, 885 (1985).

When a Board of County Commissioners denied a homeowner association petition to prohibit a developer from using duplicative names in violation of the county subdivision ordinance, plaintiff association filed a complaint and petition to be treated in the alternative as a petition for judicial review or petition in the nature of a writ for certiorari, and sought an injunction or restraining order prohibiting use of the names. This Court found that the " 'judgment' of the board disregarded" a county ordinance and thus the decision of the Board of Commissioners was reversed. Springdale Estates Assoc. v. Wake County, 47 N.C.App. 462, 467, 267 S.E.2d 415, 418 (1980). In analyzing the procedural posture of the case, the court adopted the procedure established in zoning cases:

Ordinarily, a municipal body, when sitting for the purpose of review, is vested with quasi-judicial powers, and a decision of the board, while subject to review by the courts upon certiorari, will not be disturbed in the absence of arbitrary, oppressive, or manifest abuse of authority, or disregard of the law. The findings of fact made by the commissioners, if supported by evidence introduced at the hearing before the board, are conclusive. But when the findings of the board are not based on competent evidence, the proceedings must be remanded.

Id., citing Refining Co. v. Board of Aldermen, 284 N.C. 458, 469, 202 S.E.2d 129 (1974); Jarrell v. Board of Adjustment, 258 N.C. 476, 480, 128 S.E.2d 879 (1963).

We agree that a decision of a town board must be disturbed if it is arbitrary, oppressive or manifests abuse of authority or disregard of the law. We do not agree with any implicit suggestion that review in subdivision cases can only be made upon certiorari as was the case in the zoning cases relied on by the Springdale court. De novo review is appropriate when a claim raises constitutional questions because "[t]he courts are the sole and final arbiters of the constitutionality of local and state legislation, regulations, and other governmental action." Schnidman, Handling the Land Use Case § 5.2 (1984 & Supp. p. 221). See Hylton Enterprises v. Board of Supervisors, 220 Va. 435, 258 S.E.2d 577 (1979). (When a subdivider contends that disapproval of a plat was not properly based upon the applicable ordinances or was arbitrary or capricious, he may appeal to an appropriate court, which has authority to order approval of the plat.)

As stated in its order dated 4 September 1987, the Superior Court determined that the plaintiff's claims were properly joined:

... [I]t is hereby determined that the writ of certiorari has been joined for the ancillary purpose of bringing up to the Superior Court the records that were before Defendant's Town Council at the hearing of the Plaintiff/Petitioner's application for subdivision approval. This action shall proceed according to the rules of evidence and procedure governing a civil action at law rather than the rules applicable to a proceeding in the nature of certiorari.

The North Carolina Supreme Court has recognized as proper a superior court's exercise of appellate and original jurisdiction in one cause of action. Wilson Realty Co. v. City and County Planning Board for the City of Winston-Salem and Forsyth County, 243 N.C. 648, 656, 92 S.E.2d 82, 87 (1956). In Wilson the court recognized that the writ of certiorari may be used "as an ancillary writ in a mandamus action for the purpose of bringing up from the inferior tribunal ... records deemed necessary for use in the trial of the case on its merits." Id. at 656, 92 S.E.2d at 87. Mandamus is an exercise of original, not appellate, jurisdiction. Id. See 35 N.C.L.Rev. 180-81 (1957).

Here the use of certiorari as ancillary to plaintiff's complaint is consistent with the definition of certiorari "to bring into superior court the record of the administrative or inferior judicial tribunal for inspection." Black's Law Dictionary (1968) (citations omitted). For reasons enunciated herein, we recognize that denial of subdivision applications may be reviewed by certiorari, or an aggrieved plaintiff may bring an original complaint, or join causes of action as permitted by N.C.Rule of Civ.Proc. 18(a). Therefore, plaintiff's complaint was properly before the superior court, which properly entertained the motion for summary judgment which we are asked to review here.

Summary Judgment

Having determined that summary judgment was properly before the trial court, we must determine whether there is any genuine issue of material fact and that plaintiff is entitled to judgment as a matter of law. Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972). Upon motion for summary judgment a court may consider affidavits, depositions, answers to interrogatories, admissions on file "and any other material which would be admissible in evidence or of which judicial notice may properly be taken." Kessing v. National Mortgage Corporation, 278 N.C. 523, 180 S.E.2d 823 (1971). See Shuford, N.C.Civ.Prac. & Proc. § 56-8 (3rd Ed.1988).

The trial court found no genuine dispute as to these material facts:

On 28 October 1986 plaintiff submitted to the defendant an application for approval of a preliminary plat to create a small subdivision consisting of 11 lots, one of which she intended to use as her personal residence. On 9 March 1987, the Chapel Hill Town Council adopted its staff's recommendation and denied plaintiff's application for the following three reasons:

(1) Plaintiff failed to indicate on her subdivision [plat] an intent to dedicate to the Town of Chapel Hill a right-of-way [through her property] for the proposed Laurel Hill Parkway. (hereinafter "Parkway Condition")

(2) Plaintiff failed to indicate on her subdivision plat an intent to dedicate to the town an additional ten (10) feet of right-of-way along Old Lystra Road and to improve Old Lystra Road by adding an additional twelve (12) feet of pavement width as well as curb and gutter along the property's approximately 973 feet [of] frontage on that road. (hereinafter "Lystra Rd. Condition")

(3) Plaintiff failed to indicate in her subdivision application an intent to extend public water and sewer lines to her property, such extension estimated to cost in excess...