Weishaupt-Smith v. Town of Banner Elk
| Decision Date | 19 March 2019 |
| Docket Number | No. COA18-903,COA18-903 |
| Citation | 264 N.C.App. 618,826 S.E.2d 734 |
| Parties | Petra WEISHAUPT-SMITH, Petitioner v. TOWN OF BANNER ELK, Town of Banner Elk Board of Adjustment, and American Towers, LLC, Respondents |
| Court | North Carolina Court of Appeals |
Miller & Johnson, PLLC, Boone, by Nathan A. Miller, for petitioner-appellant.
Eggers, Eggers, Eggers & Eggers, PLLC, Boone, by Stacy C. Eggers, IV and Kimberly M. Eggers, for respondent-appellee Town of Banner Elk.
Nexsen Pruet, PLLC, Greensboro, by David S. Pokela, for respondent-appellee American Towers, LLC.
Petra Weishaupt-Smith (Petitioner) appealed from an Order affirming the decision of the Town of Banner Elk Board of Adjustment (the Board) to grant a Variance to American Towers, LLC (American Towers) and issue a Conditional Use Permit to American Towers to construct a telecommunications tower. Upon filing Notice of Appeal, Petitioner's counsel also filed a Motion to Substitute Party on behalf of William Stevenson (Stevenson), citing N.C.R. App. P. 38 and seeking to substitute Stevenson for Petitioner. This Motion was granted by the trial court by a consent order. We, however, determine Stevenson is not an aggrieved party with standing to appeal the trial court's Order. Therefore, we dismiss this appeal.
On 13 June 2013, American Towers entered into an agreement to lease 14.26 acres of land, including easement rights, (the Property) within the extra-territorial jurisdiction of the Town of Banner Elk (the Town).
On 21 June 2013, American Towers submitted an application for a Conditional Use Permit to construct a 100-foot monopole telecommunications tower on the Property. At its 19 August 2013 meeting, the Board conducted an initial public hearing on the Conditional Use Permit. Petitioner and several others, including Stevenson, sought to intervene as parties in the quasi-judicial proceeding. The Board allowed Petitioner, who owned property adjacent to the Property, to intervene as a party. The Board did not permit Stevenson or other property owners to intervene as parties in the public hearing.1 During this public hearing, it came to light the advertised notice of the hearing was defective, and the Board declared "a mistrial." The Board subsequently held a full public hearing on 18 November 2013. By written order dated 3 December 2013, the Board granted a Conditional Use Permit to American Towers.
On 4 January 2014, Petitioner filed a Petition for Writ of Certiorari, seeking review of the Board's decision, in Avery County Superior Court, which issued its Writ on the same day. The trial court entered an order on 23 October 2014, remanding the case back to the Board for further proceedings and to hear and receive additional evidence on several issues. This included a determination of whether the Property met the Town's requirements for a right-of-way to access the Property.
Because American Towers only had rights in a 20-foot-wide access easement to the Property, and the Town's zoning ordinance required a 25-foot-wide right-of-way, American Towers filed a Variance request on 3 February 2015 with the Town, seeking a Variance from the 25-foot-wide right-of-way requirement. The Variance request was heard on 16 March 2015 in conjunction with the hearing on the Conditional Use Permit application on remand from the 23 October 2014 order.
At the 16 March 2015 hearing, the Board heard arguments on the threshold issue of whether American Towers's Variance request related back to the original Conditional Use Permit application and whether the Variance request related back to, and was subject to, the zoning ordinance in effect in June 2013 when American Towers first applied for its Conditional Use Permit or to a December 2013 revision of the ordinances governing telecommunications towers passed shortly after the Town initially approved the Conditional Use Permit. By written order dated 10 April 2015, the Board found American Towers's Variance request did not relate back to the original application and was thus "time barred." As a result, the Board also ruled that a sufficient right-of-way did not exist and denied American Towers's application for a Conditional Use Permit.
On 29 April 2015, American Towers filed a Petition for Writ of Certiorari to the Avery County Superior Court, seeking review of the Board's orders denying its Variance request and Conditional Use Permit application. The Writ of Certiorari issued that same day. Following a hearing, the trial court entered an order on 8 March 2016, reversing the Board's orders on the Variance request and Conditional Use Permit application. Further, the trial court remanded the case back to the Board with instructions to consider the merits of the Variance request and to grant the Conditional Use Permit if the Board determined the Variance should be granted.
On 20 June 2016, the Board conducted another public hearing on the Variance request and Conditional Use Permit application, per the trial court's 8 March 2016 order. After receiving evidence and hearing arguments, the Board unanimously voted to grant the Variance request.
In accordance with the 8 March 2016 order, the Board then voted on the Conditional Use Permit, which was also unanimously approved. On 3 October 2016, the Board filed its written order with the Town Clerk, granting both the Variance request and Conditional Use Permit.
On 2 November 2016, Petitioner filed a new Petition for Writ of Certiorari seeking review of the Board's 3 October 2016 decision. This Petition was filed on Petitioner's own behalf, alleging her standing as a neighboring property owner and as a party to the quasi-judicial proceedings before the Board. There is no indication Petitioner filed as a representative party or on behalf of a group or association. Stevenson did not seek to intervene in this proceeding. The trial court issued its Writ, bringing the record of the proceedings before the court. On 18 May 2018, the trial court entered an order affirming the Board's decision to grant the Variance and Conditional Use Permit.
Petitioner timely filed her Notice of Appeal on 15 June 2018. The same day, Stevenson, by and through Petitioner's counsel, filed a Motion to Substitute Party, pursuant to Rule 38 of the North Carolina Rules of Appellate Procedure. Stevenson alleged he owns property immediately adjacent to the Property and requested to be substituted for Petitioner, who had allegedly recently sold her house and now lacked standing to continue this appeal. Stevenson further alleged he was actively involved in the proceedings before the Board and trial court, including attending all hearings before the Board and trial court. With consent of the parties, the trial court entered an order on 10 July 2018, allowing Stevenson to substitute for Petitioner in this appeal.
No party to this case raises the issue of Stevenson's standing to pursue this appeal. Indeed, his substitution is entirely ignored in briefing, with the exception of a single sentence in the procedural history recitation of Appellant's brief. Nevertheless, "standing is a jurisdictional issue and this Court may raise the question of subject matter jurisdiction on its own motion." Town of Midland v. Morris , 209 N.C. App. 208, 223, 704 S.E.2d 329, 340 (2011) (citations and quotation marks omitted).
Id. at 224-25, 704 S.E.2d at 341 (citations and quotation marks omitted). "[I]t is well settled that an appeal may only be taken by an aggrieved real party in interest." Id. at 224, 704 S.E.2d at 341 (citations omitted); see also King Fa, LLC v. Ming Xen Chen, ––– N.C. App. ––––, ––––, 788 S.E.2d 646, 650 (2016).
In Duke Power Co. v. Board of Adjustment , this Court addressed an analogous case. 20 N.C. App. 730, 202 S.E.2d 607, cert. denied , 285 N.C. 235, 204 S.E.2d 22 (1974). There, Duke Power Company sought a variance to construct a power line in a residential neighborhood, which was denied. Id. at 730, 202 S.E.2d at 607. Duke Power Company petitioned for judicial review by certiorari from the superior court, which reversed the decision and ordered the variance be granted and permit issued. Id. at 730-31, 202 S.E.2d at 607-08. Neighboring landowners who opposed the variance, but who made no motion to intervene or be made parties in the superior court proceeding, sought to appeal the superior court ruling to this Court. Id.
This Court recognized:
While the persons complaining of the court's ruling may have been aggrieved by the proximity of their land to the proposed power line of the petitioner, it does not necessarily follow that they have the right to appeal. In addition to being aggrieved, they must have been parties to the suit from which they wish to appeal.
Id . at 731, 202 S.E.2d at 608. Our Court reasoned "[s]ince [the property owners] were not parties, they have no right to appeal or otherwise complain of the ruling of the court" and dismissed the appeal. Id. at 732, 202 S.E.2d at 608 (citations omitted). Under the holding of Duke Power Co ., dismissal of the appeal would be the clear and obvious result in this case.
The question remains, however, whether Stevenson's post-judgment substitution pursuant to N.C.R. App. P. 38 requires a different outcome. Certainly, it appears the parties to the appeal impliedly assume their consent to the substitution resolves any standing issue. However, "[s]ubject matter jurisdiction cannot be conferred upon a court by consent, waiver or estoppel ...." In re T.R.P. , 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006) (citations and quotation marks omitted).
N.C.R. App. P. 38, in relevant part, provides:
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