N.C. Court Discusses Application of Res Judicata in Quasi-Judicial Land Use Proceedings

by Womble Carlyle Sandridge & Rice, LLP
Contact

Today's topic is the North Carolina Court of Appeals' decision in Mount Ulla Historical Preservation Society, Inc. v. Rowan County, 11 CVS 2793 (February 18, 2014).  The full opinion can be accessed here.

The First Conditional Use Permit Decision
In 2005, the Rowan County, North Carolina board of commissioners denied a conditional use permit ("CUP") application for the location and construction of a 1350-foot radio tower on the basis that the proposed tower was determined to be a safety hazard to nearby Miller Airpark, a private airport ("2005 CUP application").  The applicants appealed to the Superior Court, which affirmed the quasi-judicial board's decision.

The Second Conditional Use Permit Application and Decision
In 2010, the same company applied for a conditional use permit for a 1200-foot radio tower "in substantially the same proposed location as the tower in the 2005 application that had been denied" ("2010 CUP application").  The same opponents to the 2005 CUP application moved to dismiss the 2010 CUP application as being barred by the doctrines of res judicata and collateral estoppel based on the Superior Court's decision to affirm the denial of the 2005 CUP application.  The board of commissioners denied the motion to dismiss and granted the 2010 CUP.

The Appeal of the Second Conditional Use Permit Decision
The opponents appealed to the Superior Court the County's decision to grant the 2010 CUP, arguing in part that the 2010 CUP application was barred by res judicata and collateral estoppel on the basis of the Superior Court's decision to deny the 2005 CUP application.  The Superior Court agreed, and reversed the quasi-judicial decision of the Rowan County board of commissioners denying the 2010 CUP.

The Decision on Appeal
The Court of Appeals reversed the Superior Court, concluding that res judicata did not bar the 2010 CUP application.

At the outset, the Court notes that the doctrine of res judicata "is available with respect to the proceedings and final decision of a judicial or quasi-judicial body", and the Court points out that "whether the doctrine of res judicata operates to bar a cause of action is a question of law reviewed de novo on appeal."

The Court then articulates the operative standard in order to avoid being barred by res judicata in successive quasi-judicial permitting procedures:  "DCBI’s 2010 CUP application must have materially changed the design of the proposed tower in such a way as to vitiate the concerns regarding air safety which led to the denial of the 2005 CUP application."  The Court continues, providing us with a "definition of 'material change' in the context of quasi-judicial land use decisions in North Carolina" and the application or non-application of res judicata:
"[A] material change which precludes the use of the defense of res judicata occurs when the specific facts or circumstances which led to the prior quasi-judicial land use decision have changed to the extent that they 'vitiate . . . the reasons which produced and supported” the prior decision such that the application “can no longer can be characterized as the same claim."
There it is.  The test governing the application of res judicata in a quasi-judicial land use proceeding.

But the Court's review as to the application of res judicata is a question of law, isn't it?  How can the Court of Appeals come to the conclusion that a "material change" occurred or has not occurred without looking at facts before the quasi-judicial board?  Here is how: "we conclude that the deferential whole record test applies to the [quasi-judicial board's] finding of a material change".  So, a reviewing court scours the "whole record" to determine whether a material change has occurred, and then looks "de novo" at the application or non-application of the doctrine of res judicata.

Great.  Now we need a finding of fact on which the reviewing Court may hang its "material change" hat, if it is to reverse the quasi-judicial board.  Did the quasi-judicial board find a fact on which it based its decision not to apply res judicata?  Nope, not in this case.  Back to the Court:  "Although the Board denied petitioners’ motion to dismiss on the basis of res judicata, it did not include, as part of its written decision approving the 2010 CUP application, any findings which suggest that there was a material change from the denied 2005 CUP application."

So, how may the Court of Appeals pivot its decision?  Specifically, what could be the fact found on which the Court may base its conclusion that a "material change" has occurred?  It is this fact, according to the Court: "However, by denying petitioners’ motion to dismiss [based, in part, on res judicata], the Board necessarily found that there was a material change between the two applications."

Ultimately, however, the Court of Appeals determines that the quasi-judicial board was incorrect in failing to apply res judicata to the 2010 CUP application.  Specifically, the Court of Appeals concludes that the only true difference between the 2005 CUP application and the 2010 CUP application was the 150-foot difference in height of the desired radio tower.  Again, the Court:  "as there was no material change between the 2005 and 2010 CUP applications, res judicata barred the Board from reconsidering its previous decision [from 2005]."

Don't forget Billy Joel's hit, "Don't Go Materially Changing".


An interesting day.  A more clear standard for the application of res judicata in a quasi-judicial land use proceeding.

 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Womble Carlyle Sandridge & Rice, LLP | Attorney Advertising

Written by:

Womble Carlyle Sandridge & Rice, LLP
Contact
more
less

Womble Carlyle Sandridge & Rice, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.