Morningstar Marinas/Eaton Ferry, LLC v. Warren County

NO. COA13-458

NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

MORNINGSTAR MARINAS/EATON

FERRY, LLC,

Petitioner

v. Warren County

No. 12 CVS 180

WARREN COUNTY, NORTH CAROLINA

and KEN KRULIK, WARREN COUNTY

PLANNING AND ZONING ADMINISTRATOR,

IN HIS OFFICIAL CAPACITY,

Respondents.

Appeal by respondents from order entered 13 September 2012

by Judge Robert H. Hobgood in Warren County Superior Court.

Heard in the Court of Appeals 6 November 2013.

Robinson, Bradshaw & Hinson, P.A., by John H. Carmichael,

for petitioner-appellee.

Turrentine Law Firm, PLLC, by Karlene S. Turrentine, for

respondents-appellants.

DAVIS, Judge.

Warren County and Ken Krulik (“Mr. Krulik”), in his

official capacity as the Warren County Planning and Zoning

Administrator (collectively “Respondents”), appeal from the

trial court’s order issuing a writ of mandamus in favor of

Morningstar Marinas/Eaton Ferry, LLC (“Morningstar”) in

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connection with a zoning dispute. After careful review, we

affirm the trial court’s order.

Factual Background

The facts relevant to this appeal are as follows:

Morningstar operates a full-service marina on a 5.03 acre parcel

of land (“the Morningstar Property”) located at 1835 Eaton Ferry

Road in Littleton, North Carolina. The Morningstar Property is

zoned commercial in the Lakeside Business District under the

Warren County Zoning Ordinance (“the Ordinance”). Its

commercial marina offers wet slips and dry storage for boats and

a fuel dock. The Morningstar Property is located off of a small

cove of Lake Gaston and is approximately 145 feet across the

cove from land owned by East Oaks, LLC (“East Oaks”).

Approximately 8.5 acres of the East Oaks property is zoned

residential (“the Residential Property”) under the Ordinance.

Adjacent to the Residential Property is a 1.91 acre parcel of

land owned by East Oaks and zoned commercial (“the Commercial

Property”). The Commercial Property is improved with a boat

storage building from which East Oaks operates a dry storage

facility.

East Oaks filed a petition for a conditional use permit

seeking to build 36 townhouses on the Residential Property. In

its petition, East Oaks included a site plan for the proposed

use showing the townhouses, roads, and a drive (“the Drive”)

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that connects the Commercial Property and the Residential

Property. The record indicates that the Drive was to be used

for the purpose of transporting boats from the dry storage

facility located on the Commercial Property to the boat launch

area located on the Residential Property.

Before the Warren County Board of Adjustment (“BOA”) ruled

on East Oaks’ petition for a conditional use permit, Mr. Krulik

reviewed the Ordinance and issued a formal determination on 21

April 2011 (“the 21 April Determination”), finding that

townhouses were a permitted use in a residential district as a

single-family dwelling. As such, East Oaks withdrew its

application for the conditional use permit and secured a

standard zoning permit to begin construction.

Morningstar appealed the 21 April Determination to the BOA,

asserting that neither the townhouses nor the Drive portions of

East Oaks’ site plan were permitted under the Ordinance.

Because the 21 April Determination did not expressly address the

Drive portion of East Oaks’ site plan, on 12 May 2011,

Morningstar requested that Mr. Krulik issue a formal

determination as to whether East Oaks’ proposed use of the Drive

would constitute a commercial use of the Residential Property in

violation of the Ordinance. In an email dated 10 June 2011, Mr.

Krulik responded, “I am not going to make a determination on

this . . . . [because] it is not a relevant issue to my

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determination on townhouses as a permitted use or issuing the

zoning permit.”

On 15 August 2011, the BOA heard Morningstar’s appeal and

voted unanimously to reverse the 21 April Determination and to

revoke East Oaks’ zoning permit. On 12 September 2011, East

Oaks filed a petition for writ of certiorari in Warren County

Superior Court seeking judicial review of the BOA’s decision

reversing the 21 April Determination. On 14 October 2011, the

Honorable Robert H. Hobgood entered a consent order whereby East

Oaks and Warren County agreed to reinstate East Oaks’ zoning

permit and adopt Mr. Krulik’s interpretation of the Ordinance so

as to allow East Oaks to develop the property pursuant to its

site plan. Morningstar was not a party to the consent order,

and the trial court concluded as a matter of law that

“Morningstar is not a ‘person aggrieved’ pursuant to N.C. Gen.

Stat. § 153A-345(b)” and that the “Warren County Board of

Adjustment had no jurisdiction or authority to hear the appeal

of Morningstar.”

One week earlier, on 7 October 2011, Morningstar filed its

initial petition for writ of mandamus to compel Mr. Krulik to

issue the requested formal determination regarding the Drive.

In Respondents’ answer, they denied Morningstar’s right to

petition for writ of mandamus but also attached a formal

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determination from Mr. Krulik dated 16 November 2011 (“the 16

November Determination”), which stated, in pertinent part, that

[w]hile I did not make a specific

determination as to whether the use of the

concrete drive/easement constitutes a

commercial use of the East Oaks property in

violation of the Ordinance, my issuance of

the East Oaks zoning permit . . .

necessarily required that I determine the

submitted use of the entire property covered

by the permit is not restricted by the

Warren County Zoning Ordinance.

The drive is shown as a “20’ wide

private access easement” on East Oaks’

development plans. Warren County’s

Ordinance does not specifically regulate

easements — whether or not they cross

varying zoning jurisdictions. . . . [T]o my

knowledge, there has been no attempt by

Warren County to regulate such easements

through its zoning regulations.

After Mr. Krulik issued the 16 November Determination,

Morningstar dismissed its petition for writ of mandamus without

prejudice.

Thereafter, Morningstar noticed its appeal of the 16

November Determination (“the Drive Appeal”). By letter dated 17

January 2012, Warren County’s attorney advised Morningstar that

the Drive Appeal would not be placed on the BOA’s agenda. On 14

May 2012, Morningstar filed another petition for writ of

mandamus in Warren County Superior Court, seeking — this time —

to compel Respondents to place the Drive Appeal on the BOA’s

agenda for a hearing on the merits. On 13 September 2012, Judge

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Hobgood granted Morningstar’s petition and issued a writ of

mandamus ordering Respondents to place the appeal on the BOA’s

agenda. Respondents filed a timely notice of appeal to this

Court.

Analysis

As an initial matter, Respondents argue that the 16

November Determination was not a “new” determination from which

Morningstar could appeal to the BOA because it merely echoed Mr.

Krulik’s 21 April Determination. We disagree. The 21 April

Determination did not explicitly address the use of the Drive.

Moreover, in its first petition for writ of mandamus,

Morningstar alleged: “As of the date of this Petition, Mr.

Krulik has not issued the requested formal determination

[regarding the Drive].” Respondents admitted this allegation in

their answer and then — referencing the 16 November

Determination — provided that “such formal determination is

hereto attached.” Thus, we consider Mr. Krulik’s 16 November

letter to be a formal determination from which Morningstar may

appeal.

We now turn our attention to whether the criteria for the

issuance of a writ of mandamus were satisfied. “A writ of

mandamus is an extraordinary court order to a board,

corporation, inferior court, officer or person commanding the

performance of a specified official duty imposed by law.”

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Graham Cty. Bd. of Elections v. Graham Cty. Bd. of Comm’rs, 212

N.C. App. 313, 322, 712 S.E.2d 372, 379 (2011) (citation and

quotation marks omitted). A writ of mandamus is the proper

remedy when (1) the party seeking relief has “a clear legal

right to the act requested;” (2) the respondent has “a legal

duty to perform the act requested;” (3) the act at issue is

“ministerial in nature and [does] not involve the exercise of

discretion;” (4) the respondent has failed to perform the act

requested and the time for performance has expired; and (5)

there is no legally adequate alternative remedy. In re T.H.T.,

362 N.C. 446, 453-54, 665 S.E.2d 54, 59 (2008). “A court cannot

refuse a petition for writ of mandamus when it is sought to

enforce a clearly-established legal right.” Id. at 453, 665

S.E.2d at 59.

Here, Respondents’ primary contention is that mandamus was

not appropriate because Morningstar lacked standing to appeal

Mr. Krulik’s 16 November Determination and, as such, did not

have a “clear legal right” to have its appeal placed on the

BOA’s agenda. However, because we believe that Mr. Krulik had a

statutory duty to transmit Morningstar’s appeal to the BOA and

that the existence — or nonexistence — of standing is a legal

determination that must be made by the BOA, we affirm the trial

court’s order issuing a writ of mandamus compelling Respondents

to place the appeal on the BOA’s agenda.

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At all times relevant to this action, N.C. Gen. Stat. §

153A-3451 provided, in relevant part, as follows:

(b) A zoning ordinance . . . adopted

pursuant to the authority granted in this

Part shall provide that the board of

adjustment shall hear and decide appeals

from and review any order, requirement,

decision, or determination made by an

administrative official charged with the

enforcement of that ordinance. Any person

aggrieved or any officer, department, board,

or bureau of the county may take an appeal.

Appeals shall be taken within times

prescribed by the board of adjustment by

general rule, 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 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. Gen. Stat. § 153A-345(b) (emphasis added). The purpose of

N.C. Gen. Stat. § 153A-345 is “to provide a right of review, and

statutes providing for review of administrative decisions should

be liberally construed to preserve and effectuate that right.”

Mize v. Cty. of Mecklenburg, 80 N.C. App. 279, 283, 341 S.E.2d

767, 769 (1986).

Neither N.C. Gen. Stat. § 153A-345 nor any other provision

of North Carolina law confers upon a zoning administrator the

power to make a legal decision as to whether a party seeking to

1

N.C. Gen. Stat. § 153A-345 was in effect during the time period

relevant to the present action but has since been repealed.

N.C. Gen. Stat. § 160A-388 now governs appeals to county boards

of adjustment.

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appeal to the BOA from a zoning decision is a “person aggrieved”

for standing purposes. North Carolina law does, however,

mandate that the zoning administrator transmit the record of an

appeal to the BOA if the appeal is taken within the prescribed

time period. Pursuant to N.C. Gen. Stat. § 153A-345(b), a

zoning administrator has no discretion regarding whether to

perform his duty of transmitting the record to the BOA once the

appeal has been noticed. Instead, as quoted above, the statute

expressly states that the zoning administrator from whom the

appeal is being taken “shall forthwith transmit to the board all

the papers constituting the record upon which action appealed

from was taken.” N.C. Gen. Stat. § 153A-345(b) (emphasis

added). The Warren County Zoning Ordinance — in accordance with

§ 153A-345(b) — also specifically provides that “[a]ppeals from

the enforcement and interpretation of this ordinance . . . shall

be filed with the Zoning Administrator, who shall transmit all

such records to the Board of Adjustment.” Warren County, N.C.,

Zoning Ordinance § IX-4 (emphasis added).

Our appellate courts have consistently held that the use of

the word “shall” in a statute indicates what actions are

required or mandatory. See Multiple Claimants v. N.C. Dep’t of

Health & Human Servs., 361 N.C. 372, 378, 646 S.E.2d 356, 360

(2007) (“It is well established that the word ‘shall’ is

generally imperative or mandatory.” (citations and quotation

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marks omitted)); Internet E., Inc. v. Duro Communications, Inc.,

146 N.C. App. 401, 405-06, 553 S.E.2d 84, 87 (2001) (“The word

‘shall’ is defined as ‘must’ or ‘used in laws, regulations, or

directives to express what is mandatory.’” (citation omitted)).

As such, we conclude that the act of placing Morningstar’s

appeal on the BOA agenda is ministerial in nature and does not

involve any discretion on the part of the zoning administrator.

We also hold that Morningstar has a legal right to have its

appeal transmitted to the BOA and placed on the agenda.

Morningstar appealed the 16 November Determination on 14

December 2011. In accordance with the provisions of the Warren

County Zoning Ordinance, Morningstar filed its appeal with Mr.

Krulik, the officer from whom the appeal was taken, and included

a $150.00 filing fee for the appeal. See Warren County, N.C.,

Zoning Ordinance § IX-4 (“Appeals from the enforcement and

interpretation of this ordinance . . . shall be filed with the

Zoning Administrator . . . .”); id. at § IX-2 (listing $150.00

as fee for appeals to the BOA). Because Morningstar complied

with the requirements for taking an appeal, it had a right to

have its appeal placed on the BOA’s agenda. See id. at § IX-3

(“The Board of Adjustment shall have the following powers and

duties . . . [t]o hear and decide any appeal from and review any

order, requirement, decision, or determination made by the

Zoning Administrator.”); id. at § IX-4 (“The Board of Adjustment

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shall fix a reasonable time, not to exceed 30 days, for the

hearing of the appeal . . . .”).

Mr. Krulik, as the zoning officer from whom the appeal was

taken, therefore had a statutory duty to transmit the appeal to

the BOA. This duty was mandatory, as indicated by the use of

the word “shall,” and did not involve the exercise of

discretion. Because Mr. Krulik failed to comply with the

statutory mandate and instead made clear his unwillingness to do

so, mandamus was Morningstar’s only available remedy.

Morningstar’s ability to appeal to the BOA was foreclosed by Mr.

Krulik’s refusal to place the appeal on the BOA’s agenda.

Moreover, Morningstar could not appeal the substance of the

zoning administrator’s decision directly to the superior court

because only BOA decisions are subject to judicial review. See

N.C. Gen. Stat. § 153A-345(e2) (“Each decision of the board is

subject to review by the superior court by proceedings in the

nature of certiorari.” (emphasis added)).

The trial court’s order compelling Respondents to place

Morningstar’s appeal on the BOA agenda does not allow

Morningstar to circumvent the requirement of standing. To the

contrary, its order fully recognizes that in accordance with §

153A-345, Morningstar must establish that it is an aggrieved

party in order to have the merits of its appeal heard by the

BOA. We believe the order correctly provides that the

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determination of whether Morningstar has standing to appeal must

be made by the BOA rather than by Mr. Krulik. We express no

opinion as to whether Morningstar does or does not possess

standing to appeal because that issue is not before us.

Smith v. Forsyth Cty. Bd. of Adjust., 186 N.C. App. 651,

652 S.E.2d 355 (2007), the case the dissent relies upon in

concluding that mandamus was not appropriate, did not involve a

petition for a writ of mandamus or in any way address the

authority of a zoning administrator to make a determination as

to standing. Rather, the issue in Smith was whether the

superior court correctly dismissed the petitioner’s appeal from

a BOA decision for lack of standing. Id. at 652, 652 S.E.2d at

357. This Court concluded that the petitioner’s application to

the BOA appealing the zoning officer’s decision had not alleged

special damages as required in order for the petitioner to

qualify as a “person aggrieved.” Id. at 654-55, 652 S.E.2d at

358.

We do not read Smith as suggesting that a zoning officer

would have the authority to refuse to transmit an appeal to the

BOA based simply on his own belief that the appellant lacked

standing. We cannot agree with the dissent that our holding in

Smith somehow confers a gatekeeper role onto zoning officers

given that such a role is nowhere conferred by statute or, for

that matter, identified in our decision in that case. Rather,

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we believe that Smith is consistent with the notion that it is

the BOA that has the duty of determining whether a party has

made the requisite showing of standing such that the merits of

the appeal may be reached.

Standing is a question of law. Cook v. Union Cty. Zoning

Bd. of Adjust., 185 N.C. App. 582, 588, 649 S.E.2d 458, 464

(2007). A determination of standing involves a determination of

“whether a particular litigant is a proper party to assert a

legal position.” Id. As such, we are unable to conclude that a

zoning officer is vested with the authority to make such legal

determinations regarding standing, particularly where the

result, as here, would be to insulate that very same officer’s

decision from review.

Respondents also contend that their motion to dismiss the

petition for writ of mandamus was improperly denied because (1)

Morningstar failed to join a necessary party (East Oaks); and

(2) Morningstar’s petition for mandamus was merely an attempt to

bypass the fact that the time period for appealing the 21 April

Determination or the consent order reinstating that

determination had already passed. We are not persuaded by

either of these arguments.

“A necessary party is one whose presence is required for a

complete determination of the claim, and is one whose interest

is such that no decree can be rendered without affecting the

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party.” McCraw v. Aux, 205 N.C. App. 717, 719, 696 S.E.2d 739,

740, disc. review denied, 364 N.C. 617, 705 S.E.2d 362 (2010).

As we have explained above, the present action commenced when

Morningstar attempted to appeal the 16 November Determination

and Mr. Krulik refused to place the appeal on the BOA’s agenda.

Morningstar then sought a writ of mandamus directing Respondents

to perform the ministerial, nondiscretionary task of placing the

appeal on the BOA’s agenda for a hearing. The order issuing

mandamus in no way addressed the merits of any substantive

issues concerning (1) whether Morningstar was an aggrieved party

with standing to appeal; or (2) whether East Oaks’ use of the

Drive is permitted under the Warren County Zoning Ordinance.2

Rather, as Morningstar notes, the present action is “a purely

procedural issue between Morningstar and the Respondents.”

Respondents nevertheless assert that under N.C. Gen. Stat.

§ 160A-393, Morningstar was required to name East Oaks as a

respondent. See N.C. Gen. Stat. § 160A-393(e) (2013) (“If the

petitioner is not the applicant before the decision-making board

whose decision is being appealed, the petitioner shall also name

that applicant as a respondent.”). However, the scope of N.C.

Gen. Stat. § 160A-393 is specifically limited to appeals in the

2

The trial court’s order issuing mandamus specifically explains

that “[t]his Order only directs that a hearing be conducted by

the Warren County Board of Adjustment but does not direct that

Board concerning the merits of the case.”

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nature of certiorari from decision-making boards to superior

courts and, thus, does not apply to the present action for

mandamus. N.C. Gen. Stat. § 160A-393(a) (“This section applies

to appeals of quasi-judicial decision-making boards when that

appeal is to superior court and in the nature of certiorari . .

. .”). As such, we agree with the trial court’s conclusion that

“the Warren County Zoning Board of Adjustment and East Oaks, LLC

are not necessary parties to this mandamus action. The parties

sought to be compelled to take action in this mandamus action

are the Respondents.”

Finally, Respondents argue that the trial court improperly

denied their motion to dismiss because Morningstar only sought

mandamus in an attempt to take an untimely appeal of the

substance of the 21 April Determination. Respondents correctly

state that “[a]n action for mandamus may not be used as a

substitute for an appeal. This extraordinary remedy is not a

proper instrument to review or reverse an administrative board

which has taken final action on a matter within its

jurisdiction.” Snow v. N.C. Bd. of Architecture, 273 N.C. 559,

570, 160 S.E.2d 719, 727 (1968) (citations, quotation marks, and

italics omitted).

However, as previously discussed, the 16 November

Determination — unlike the 21 April Determination — specifically

addresses the Drive, and was, in fact, a formal determination

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concerning the Drive. Once the 16 November Determination was

made, Morningstar attempted to bring a timely appeal to the BOA

but was prevented by Mr. Krulik from doing so. We therefore

cannot agree with Respondents’ argument that Morningstar’s

petition for mandamus was filed “for the sole purpose of getting

around the appeal deadline [for the 21 April Determination]

which had passed.” Accordingly, this argument is overruled.

Conclusion

For the reasons stated above, we affirm the trial court’s

order issuing a writ of mandamus compelling Respondents to place

Morningstar’s appeal on the BOA’s agenda. Because we hold that

the trial court properly issued the writ of mandamus, we also

affirm the trial court’s denial of Respondents’ motion for

attorneys’ fees.

AFFIRMED.

Judge McCULLOUGH concurs.

Judge ELMORE dissents by separate opinion.

NO. COA13-458

NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

MORNINGSTAR MARINAS/EATON FERRY,

LLC,

Petitioner,

v. Warren County

No. 12 CVS 180

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WARREN COUNTY, NORTH CAROLINA and

KEN KRULIK, WARREN COUNTY PLANNING

AND ZONING ADMINISTRATOR, IN HIS

OFFICIAL CAPACITY,

Respondents.

ELMORE, Judge, dissenting.

I respectfully disagree with the majority’s conclusion that

Mr. Krulik had a statutory duty to transmit the appeal to the

Board of Adjustment (BOA) pursuant to N.C. Gen. Stat. § 153A-

345. As a result, I would reverse the trial court’s order

granting petitioner’s writ of mandamus. I concur in all other

aspects of the majority opinion.

The majority is correct in that N.C. Gen. Stat. § 153A-345

mandates that any person aggrieved by a zoning decision shall be

afforded a statutory right of review before the BOA. This Court

has defined a “person aggrieved” as “one adversely affected in

respect of legal rights, or suffering from an infringement or

denial of legal rights.” Cnty. of Johnston v. City of Wilson,

136 N.C. App. 775, 779, 525 S.E.2d 826, 829 (2000) (citations

and quotations omitted). “It is well settled that an appeal may

only be taken by an aggrieved real party in interest.” Id.

While the majority argues that Smith v. Forsyth County Bd.

of Adjustment is inapposite to the outcome of the instant case,

I disagree. 186 N.C. App. 651, 652 S.E.2d 355 (2007). In

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Smith, we specifically looked to whether the petitioner had

standing to appeal a zoning determination from the Zoning

Officer to the BOA. To establish standing to appeal, this Court

required that an aggrieved party “show either some interest in

the property affected,” or, if plaintiffs are adjoining property

owners, “they must present evidence of a reduction in their

property values. Mere proximity to the site of the zoning

action at issue is insufficient to establish ‘special damages.’”

Id. at 654, 652 S.E.2d at 358. We concluded that because the

petitioner’s application to the BOA for appeal of the Zoning

Officer’s decision failed to allege that the zoning decision had

decreased the value of the petitioner’s property or would do so

in the future, the petitioner “failed to allege, or show,

special damages; therefore, she did not have standing to appeal

from the Zoning Officer to the [BOA].” Id. at 654-55, 652

S.E.2d at 358.

I read Smith as suggesting that the Zoning Officer is

vested with authority to refuse to transmit an appeal to the BOA

if the appealing party’s application is devoid of any

allegations of special damages, namely a decrease in property

value. Without alleging special damages in an application for

appeal, the appealing party cannot demonstrate that it is

aggrieved, and therefore the Zoning Officer may unilaterally

dismiss the appeal for want of standing. Simply put, to fall

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under the purview of N.C. Gen. Stat. § 153A-345, Morningstar

must have shown that it was aggrieved, which it could have done

by alleging special damages in its appeal of the 16 November

determination. However, Morningstar neglected to do so.

Without alleging special damages, Morningstar is not “aggrieved”

under N.C. Gen. Stat. § 153A-354, and it had no standing to

appeal. Thus, Mr. Krulik was not compelled to place

Morningstar’s appeal on the BOA’s agenda.

Further, without standing, Morningstar could not

demonstrate a “clear legal right” to petition for writ of

mandamus. Because Morningstar failed to satisfy the first

element of mandamus, the trial court erred in granting its

petition. Accordingly, the trial court’s order should be

reversed.