When a local board of adjustment makes an adverse land-use decision on a landowner’s application for a conditional use permit or a variance, a special statute kicks in to dictate the procedures for seeking further review. Section 160A-393 governs such “appeals of quasi-judicial decisions of decision-making boards” by directing appeals to be filed in the superior court “in the nature of certiorari.”  N.C. Gen. Stat. § 160A-393(a).  To initiate such review, the aggrieved party must file, within 30 days of the board’s ruling, a “petition for writ of certiorari” with the clerk of superior court, who issues the writ without any regard to the merits of the petition. § 160A-393(f).

In some respects, the proceedings in the superior court then proceed just like any other lawsuit. The board of adjustment can “answer” the petition, § 160A-393(g); the court can allow intervention by other interested parties, § 160A-393(h); and the superior court can order injunctive relief in support of the parties’ rights, § 160A-393(m).

But the proceedings are conducted much more like an “appeal” than a full civil action. The “record” before the superior court is just the documents and minutes from the board of adjustment hearing below.  § 160A-393(i).  The scope of review by the superior court is deferential.  §160A-393(j).  The dispute proceeds promptly to a hearing, after which time the superior court enters an order affirming, reversing, or remanding with instructions.  § 160A-393(l).

From time to time, a party in such an “appeal in the nature of certiorari” will try to avail itself of the protections or rights set forth in a Rule of Civil Procedure.  After all, those are the rules that govern civil actions and proceedings in our superior courts. Do those Rules apply in a certiorari appeal?

Answer: it depends on the rule.

In Henderson v. County of Onslow, the Court of Appeals considered whether Rule 41(a)(1)—the “voluntary dismissal” rule—applies to these certiorari appeals.  In Henderson, the board of adjustment upheld a notice of zoning violation against the Hendersons for renting out their house for weddings and family reunions.  The Hendersons filed a timely petition for writ of certiorari.  For reasons that are not clear, the case languished for 18 months without a hearing.  The board of adjustment moved to dismiss for a defect in service.

The Hendersons then filed a “Notice of Voluntary Dismissal” pursuant to Rule 41(a), purportedly without prejudice.  Less than one year later, but now several years after the board’s initial decision, the Hendersons re-filed their petition for writ of certiorari.  The board moved to dismiss, arguing that because the “savings” or “relation back” provisions of Rule 41 do not apply to certiorari appeals, the second petition was years late.

Judge Geer, speaking for the majority, agreed. Although the Rules of Civil Procedure generally apply to certiorari appeals because they are “proceedings of a civil nature,” N.C. R. Civ. P. 1, Rule 41 only allows for voluntary dismissals of “an action or any claim therein,” N.C. R. Civ. P. 41(a)(1).  Because a certiorari appeal is not an “action,” but an appeal, Rule 41 does not allow a voluntary dismissal without prejudice.  The petitioners’ purported dismissal without prejudice therefore acted as a dismissal with prejudice.  The case was over long before the second petition was even filed.

But that’s unfair to litigants, Judge Tyson said in dissent. Either the rules of civil procedure should apply to certiorari appeals, or not.  Besides, there are due process concerns with the courts’ piecemeal approach to which rules do and do not apply to certiorari appeals.

Neither opinion was expressly grounded on the long delays presented by this set of facts, but there are certainly policy arguments to be made in favor of keeping such certiorari appeals more streamlined. Of course, the Hendersons now have an appeal as of right to the Supreme Court based on the dissent, so we may yet hear more about these quasi-appeals from quasi-judicial decisions.  We’ll keep you quasi-posted.

–Matt Leerberg