A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-1241


Filed: 16 July 2002


         v.                        Pender County
                                No. 00 CVS 386


KENNELS, et al.,

    Appeal by petitioners from order entered 22 June 2001 by Judge Russell J. Lanier, Jr., in Pender County Superior Court. Heard in the Court of Appeals 1 July 2002.

    Smith Helms Mulliss & Moore, LLP, by Larry B. Sitton, Robert R. Marcus, and Angela L. Little, for petitioner-appellant.

    Pender County Attorney Carl W. Thurman, III, for respondents- appellees.

    Faison & Gillespie, by Keith D. Burns and Anthony D. Nicholson, for intervenors-appellees.

    BRYANT, Judge.

    On or about 7 October 1999, petitioners submitted a Special Use Permit Application (“the Application”) to the Pender County Planning Department. The Application sought a special use permitto operate a limestone mine on a 900-acre tract of land in Pender County (“the Property”). The Property is located in a district zoned “I-2,” which allows for heavy industrial uses, including mining. However, while mining is permitted in an I-2 district, the Pender County Zoning Ordinance requires a special use permit for such operations. On or about 17 April 2000, the Pender County Board of Commissioners (“the Board”) held a public hearing to consider the Application. After hearing the testimony of several expert witnesses in support of the Application and the testimony of a number of nearby landowners in opposition to the Application, the Board voted unanimously to deny the Application. Petitioners petitioned the Pender County Superior Court for a writ of certiorari to review the Board's ruling on their application. By order entered 6 September 2000, the superior court allowed the petition for writ of certiorari. A group of 93 residents, who live near the Property and who are opposed to the issuance of the special use permit, were thereafter allowed to intervene in the action by order of the superior court.
    This matter was heard in the superior court on or about 21 May 2001. After hearing the evidence and the arguments of counsel and reviewing the record proper, the court entered an order on 22 June 2001, finding “that although [p]etitioners presented sufficient evidence to warrant issuance of the requested permit, [r]espondents' denial of the permit was not supported by sufficient findings of fact based on substantial evidence.” Accordingly, the court remanded the matter to the Board “with instructions to takeadditional evidence and make further findings with respect only to the bases for the denial of the permit as stated in the Notice of Denial.” Petitioners noticed appeal to this Court.
    As all parties to this appeal recognize, the order from which petitioners appeal is interlocutory. See Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 299 S.E.2d 777 (1983) (holding that an order of the superior court, which does not finally determine the issues presented, but instead, directs some further proceeding, is not a final judgment and is interlocutory). Petitioners, however, argue that the order is immediately appealable because it adversely affects a “substantial right.” See N.C.G.S. §§ 1-277(a) and 7A-27(d)(1) (2001). Further, petitioners argue, “this substantial right cannot be protected upon appeal from a final judgment.” We disagree.
    Upon a thorough review of petitioners' contentions, we note that the sum total of their alleged injury, should this matter not be immediately reviewed by this Court on appeal, is the need to expend more “time, energy, and money to participate in an unnecessary additional proceeding.” It is well settled that the avoidance of a trial or an administrative hearing, no matter how unnecessary, is not a substantial right entitling an appellant to immediate review. Blackwelder, 60 N.C. App. 331, 299 S.E.2d 777; see, e.g., Jennewein v. City Council of Wilmington, 46 N.C. App. 324, 264 S.E.2d 802 (1980) (dismissing petitioners' appeal as interlocutory, where the Wilmington City Council denied the petitioners' request that the City issue a special use permit toallow the petitioners to use a portion of their home as an antique shop, and upon review by certiorari, the superior court found that there was not sufficient evidence before the City Council to support the Council's decision to deny the permit and remanded the matter to the City Council for a hearing de novo on the petitioners' application).
    Much like the Court concluded in Jennewein, we conclude here that the superior court's order remanding this matter for further proceeding “did not affect the substantial right of either party which cannot be corrected upon appeal from the final judgment without either party suffering injury in the meantime.” Jennewein, 46 N.C. App. at 326, 264 S.E.2d at 803. Accordingly, we dismiss petitioners' appeal as interlocutory.
    Judges MARTIN and HUNTER concur.
    Report per Rule 30(e).

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