IN RE: ZONING OF RICHARD D.
BATCHELOR and DEBORAH J.
BATCHELOR PROPERTY ON SKYUKA Polk County
ROAD, POLK COUNTY, NORTH CAROLINA No. 01 CVS 70
Adams Hendon Carson Crow & Saenger, P.A., by George Ward
Hendon and Cynthia Marie Roelle, for petitioner-appellees.
Powell & Deutsch, by Robert J. Deutsch for respondent-
appellants.
WYNN, Judge.
On 6 October 2000, the Polk County zoning administrator
approved the issuance of a building permit to Richard D. and
Deborah J. Batchelor (petitioners) for an accessory building on
their property in the Skyuka Hills Subdivision. Residents of
Skyuka Hills Subdivision and the Skyuka Hills homeowners
association (respondents) filed a letter of appeal on 17 October
2000 with the Polk County Zoning Board of Adjustment (Board). In
a decision issued on 1 February 2001, the Board reversed the zoning
administrator's determination that the proposed building was in
compliance with the requirements of the Polk County Zoning
Ordinance. On 23 February 2001, petitioners filed a petition for writ of
certiorari with the Polk County Superior Court seeking review of
the Board's decision. In a judgment entered on 19 October 2001,
Judge James U. Downs reversed the Board's decision and reinstated
the zoning administrator's determination. On 5 November 2001,
respondents filed a motion for relief from the judgment pursuant to
N.C.R. Civ. P. 60(b)(6) and a motion for a stay of proceedings to
enforce the judgment. Respondents filed a notice of appeal on 30
November 2001 which stated they gave notice of appeal from the
Judgment entered on October 19, 2001 . . . , oral notice of appeal
having been given in open court on October 19, 2001. In an order
entered 18 December 2001, the trial court denied the motion for
relief from the judgment and allowed the motion for a stay
contingent upon the posting of a $10,000.00 supersedeas bond. From
the trial court's judgment, respondents appeal.
Notice of appeal for all judgments entered in civil actions on
or after 1 July 1989 must be given by filing notice of appeal with
the clerk of superior court and serving copies thereof upon all
other parties within the time prescribed by subdivision (c) of this
rule. N.C.R. App. P. 3(a) (2002). Respondents initially
attempted to enter oral notice of appeal in open court on 19
October 2001. Oral notice of appeal is no longer effective under
Rule 3. See Darcy v. Osborne, 101 N.C. App. 546, 400 S.E.2d 95
(1991). Respondents then filed a written notice of appeal forty-
two days later on 30 November 2001. The written notice of appeal
is untimely, however, for [a]ppeal from a judgment . . . must betaken within 30 days after its entry. N.C.R. App. P. 3(c).
Appellate Rule 3 is jurisdictional and if the requirements of
this rule are not complied with, the appeal must be dismissed.
Currin-Dillehay Bldg. Supply, Inc. v. Frazier, 100 N.C. App. 188,
189, 394 S.E.2d 683, disc. review denied, 327 N.C. 633, 399 S.E.2d
326 (1990). Due to respondents' failure to give timely written
notice of appeal, this appeal is dismissed.
Dismissed.
Judges McGEE and CAMPBELL concur.
Report per Rule 30(e).
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