An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-523


Filed: 15 April 2003


v .                         Union County
                            No. 01 CVS 1761
Carolina municipality, and

    Appeal by petitioners from order entered 7 December 2001 by Judge Preston Cornelius in Union County Superior Court. Heard in the Court of Appeals 30 January 2003.

    The Brough Law Firm, by Robert E. Hornik, Jr., for petitioners-appellants.

    Parker, Poe, Adams & Bernstein, L.L.P., by Anthony Fox, for respondents-appellees.

    CALABRIA, Judge.

    This appeal arises from a Union County Superior Court order dismissing appellants' petition for writ of certiorari and denying appellants' request for issuance of a writ of certiorari. On 11 December 2000, the Town Council of Weddington (“town council”) adopted an Interim Development Ordinance (“IDO”), which established a moratorium on the processing or approval of subdivision platswithin the town for twelve months or until the adoption of a comprehensive land use plan. The purpose of the IDO was to establish permanent standards for development in Weddington to protect the health, safety and welfare of Weddington's residents. Developers who had not received plat approval for construction projects in progress could apply for an exemption from the moratorium under section 8 of the IDO entitled “Vested Rights Determination.” Specific guidelines for completing and reviewing applications were established in the IDO and the Administrative Regulation for Determination of Vested Rights (“administrative regulations”). Applicants found to have vested rights could continue development in accordance with the regulations in effect prior to the adoption of the IDO.
    At the onset of the moratorium, developers William J. Nolan, III and Louise C. Hemphill-Nolan (“petitioners”) had not received preliminary plat approval for the final phases of three residential subdivisions: Williamsburg, Weddington Lake, and Weddington Heights subdivisions. On 19 March 2001, petitioners submitted three applications for vested rights determinations, one for each portion of the three subdivisions. On 6 April 2001, Weddington's zoning administrator, Karen Dunn (“Dunn”), requested missing information be submitted within twenty days to complete the applications. Her list of missing information included the following:
        1. c. The name, telephone number and the address of each owner of the property, including any contract purchasers and if the property is owned by a corporation, trustpartnership or association, the names and address of each shareholder, partner (limited or general), trustee, beneficiary or a member of the association, including the percentage interested owned by each of the above.

        1. e. Identification by specific reference to all written material or oral statements upon which the Applicant relied and which the Applicant believes support the Applicant's claims, including any payments made for assessments, infrastructure improvements, dedications of land or executions subsequent to the Town's alleged actions.

        1. g. Copies of all development approvals, permits, contracts, reports or other materials upon which the claim of rights is based.

        1. s. The name and address of any professional services rendered to the owner by a professional including the name of the profession (Engineer, Land Surveyor, Attorney, Land Planner, and Environmental Engineer), the name and address of each service provider, the services provided, and the cost of such services.

        4. b. Evidence of the value of the property prior to the enactment of the regulations, which allegedly affected a take, and subsequent to the enactment of the regulations.

Petitioners timely responded to the letter and submitted approximately 1,300 pages of documents and invoices in an effort to provide the missing information. On 8 June 2001, Dunn returned the documents and invoices, asking petitioners to organize the documents so as to designate expenses unique to a particular incomplete phase or property as opposed to expenses common to more than one phase or property under development. Dunn explained each document submitted in support of petitioners' vested rights applications should identify to which property or properties theexpense corresponded and, for common expenses, how that expense supported a determination of vested rights in other properties. R. Finally, the letter requested copies of deeds to the property or properties and copies of the purchase contracts.
    Petitioners neither responded to the 8 June 2001 letter nor provided the requested information to complete their applications. On 13 August 2001, the town council held a meeting, and since petitioners' applications were incomplete, the applications were dismissed without prejudice. In a letter dated 5 September 2001, the town council notified petitioners of the dismissal without prejudice.
    On 14 September 2001, petitioners filed a verified petition seeking review by writ of certiorari. The matter was heard on 11 November 2001 in the Superior Court of Union County by the Honorable Preston Cornelius, presiding. In an order entered 7 December 2001, the court dismissed the petition, declining to issue a writ of certiorari. Petitioners appeal.
    Petitioners assign error to (I) the trial court's refusal to issue the writ of certiorari, (II) the trial court's failure to reach the merits of the petition, and (III) the trial court's findings of fact on the grounds they are unsupported by the record.
I. Writ of Certiorari
    Section 4.2 of the administrative regulations provides judicial review of a “Determination of the Town Council shall be by writ of certiorari[.]” “[A] writ of certiorari is an extraordinary remedial writ.” N.C. Central University v. Taylor, 122 N.C. App.609, 612, 471 S.E.2d 115, 117 (1996). “[It is used] to review the proceedings of inferior courts and of bodies and officers exercising judicial or quasi-judicial functions in cases where no appeal is provided by law.” Davis v. Hiatt, 326 N.C. 462, 465, 390 S.E.2d 338, 340 (1990). “Since actions taken following an administrative hearing and formal findings made by a municipality are quasi-judicial, and not executive, they are judicially reviewable in the Superior Court Division.” House of Raeford Farms v. City of Raeford, 104 N.C. App. 280, 283, 408 S.E.2d 885, 888 (1991). “[A] writ [of certiorari] does not issue as of right, but only in the sound discretion of the [reviewing] court.” King v. Taylor, 188 N.C. 450, 451, 124 S.E. 751, 751 (1924). Our standard of review, therefore, is to determine whether the trial court abused its discretion by refusing to issue the writ.
    The party moving for the issuance of a writ of certiorari bears the burden of “demonstrating: (1) no appeal is provided at law, (2) a prima facie case of error below, and (3) merit to its petition.” House of Raeford Farms v. City of Raeford, 104 N.C. App. 280, 284, 408 S.E.2d 885, 888 (1991) (citations omitted).
    In the instant case, petitioners have failed to demonstrate a prima facie case of error below. Petitioners argue judicial review via writ of certiorari is triggered under section 4.2 by two types of town council determinations set forth in the administrative regulations: (1) a determination after review under section 3.8 and (2) a determination after review under section 3.9. The trial court concluded a review under section 3.8 does not result in adetermination which triggers judicial review under section 4.2. We agree.
    Section 3.8 governs the town council's review of an application for completeness. This review is limited merely to whether the applicant has met the submission requirements set forth in the administrative regulations. The review specifically addresses neither the substantive requirements of the administrative regulations nor the veracity of the information contained in the application. Under section 3.8, an application found to be incomplete or lacking in the submission requirements cannot move forward and must either be dismissed without prejudice or completed and resubmitted within twenty days.
    Section 3.9 governs the review of an application for a “Determination of Rights.” This review occurs only after an applicant has submitted an application deemed complete under section 3.8. Only after a section 3.9 review, “the Town shall . . . issue a Determination [on] the Application.” The scope and purpose of a review under section 3.9 is to determine “whether the Applicant has been found to have acquired Rights[.]”
    When read together, the administrative regulations set forth a two-step process. First, the application is reviewed under section 3.8 to see whether the applicant has included all materials required to be submitted for an application to be complete. Second, the application is reviewed under section 3.9 to see whether the applicant's submitted materials substantively establish the applicant has satisfied the burden of proving he is entitled toland use approval. In essence, section 3.8 operates as a prerequisite to further action under section 3.9, and section 3.9 operates as a prerequisite to judicial review under section 4.2.
    Petitioners were twice informed their applications were incomplete in letters dated 6 April 2001 and 8 June 2001. Instead of taking action to cure the deficiencies in their applications, petitioners chose to do nothing. By failing to satisfy the submission requirements of section 3.8 their applications were appropriately dismissed without prejudice. Accordingly, the town was precluded from undertaking a section 3.9 review to determine whether the applications fulfilled the substantive requirements for land use approval. Without a section 3.9 review, the trial court properly concluded the town council had yet to make a determination from which judicial review under section 4.2 may properly lie.
    Petitioners also argue the application should be deemed complete because the town council failed to observe the fifteen-day requirement in the administrative regulations to notify petitioners that their applications were incomplete. The language of the administrative regulations is again determinative of the outcome. Section 3.8.a of the administrative regulations states “[t]he Town shall review the Application within fifteen (15) working days of submission and inform the Applicant as to whether the Application is complete.” Section 3.8.a sets forth two affirmative duties on the part of the town upon receiving an application: (1) to review the application for completeness within fifteen working days and (2) to notify the applicant as to the results of the review. Significantly, the fifteen-day period imposed by section 3.8.a applies only to the review of the application and not to when the town council must notify the applicant. Even if the fifteen-day period did apply to notifying petitioners as to the results of the review, we note that no language contained within the administrative regulations supports the proposition that an incomplete application is automatically deemed complete should the town council fail to meet the fifteen-day requirement. Accordingly, we find no merit in petitioners' argument.
    Petitioners argue alternatively that the town council violated their due process rights by failing to notify them of the intention to discuss and dismiss the applications without affording petitioners a meaningful opportunity to be heard. However, petitioners were notified of the pending dismissal by the June 8 letter informing them that the application remained incomplete and by the required dismissal of an incomplete application under section 3.8.c. Moreover, the United States Supreme Court has established a three-factor balancing test to determine whether challenged administrative procedures are constitutionally sufficient under a procedural due process analysis. Matthews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18 (1976).
        [I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved andthe fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Matthews, 424 U.S. at 335, 47 L. Ed. 2d at 33 (citation omitted). In applying this balancing test, we note the injury to petitioners is slight since the dismissal was without prejudice. Additional or substitute procedural safeguards would do little to alleviate the risk of erroneous deprivation because no right has been lost by this dismissal. Finally, the burden placed on the town council would be onerous if a hearing were required for each applicant whose application is dismissed for incompleteness. In light of the balance struck, even if petitioners had no notice of the pending dismissal, petitioners' due process rights were not violated. Accordingly, this assignment of error is overruled.
II. Failure to Reach the Merits of the Petition
    “Failure to meet the pleading requirements for [a writ of certiorari] deprives the superior court of subject matter jurisdiction of the particular matter over which the moving party seeks review.” N.C. Central University, 122 N.C. App. at 612-13, 471 S.E.2d at 118. Because petitioners failed to show a prima facie case of error below and, therefore, did not meet the pleading requirements, the trial court lacked subject matter jurisdiction, and this assignment of error is also overruled.
III. Findings Supported by the Record
    Finally, petitioners assert the trial court made unsupported findings of fact because it failed to require Weddington to furnish and did not review the record of the town council proceeding. Thefindings of fact at issue are contained in paragraphs 10 and 11 of the order. Paragraph 10 reads, “That on June 8, 2001, Karen Dunn acknowledged the receipt of some additional information supplied by the Petitioners but requested additional information that had not yet been provided to complete their applications.” Paragraph 11 reads, “That, the Petitioners failed to provide any additional information to complete their applications and did not respond to the Town's June 8, 2001 letter.”
     Where there is some evidence that supports the findings of fact by a trial court, an appellate court is bound by those findings, even though the evidence might sustain findings to the contrary. Kirby Building Systems v. McNiel, 327 N.C. 234, 242, 393 S.E.2d 827, 832 (1990). In her sworn affidavit submitted in support of the town's verified answer, Dunn stated that she requested additional information not furnished by petitioners and that the applications were incomplete. She further stated petitioners never responded to her request in her June 8 letter and never supplied the requested information. The findings of fact made by the trial court were supported by competent evidence. Accordingly, this assignment of error is overruled.
    Until a completed application is submitted to the town council, judicial review, as provided for in the administrative regulations, is premature. Since the dismissals of the applications were without prejudice, petitioners are free to complete the application and resubmit them. The assignments of error being overruled, the order of the trial court is affirmed.    Affirmed.
    Judges McGEE and HUNTER concur.
    Report per Rule 30(e).

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