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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
SANCO OF WILMINGTON SERVICE CORPORATION, Petitioner, v. NEW
HANOVER COUNTY, THE NEW HANOVER COUNTY BOARD OF COMMISSIONERS,
and NEW HANOVER COUNTY BOARD OF EDUCATION, Respondents.
Filed: 21 September 2004
1. Administrative Law_construction of ordinance_review de novo
A court reviewing a question of law concerning the construction of an ordinance should
apply a de novo standard of review.
2. Zoning_appeal from review committee to Board of Commissioners_ministerial
ordinance_appeal limited to applicant
The superior court did not err when it found that the Board of Commissioners acted ultra
vires in allowing a neighborhood preservation group to appeal a zoning decision from a review
committee to the Board of Commissioners. The ordinance was clearly ministerial and petitioner
was entitled to the permit as a matter of law once it complied with the terms of the ordinance;
moreover, the plain language of the ordinance, read in its entirety, allows only the applicant the
right of appeal.
Appeal by respondents from judgment entered 11 September
2002 by Judge Jay D. Hockenbury in New Hanover County Superior
Court. Heard in the Court of Appeals 5 February 2004.
Shipman & Hodges, L.L.P., by Gary K. Shipman and William G.
Wright, for petitioner-appellee.
E. Holt Moore, III, Assistant County Attorney, for
respondents-appellants New Hanover County and New Hanover
County Board of Commissioners.
In this appeal, New Hanover County and the New Hanover
County Board of Commissioners (collectively, respondents) appeal
from a judgment of the New Hanover County Superior Court, which
judgment voided and nullified a decision of the Board of
Commissioners to amend an approval previously
awarded to Sanco of
Wilmington Service Corporation (petitioner) on petitioner's
application for approval of its subdivision plat. For thereasons stated herein, we affirm the trial court's order and
On 22 August 2001, petitioner received preliminary approval
from the Technical Review Committee of the New Hanover County
Planning Board (TRC)
(See footnote 1)
for a project to construct a condominium
complex. The approved plan for the complex included 427
condominium units. Soon after this approval, a petition signed
by thirteen individuals was received by the New Hanover County
Planning Department. This petition from a group calling itself
Concerned Citizens for Neighborhood Preservation (Concerned
Citizens) requested a public hearing so that their concerns could
Over petitioner's objection, the Board of Commissioners held
a hearing on 1 October 2001 to address the Concerned Citizens'
petition. At that hearing, the Chair of the Board of
Commissioners stated that the proceeding was an administrative
action, not a quasi-judicial action. After hearing from various
parties, the Board of Commissioners voted to amend the decision
of the TRC so as to reduce the number of approved condominium
units from 427 units to approximately 213 using approximately 85acres of land.
(See footnote 2)
Some additional requirements imposed by the
Board of Commissioners were subsequently removed.
Petitioner responded on 7 November 2001 by filing a Petition
for a Writ of Certiorari to the New Hanover County Superior
Court. The petition sought
a declaration that the approval of
the project was only to have been a ministerial act in which
policy decisions were not appropriate, and furthermore that
pursuant to the local subdivision ordinance, no one other than
petitioner possessed a right to appeal the decision of the TRC to
the respondent Board.
After entertaining various motions, a hearing was held on 5
September 2002 before Judge Jay D. Hockenbury. In pertinent
part, the order and judgment of the Superior Court concluded as a
matter of law as follows:
(2.) The process of reviewing and approving
subdivision plans under the County's
Subdivision Ordinance is a mere
ministerial/administrative action, not
subject to approval by the Board of
. . .
(6.) The Board of Commissioners had no power
or authority under its Subdivision Ordinance
on October 1, 2001 to conduct a hearing or
consider an appeal from any third parties.
(7.) As such, the actions of the New Hanover
County Board of Commissioners of October 1,
2001, with respect to the hearing conducted
in this matter and its determination with
respect to the Petitioner's Subdivision wereultra vires
, and accordingly, void and a
The effect of this order and judgment was to reinstate the
original approval of petitioner's subdivision plat by the TRC.
From this order and judgment respondents appeal.
 A court reviewing a question of law concerning the
proper construction of an ordinance should apply a de novo
standard of review. If a petitioner contends the Board's
decision was based on an error of law, de novo review is proper.
Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjust.,
140 N.C. App. 99, 102, 535 S.E.2d 415, 417 (2000), aff'd, 354
N.C. 298, 554 S.E.2d 634 (2001). Because this case presents
issues turning upon the proper construction of an ordinance, de
novo review was in fact the proper standard of review for the
hearing conducted by the superior court below. See, e.g., Ayers
v. Bd. of Adjust. for Town of Robersonville, 113 N.C. App. 528,
531, 439 S.E.2d 199, 201, disc. review denied, 336 N.C. 71, 445
S.E.2d 28 (1994). As such, our review is limited to determining
whether the superior court committed error of law in
interpreting and applying the municipal ordinance. Capricorn
Equity Corporation v. Town of Chapel Hill Bd. of Adjust., 334
N.C. 132, 137, 431 S.E.2d 183, 187 (1993). Because the superior
court in this case was sitting as an appellate court on a
question of law, it could freely substitute its judgment for
that of [the local government board] and apply de novo review as
could the Court of Appeals with respect to the judgment of the
superior court. Id.
 By their first assignment of error, respondents contend
that the superior court erred when it found that the Board of
Commissioners had acted ultra vires
in allowing Concerned
Citizens to effect its purported appeal under New Hanover County
Subdivision Ordinance 32 § 3(2)(c). The relevant portions of
Ordinance 32 § 3(2) read as follows:
(2) Upon completion of the preliminary plat
review, the Planning Board shall approve or
disapprove the plat.
(a) If the preliminary plat is approved,
approval shall be noted on the sepia. One
print of the plat shall be transmitted to the
subdivider and the sepia shall be retained by
the Planning Department. (4/6/87)
(b) When a preliminary plat is disapproved,
the Planning Director shall specify the
reasons for such action in writing. One copy
of such reasons and the sepia shall be
retained by the Planning Department and a
print of the plat with the reasons for
disapproval shall be given to the subdivider.
If the preliminary plat is disapproved, the
subdivider may make the recommended changes
and submit a revised preliminary plat.
(c) Decisions of the Planning Board
Chairperson may be appealed to the Board of
County Commissioners at which time they may
affirm, modify, supplement, or remand the
decision of the Planning Board Chairperson.
Petitioner prevailed in the Superior Court arguing that
under Ordinance 32 § 3(2) only petitioner, as the applicant,
possessed a right to appeal an adverse decision to the Board of
County Commissioners. We agree with the superior court that the
ordinance, when read in its entirety, afforded only thepetitioner, as applicant, the right to appeal beyond the Planning
Board, i.e., the TRC.
This reading of the New Hanover County ordinance gives the
language its plain meaning as indicated from its context. The
subdivision ordinance at issue does not contain any requirement
that there be public hearings or public comment on the
preliminary plan. Moreover, it does not mention the role or
other rights of those such as adjacent property owners in this
process. The plain language of the statute only addresses the
rights of the applicant and the corresponding duty of the
Planning Board. Indeed, by repeatedly using the word shall the
ordinance mandates certain specific actions of the county. To
read the right to appeal mentioned in 32 § 3(2)(c) as applying to
other parties, e.g. Concerned Citizens, would require us to read
into the ordinance rights of and involvement by individuals,
classes, or other third parties about whom the ordinance is
Our reading of the ordinance is in accordance with the
typical processes of plat approval followed in other counties and
cities of this state, which typically call for a ministerial or
administrative role on the part of the locality. While this
Court has previously recognized that a local government may
choose to employ a quasi-judicial rather than an administrative
or ministerial process, such a quasi-judicial process has been
found only when the ordinance clearly authorized the elected
governmental board _ i.e.
a city council or a board of county
commissioners _ to hold a public hearing and exercise discretionin making its decision. See Guilford Financial Services, LLC v.
The City of Brevard
, 150 N.C. App. 1, 563 S.E.2d 27 (2002), rev'd
on other grounds,
356 N.C. 655, 576 S.E.2d 325 (2003)(noting
existence of a less common quasi-judicial system for plat
approvals in contradistinction to a ministerial system). When
designed as a ministerial process the plat approval is unlike the
zoning process because issues such as density and character of
the neighborhood and streets are not addressed by the local
governmental authority. Nazziola v. Landcraft Props., Inc.
N.C. App. 564, 566-67, 545 S.E.2d 801, 803 (2001). As such,
under a ministerial scheme, an applicant's compliance with the
established procedures and requirements of the plat approval
process renders the applicant entitled to the permit as a matter
of law. Quadrant Corp. v. City of Kinston
, 22 N.C. App. 31, 32,
205 S.E.2d 324, 325 (1974).
, the opponents of a plat approval sued the City
of Greensboro and the developer contending that opponents
possessed a right to be heard on the project. This Court
rejected that argument and held that a subdivision ordinance
must set forth the procedures for granting or denying approval of
a subdivision plat prior to registration. Nazziola
, 143 N.C.
App. at 566, 545 S.E.2d at 803 (2001).
While the Greensboro
ordinance differed from the ordinance in the case sub judice
specifically stating that only the applicant possesses a right to
appeal to the City Council, the holding in Nazziola
indicates that a plat approval procedure may be perfectly valid
and appropriate without public comment even from the adjacentproperty owners. It is simply not permissible for a local
governmental body to deploy novel, ad hoc
previously authorized in an ordinance.
Local governments derive their authority to establish
regulations such as those at issue here from the State of North
Carolina pursuant to N.C. Gen. Stat. § 153A-332 (2003). This
statute mandates that [a] subdivision ordinance adopted pursuant
to this Part shall contain provisions setting forth the
procedures to be followed in granting or denying approval of a
subdivision plat before its registration. N.C. Gen. Stat. §
153A-332 (2003). When a local government deviates from the
ordinances it has established, the adversely affected applicant
may appeal the matter to courts of this state.
(See footnote 3)
Our courts have
the authority to nullify action taken by the local entity when it
has deviated from its own ordinance concerning the issuance of
permits on subdivisions. Quadrant
, 22 N.C. App. 31, 205 S.E.2d
324; see also, Nazziola
, 143 N.C. App. at 566, 545 S.E.2d at 803
(An applicant who meets the requirements of the ordinance is
entitled to the issuance of a permit as a matter of right; and,
it may not be lawfully withheld.).
We hold that the ordinance at issue in this case was clearly
ministerial. As such, once the petitioner had complied with the
terms of ordinance 32 § 3(2)(c), it was entitled to the permit as
a matter of law, and moreover the Board of Commissioners had no
legal authority under the ordinance to hear the matter unless and
until the plat applicant, rather than a third party such as
Concerned Citizens, appealed from the TRC. We, therefore, affirm
the order and judgment issued by the superior court.
Judges TIMMONS-GOODSON and BRYANT concur.
Although the ordinance at issue here discusses the role and
duties of the Planning Board Chairperson, in practice that
function is served by a body sitting as a Technical Review
Committee. For the sake of simplicity, we will refer only to the
Technical Review Committee (TRC).
This decision of the Board has alternatively been described
as a remand to the TRC with instructions to approve the project
as so described. The effect of the vote is indisputably the same
irrespective of this distinction.
After the Board of Commissioners conducted the 1 October
2001 hearing, the New Hanover Co. Subdivision Ordinance was
amended to include a new section, 32-3(4), which reads in
(4) Notice of Appeal:
An appeal from a decision regarding a preliminary plat shall
be limited to the applicant, officials or departments of New
Hanover County, or persons with a significant identifiable
interest in the proposed plan, greater than that of the
public at large, including but not limited to, adjacent
property owners . . .
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