NO. COA03-1024
Cemeteries; Zoning-_denial of special use permit--subject matter jurisdiction-_certiorari
proceeding--writ of mandamus
The trial court did not have subject matter jurisdiction over a case where plaintiff
company sought an order compelling defendant city to issue a special use permit for operation of
a cemetery and seeking monetary damages, because: (1) N.C.G.S. § 160A-381(c) sets forth the
procedure for review of the denial of an application for a special use permit by a city council,
every decision of the city council shall be subject to review by the superior court by proceedings
in the nature of certiorari, and the superior court sits as the appellate court rather than as a trial
court; (2) in the instant case rather than petitioning for certiorari, plaintiff filed a civil action
seeking review of the city council's decision and an order of the court directing the city to issue
the special use permit, the trial court never requested any record of the proceedings before
defendant nor was such record ever filed in the matter, and the parties engaged in extensive
discovery and thereafter sought resolution of the case by each party filing a motion for summary
judgment which is improper for a certiorari proceeding; (3) without a record to review, the trial
court could not apply the proper appellate standard of review, and in turn neither could the Court
of Appeals; and (4) assuming arguendo that plaintiff's complaint states a claim for mandamus, it
does not confer jurisdiction over this claim when issuance of a writ of mandamus is an exercise
of original and not appellate jurisdiction.
Smith, James, Rowlett & Cohen, L.L.P., by Seth R. Cohen and J.
David James, for plaintiff-appellant.
Robert M. Ward, Attorney for City of Burlington, and Thomas,
Ferguson & Mullins, L.L.P., by Jay H. Ferguson, for defendant-
appellee.
STEELMAN, Judge.
Plaintiff, Northfield Development Co, Inc., appeals two orders
and judgments of the trial court, dismissing its claims against
defendant. On 10 June 1999, plaintiff submitted an application to
defendant for a special use permit to allow it to operate a
cemetery upon a fifty acre tract located within the
extraterritorial zoning jurisdiction of defendant. Defendant's
planning director requested that plaintiff submit additional
information, including a site plan. Plaintiff refused to submit
the additional information. On 3 August 1999, the Burlington Town
Council (defendant), without holding a public hearing on the
matter, denied plaintiff's request for a special use permit. On 21
September 1999, plaintiff filed a complaint against defendant.
This action was subsequently dismissed without prejudice on 6 April
2001. Plaintiff filed the present action on 5 April 2002.
Plaintiff's complaint asserts that the North Carolina Cemetery
Act, Chapter 65 of the North Carolina General Statutes, established
a complete and integrated regulatory scheme, and that defendant was
not entitled to request additional information in connection with
plaintiff's application for a special use permit. Plaintiff
asserted two causes of action. First, it sought an order
compelling defendant to issue the special use permit. Second, it
sought monetary damages, alleging the denial of the permit was
unreasonable, arbitrary, and capricious in violation of Article I,
Section 19 of the North Carolina Constitution, and also violated
the North Carolina Cemetery Act.
This matter came on before the Superior Court of Alamance
County on 17 March 2003, upon plaintiff's motion for partial
summary judgment, defendant's motion to dismiss for failure to
state a claim upon which relief could be granted, and defendant'smotion for summary judgment. By order and judgment filed 28 April
2003, the trial court denied plaintiff's motion for partial summary
judgment and defendant's motion to dismiss plaintiff's second
claim. This order granted defendant's motion to dismiss
plaintiff's first claim based upon mootness, and also granted
defendant's motion for summary judgment as to plaintiff's second
claim. Plaintiff gave notice of appeal from this order and
judgment on 20 May 2003. On 28 May 2003, Judge Titus entered an
amended order and judgment, from which plaintiff appealed on 21
July 2003. The amended order and judgment contained minor wording
changes from the original order and judgment. The decretal portion
of the two orders and judgments are identical. Defendant asserted
a cross-assignment of error, asserting the trial court erred in
denying its motion to dismiss plaintiff's second claim.
We first address whether this Court or the trial court had
jurisdiction over this matter. The issue of whether a court has
subject matter jurisdiction may be raised at any time during a
proceeding, and the issue may be raised for the first time on
appeal. Wood v. Guilford Cty., 355 N.C. 161, 164, 558 S.E.2d 490,
493 (2002); N.C. Gen. Stat. § 1A-1, Rule 12(h)(3) (2003). Even if
the parties did not raise the issue in their briefs, the court may
raise the question of subject matter jurisdiction by its own
motion. Howell v. Morton, 131 N.C. App. 626, 629, 508 S.E.2d 804,
806 (1998). Further, the parties cannot stipulate to give a court
subject matter jurisdiction where no such jurisdiction exists.
Alford v. Shaw, 327 N.C. 526, 533, 398 S.E.2d 445, 448-49 n.1
(1990). In North Carolina, there is no inherent right to appeal. Cox
v. Kinston, 217 N.C. 391, 396, 8 S.E.2d 252, 257 (1940). Rather,
avenues of appeal are created by statute. Id. N.C. Gen. Stat. §
160A-381(c) expressly sets forth the procedure for review of the
denial of an application for a special use permit by a city
council. “[E]very such decision of the city council shall be
subject to review by the superior court by proceedings in the
nature of certiorari.” N.C. Gen. Stat. § 160A-381(c) (2003). Upon
the filing of the petition for review by certiorari, the trial
court issues an order directing that the record of the proceedings
before the municipality be brought up before the court. In
reviewing the actions of the town council pursuant to N.C. Gen.
Stat. § 160A-381, the superior court sits as an appellate court,
not as a trial court. Estates, Inc. v. Town of Chapel Hill, 130
N.C. App. 664, 667, 504 S.E.2d 296, 299 (1998), disc. review
denied, 350 N.C. 93, 527 S.E.2d 664 (1999). In determining whether
it was proper for a town council to deny an application for a
special use permit, the applicable standard of review depends upon
the nature of the error asserted by petitioner. Hewett v. County
of Brunswick, 155 N.C. App. 138, 142, 573 S.E.2d 688, 691 (2002).
The reviewing court conducts a de novo review where the petitioner
asserts an error of law. Id. If the petitioner alleges that the
council's decision was arbitrary and capricious, as is the case
here, the reviewing court applies the whole record test. Id. This
requires the reviewing court to examine the entire record to
determine if the agency's decision was supported by substantial
evidence. Id. The trial court may not consider evidence outsideof the record. Batch v. Town of Chapel Hill, 326 N.C. 1, 11, 387
S.E.2d 655, 662, cert. denied, 496 U.S. 931, 110 L. E. 2d 651
(1990). Nor is it proper for a trial court in a certiorari
proceeding to grant summary judgment. Id.
In this case, the Burlington City Council denied plaintiff's
request for a special use permit. Rather than petitioning for
certiorari, plaintiff filed a civil action seeking review of the
city council's decision, and an order of the court directing the
city to issue the special use permit. The trial court never
requested any record of the proceedings before defendant, nor was
such record ever filed in this matter. Instead, the parties
engaged in extensive discovery, including the taking of five
depositions, filing five affidavits, and then sought resolution of
the case by each party filing a motion for summary judgment. This
is precisely what our Supreme Court in Batch held could not occur
in a certiorari proceeding. Without a record to review, the trial
court cannot apply the proper appellate standard of review, and in
turn, neither can this Court.
This matter was not commenced by the filing of a complaint on
5 April 2002. This matter was commenced by the filing of
plaintiff's application for a special use permit with defendant on
10 June 1999. The courts of this State are limited to reviewing
this matter in an appellate posture under the provisions of N.C.
Gen. Stat. § 160A-381(c). It is the province of the General
Assembly to create alternative avenues of appeal and review, not
the courts. Since plaintiff failed to file a petition for a writ
of certiorari seeking review of this matter, both the trial courtand this Court are without jurisdiction to hear plaintiff's first
claim.
In its order and judgment, the trial court characterized
plaintiff's first claim as a “mandamus claim.” Assuming arguendo
that plaintiff's complaint does state a claim for mandamus, we hold
that this did not confer jurisdiction over this claim.
Where a statute stipulates a specific route for an appeal to
the superior court for review, this procedure is the exclusive
means for obtaining judicial review. See N.C. Central University
v. Taylor, 122 N.C. App. 609, 613, 471 S.E.2d 115, 118 (1996),
aff'd per curiam, 345 N.C. 630, 481 S.E.2d 83 (1997). A writ of
mandamus is only to be issued where there is no other legal remedy.
Young v. Roberts, 252 N.C. 9, 17, 112 S.E.2d 758, 765 (1960). As
stated above, N.C. Gen. Stat. § 160A-381(c) provides for review of
a denial of a special use permit by the parties filing a petition
for writ of certiorari to the superior court. Furthermore, the
“'issuance of a writ of mandamus is an exercise of original and not
appellate jurisdiction.'” Id. (citations omitted). As noted
above, in reviewing the town council's decision denying the permit,
the trial court sits as an appellate court. Estates, Inc., 130
N.C. App. at 667, 504 S.E.2d at 299. Thus, plaintiff cannot create
jurisdiction by couching its claim in the guise of a mandamus
proceeding.
Plaintiff's second claim sought monetary damages from
defendant for its denial of the special use permit. As the trial
court was without jurisdiction to hear plaintiff's first claim,
plaintiff cannot prevail on this issue. For the reasons discussed above, the trial court's orders and
judgments are vacated and this matter is remanded to the trial
court for proceedings consistent with this opinion.
VACATED AND REMANDED.
Judges WYNN and CALABRIA concur.
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