Appeal by plaintiff from order entered 26 June 2003 by Judge
A. Leon Stanback, Jr., in Wake County Superior Court. Heard in the
Court of Appeals 15 June 2004.
Kennedy Covington Lobdell & Hickman, L.L.P., by A. Lee
Hogewood, III, Amie Flowers Carmack and Jason L. Barron;
Michael B. Brough & Associates, by Michael B. Brough; and
Phears & Moldovan, by H. Wayne Phears, for plaintiff.
Taylor Penry Rash & Riemann, PLLC, by J. Anthony Penry and
Cynthia A. O'Neal, for defendants.
Bailey & Dixon, L.L.P., by Gary S. Parson, for defendants.
LEVINSON, Judge.
The present appeal arises from the dismissal of a complaint
filed by plaintiff Hanson Aggregates Southeast, Inc., (Hanson)
seeking, inter alia, declaratory and injunctive relief to prevent
the City of Raleigh (the City) and the City's Zoning Board of
Adjustment from applying the City's zoning ordinances against the
company. Hanson challenges the superior court's dismissal of its
action pursuant to N.C.G.S. § 1A-1, Rule 12(b)(1) for lack of
subject matter jurisdiction. We affirm.
Hanson owns property in Raleigh, North Carolina, hereinafter
referred to as the “Crabtree Quarry Property,” upon which it
operates a quarry and conducts mining operations. The property at
the center of the present case, hereinafter referred to as the
“Southside Property,” is located on the Crabtree Quarry Property.
In August 1973, the City of Raleigh extended its zoning
jurisdiction to include the Southside Property, and at some point
zoned the district in which the Southside Property is located for
residential use. On 23 April 2002, a City zoning inspector issued
a written “Order for Compliance” stating that the inspector had
observed Hanson engaging in mining activity on the Southside
property and ordering Hanson to immediately cease this activity.
Though the company has consistently insisted that it did not have
to appeal from the inspector's order, Hanson appealed from the
Order for Compliance to the City's Zoning Board of Adjustment.
Prior to completion of the entire process set forth in
N.C.G.S. § 160A-388 for appeals from determinations made by zoning
officials, Hanson filed the suit at issue in the present appeal in
Wake County Superior Court. Hanson's complaint alleged that it had
the right to mine the Southside Property pursuant to common law,
constitutional vested rights and the Raleigh Zoning Ordinance's
provisions concerning legally existing nonconforming uses. The
complaint further alleged that the City resorted to improper
measures and procedures to deny these rights. Hanson's complaint
prayed for a declaration as to the company's rights and the City'slimitations, injunctive relief, and damages against the City for
alleged violations of the company's constitutional rights.
According to Hanson's complaint, its rights under the
applicable zoning ordinance and its alleged vested rights are
derived from the following facts and circumstances: Since 1972,
Hanson or one of its predecessors has held a permit from the North
Carolina Department of Environmental and Natural Resources to mine
the entire Crabtree Quarry Property, including the Southside
Property. Prior to the City's acquisition of zoning authority, a
predecessor of Hanson's constructed on the Southside Property
several settling ponds, alleged to be an “integral part of the
overall mining operations” at the quarry. This construction
required clearing, grubbing, and excavating areas that were
previously wooded, and moving and stockpiling soil and other
materials. The City is alleged to have determined “sometime in the
1970's” that the use of the Southside Property for settling ponds
constituted a legally existing non-conforming use. Between 1973
and 1976, Hanson's predecessor added an additional settling pond to
the Southside property with the City's knowledge. In 1985, 1991-
92, 1994, and 1998 Hanson or its immediate predecessor engaged in
further clearing and grading operations, excavation, earthmoving,
stockpiling, removal, and/or construction activities on the
Southside property, and, according to Hanson, “through the end of
calendar year 2001, all of the activities conducted on the
Southside Property by Hanson or its predecessors were found by theCity of Raleigh to be part of a legal nonconforming use and not a
violation of the . . . Raleigh Zoning Ordinance.”
In an order entered 26 June 2003, the superior court dismissed
Hanson's action without prejudice pursuant to N.C.G.S. § 1A-1, Rule
12(b)(1) for lack of subject matter jurisdiction because Hanson had
not yet exhausted its administrative zoning remedies and its claims
were not, therefore, ripe. The superior court ordered Hanson to
complete its appeal before the Raleigh Zoning Board of Adjustment
prior to filing suit on any of the matters raised in its complaint.
Hanson now appeals from the superior court's order, contending that
it is not required to exhaust administrative remedies before filing
its suit to establish vested rights in superior court.
“When reviewing a motion to dismiss for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1), a trial court may consider
and weigh matters outside the pleadings.”
Dep't of Transp. v.
Blue, 147 N.C. App. 596, 603, 556 S.E.2d 609, 617 (2001),
disc.
review denied, 356 N.C. 434, 572 S.E.2d 428-29
(2002) (citation
omitted). “However, if the trial court confines its evaluation to
the pleadings, the court must accept as true the plaintiff's
allegations and construe them in the light most favorable to the
plaintiff.”
Id. (citation omitted). “[T]his Court's review of an
order granting a Rule 12(b)(1) motion to dismiss is
de novo, except
to the extent the trial court resolves issues of fact [in which
case] those findings are binding on the appellate court ifsupported by competent evidence in the record.”
Id. (citation and
internal quotation marks omitted).
“As a general rule, where the legislature has provided by
statute an effective administrative remedy, that remedy is
exclusive and its relief must be exhausted before recourse may be
had to the courts.”
Presnell v. Pell, 298 N.C. 715, 721, 260
S.E.2d 611, 615 (1979) (citation omitted).
This is especially true where a statute
establishes . . . a procedure whereby matters
of regulation and control are first addressed
by commissions or agencies particularly
qualified for the purpose. In such a case,
the legislature has expressed an intention to
give the administrative entity most concerned
with a particular matter the first chance to
discover and rectify error. Only after the
appropriate agency has developed its own
record and factual background upon which its
decision must rest should the courts be
available to review the sufficiency of its
process. An earlier intercession may be both
wasteful and unwarranted. To permit the
interruption and cessation of proceedings
before a commission by untimely and premature
intervention by the courts would completely
destroy the efficiency, effectiveness, and
purpose of the administrative agencies.
Id. at 721-22, 260 S.E.2d at 615 (citations and internal quotation
marks omitted). As such, “[a]n action is properly dismissed under
Rule 12(b)(1) for lack of subject matter jurisdiction where the
plaintiff has failed to exhaust administrative remedies.”
Shell
Island Homeowners Ass'n v. Tomlinson, 134 N.C. App. 217, 220, 517
S.E.2d 406, 410 (1999).
Our General Statutes afford administrative remedies to parties
alleging error in municipal zoning assessment and enforcement.
Specifically, N.C.G.S. § 160A-388(b) (2003) provides for an appealfrom a zoning inspector's order of compliance or notice of
violation:
The [municipal zoning] board of adjustment
shall hear and decide appeals from and review
any order, requirement, decision, or
determination made by an administrative
official charged with the enforcement of any
ordinance adopted pursuant to this Part
[zoning]. An appeal may be taken by any person
aggrieved or by an officer, department, board,
or bureau of the city.
Likewise, N.C.G.S. § 160A-388(e) (2003) provides for an appeal to
the superior court from an adverse decision by the zoning board of
adjustment: “Every decision of the board shall be subject to review
by the superior court by proceedings in the nature of certiorari.”
Under G.S. § 160A-388, the superior court sits as an appellate
court and its scope of review includes:
(1) Reviewing the record for errors in law,
(2) Insuring that procedures specified by law
in both statute and ordinance are followed,
(3) Insuring that appropriate due process
rights of a petitioner are protected including
the right to offer evidence, cross-examine
witnesses, and inspect documents,
(4) Insuring that decisions of . . . boards
are supported by competent, material and
substantial evidence in the whole record, and
(5) Insuring that decisions are not arbitrary
and capricious.
Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 128 N.C. App.
703, 706-07, 496 S.E.2d 825, 827 (1998) (citation omitted).
When an aggrieved party is proceeding pursuant to G.S. § 160A-
388, neither the zoning board of adjustment hearing an appeal from
a zoning official, nor the superior court hearing an appeal fromthe board of adjustment on
certiorari, has authority to address
constitutional challenges to a municipal zoning ordinance.
Dobo v.
Zoning Bd. of Adjustment, 149 N.C. App. 701, 706, 562 S.E.2d 108,
112 (2002),
rev'd in part on other grounds, 356 N.C. 656, 576
S.E.2d 324-25 (2003). Rather, the constitutional challenges to a
zoning ordinance may be appropriately adjudicated by means of a
separate civil action instituted in superior court.
Id. However,
our Supreme Court has instructed that “the courts of this State
will avoid constitutional questions, even if properly presented,
where a case may be resolved on other grounds.”
Anderson v.
Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002) (citations
omitted).
The issue in the instant case is whether Hanson is required to
wait to bring its constitutional claim until after it has exhausted
its administrative remedies before the City's Board of Adjustment.
In addressing this issue, we observe that part of the relief sought
in Hanson's complaint is a declaration that its use of the
Southside Property is a legally existing non-conforming use under
the Raleigh Zoning Ordinance. Indeed, paragraph fifty-one of
Hanson's complaint specifically states that “Hanson enjoys the
right to mine the Southside Property as a lawful nonconforming use
under the terms of the Zoning Ordinance of the City of Raleigh.”
This claim for relief is significant because if Hansons's use of
the Southside Property is lawful under the City's zoning
ordinances, then the company's claim for vested rights need not be
reached. Our General Statutes provide that initial determinationsas to zoning compliance be made via an administrative process as
opposed to an immediate resort to the courts.
See G.S. § 160A-388.
As Hanson has not fully availed itself of the process prescribed in
G.S. § 160A-388, it has not exhausted its administrative remedies.
Hanson contends that to require it to exhaust administrative
remedies is inconsistent with previous rulings from our State's
appellate courts. We conclude that the cases cited by Hanson do
not excuse the requirement that administrative zoning remedies be
exhausted where, as here, a claim of vested rights is asserted as
an alternative to a claim of conformity with a local zoning
ordinance.
In
Town of Hillsborough v. Smith, 276 N.C. 48, 58-59, 170
S.E.2d 904, 911 (1969), upon which Hanson relies heavily, our
Supreme Court held that a municipality was not entitled to summary
judgment on its claim against a landowner for failure to procure a
building permit where the local zoning board of adjustment had no
authority to issue the permit and the landowner had a vested right
to build on the property such that no permit was needed. In so
holding, the Supreme Court distinguished
Town of Hillsborough from
a case in which a landowner had “initiate[d] [a] proceeding to
obtain judicial relief
from an ordinance applicable to [it].”
Town
of Hillsborough, 276 N.C. at 58-59, 170 S.E.2d at 911 (emphasis
added). In the instant case, the process for determining whether
the City's zoning ordinance is applicable to Hanson has not been
completed. Thus,
Town of Hillsborough does not require that Hansonbe permitted to sue on its vested rights claim prior to exhausting
its administrative zoning remedies.
Likewise,
Michael Weinman Assocs. v Town of Huntersville, 147
N.C. App. 231, 555 S.E.2d 342 (2001), which discusses vested rights
arising in the context of a municipality's re-zoning of a
commercial site, does not hold that a suit to establish vested
rights must proceed where a landowner also asserts compliance with
a local zoning ordinance. Furthermore,
Mays-Ott Co., Inc. v. Town
of Nags Head, 751 F. Supp. 82, 87 (E.D.N.C. 1990), does not support
Hanson's argument as the Federal District Court that ruled in that
case specifically noted that there was no administrative remedy to
exhaust. As such, the cases cited by Hanson do not excuse the
exhaustion requirement in the instant case.
After carefully reviewing Hanson's remaining arguments on
appeal, we conclude that they are without merit. The trial court
properly dismissed the complaint without prejudice.
Affirmed.
Judges WYNN and CALABRIA concur.
Report per Rule 30(e).
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