Beau Rivage, et al v New Hanover, et al, (04-671) 03/15/2005

BEAU RIVAGE HOMEOWNERS
ASSOCIATION, a North
Carolina non-profit
corporation, BRIAN HODSON
and wife, CARY HODSON,
SHELBY COVINGTON, THOMAS
RICE, GEORGE MILLER and
Wife, EILEEN MILLER, HUGH
van ZELM and wife, SHEILA
van ZELM, and ANN BOSEMAN,
Petitioners,

v .                         New Hanover County
                            No. 02 CVS 4628

NEW HANOVER COUNTY
TECHNICAL REVIEW COMMITTEE
OF THE NEW HANOVER COUNTY
PLANNING BOARD, NEW HANOVER
COUNTY PLANNING BOARD,
RODNEY HARRIS, Chairperson
and Member of the New Hanover
County Planning Board, McKINLEY
DULL, MICHAEL J. KEENEN,
WALTER CONLOGUE, FRANK
SMITH, DAVID GIRARDOT,
EARNEST PUSKAS, and
DAVID A. ADAMS, members of
the New Hanover County
Planning Board and the
Technical Review Committee
of the New Hanover County
Planning Board,
        Respondents,

BEAU RIVAGE PLANTATION,
INC., a North Carolina
Corporation,
Intervenor-Respondents.

BEAU RIVAGE HOMEOWNERS
ASSOCIATION, a North
Carolina non-profit
Corporation, SHELBY COVINGTON,
THOMAS RICE, GEORGE MILLER
and Wife, EILEEN MILLER,
HUGH van ZELM and wife,
SHEILA van ZELM, and ANN
BOSEMAN, MARK A. POSTON
and wife, ANGIE A. POSTON,
WILLIAM I. LINCOLN and
wife, CONNIE R. LINCOLN,
WILLIAM H. ROWLETT and
wife, SUSAN L. ROWLETT,
and ROLAND E. WHITTAKER
and wife, BETTY E. WHITTAKER,
Petitioners,

v .                         New Hanover County
                            No. 03 CVS 1422

NEW HANOVER COUNTY,
TECHNICAL REVIEW COMMITTEE
OF THE NEW HANOVER COUNTY
PLANNING BOARD, NEW HANOVER
COUNTY PLANNING BOARD,
RODNEY HARRIS, Chairperson
and Member of the New Hanover
County Planning Board, McKINLEY
DULL, MICHAEL J. KEENEN,
WALTER CONLOGUE, FRANK
SMITH, DAVID GIRARDOT, ERNEST
PUSKAS, and DAVID A. ADAMS,
members of the New Hanover
County Planning Board and the
Technical Review Committee
of the New Hanover County
Planning Board,
        Respondents.

v .                         New Hanover County
                            No. 03 CVS 1423

NEW HANOVER COUNTY,
TECHNICAL REVIEW COMMITTEE
OF THE NEW HANOVER COUNTY
PLANNING BOARD, NEW HANOVER
COUNTY PLANNING BOARD,
RODNEY HARRIS, Chairperson
and Member of the New Hanover
County Planning Board, McKINLEY
DULL, MICHAEL J. KEENEN,
WALTER CONLOGUE, FRANK
SMITH, DAVID GIRARDOT, ERNEST
PUSKAS, and DAVID A. ADAMS,
members of the New Hanover
County Planning Board and the
Technical Review Committee
of the New Hanover County
Planning Board,
        Respondents.

    Appeal by petitioners from judgments entered 3 December 2003 by Judge Russell J. Lanier, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 15 February 2005.
    Susan McDaniel Keelin, and Stevens, McGhee, Morgan, Lennon & Toll, LLP, by Richard M. Morgan and Mark F. Carter, for petitioner-appellants.

    Assistant County Attorney E. Holt Moore, III, for respondents- appellants.

    Shipman & Associates, L.L.P., by Gary K. Shipman, William N. Mason, and William G. Wright, for intervenor-respondents- appellees.

    STEELMAN, Judge.

    The Beau Rivage Homeowners Association and the named individual homeowners (petitioners) appeal the trial court's denial of four petitions for writ of certiorari. Four separate appeals from four separate orders are consolidated for purposes of this appeal, as each presents the identical question for review.
    In 2002, the New Hanover County Planning Board Technical Review Committee (TRC) approved four separate subdivision site plans in Beau Rivage Plantation, including the Carolina Greens Site Plan, the Updated Beau Rivage Plantation Site Plan (BRP), the Saltaire Village Site Plan, and the Wetlands Drive Site Plan. Plaintiff appealed the approval of each of the site plans to the New Hanover Board of County Commissioners. The Board heard petitioners' appeals regarding the Carolina Greens and the Updated BRP site plan in May 2002, voting to affirm the TRC's decision approving both plans. Petitioners filed petitions for writ of certiorari to the superior court for review of the Board's decision.
    The superior court concluded that petitioners had no right under the county's regulations to appeal the TRC's decisions to theBoard of Commissioners. The court dismissed their petition for writ of certiorari for lack of standing. In light of the superior court's ruling, the Board declined to hear petitioners' remaining appeals regarding the TRC's approval of the Saltaire and the Wetlands Drive site plans.
    Upon petitioners' appeal, this Court affirmed the superior court's ruling that petitioner's lacked standing under the county's ordinance to appeal the TRC's decision. Beau Rivage Homeowners Ass'n v. New Hanover County, ___ N.C. App. ___, ___ S.E.2d ___ (2004) (COA03-1323).
    Petitioners then filed petitions for writ of certiorari to the superior court seeking review of the TRC's decision approving each of the above referenced subdivision site plans. The four actions were joined for hearing at the 3 November 2003 non-jury session of superior court. The superior court ruled that:
        1. The issue of whether the Petitioners herein have standing to challenge the approval by the TRC of preliminary site plans of property in the Bea[u] Rivage development when they are not a sub-divider under the zoning ordinance as written at the time of the TRC hearings herein has been decided and “collateral estoppel precludes the subsequent adjudication of a previously determined issue, even if the subsequent action is premised upon a different claim.” Hales [v. North Carolina Ins. Guar. Ass'n, 337 N.C. 329, 333, 445 S.E.2d 590, 594 (1994).]

        2. The Petitioners lack standing to appeal the actions of the TRC and their Appeals and Petitions for Certiorari must be dismissed.

Petitioners appeal.    The subdivision regulations in effect during the times relevant to these four cases were the identical subdivision regulations in effect and at issue in Sanco of Wilmington Serv. Corp. v. New Hanover County, ___ N.C. App. ___, 601 S.E.2d 889 (2004)(addressing the issue of the proper construction of New Hanover County Subdivision Regulations Section 32-3(2)), and Beau Rivage Homeowners Ass'n v. New Hanover County, ___ N.C. App. ___, ___ S.E.2d ___ (2004) (COA03-1323)   (See footnote 1) .
    In petitioners first assignment of error they contend the superior court erred in dismissing their petitions for writ of certiorari because they are aggrieved parties with standing and their petitions for review of the TRC's approval of the subdivision plans are not barred by the doctrine of collateral estoppel. We disagree.
    As noted above, the superior court previously determined that petitioners lacked standing to appeal the TRC's approval of the subdivision site plans to the Board of County Commissioners because the subdivision ordinance only provided for appeals by the sub- divider. This Court affirmed that ruling. Beau Rivage, ___ N.C. App. at ___, ___ S.E.2d at ___. Petitioners now contend that if they cannot appeal as a matter of right under the subdivision regulations from the TRC's decision to the Board, then they are anaggrieved party with a right to appeal to the superior court by way of petition for writ of certiorari.
     “'[T]he writ of certiorari will lie to review only those acts which are judicial or quasi judicial in their nature' and 'does not lie to review or annul any judgment or proceeding which is legislative, executive, or ministerial rather than judicial[.]'” Gossett v. City of Wilmington, 124 N.C. App. 777, 778, 478 S.E.2d 648, 649 (1996) (quoting In re Markham, 259 N.C. 566, 569, 131 S.E.2d 329, 332) (1963)). “The New Hanover County subdivision approval process is a ministerial, rather than a quasi-judicial, process.” Beau Rivage, ___ N.C. App. at ___, ___ S.E.2d at ___ (interpreting the identical subdivision ordinance at issue in the instant case); see also Sanco, ___ N.C. App. at ___, 601 S.E.2d at 893 (same). Since the subdivision approval process at issue is ministerial, the superior court lacked the authority to review the TRC's approval of the subdivision by writ of certiorari. As a result, we need not discuss whether petitioners' claims were barred by the doctrine of collateral estoppel. This assignment of error is without merit.
    In petitioners' second assignment of error they contend the dismissal of their petition for writ of certiorari violated their right to due process.
    We note petitioners have raised for the first time on appeal this constitutional argument. Petitioners contend the dismissal of their petition for writ of certiorari violates their right to due process under the United States Constitution because they have noright of appeal and no other method to have their grievances addressed. In order to preserve a constitutional question for appellate review the matter must be raised and ruled upon at the lower court level. In re Dennis v. Duke Power Co., 341 N.C. 91, 103, 459 S.E.2d 707, 715 (1995). This constitutional issue is not properly before this Court because it was not raised before and addressed by the superior court. This assignment of error is dismissed.
    For the reasons discussed herein, we affirm the ruling of the trial court.
    AFFIRMED.
    Judges WYNN and HUDSON concur.
    Report per Rule 30(e).

Footnote: 1