{ "id": 9248888, "name": "LOUISE C. HEMPHILL-NOLAN, Petitioner-Appellant v. TOWN OF WEDDINGTON, a North Carolina municipality and Its Town Council, Respondent-Appellee", "name_abbreviation": "Hemphill-Nolan v. Town of Weddington", "decision_date": "2002-09-17", "docket_number": "No. COA01-1326", "first_page": "144", "last_page": "149", "citations": [ { "type": "official", "cite": "153 N.C. App. 144" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "327 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "886", "parenthetical": "where statute fails to. designate time period within which to seek review of a board decision, trial court must use discretion to determine whether petition for writ of certiorari was filed within reasonable time of board decision" } ], "opinion_index": 0 }, { "cite": "313 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725218 ], "year": 1985, "pin_cites": [ { "page": "311", "parenthetical": "where statute fails to. designate time period within which to seek review of a board decision, trial court must use discretion to determine whether petition for writ of certiorari was filed within reasonable time of board decision" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0306-01" ] }, { "cite": "433 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 436", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530569, 2530523, 2529650, 2530875, 2529470 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0436-01", "/nc/334/0436-02", "/nc/334/0436-03", "/nc/334/0436-04", "/nc/334/0436-05" ] }, { "cite": "428 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "832-33" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 60", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524719 ], "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0060-01" ] }, { "cite": "336 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "397" }, { "page": "397" } ], "opinion_index": 0 }, { "cite": "314 N.C. 627", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4693278 ], "year": 1985, "pin_cites": [ { "page": "630" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0627-01" ] }, { "cite": "110 L. Ed. 2d 651", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "496 U.S. 931", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12152225, 12152134, 12152362, 12152274, 12152182, 12152311 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/496/0931-03", "/us/496/0931-01", "/us/496/0931-06", "/us/496/0931-04", "/us/496/0931-02", "/us/496/0931-05" ] }, { "cite": "387 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305891 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0001-01" ] }, { "cite": "376 S.E.2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "28" }, { "page": "26" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 601", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527442 ], "year": 1989, "pin_cites": [ { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0601-01" ] }, { "cite": "507 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "words in ordinance or statute \"must be construed in context and given only the meaning that the other modifying provisions of the ordinance will permit.\"" } ], "opinion_index": 0 }, { "cite": "349 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571734 ], "year": 1998, "pin_cites": [ { "parenthetical": "words in ordinance or statute \"must be construed in context and given only the meaning that the other modifying provisions of the ordinance will permit.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0348-01" ] }, { "cite": "498 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "835", "parenthetical": "words in ordinance or statute \"must be construed in context and given only the meaning that the other modifying provisions of the ordinance will permit.\"" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 300", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11649817 ], "year": 1998, "pin_cites": [ { "page": "303", "parenthetical": "words in ordinance or statute \"must be construed in context and given only the meaning that the other modifying provisions of the ordinance will permit.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0300-01" ] } ], "analysis": { "cardinality": 579, "char_count": 12758, "ocr_confidence": 0.759, "pagerank": { "raw": 1.0973979837078487e-07, "percentile": 0.5672170462447811 }, "sha256": "bd1217db2dffc6a8547b53c01141c8132795e28bae09abf38ab6695ad4d834a8", "simhash": "1:a26fb46f0d611c1c", "word_count": 2048 }, "last_updated": "2023-07-14T15:17:05.865609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and THOMAS concur." ], "parties": [ "LOUISE C. HEMPHILL-NOLAN, Petitioner-Appellant v. TOWN OF WEDDINGTON, a North Carolina municipality and Its Town Council, Respondent-Appellee" ], "opinions": [ { "text": "MARTIN, Judge.\nLouise C. Hemphill-Nolan (\u201cpetitioner\u201d) appeals an order dismissing her Petition for Certiorari to review a decision of the Town of Weddington through its Town Council (collectively \u201crespondent\u201d) denying her application for a variance from the Town of Weddington Subdivision Ordinance (\u201cthe ordinance\u201d). For the reasons discussed herein, we reverse the dismissal of the petition and remand to the trial court for further proceedings.\nPetitioner is the owner of approximately twenty-nine acres of land in the Town of Weddington. On 7 April 2000, petitioner submitted plans to respondent\u2019s Zoning Administrator for a proposed \u201cWeddington Lake Subdivision.\u201d On the same, day, the Zoning Administrator determined that petitioner\u2019s proposal met the requirements of the ordinance \u201cwith the exception of a variance needed for Lakeside Court due to the length of the cul-de-sac.\u201d The ordinance provides that \u201c[p]ermanent dead end streets should not exceed six hundred (600) feet in length unless necessitated by topography or property accessibility.\u201d According to petitioner\u2019s proposal, Lakeside Court, a street in the proposed subdivision, would be 785 feet in length.\nOn 9 August 2001, petitioner submitted an application for a variance from the 600-foot cul-de-sac restriction contained in the ordinance. Respondent\u2019s Planning Board considered petitioner\u2019s application on 28 August 2000, and recommended four-to-one that it be denied. On 11 September 2000, respondent Town Council conducted a public hearing to consider the matter, following which it denied petitioner\u2019s application for a variance. Respondent\u2019s decision to deny the application was contained in the minutes of respondent\u2019s meeting. Following the meeting, petitioner did not request a copy of the decision. The decision was filed with the Town Clerk on 9 October 2000, and the minutes of respondent\u2019s meeting were recorded in full with the Town Clerk on 11 October 2000. By letter dated 12 October 2000, petitioner\u2019s attorney requested a copy of the minutes, which contained respondent\u2019s decision to deny petitioner\u2019s application. Petitioner alleged she received a copy of the minutes and decision on 16 October 2000.\nOn 13 November 2000, petitioner filed a Verified Petition for Review in the Nature of Certiorari in Union County Superior Court, seeking review of respondent\u2019s decision to deny her application for a variance. Following a hearing on 13 August 2001, the trial court dismissed the petition for petitioner\u2019s failure to comply with the thirty-day time limit for filing, as established by G.S. \u00a7 160A-388(e) (2001). Petitioner appeals the dismissal.\nPetitioner argues the trial court erred in dismissing her petition under G.S. \u00a7 160A-388(e) because that statute does not apply to her appeal, which is based on the denial of a variance from a subdivision ordinance, as opposed to a zoning ordinance. We agree. G.S. \u00a7 160A-388(e) provides, in pertinent part:\n(e) The concurring vote of four-fifths of the members of the board shall be necessary to reverse any order, requirement, decision, or determination of any administrative official charged with the enforcement of an ordinance adopted pursuant to this Part, or to decide in favor of the applicant any matter upon which it is required to pass under any ordinance, or to grant a variance from the provisions of the ordinance. Every decision of the board shall be subject to review by the superior court by proceedings in the nature of certiorari. Any petition for review by the superior court shall be filed with the clerk of superior court within 30 days after the decision of the board is filed in such office as the ordinance specifies, or after a written copy thereof is delivered to every aggrieved party who has filed a written request for such copy with the secretary or chairman of the board at the time of its hearing of the case, whichever is later. The decision of the board may be delivered to the aggrieved party either by personal service or by registered mail or certified mail return receipt requested.\nN.C. Gen. Stat. \u00a7 160A-388(e) (2001) (emphasis added).\nPetitioner argues the italicized phrase \u201cthe enforcement of an ordinance adopted pursuant to this Part\u201d clearly means that G.S. \u00a7 160A-388(e) only applies to appeals based upon ordinances adopted under Part III of Article 19 of Chapter 160A, entitled \u201cZoning,\u201d of which G.S. \u00a7 160A-388 is a part. The Weddington Subdivision Ordinance from which petitioner sought a variance was not adopted pursuant to Part III; rather, it was adopted pursuant to Part II of Article 19, entitled \u201cSubdivision Regulation.\u201d Thus, petitioner maintains the plain language of G.S. \u00a7 160A-388(e) prohibits its application to this case.\nRespondent argues the italicized phrases \u201cany ordinance\u201d and \u201cany matter\u201d make clear that G.S. \u00a7 160A-388(e) is not limited to matters involving ordinances adopted pursuant to Part III, and that the language \u201cor to grant a variance from the provisions of the ordinance\u201d establishes G.S. \u00a7 160A-388(e) as the applicable statute for an appeal from the denial of a variance application. Respondent also contends the phrase \u201c[e]very decision of the board shall be subject to review by the superior court by proceedings in the nature of certiorari\u201d lends support to the position that the statute is not limited to ordinances adopted under Part III.\nHowever, isolated terms such as \u201cany ordinance,\u201d \u201cany matter\u201d and \u201c[e]very decision\u201d must be read within the context of the entire statute. See, e.g., Ball v. Randolph County Bd. of Adjustment, 129 N.C. App. 300, 303, 498 S.E.2d 833, 835, disc. review improv. allowed, 349 N.C. 348, 507 S.E.2d 272 (1998) (words in ordinance or statute \u201cmust be construed in context and given only the meaning that the other modifying provisions of the ordinance will permit.\u201d). Thus, they must be construed as being modified by the preceding condition that the section applies to matters involving the enforcement of ordinances \u201cadopted pursuant to this Part.\u201d They must also be construed within the context of G.S. \u00a7 160A-388 as a whole. Subsection (b) of the statute, which describes some of the duties and procedures of the board, begins with the following qualifier: \u201cThe 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.\u201d N.C. Gen. Stat. \u00a7 160A-388(b) (2001). Therefore, it is reasonable to interpret the terms \u201cany ordinance\u201d and \u201c[e]very decision,\u201d when construed within the context of the statute, as referring to any ordinance adopted under Part III of Article 19, and to all decisions of the Board, which, according to subsection (b), are limited to matters regarding ordinances adopted under Part III.\nMoreover, respondent failed to cite any authority wherein G.S. \u00a7 160A-388(e) has been applied to the appeal of a board decision based upon a subdivision ordinance. Indeed, cases citing G.S. \u00a7 160A-388 almost invariably involve decisions based on zoning and development ordinances and regulations. Although this Court has recognized that the legal principles involved in review of zoning applications are similar and relevant to review of the denial of subdivision applications, we have also stated that \u201czoning statutes do not limit how a subdivision applicant may seek judicial review.\u201d Batch v. Town of Chapel Hill, 92 N.C. App. 601, 610, 376 S.E.2d 22, 28 (1989), reversed on other grounds, 326 N.C. 1, 387 S.E.2d 655, cert. denied, 496 U.S. 931, 110 L. Ed. 2d 651 (1990).\nIn Batch, a case involving an appeal of the denial of a subdivision application, we noted that \u201c[p]roper procedure in this case can be distinguished from zoning case denials because the statutory scheme governing zoning ordinances provides that when a municipality denies a special use or conditional use permit, \u2018every such decision of the city council shall be subject to review by the superior court by proceedings in the nature of certiorari.\u2019 \u201d Id. at 606, 376 S.E.2d at 26 (quoting N.C. Gen. Stat. \u00a7\u00a7 160A-381; 160A-388). We further recognized that there exists \u201cno similar statutory mandate for review of town decisions on subdivision applications,\u201d and thus, \u201cit would be incorrect to limit review of subdivision application denials based on the procedure authorized for zoning application denials.\u201d Id.\nSimilarly, our Supreme Court has observed that Chapter 160A is \u201cdeliberately divided\u201d into separate parts, including two parts which \u201cprovide separately for the regulation of subdivisions and for zoning.\u201d Town of Nags Head v. Tillett, 314 N.C. 627, 630, 336 S.E.2d 394, 397 (1985). The Court noted that the provisions of section 160A-375 contained in Part II of Article 19 are intended to deter the violation of subdivision ordinances, whereas section 160A-389 permits broader proceedings to prevent or correct violation of zoning ordinances. Id. The Court held that it is error \u201cto cite the broad enforcement provisions of N.C.G.S. 160A-389, a zoning statute, as the statutory basis for denying a building permit to one whose lot violates the subdivision requirements of [the local ordinance].\u201d Id. at 631, 336 S.E.2d at 397.\nAlthough we concede that no clear authority, statutory or otherwise, exists as to whether the legislature intended the thirty-day time limitation contained in G.S. \u00a7 160A-388(e) to apply in cases such as this, our revi\u00e9w of the statute and limited case law emphasizing the existence of distinct statutory schemes for regulation of subdivision and zoning leads us to conclude that the trial court erred in applying G.S. \u00a7 160A-388(e) in this case. In the absence of such clear legislative intent, we decline to read such a requirement into the statutory scheme of Article 19 and hold that G.S. \u00a7 160A-388(e) does not apply to judicial review of decisions of boards of adjustment based on ordinances adopted pursuant to Part II of Article 19 of Chapter 160A.\nAlthough respondent argues petitioner may not bring her appeal because Part II of Article 19 does not provide for appeal procedures regarding variances, the superior court has discretion to grant a writ of certiorari \u201cin proper cases.\u201d See N.C.R. Prac. 19; State v. Hamrick, 110 N.C. App. 60, 65, 428 S.E.2d 830, 832-33 (likening superior court\u2019s authority to grant writ of certiorari in proper cases to Court of Appeals\u2019 power to grant writ of certiorari pursuant to N.C. Gen. Stat. \u00a7 7A-32(c)), appeal dismissed and disc. review denied, 334 N.C. 436, 433 S.E.2d 181 (1993). In this case, had the trial court not applied G.S. \u00a7 160A-388(e) to dismiss the petition, petitioner would have been required to file her petition within a \u201creasonable time\u201d following respondent\u2019s decision. See White Oak Properties, Inc. v. Town of Carrboro, 313 N.C. 306, 311, 327 S.E.2d 882, 886 (1985) (where statute fails to. designate time period within which to seek review of a board decision, trial court must use discretion to determine whether petition for writ of certiorari was filed within reasonable time of board decision). Accordingly, we remand this matter to the trial court for a determination of whether petitioner\u2019s filing of this case was done within a reasonable time, and if so, for consideration of the merits of the petition.\nThe order dismissing the petition is hereby reversed, and this matter is remanded to the trial court for further proceedings in accordance with this opinion.\nReversed and remanded.\nJudges TYSON and THOMAS concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "The Brough Law Firm, by Robert E. Homik, Jr., for petitioner-appellant.", "Parker, Poe, Adams. & Bernstein, L.L.P., by Anthony Fox, for respondent-appellee." ], "corrections": "", "head_matter": "LOUISE C. HEMPHILL-NOLAN, Petitioner-Appellant v. TOWN OF WEDDINGTON, a North Carolina municipality and Its Town Council, Respondent-Appellee\nNo. COA01-1326\n(Filed 17 September 2002)\nCities and Towns\u2014 subdivision ordinance \u2014 judicial review of application for variance\nThe trial court erred by dismissing under N.C.G.S. \u00a7 160A-388(e) petitioner\u2019s petition for certiorari to review a decision of a town council denying petitioner\u2019s application for a variance from the town\u2019s subdivision ordinance based on an alleged failure to comply with the thirty-day time limit for filing, and the case is remanded for a determination of whether petitioner\u2019s filing of this case was done within a reasonable time because N.C.G.S. \u00a7 160A-388(e) does not apply to petitioner\u2019s appeal since the appeal is based on the denial of a variance from a subdivision ordinance as opposed to a zoning ordinance.\nAppeal by petitioner from order entered 17 August 2001 by Judge W. Robert Bell in Union County Superior Court. Heard in the Court of Appeals 15 August 2002.\nThe Brough Law Firm, by Robert E. Homik, Jr., for petitioner-appellant.\nParker, Poe, Adams. & Bernstein, L.L.P., by Anthony Fox, for respondent-appellee." }, "file_name": "0144-01", "first_page_order": 174, "last_page_order": 179 }