{ "id": 4161924, "name": "CARL W. MEARES, JR., Plaintiff v. TOWN OF BEAUFORT, TOWN OF BEAUFORT HISTORIC PRESERVATION COMMISSION, LINDA DARK, MIKE MENARY, DELORES MEELHEIM, CAROL SADLER, AND GINNY WELTON, Defendants", "name_abbreviation": "Meares v. Town of Beaufort", "decision_date": "2008-10-07", "docket_number": "No. COA07-882", "first_page": "49", "last_page": "64", "citations": [ { "type": "official", "cite": "193 N.C. App. 49" } ], "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": "639 S.E.2d 421", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637514 ], "year": 2007, "pin_cites": [ { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/se2d/639/0421-01" ] }, { "cite": "649 S.E.2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639305 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "928" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0920-01" ] }, { "cite": "637 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637287 ], "year": 2006, "pin_cites": [ { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/se2d/637/0528-01" ] }, { "cite": "277 S.E.2d 820", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "827" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169993 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/52/0069-01" ] }, { "cite": "493 S.E.2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "809", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11652491 ], "year": 1997, "pin_cites": [ { "page": "117-18", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0113-01" ] }, { "cite": "480 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "58", "parenthetical": "\"the trial court possesses the legal authority to stay its own orders pending appeal in cases involving the Public Records Act.\"" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 174", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11866285 ], "year": 1997, "pin_cites": [ { "page": "183", "parenthetical": "\"the trial court possesses the legal authority to stay its own orders pending appeal in cases involving the Public Records Act.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0174-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-291", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "opinion_index": 0 }, { "cite": "Conn. Gen. Stat. \u00a7 8-26", "category": "laws:leg_statute", "reporter": "Conn. Gen. Stat.", "year": 1989, "opinion_index": 0 }, { "cite": "592 A.2d 953", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "958" } ], "opinion_index": 0 }, { "cite": "219 Conn. 303", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 523947 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/conn/219/0303-01" ] }, { "cite": "361 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739419 ], "year": 2007, "pin_cites": [ { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0193-01" ] }, { "cite": "160 S.E.2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1968, "pin_cites": [ { "page": "727", "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0 }, { "cite": "273 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575767 ], "year": 1968, "pin_cites": [ { "page": "570", "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0559-01" ] }, { "cite": "79 S.E.2d 757", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "764", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "239 N.C. 180", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626185 ], "year": 1954, "pin_cites": [ { "page": "189", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0180-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-260", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2007, "pin_cites": [ { "parenthetical": "\"no declaration shall prejudice the rights of persons not parties to the proceedings.\"" } ], "opinion_index": 0 }, { "cite": "525 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2000, "pin_cites": [ { "page": "829", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 775", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241993 ], "year": 2000, "pin_cites": [ { "page": "779", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0775-01" ] }, { "cite": "186 N.C. App. 17", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8154366 ], "year": 2007, "pin_cites": [ { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0017-01" ] }, { "cite": "138 S.E.2d 143", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1964, "pin_cites": [ { "page": "149", "parenthetical": "citations omitted" }, { "page": "149" } ], "opinion_index": 0 }, { "cite": "262 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568994 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "504", "parenthetical": "citations omitted" }, { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0496-01" ] }, { "cite": "197 S.E. 752", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1938, "pin_cites": [ { "page": "753", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "214 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628785 ], "year": 1938, "pin_cites": [ { "page": "91", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/214/0089-01" ] }, { "cite": "265 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "913", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551011 ], "year": 1980, "pin_cites": [ { "page": "386", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0350-01" ] }, { "cite": "361 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3744780 ], "year": 2006, "pin_cites": [ { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0085-01" ] }, { "cite": "28 U.S.C. \u00a7\u00a7 1331", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 1020, "char_count": 37020, "ocr_confidence": 0.753, "pagerank": { "raw": 8.262683731656366e-08, "percentile": 0.47840781450964903 }, "sha256": "245eed29ed7aa8a72430d60494969a6739c06953222fee665cc0de29555665c6", "simhash": "1:fe29d076174e1de8", "word_count": 5911 }, "last_updated": "2023-07-14T16:30:29.332614+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and STROUD concur." ], "parties": [ "CARL W. MEARES, JR., Plaintiff v. TOWN OF BEAUFORT, TOWN OF BEAUFORT HISTORIC PRESERVATION COMMISSION, LINDA DARK, MIKE MENARY, DELORES MEELHEIM, CAROL SADLER, AND GINNY WELTON, Defendants" ], "opinions": [ { "text": "BRYANT, Judge.\nTown of Beaufort, Town of Beaufort Historic Preservation Commission (HPC), Linda Dark, Mike Menary, Delores Meelheim, Carol Sadler, and Ginney Welton (collectively defendants) appeal from an order entered 31 May 2007 which denied defendants\u2019 motion to stay or enjoin enforcement of an Order, Judgment, and Writ of Mandamus entered by the trial court 19 April 2007 which compelled the release of a Certificate of Appropriateness (CO\u00c1), to be executed by defendants, to Plaintiff Carl W. Meares, Jr.\nPursuant to the Town of Beaufort Zoning Ordinance, the function of the HPC is to \u201creview and pass upon the appropriateness of the construction, reconstruction, alteration, restoration, moving or demolition of any buildings, structures, appurtenant fixtures, outdoor advertising signs, or other exterior features in the historic district.\u201d Beaufort, N.C., Zoning Ordinance \u00a7 13.6(b) (2007). \u201cExterior features\u201d include \u201ccolor, architectural style, general design, and general arrangement of the exterior of the building of other structure, including the kind and texture of the building material, the size and scale of the building, and the type and style , of all windows, doors, light fixtures, signs, and other appurtenant features.\u201d Id. at \u00a7 13.4. But, \u201c[t]he [HPC] shall take no action . . . except to prevent the construction, reconstruction, alteration, restoration, moving or demolition of buildings, structures, appurtenant fixtures, outdoor advertising signs, or other significant features in the historic district which would be incongruous or incompatible with the special character of the district.\u201d Id.\n\u201cNo exterior portion of any building or other structure . . . shall be erected, altered, restored, moved, or demolished within such district until after an application for a [COA] as to exterior features has been submitted to and approved by the Beaufort [HPC].\u201d Id. A COA \u201cis required to have been approved and issued by the Beaufort [HPC] prior to the issuance of a building permit or other permit granted for the purpose of constructing, altering, moving and demolishing structures.\u201d Id. The HPC has established Rules of Procedure the stated purpose of which is \u201c[t]o establish procedures for organizing the business of the Beaufort [HPC] . . . and processing applications for [COAs] . . . .\u201d\nThough not the subject of this appeal, we note for context that on 12 September 2004 Meares filed with the HPC a COA application for a commercial and residential structure to be erected on one of three lots he owned on Front Street in Beaufort\u2019s Historic District. The proposed structure was to share a wall with the adjacent Aquadro Building already owned by Meares.\nOn 5 October 2004, the HPC denied Meares\u2019 September 2004 application on the ground that Meares\u2019 design violated the Beaufort Historic District Design Guidelines. Meares filed a claim in Carteret County Superior Court alleging a portion of the Design Guidelines was void as a matter of law. After cross motions for summary judgment, the Carteret County Superior Court granted Meares\u2019 motion and concluded that a portion of the Historic District Design Guidelines were void as a matter of law. Defendants appealed the matter to this Court.\nWith Meares (I) pending, Meares submitted a second COA application to Beaufort\u2019s HPC \u2014 the subject of the instant case. Meares proposed an alternative structure to be erected on the same lot involved in Meares (I). The HPC declined to process Meares\u2019 second application.\nOn 30 March 2006, in Carteret County Superior Court, Meares filed a petition for writ of mandamus and complaint. The complaint alleged that on 15 February 2006 Meares filed with the HPC a second COA application which the HPC declined to process; the petition requested that the trial court order the HPC to hold a hearing and act on Meares\u2019 application.\nOn 3 May 2006, defendants filed a notice of removal to the United States District Court for the Eastern District of North Carolina on the grounds of a federal question under 28 U.S.C. \u00a7\u00a7 1331 and 1441(b). By order dated 15 February 2007, the Federal District Court retained jurisdiction over the issue involving alleged violations of Meares\u2019 state and federal constitutional rights, but remanded to Carteret County Superior Court Meares\u2019 petition for a writ of mandamus on the grounds that it raised novel issues of North Carolina law.\nBack in Superior Court, Meares and defendants filed cross motions for summary judgment. A trial court order filed 19 April 2007 granted Meares\u2019 motion for summary judgment and denied defendants\u2019 motion. Furthermore, the trial court issued a writ of mandamus ordering defendants to \u201cact upon and issue a [COA]\u201d to Meares pursuant to his second application.\nIn compliance with the trial court\u2019s order, defendants deposited a COA with the Clerk of Court, along with a motion for a stay of execution on the judgment and a notice of appeal. The trial court denied defendants\u2019 motion to stay or enjoin enforcement of the judgment pending appeal and ordered the immediate release of the COA. Defendants filed with this Court a petition for a writ of supersedeas, which was denied. Defendants gave notice of appeal from both the trial court\u2019s denial of defendants\u2019 motion to stay or enjoin enforcement of the'judgment pending appeal and the order releasing to Meares the COA deposited with the Carteret County Clerk of Court.\nOn appeal, defendants raise twelve issues: whether the trial court erred by denying defendants\u2019 motion for summary judgment and issuing a writ of mandamus requiring the HPC to issue a COA on the grounds that (I) Meares lacked a clear right to the COA; (II) the proposed development violates the town\u2019s zoning ordinance; (III) a writ of mandamus cannot compel a vain or impossible act; (IV) the HPC had previously not approved or denied Meares\u2019 second application; (V) the trial court usurped the authority of the zoning administrator; (VI) the town is not estopped from enforcing its own zoning ordinance; (VII) the HPC lacked subject matter jurisdiction to consider Meares\u2019 second application; (VIII) Meares failed to exhaust his administrative remedies; and (IX) policy precludes the HPC from processing multiple COA applications for the same site. Defendants also contend that the trial court erred in denying defendants\u2019 motion to stay the judgment pending appeal (X) where the deposit of the COA with the Clerk of Court automatically stayed the judgment, (XI) where the enforcement of the judgment while on appeal would irreparably harm the town, and (XII) where there was no basis for the stay on the theory of laches.\nStandard of Review\nSummary judgment is appropriate \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2007). On appeal, \u201cthe Court will review the trial court\u2019s order allowing summary judgment de novo.\u201d Builders Mut. Ins. Co. v. North Main Constr., Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006).\nI\nDefendants first argue that the trial court erred by issuing a writ of mandamus compelling the issuance of the COA when the time period the HPC had to review Meares\u2019 second application had not expired when Meares filed his petition for a writ of mandamus. Defendants argue the trial court entered judgment on a claim that was not ripe at the time it was filed. We disagree.\n\u201cTraditionally, a writ of mandamus would not be issued to enforce a duty involving judgment and discretion,\u201d Orange County v. North Carolina Dep\u2019t of Transp., 46 N.C. App. 350, 386, 265 S.E.2d 890, 913 (1980) (citation omitted), or \u201cenforce an alleged right which is in doubt,\u201d Mears v. Board of Education, 214 N.C. 89, 91, 197 S.E. 752, 753 (1938) (citations omitted). \u201c[A] party seeking [the] writ must have a clear legal right to demand it, and the party to be coerced must be under a positive legal obligation to perform the act sought to be required.\u201d Ponder v. Joslin, 262 N.C. 496, 504, 138 S.E.2d 143, 149 (1964) (citations omitted). \u201cThe function of the writ is to compel the performance of a ministerial duty \u2014 not to establish a legal right, but to enforce one which has been established.\u201d Id. But, \u201c[o]ur Court has noted that mandamus may be appropriate when, as in the instant case, a party seeks to compel the enforcement of a zoning ordinance.\u201d McDowell v. Randolph County, 186 N.C. App. 17, 29, 649 S.E.2d 920, 928 (2007).\nUnder N.C. Gen. Stat. \u00a7 160A-400.9(d), \u201c[a]ll applications for [COAs] shall be reviewed and acted upon within a reasonable time, not to exceed 180 days from the date the application for a [COA] is filed, as defined by the ordinance or the commission\u2019s rules of procedure.\u201d N.C. Gen. Stat. \u00a7 160A-400.9(d) (2006). The Beaufort Zoning Ordinance and the HPC Rules of Procedure establish that failure to approve or deny a completed application for a COA within sixty days following its submission results in the approval and issuance of the COA. See Beaufort, N.C., Zoning Ordinance \u00a7 13.4 (2006) and Beaufort, N.C., Historic District Commission Rules of Procedure, Rule 7.06 (2006). Thus, where the HPC fails to act within sixty days following the submission of a completed COA application, the approval of a COA is a ministerial rather than a discretionary function.\nHere, Meares filed with the HPC his second application for a COA on 15 February 2006. On 30 March 2006, Meares filed in Carteret County Superior Court a petition for writ of mandamus and complaint to compel a hearing on his second application. In their answer filed 5 June 2006, defendants admit the HPC declined to process or consider the second application. In its order granting Meares\u2019 motion, the trial court noted the uncontested fact that the HPC failed to act on Meares\u2019 application within the sixty-day review period and issued a writ of mandamus ordering defendants to issue a COA to Meares pursuant to his application.\nAcknowledging the undisputed expiration of the sixty-day window for HPC discretionary review without action and pursuant to the Beaufort Zoning Ordinance and Beaufort HPC Rules of Procedure, we hold the approval of Meares\u2019 second COA application and issuance of the COA was a ministerial duty appropriately compelled by the trial court\u2019s writ of mandamus. Accordingly, defendants\u2019 assignment of error is overruled.\nII & III\nDefendants next argue the trial court lacked subject matter jurisdiction over this action because Meares is not an aggrieved party and its issuance of a writ of mandamus was error because it compels a vain or impossible act. Defendants argue the proposed construction in Meares\u2019 second COA application violates Beaufort Zoning Ordinance setback requirements. Specifically, because Meares\u2019 proposed design does not share a wall with another structure, the construction must set back fifteen feet from its proposed location. Assuming so, defendants argue Meares\u2019 proposal is not capable of being built as designed, and the HPC does not have the discretion to waive zoning ordinance violation enforcement. Therefore, defendants argue the HPC\u2019s failure to act on Meares\u2019 application for a COA resulted in no harm and Meares lacks standing to bring a claim against the town as an aggrieved party. We disagree.\nUnder the Town of Beaufort Zoning Ordinance, section 16.1, \u201c[n]o building or structure or any part thereof shall be erected or structurally altered until a zoning certificate is issued by the Zoning Administrator.\u201d Id. at \u00a7 16.1. Under North Carolina General Statute 160A-388(b), \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 that ordinance.\u201d N.C. Gen. Stat. \u00a7 160A-388(b) (2006). Thus, if a zoning administrator denies a zoning certificate on the grounds that a project does not conform to zoning ordinance setback requirements, this decision can be appealed to the Board of Adjustment.\nUnder the Beaufort Zoning Ordinance, section 14.1, a \u201cnonconforming project\u201d is defined as \u201c[a]ny structure, development, or undertaking that is incomplete at the effective date of this ordinance and would be inconsistent with any regulation applicable to the district in which it is located if completed as proposed or planned.\u201d Beaufort, N.C., Zoning Ordinance \u00a7 14.1 (2006). Under section 14.8, \u201cwork on nonconforming projects may begin . . . only pursuant to a variance issued by the Board of Adjustment.\u201d Id. at \u00a7 14.8(a). Thus, the Board of Adjustment has the authority to issue a variance and allow a nonconforming project to continue.\nDefendants do not allege and, after our review of the Town of Beaufort Zoning Ordinance, we do not hold the issuance of a COA by the HPC is dependent upon the issuance of a zoning certificate. Thus, the HPC\u2019s issuance of a COA is an independent function and not a vain and useless act.\n\u201cA person aggrieved is one adversely affected in respect of legal rights, or suffering from an infringement or denial of legal rights.\u201d County of Johnston v. City of Wilson, 136 N.C. App. 775, 779, 525 S.E.2d 826, 829 (2000) (citation and quotation omitted). As previously stated, to erect a structure in the Beaufort Historic District, the Beaufort HPC must receive and approve an application for a COA. See Beaufort, N.C., Zoning Ordinance \u00a7 13.4.\nSeeking to erect a structure on a lot he owned, Meares submitted a COA application to the HPC. Defendants concede that \u201cthe HPC has declined to process or consider\u201d Meares\u2019 second application. By failing to address Meares\u2019 application for a COA, we hold Meares suffered a denial of legal rights. Thus, Meares is an aggrieved party, and defendants\u2019 assignments of error are overruled.\nIV\nDefendants next question whether the trial court erred in denying defendants\u2019 motion for summary judgment and granting Meares\u2019 petition for mandamus where the HPC informed Meares through counsel the HPC would not address his second application while the denial of the first application was on appeal. Defendants argue that a communication to Meares that his application would not be approved constitutes final action by the HPC. We disagree.\nUnder the Town of Beaufort Zoning Ordinance, section 13, \u201c[a]ll complete applications for [COAs] shall be reviewed and acted upon within a reasonable time and within sixty (60) days from the date said complete application for a [COA] is filed with the [HPC] . . . .\u201d Id. at \u00a7 13.7. \u201cUpon approval of any application for a [COA], ... [a] report of the [HPC\u2019s] actions shall be submitted to the Town Manager and the Town Building Inspector stating the basis upon which such approval was made.\u201d Id. at \u00a7 13.8 (2006). \u201cIn the case of disapproval of any application for a [COA], the [HPC] shall state the reasons therefore in writing in terms of design, arrangements, texture, material, color, and other factors involved.\u201d Id. at \u00a7 13.9.\nHere, Meares submitted a second COA application dated 15 February -2006 to the HPC. The HPC failed to approve or deny the application. The communication to which defendants refer came from the Town Attorney and occurred on 18 January 2006, a month prior to Meares\u2019 submission of his second application in February. The Town Attorney never indicated he was acting on behalf of the HPC. Specifically, he acknowledged being \u201clittle more than [an] observer[] in this process.\u201d Therefore, the Town Attorney\u2019s communication does not qualify as action by the HPC. And since there was no formal denial of the second application, the trial court properly ruled the application approved by operation of law. See Id. at \u00a7 13.8. Accordingly, defendants\u2019 assignment of error is overruled.\ny\nDefendants next question whether the trial court erred in concluding that Meares\u2019 second application meets the requirements of the town\u2019s zoning ordinance. Defendants argue that the trial court usurped the function of the zoning administrator. We disagree.\nAs discussed earlier (see section II & III), the issuance of a COA by the HPC and the issuance of a zoning certificate by the zoning administrator are independent functions. The trial court granted Meares\u2019 motion for summary judgment and ordered defendants to issue a COA. The trial court issued' no order compelling the zoning administrator to any action or forbearance. Thus, the trial court did not usurp the authority of the zoning administrator. Accordingly, defendants\u2019 assignment of error is overruled.\nVI\nDefendants argue the trial court erred by concluding the Town was estopped from enforcing its zoning ordinance. Defendants\u2019 argument is misplaced.\nHere, the trial court granted Meares\u2019 motion for summary judgment, denied defendants\u2019 motion for summary judgment, and ordered defendants to issue a COA to Meares. In its conclusions of law, the trial court cited the HPC Rules of Procedure, entitled \u201cCOA Application Review and Processing,\u201d which provide that \u201c[t]he Zoning Officer will review the [COA] Application for compliance with the zoning ordinance,\u201d and that \u201c[applications that are not in compliance with zoning and other Town code provisions will be returned to the applicant and will not be forwarded to the commission for review.\u201d\nThe trial court concluded that as defendants failed to notify Meares within the sixty-day window that the HPC declined to process, consider, or act on Meares\u2019 second application, \u201cit is fair and reasonable for [Meares] ... to conclude that [his] Second Application complies with the Town\u2019s Zoning Ordinance and other Town code provisions, and the Defendants are estopped from contending otherwise.\u201d\nWe note our discussion under (V), reasoning that the trial court order compelling the HPC to issue a COA did not encroach upon the jurisdiction of the zoning administrator. Under Beaufort Zoning Ordinance section 18.5, \u201c[a]n appeal may be taken to the Board of Adjustment by any person aggrieved by a decision of any officer, department or board of the town relative to enforcement of interpretation of this [zoning] ordinance.\u201d Id. at \u00a7 18.5. Furthermore, \u201c[e]very decision of the Board of Adjustment shall be subject to review by the Superior Court by proceedings in the nature of certiorari.\u201d Id. at \u00a7 18.6.\nThe denial of a zoning certificate was not an issue before the Carteret County Superior Court. Moreover, the zoning administrator and the Board of Adjustment are not parties to the current action. Therefore, we hold the trial- court order ruling that \u201cDefendants are estopped from contending\u201d Meares\u2019 second application does not comply with the Town\u2019s zoning ordinance does not'infringe upon the authority vested by the zoning ordinance in the zoning administrator, the Board of Adjustment, or other parties not joined in this matter. See N.C. Gen. Stat. \u00a7 1-260 (2007) (\u201cno declaration shall prejudice the rights of persons not parties to the proceedings.\u201d).\nVII\nDefendants next question whether the trial court lacked subject matter jurisdiction to hear Meares\u2019 complaint. Defendants argue the HPC\u2019s denial of Meares\u2019 first application for a COA and the subsequent appeal from that denial (A) divested the trial court of jurisdiction to consider a second application for a certificate to develop the same property. In the alternative, defendants argue (B) that once Meares filed a complaint in Superior Court, the HPC was divested of jurisdiction to address Meares\u2019 application. Defendants also argue that because Meares filed his complaint within sixty days of filing his application with the HPC, he cannot assert that the HPC failed to act on his application within the sixty-day time frame. We disagree.\nA\nDefendants argue that when Meares filed his first COA application, the HPC was divested of jurisidiction to consider a second application. Pursuant to the Town of Beaufort Zoning Ordinance, \u201c[i]t shall be the function of the [HPC] to review and pass upon the appropriateness of exterior features of buildings, structures, and properties within the Historic District.\u201d Beaufort, N.C., Zoning Ordinance \u00a7 13.6(c). Since the function of the HPC is to consider the appropriateness of the exterior features proposed, see Id. at \u00a7 13.6(b), and we find no provision in the Town of Beaufort Zoning Ordinance or the Rules of Procedure of the Beaufort Historic District Commission which precludes the submission of alternative design proposals to the HPC, defendants\u2019 argument is overruled.\nB\nDefendants further argue that when Meares filed a complaint in Carteret County Superior Court, the HPC was divested of jurisdiction to address Meares\u2019 application. However, \u201c[t]he issuance of a writ of mandamus is an exercise of original and not appellate jurisdiction ____\u201d Baker v. Varser, 239 N.C. 180, 189, 79 S.E.2d 757, 764 (1954) (citation omitted). \u201cThis extraordinary remedy is not a proper instrument to review or reverse an administrative board which has taken final action on a matter within its jurisdiction.\u201d Snow v. North Carolina Bd. of Architecture, 273 N.C. 559, 570, 160 S.E.2d 719, 727 (1968) (citation and quotations omitted). We hold the HPC retained jurisdiction to address Meares\u2019 COA application during the sixty-day period prescribed by the Beaufort Zoning Ordinance following submission of the application. See Beaufort, N.C., Zoning Ordinance \u00a7 13.8 (2006) (\u201cUpon failure of the [HPC] to take final action upon a complete application within sixty (60) days after the final application for the [COA] has been submitted ... the application for a [COA] shall be deemed to have been approved . . . .\u201d). Accordingly, defendants\u2019 assignment of error is overruled.\nVIII\nDefendants next argue Meares failed to exhaust his administrative remedies by failing to appeal to the Board of Adjustment, the appellate body charged with appeals from the HPC and therefore, the trial court lacked jurisdiction to address Meares\u2019 complaint and petition. We disagree.\nPursuant to Beaufort Zoning Ordinance, section 18.5, \u201c[a]n appeal may be taken to the Board of Adjustment by any person aggrieved by a decision of any officer, department or board of the town relative to enforcement or interpretation of this ordinance.\u201d Id. at \u00a7 18.5. Here, the HPC, in their answer to Meares\u2019 complaint filed in Carteret County Superior Court, averred that \u201cthe HPC has declined to process or consider [Meares\u2019] Second Application.\u201d Thus, the HPC failed to render a decision from which Meares could appeal. See Robins v. Town of Hillsborough, 361 N.C. 193, 198, 639 S.E.2d 421, 424 (2007) (\u201ca [town board] conducting a quasi-judicial hearing can dispense with no essential element of a fair trial. One of those essential elements is that any decision . . . has to be based on competent, material, and substantial evidence that is introduced at a public hearing. Accordingly, it is impossible for a court reviewing a town board\u2019s decision to do so unless the town board actually renders that decision.\u201d) (citations and emphasis omitted).\nThe function of mandamus is to compel the performance of a ministerial duty to which the one seeking the performance has a clear legal right. Ponder, 262 N.C. at 504, 138 S.E.2d at 149. Meares\u2019 initial petition for a writ for mandamus sought to compel the HPC to consider his second COA application. See discussion supra Part II & III. We hold the HPC\u2019s consideration of Meares\u2019 COA application was a performance to which Meares had a clear legal right. Accordingly, defendants\u2019 assignment of error is overruled.\nIX\nDefendants next argue that the trial court erred in issuing a writ of mandamus compelling the HPC to issue a COA for Meares\u2019 second COA application because public policy precludes the HPC from processing multiple COA applications for the same site. We disagree.\nDefendants cite Winchester Woods Assoc. v. Planning & Zoning Comm., 219 Conn. 303, 592 A.2d 953 (1991), for the proposition that public policy allows the HPC the discretionary authority to refuse to accept a second application due to the pending appeal of a first application. Though not binding on the matter, we note that Winchester involved the interpretation of Connecticut General Statute section 8-26, which states \u201c[n]o planning commission shall be required to consider the application for approval of a subdivision plan while another application for subdivision of the same or substantially the same parcel is pending before the commission.\u201d Conn. Gen. Stat. \u00a7 8-26 (1989). We also note that the Supreme Court of Connecticut held that where the planning commission denied the plaintiff\u2019s second application \u201cwithout any consideration of whether that application differed substantively from the plaintiff\u2019s [first] application\u201d there was an abuse of discretion. Winchester, 219 Conn, at 312, 592 A.2d at 958.\nAs defendants have provided this Court with no basis for a determination that public policy grants the HPC the authority to refuse to process or consider an application for a COA, we overrule defendant\u2019s assignment of error.\nX\nDefendants next argue the trial court erred in denying a stay of the judgment pending appeal. Defendants argue that under General Statute section 1-291, where an appellant, having been directed to execute an \u201cinstrument\u201d does, in fact, execute such instrument and deposits the same with the Clerk of Court, agreeing to be bound by the judgment of the appellate courts, an automatic stay should be entered.\nUnder North Carolina Rules of Civil Procedure, Rule 62(d), \u201c[w]hen an appeal is taken, the appellant may obtain a stay of execution ... by proceeding in accordance with and subject to the conditions of . . . G.S. 1-291 . . . .\u201d N.C. R. Civ. 62(d) (2007) (emphasis added). Under North Carolina General Statute section 1-291,\n[i]f the judgment appealed from directs the execution of a conveyance or other instrument, the execution of the judgment is not stayed by the appeal until the instrument has been executed and deposited with the clerk with whom the judgment is entered, to abide the judgment of the appellate court.\nN.C. Gen. Stat. \u00a7 1-291 (2007). Cf. Wilmington Star-News v. New Hanover Regional Medical Ctr., 125 N.C. App. 174, 183, 480 S.E.2d 53, 58 (1997) (\u201cthe trial court possesses the legal authority to stay its own orders pending appeal in cases involving the Public Records Act.\u201d). We do not read N.C.G.S. \u00a7 1-291 to require that a stay is compelled upon satisfaction of the criteria under N.C.G.S. \u00a7 1-291. Accordingly, defendants\u2019 assignment of error is overruled.\nXI\nDefendants next argue the trial court erred in refusing to stay the judgment under Civil Procedure Rule 62. Defendants argue that their appeal is meritorious and enforcement of the judgment would irreparably harm the town by foregoing HPC review to determine if Meares\u2019 development was in congruity with the character of Beaufort\u2019s Historic District.\n\u201cWhen evaluating the propriety of a trial court\u2019s stay order the appropriate standard of review is abuse of discretion. A trial court may be reversed for abuse of discretion only if the trial court made a patently arbitrary decision, manifestly unsupported by reason.\u201d Home Indem. Co. v. Hoechst Celanese Corp., 128 N.C. App. 113, 117-18, 493 S.E.2d 806, 809 (1997) (citations omitted).\nIn Abbott v. Highlands, 52 N.C. App. 69, 277 S.E.2d 820 (1981), this Court considered a trial court\u2019s grant of a motion to stay its judgment pending appeal, which prevented a town from taxing the plaintiffs\u2019 pending appeal. Id. at 79, 277 S.E.2d at 827. We reasoned that there was some likelihood the plaintiffs\u2019 arguments could have prevailed on appeal and thus were not wholly frivolous. We held that the trial court\u2019s grant of the stay was not an abuse of discretion. Id.\nHere, the trial court denied defendants\u2019 motion to stay or enjoin enforcement of the judgment pending the appeal and ordered that the COA executed by defendants be released and delivered by the Clerk of Superior Court to Meares. Acknowledging the merit of defendants\u2019 arguments on appeal we cannot say the appeal was frivolous. Nevertheless, we' find no abuse of discretion by the trial court in releasing the COA to Meares. Accordingly, defendants\u2019 assignment of error is overruled.\nXII\nLast, defendants argue the trial court erred in refusing to enter a stay where Meares, in his response in opposition to defendants\u2019 verified motion to stay or enjoin enforcement of judgment pending appeal, argued for the first time that the doctrine of laches precluded defendants from contending that Meares\u2019 second COA application does not comply with the Town of Beaufort Zoning Ordinance and other town code provisions.\nWe note that while Meares does argue the doctrine of laches in his response to defendants\u2019 motion to stay or enjoin enforcement of the judgment pending appeal, this is one of ten arguments Meares raises against defendants\u2019 motion to stay or enjoin the judgment. Accordingly, defendants\u2019 assignment of error is overruled.\nAffirmed.\nJudges HUNTER and STROUD concur.\n. Companion case Meares v. Town of Beaufort, COA07-889, referred to herein as \u201cMeares (I),\u201d also heard in the Court of Appeals on 20 February 2008 with the instant case, referred to herein as \u201cMeares (II).\u201d\n. Approval by the Commission. \u201cUpon the failure of the [HPC] to take final action upon a complete application within sixty (60) days after the final application for the [COA] has been submitted . . . the application for a [COA] shall be deemed to have been approved, except when mutual agreement in writing has been made with regard to an extension of the time limit.\u201d Beaufort, N.C., Zoning Ordinance \u00a7 13.8.\nBeaufort, N.C., Zoning Ordinance \u00a7 13.8. Approval by the Commission. \u201cUpon approval of any application for a [COA], the [HPC] shall forthwith cause a [COA] to be issued to the applicant. . . .\u201d\n. \u201cThe [HPC] must issue or deny [COA] within sixty days after the filing of the application, except when limit has been extended by mutual agreement between the applicant and the [HPC].\u201d Beaufort, N.C., Historic District Commission Rules of Procedure, Rule 7.06. Time for Decision.\n. Zoning Ordinance of the Town of Beaufort, North Carolina. Section 13.6. Powers and Duties of the Historic Preservation Commission. Subsection (b). \u201cIt shall be the function of the [HPC] to review and pass upon the appropriateness of the construction, reconstruction, alteration, restoration, moving or demolition of any buildings, structures, appurtenant fixtures, outdoor advertising signs, or other exterior features in the historic district. . . .\u201d Subsection (c). \u201cIt shall be the function of the [HPC] to review and pass upon the appropriateness of exterior features of buildings, structures and properties within the \u2018Historic District\u2019.\u201d\n. Defendants refer to N.C. Gen. Stat. \u00a7 1A-1, Rule 62, \u201cStay of proceedings to enforce a judgment.\u201d", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Poyner & Spruill, LLP, by Robin Tatum Currin, for plaintiffappellee.", "Cranfill, Sumner & Hartzog, L.L.P, by Susan K. Burkhart, and Kirkman, Whitford & Brady, P.A., by Neil B. Whitford, Esq., for defendant-appellants." ], "corrections": "", "head_matter": "CARL W. MEARES, JR., Plaintiff v. TOWN OF BEAUFORT, TOWN OF BEAUFORT HISTORIC PRESERVATION COMMISSION, LINDA DARK, MIKE MENARY, DELORES MEELHEIM, CAROL SADLER, AND GINNY WELTON, Defendants\nNo. COA07-882\n(Filed 7 October 2008)\n1. Zoning\u2014 historic preservation district \u2014 failure to act on application for building \u2014 writ of mandamus\nA writ of mandamus was properly issued to require a Certificate of Appropriateness for building in a historic district where the .zoning ordinance and the rules of procedure for the Historic Preservation Commission provided that failure to act on an application for a permit within 60 days results in approval and issuance of the permit, and the expiration of 60 days in this case is undisputed.\n2. Zoning\u2014 building in historic district \u2014 subject matter jurisdiction\nThe trial court had subject matter jurisdiction over an action concerning the issuance of a Certificate of Appropriateness (COA) for building in a historic district. Plaintiff is an aggrieved party because the Historic Preservation Commission declined to consider his second application for the certificate to erect a building on a lot he owned, and the writ of mandamus did not require a vain act, despite the argument that the proposed building violates a zoning ordinance, because the issuance of the COA is an independent function and is not dependent on the issuance of a zoning certificate.\n3. Zoning\u2014 historic district \u2014 application for building \u2014 automatic approval without action \u2014 informal communication\u2014 not an action\nThe trial court properly ruled that an application for a Certificate of Appropriateness for building in a historic district was approved by operation of law where the application was automatically \u25a0 approved if no action was taken in 60 days. Although defendants argue that the Historic Preservation Commission (HPC) acted when the town attorney informed plaintiff that the Commission would not act on this application while an earlier application was pending, there was no formal denial and the attorney\u2019s communication does not qualify as action by the HPC.\n4. Zoning\u2014 historic district \u2014 certificate for building \u2014 independent from zoning certificate\nThe trial court did not usurp the authority of the town\u2019s zoning administrator by ordering the issuance of a Certificate of Appropriateness for building in a historic district. The issuance of a COA by the Historic Preservation Commission and the issuance of a zoning certificate are independent functions.\n5. Zoning\u2014 certificate to build in historic district \u2014 estoppel to enforce zoning \u2014 neither parties nor issue before trial court\nThe argument that the trial court erred by ruling that a town was estopped from enforcing a zoning ordinance was misplaced where the issue before the trial court was the issuance of a Certificate of Appropriateness by a Historic Preservation Commission. The denial of a zoning certificate was not an issue before the trial court, and the zoning administrator and the Board of Adjustment were not parties to the current action.\n6. Zoning\u2014 historic preservation \u2014 application to build \u2014 subsequent application \u2014 jurisdiction to consider\nThe first application to a Historic Preservation Commission to build in a historic area did not divest the Commission of jurisdiction to consider a subsequent application. There is no provision which precludes submission of alternative design proposals.\n7. Zoning\u2014 historic district \u2014 application to build \u2014 petition in Superior Court \u2014 continuing jurisdiction of Commission\nA Historic Preservation Commission was not divested of jurisdiction to address an application for a Certificate of Appropriateness to build in a historic area by the filing of a petition seeking a writ of mandamus. The issuance of a writ of mandamus is an exercise of original and not appellate jurisdiction.\n8. Zoning\u2014 historic district \u2014 building\u2014mandamus\u2014exhaustion of administrative remedies\nThe trial court did not lack jurisdiction to address a petition for a writ of mandamus concerning a permit to build in a historic district where plaintiff had allegedly failed to exhaust his administrative remedies. The Historic Preservation Commission did not render a decision from which plaintiff could appeal and the petition for a writ of mandamus sought to compel consideration of the application.\n9. Zoning\u2014 historic district \u2014 certificate allowing building\u2014 multiple applications\nThe trial court did not err by issuing a writ of mandamus compelling a Historic Preservation Commission to issue a Certificate of Appropriateness (COA) for a building where the application in question was plaintiffs second for the same property and defendants contended that public policy precludes processing multiple applications for the same site. Defendants provided no basis for determining that public policy grants the Commission the authority to refuse to process or consider an application for a COA.\n10. Mandamus\u2014 historic district building certificate \u2014 stay\u2014 statutory criteria\nThe trial court did not err by refusing to stay a writ of mandamus pending appeal. N.C.G.S. \u00a7 1-291 does not require a stay upon satisfaction of statutory criteria.\n11. Mandamus\u2014 stay denied \u2014 no abuse of discretion\nThe trial court did not abuse its discretion by not staying a writ of mandamus under N.C.G.S. \u00a7 1A-1, Rule 62.\n12. Mandamus\u2014 building in historic district \u2014 stay denied\u2014 multiple reasons\nThe trial court did not abuse its discretion by refusing to stay a writ of mandamus involving building in a historic district. Defendants argued that plaintiff raised the doctrine of laches for the first time in opposition to the stay, but this was only one of 10 arguments raised by plaintiff.\nAppeal by defendants from order entered 31 May 2007 by Judge John E. Nobles in Carteret County Superior Court. Heard in the Court of Appeals 20 February 2008.\nPoyner & Spruill, LLP, by Robin Tatum Currin, for plaintiffappellee.\nCranfill, Sumner & Hartzog, L.L.P, by Susan K. Burkhart, and Kirkman, Whitford & Brady, P.A., by Neil B. Whitford, Esq., for defendant-appellants." }, "file_name": "0049-01", "first_page_order": 81, "last_page_order": 96 }