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  "name": "ROBERT A. IZYDORE, Petitioner v. CITY OF DURHAM (DURHAM BOARD OF ADJUSTMENT), Respondent, and SUN RIVER BUILDERS SIGNATURE HOMES, INC., STACY A. CRABTREE, Respondents/Necessary Parties",
  "name_abbreviation": "Izydore v. City of Durham",
  "decision_date": "2013-08-06",
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    "judges": [
      "Judges McGEE and GEER concur."
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    "parties": [
      "ROBERT A. IZYDORE, Petitioner v. CITY OF DURHAM (DURHAM BOARD OF ADJUSTMENT), Respondent, and SUN RIVER BUILDERS SIGNATURE HOMES, INC., STACY A. CRABTREE, Respondents/Necessary Parties"
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      {
        "text": "DAVIS, Judge.\nPetitioner Robert A. Izydore (\u201cpetitioner\u201d) appeals from the trial court\u2019s order denying his petition to recover attorney\u2019s fees from respondents City of Durham (\u201cthe City\u201d), Durham City-County Board of Adjustment (\u201cthe Board\u201d), and Durham City-County Planning Department (\u201cthe Department\u201d) (collectively \u201crespondents\u201d). After careful review, we affirm.\nFactual Background\nOn 18 May 2009, petitioner filed a protest with the Department, challenging its issuance of building permits allowing his neighbor, Stacy A. Crabtree (\u201cCrabtree\u201d), to divide her lot into two smaller lots and to allow Sim River Builders Signature Homes, Inc. to build separate houses on each lot. After the Department rejected his protest, petitioner appealed to the Board. The Board considered petitioner\u2019s appeal during a hearing held on 28 July 2009 and issued a decision on 22 September 2009 rejecting his appeal.\nBy writ of certiorari, petitioner obtained judicial review of the Board\u2019s decision, and the trial court remanded the matter to the Board on 28 June 2010 for a new hearing. On remand, the Board again rejected petitioner\u2019s appeal in a decision issued 7 December 2010. The trial court issued a second writ of certiorari on 5 January 2011 to review the Board\u2019s 7 December 2010 decision. In an order and judgment entered 15 September 2011, the trial court remanded the case to the Board with instructions to revoke the building permits pertaining to Crabtree\u2019s property. None of the parties sought post-judgment relief from the 15 September 2011 order and judgment, and no appeal was taken.\nOn 16 November 2011, petitioner filed a petition, along with supporting affidavits, seeking the recovery of attorney\u2019s fees from respondents pursuant to N.C. Gen. Stat. \u00a7 6-19.1. The trial court, after conducting a hearing, issued an order on 8 May 2012 denying the petition on the ground that it lacked authority to award attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 6-19.1. Petitioner appealed to this Court.\nAnalysis\nN.C. Gen. Stat. \u00a7 6-19.1 provides, in pertinent part, as follows:\n(a) In any civil action, other than an adjudication for the purpose of establishing or fixing a rate, or a disciplinary action by a licensing board, brought by the State or brought by a party who is contesting State action pursuant to G.S. 150B-43 or any other appropriate provisions of law, unless the prevailing party is the State, the court may, in its discretion, allow the prevailing party to recover reasonable attorney\u2019s fees, including attorney\u2019s fees applicable to the administrative review portion of the case, in contested cases arising under Article 3 of Chapter 150B, to be taxed as court costs against the appropriate agency if:\n(1) The court finds that the agency acted without substantial justification in pressing its claim against the party; and\n(2) The court finds that there are no special circumstances that would make the award of attorney\u2019s fees unjust. The party shall petition for the attorney\u2019s fees within 30 days following final disposition of the case. The petition shall be supported by an affidavit setting forth the basis for the request.\nN.C. Gen. Stat. \u00a7 6-19.1(a)(l)-(2) (2011).\nHere, the trial court - in interpreting \u00a7 6-19.1 - concluded that\n[t]he Respondent City, Durham City/County Planning Department and the Durham City/County Board of Adjustment are \u201clocal governmental units\u201d and are not agencies within the meaning of the term in N.C.G.S. 6-19.1 or 150B-43, and their decisions do not constitute \u201cState action pursuant to G.S. 150B-43 or any other appropriate provisions of law,\u201d pursuant to G.S. 6-19.1.\n(Emphasis in original.)\nPetitioner contends that the trial court erred in concluding that respondents are not \u201cagencies\u201d and that their decisions do not constitute \u201cState action\u201d for purposes of \u00a7 6-19.1. Issues regarding statutory interpretation are questions of law and, as such, are subject to de novo review on appeal. In re Ernst & Young, LLP, 363 N.C. 612, 616, 684 S.E.2d 151, 154 (2009).\n\u201cThe primary objective of statutory interpretation is to ascertain and effectuate the intent of the legislature.\u201d McCracken & Amick, Inc. v. Perdue, 201 N.C. App. 480, 485, 687 S.E.2d 690, 694 (2009), disc. review denied, 364 N.C. 241, 698 S.E.2d 400 (2010). Thus, as a general rule, courts should give \u201cthe language of the statute its natural and ordinary meaning unless the context requires otherwise.\u201d Turlington v. McLeod, 323 N.C. 591, 594, 374 S.E.2d 394, 397 (1988).\nWe are also mindful of the principle that because statutes authorizing the award of attorney\u2019s fees are in derogation of the common law, they must be strictly construed. Sunamerica Fin. Corp. v. Bonham, 328 N.C. 254, 257, 400 S.E.2d 435, 437 (1991). As such, \u201ceverything [should] be excluded from [the statute\u2019s] operation which does not clearly come within the scope of the language used....\u201d Harrison v. Guilford County, 218 N.C. 718, 722, 12 S.E.2d 269, 272 (1940) (citation and quotation marks omitted); accord N.C. Baptist Hosps., Inc. v. Crowson, 155 N.C. App. 746, 750, 573 S.E.2d 922, 924, aff\u2019d per curiam, 357 N.C. 499, 586 S.E.2d 90 (2003).\nNeither \u00a7 6-19.1 nor Chapter 6 of the General Statutes in its entirety provides a definition of the terms \u201cagency\u201d or \u201cState action.\u201d Section 6-19.1 does, however, twice reference Chapter 150B of the North Carolina General Statutes, which contains North Carolina\u2019s Administrative Procedure Act (\u201cAPA\u201d). Although the APA nowhere defines the phrase \u201cState action,\u201d it does define the term \u201cagency\u201d as follows:\n\u201cAgency\u201d means an agency or an officer in the executive branch of the government of this State and includes the Council of State, the Governor\u2019s Office, a board, a commission, a department, a division, a council, and any other unit of government in the executive branch. A local unit of government is not an agency.\nN.C. Gen. Stat. \u00a7 150B-2(1a) (2011) (emphasis added).\nThus, because comities and municipalities are considered local units of government, they do not constitute \u201cagencies\u201d for purposes of the APA. See Coomer v. Lee County Bd. of Educ.,_N.C. App._,_, 723 S.E.2d 802, 803 (holding that county board of education was not \u201cagency\u201d under APA), disc. review denied,_N.C._, 731 S.E.2d 428 (2012); Lee Ray Bergman Real Estate Rentals v. N. C. Fair Housing Ctr., 153 N.C. App. 176, 179, 568 S.E.2d 883, 885 (2002) (concluding that city human relations department was not \u201cagency\u201d for purposes of APA).\nPetitioner concedes that respondents do not fall within the APA\u2019s definition of an \u201cagency.\u201d Nevertheless, he argues - without citing any supporting authority - that despite \u00a7 6-19. 1\u2019s multiple references to the APA, \u00a7 6-19. 1\u2019s use of the term \u201cagency\u201d should be read \u201cwithout qualification\u201d to include \u201call levels\u201d of government within our State, including local governmental units. Based on the plain language of \u00a7 6-19.1, our caselaw interpreting the statute, and other provisions of the General Statutes, w;e conclude that local governmental units - such as respondents in this case - do not constitute \u201cagencies\u201d for purposes of \u00a7 6-19.1.\nN.C. Gen. Stat. \u00a7 6-19. 1\u2019s limitation of attorney\u2019s fees to those civil actions with \u201cState\u201d involvement coupled with its repeated references to the APA strongly suggest that the legislature intended for the statute to apply to entities falling within the APA\u2019s definition of the term \u201cagency\u201d as set out in N.C. Gen. Stat. \u00a7 150B-2(1a). This interpretation of the statute is supported by our Supreme Court\u2019s decision in Crowell Constructors, Inc. v. State ex rel. Cobey, 342 N.C. 838, 467 S.E.2d 675 (1996), where the Court illuminated the purpose behind \u00a7 6-19.1, stating as follows: \u201cOur legislature, in enacting N.C.G.S. \u00a7 6-19.1 in order that a prevailing party may recover its reasonable attorney\u2019s fees when a State agency has pressed a claim against that party \u2018without substantial justification,\u2019 obviously sought to curb unwarranted, ill-supported suits initiated by State agencies.\u201d Id. at 844, 467 S.E.2d at 679 (emphasis added). This language reflects the Supreme Court\u2019s recognition of the General Assembly\u2019s intent that \u00a7 6-19.1 apply only in those civil actions involving actual agencies of the State.\nAn examination of other cost-shifting provisions in Chapter 6 of the General Statutes further confirms our conclusion that local governmental units - such as respondents - are not \u201cagencies\u201d for purposes of \u00a7 6-19.1. Most notably, N.C. Gen. Stat. \u00a7 6-21.7 (captioned \u201cAttorneys\u2019 fees; cities or counties acting outside the scope of their authority\u201d), provides as follows:\nIn any action in which a city or county is a party, upon a finding by the court that the city or county acted outside the scope of its legal authority, the court may award reasonable attorneys\u2019 fees and costs to the party who successfully challenged the city\u2019s or county\u2019s action, provided that if the court also finds that the city\u2019s or county\u2019s action was an abuse of its discretion, the court shall award attorneys\u2019 fees and costs.\nN.C. Gen. Stat. \u00a7 6-21.7 (2011) (emphasis added).\nBy its plain language, \u00a7 6-21.7 substantially parallels \u00a7 6-19.1, but instead of applying to State agencies, it expressly applies to cities and counties. Moreover, rather than addressing State action, it instead encompasses action by local governments. Were we to adopt petitioner\u2019s reading of \u00a7 6-19.1 - that all local governmental units are \u201cagencies\u201d for purposes of \u00a7 6-19.1 - then \u00a7 6-21.7 would be rendered superfluous. Such an interpretation would run afoul of the well-established principle of statutory construction that \u201c[statutes dealing with the same subject matter must be construed in pari materia, as together constituting one law, and harmonized to give effect to each.\u201d Williams v. Williams, 299 N.C. 174, 180-81, 261 S.E.2d 849, 854 (1980) (internal citations omitted and emphasis added); see HCA Crossroads Residential Ctrs., Inc. v. N.C. Dep't of Human Res., 327 N.C. 573, 578, 398 S.E.2d 466, 470 (1990) (rejecting interpretation of statute that rendered portion redundant).\nWhile petitioner attempts to rely on our Supreme Court\u2019s decision in Able Outdoor, Inc. v. Harrelson, 341 N.C. 167, 459 S.E.2d 626 (1995), Able does not support his position. Petitioner reads Able as standing for the proposition that attorney\u2019s fees are recoverable under \u00a7 6-19.1 from any governmental entity so long as there is a statutory provision allowing judicial review of the entity\u2019s final decisions. Contrary to petitioner\u2019s contention, however, the Court in Able did not hold that attorney\u2019s fees are recoverable under \u00a7 6-19.1 whenever judicial review is provided by statute. Rather, the Court held that when a statute authorizes a de novo hearing in the trial court as a means of judicial review of an administrative decision, the court also possesses subject matter jurisdiction to consider a petition for attorney\u2019s fees at that same time. Id. at 171, 459 S.E.2d at 628.\nNevertheless, under \u00a7 6-19.1, the trial court may award attorney\u2019s fees only in those \u201cinstances\u201d set out in the statute. Id. at 170,459 S.E.2d at 628. Able does not change the fact that \u00a7 6-19. 1\u2019s requirements for the recovery of attorney\u2019s fees must still be satisfied; the Court simply clarified that the trial court has the jurisdiction to determine whether those requirements have been met as part of the trial court\u2019s determination of the entire case upon judicial review. As the issue in the present case is not whether the trial court had jurisdiction under \u00a7 6-19.1, but rather, whether the substantive elements of the statute have been satisfied, we find Abie inapplicable.\nConclusion\nIn sum, we conclude that the City of Durham, the Durham City-County Board of Adjustment, and the Durham City-County Planning Department are not \u201cagencies\u201d for purposes of N.C. Gen. Stat. \u00a7 6-19.1. Consequently, the trial court properly denied petitioner\u2019s petition for attorney\u2019s fees.\nAFFIRMED.\nJudges McGEE and GEER concur.\n. Because Sun River Builders Signature Homes, Inc. and Crabtree were not parties to the proceeding regarding petitioner\u2019s entitlement to attorney\u2019s fees, they are not parties to the present appeal.\n. The only case identified by petitioner recognizing an exception to this rule is Early v. County of Durham Dep\u2019t of Soc. Servs., 172 N.C. App. 344, 616 S.E.2d 553 (2005), disc. review improvidently allowed, 361 N.C. 113, 637 S.E.2d 539 (2006). In Early, this Court affirmed the trial court\u2019s award of attorney\u2019s fees under \u00a7 6-19.1 in favor of a former employee of a county department of social services against the department. Id. at 365, 616 S.E.2d at 567. Early does not expressly address the question of whether the General Assembly intended to include a local department of social services within its use of the term \u201cagency\u201d in \u00a7 6-19.1. However, the Court in Early stated that \u00a7 6-19.1 \u201cauthorizes a superior court to award fees to [an] employee of a county Department of Social Services who has prevailed under the [State Personnel Act].\u201d Id. (emphasis added). Thus, Early stands at most for the proposition that the award of attorney\u2019s fees against a local department of social services under \u00a7 6-19.1 is permissible in connection with a contested case filed by an aggrieved employee under the State Personnel Act. See Cunningham v. Catawba County, 128 N.C. App. 70, 72, 493 S.E.2d 82, 84 (1997) (observing that while local social services departments \u201care not agencies within the meaning of the [APA],\u201d their employees are \u201csubject to the provisions of the [State Personnel Act]\u201d and thus are entitled to \u201c \u2018commence a contested case under [the APA]\u201d\u2019 (quoting N.C. Gen. Stat. \u00a7 150B-23(a) and citing N.C. Gen. Stat. \u00a7 126-37(a)). Early, however, does not stand for the much broader proposition, advanced by petitioner, that attorney\u2019s fees may be awarded under \u00a7 6-19.1 against any unit of local government.\n. Because we conclude that respondents are not \u201cagencies\u201d for purposes of \u00a7 6-19.1, we need not address whether their actions constitute \u201cState action\u201d under the statute.",
        "type": "majority",
        "author": "DAVIS, Judge."
      }
    ],
    "attorneys": [
      "Law Offices of Hayes Hofler, P.A., by R. Hayes Hofler, III, for petitioner-appellant.",
      "Office of the City Attorney, byEmanuelD. McGirt, Senior Assistant City Attorney, for respondents-appellees City of Durham, Durham City-County Board of Adjustment, and Durham City-County Planning Department."
    ],
    "corrections": "",
    "head_matter": "ROBERT A. IZYDORE, Petitioner v. CITY OF DURHAM (DURHAM BOARD OF ADJUSTMENT), Respondent, and SUN RIVER BUILDERS SIGNATURE HOMES, INC., STACY A. CRABTREE, Respondents/Necessary Parties\nNo. COA12-1284\nFiled 6 August 2013\nAttorney Fees \u2014 denial of petition \u2014 local governmental units\u2014 not agencies\nThe trial court did not err in a case regarding respondents\u2019 issuance of building permits by denying petitioner\u2019s petition to recover attorney fees from respondents under N.C.G.S. \u00a7 6-19.1. Based on the plain language of the statute, our case law interpreting the statute, and other provisions of the General Statutes, local governmental units, such as respondents in this case, do not constitute \u201cagencies\u201d for purposes of \u00a7 6-19.1.\nAppeal by petitioner from order entered 8 May 2012 by Judge Carl R. Fox in Durham County Superior Court. Heard in the Court of Appeals 26 March 2013.\nLaw Offices of Hayes Hofler, P.A., by R. Hayes Hofler, III, for petitioner-appellant.\nOffice of the City Attorney, byEmanuelD. McGirt, Senior Assistant City Attorney, for respondents-appellees City of Durham, Durham City-County Board of Adjustment, and Durham City-County Planning Department."
  },
  "file_name": "0397-01",
  "first_page_order": 407,
  "last_page_order": 413
}
