{ "id": 6767223, "name": "MORNINGSTAR MARINAS/EATON FERRY, LLC, Petitioner v. WARREN COUNTY, NORTH CAROLINA and KEN KRULIK, WARREN COUNTY PLANNING AND ZONING ADMINISTRATOR, IN HIS OFFICIAL CAPACITY, Respondents", "name_abbreviation": "Morningstar Marinas/Eaton Ferry, LLC v. Warren County", "decision_date": "2014-03-18", "docket_number": "No. COA13-458", "first_page": "23", "last_page": "33", "citations": [ { "type": "official", "cite": "233 N.C. App. 23" } ], "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": "649 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639196 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0458-01" ] }, { "cite": "652 S.E.2d 355", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639696 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "357" }, { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/se2d/652/0355-01" ] }, { "cite": "646 S.E.2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638744 ], "year": 2007, "pin_cites": [ { "page": "360", "parenthetical": "\"It is well established that the word 'shall' is generally imperative or mandatory.\" (citations and quotation marks omitted)" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0356-01" ] }, { "cite": "160 S.E.2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "727", "parenthetical": "citations, quotation marks, and italics 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": "citations, quotation marks, and italics omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0559-01" ] }, { "cite": "705 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 617", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "696 S.E.2d 739", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "740" } ], "opinion_index": 0 }, { "cite": "205 N.C. App. 717", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 3734382 ], "year": 2010, "pin_cites": [ { "page": "719" } ], "opinion_index": 0, "case_paths": [ "/nc-app/205/0717-01" ] }, { "cite": "185 N.C. App. 582", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8211509 ], "year": 2007, "pin_cites": [ { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0582-01" ] }, { "cite": "186 N.C. App. 651", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8159584 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc-app/186/0651-01" ] }, { "cite": "553 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2001, "pin_cites": [ { "page": "87", "parenthetical": "\"The word 'shall' is defined as 'must' or 'used in laws, regulations, or directives to express what is mandatory.' \" (citation omitted)" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 401", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11358357 ], "year": 2001, "pin_cites": [ { "page": "405-06", "parenthetical": "\"The word 'shall' is defined as 'must' or 'used in laws, regulations, or directives to express what is mandatory.' \" (citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0401-01" ] }, { "cite": "361 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3735876 ], "year": 2007, "pin_cites": [ { "page": "378", "parenthetical": "\"It is well established that the word 'shall' is generally imperative or mandatory.\" (citations and quotation marks omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0372-01" ] }, { "cite": "341 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "769" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 279", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523255 ], "year": 1986, "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0279-01" ] }, { "cite": "665 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2008, "pin_cites": [ { "page": "59" }, { "page": "59" } ], "opinion_index": 0 }, { "cite": "362 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150160 ], "year": 2008, "pin_cites": [ { "page": "453-54" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0446-01" ] }, { "cite": "712 S.E.2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "379", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "212 N.C. App. 313", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4078621 ], "year": 2011, "pin_cites": [ { "page": "322", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/212/0313-01" ] }, { "cite": "652 S.E.2d 355", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639696 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "358" }, { "page": "358" } ], "opinion_index": 1, "case_paths": [ "/se2d/652/0355-01" ] }, { "cite": "525 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "829", "parenthetical": "citations and quotations omitted" } ], "opinion_index": 1 }, { "cite": "136 N.C. App. 775", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241993 ], "year": 2000, "pin_cites": [ { "page": "779", "parenthetical": "citations and quotations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/136/0775-01" ] }, { "cite": "186 N.C. App. 651", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8159584 ], "year": 2007, "opinion_index": 1, "case_paths": [ "/nc-app/186/0651-01" ] } ], "analysis": { "cardinality": 888, "char_count": 26117, "ocr_confidence": 0.701, "pagerank": { "raw": 7.052393210097117e-08, "percentile": 0.4252856054542176 }, "sha256": "4561486902f48dd1f69ff4224e522aa1f7d41cd2ce742e8fda8a7e90304c342c", "simhash": "1:4f69167234fa597a", "word_count": 4245 }, "last_updated": "2023-07-14T17:57:00.832613+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McCULLOUGH concurs." ], "parties": [ "MORNINGSTAR MARINAS/EATON FERRY, LLC, Petitioner v. WARREN COUNTY, NORTH CAROLINA and KEN KRULIK, WARREN COUNTY PLANNING AND ZONING ADMINISTRATOR, IN HIS OFFICIAL CAPACITY, Respondents" ], "opinions": [ { "text": "DAVIS, Judge.\nWarren County and Ken Krulik (\u201cMr. Krulik\u201d), in his official capacity as the Warren County Planning and Zoning Administrator (collectively \u201cRespondents\u201d), appeal from the trial court\u2019s order issuing a writ of mandamus in favor of Momingstar Marinas/Eaton Ferry, LLC (\u201cMomingstar\u201d) in connection with a zoning dispute. After careful review, we affirm the trial court\u2019s order.\nFactual Background\nThe facts relevant to this appeal are as follows: Momingstar operates a full-service marina on a 5.03 acre parcel of land (\u201cthe Momingstar Property\u201d) located at 1835 Eaton Ferry Road in Littleton, North Carolina. The Momingstar Property is zoned commercial in the Lakeside Business District under the Warren County Zoning Ordinance (\u201cthe Ordinance\u201d). Its commercial marina offers wet slips and dry storage for boats and a fuel dock. The Momingstar Property is located off of a small cove of Lake Gaston and is approximately 145 feet across the cove from land owned by East Oaks, LLC (\u201cEast Oaks\u201d). Approximately 8.5 acres of the East Oaks property is zoned residential (\u201cthe Residential Property\u201d) under the Ordinance. Adjacent to the Residential Property is a 1.91 acre parcel of land owned by East Oaks and zoned commercial (\u201cthe Commercial Property\u201d). The Commercial Property is improved with a boat storage building from which East Oaks operates a dry storage facility.\nEast Oaks filed a petition for a conditional use permit seeking to build 36 townhouses on the Residential Property. In its petition, East Oaks included a site plan for the proposed use showing the townhouses, roads, and a drive (\u201cthe Drive\u201d) that connects the Commercial Property and the Residential Property. The record indicates that the Drive was to be used for the purpose of transporting boats from the dry storage facility located on the Commercial Property to the boat launch area located on the Residential Property.\nBefore the Warren County Board of Adjustment (\u201cBOA\u201d) ruled on East Oaks\u2019 petition for a conditional use permit, Mr. Krulik reviewed the Ordinance and issued a formal determination on 21 April 2011 (\u201cthe 21 April Determination\u201d), finding that townhouses were a permitted use in a residential district as a single-family dwelling. As such, East Oaks withdrew its application for the conditional use permit and secured a standard zoning permit to begin construction.\nMomingstar appealed the 21 April Determination to the BOA, asserting that neither the townhouses nor the Drive portions of East Oaks\u2019 site plan were permitted under the Ordinance. Because the 21 April Determination did not expressly address the Drive portion of East Oaks\u2019 site plan, on 12 May 2011, Momingstar requested that Mr. Krulik issue a formal determination as to whether East Oaks\u2019 proposed use of the Drive would constitute a commercial use of the Residential Property in violation of the Ordinance. In an email dated 10 June 2011, Mr. Krulik responded, \u201cI am not going to make a determination on this .... [because] it is not a relevant issue to my determination on townhouses as a permitted use or issuing the zoning permit.\u201d\nOn 15 August 2011, the BOA heard Momingstar\u2019s appeal and voted unanimously to reverse the 21 April Determination and to revoke East Oaks\u2019 zoning permit. On 12 September 2011, East Oaks filed a petition for writ of certiorari in Warren County Superior Court seeking judicial review of the BOA\u2019s decision reversing the 21 April Determination. On 14 October 2011, the Honorable Robert H. Hobgood entered a consent order whereby East Oaks and Warren County agreed to reinstate East Oaks\u2019 zoning permit and adopt Mr. Krulik\u2019s interpretation of the Ordinance so as to allow East Oaks to develop the property pursuant to its site plan. Momingstar was not a party to the consent order, and the trial court concluded as a matter of law that \u201cMomingstar is not a \u2018person aggrieved\u2019 pursuant to N.C. Gen. Stat. \u00a7 153A-345(b)\u201d and that the \u201cWarren County Board of Adjustment had no jurisdiction or authority to hear the appeal of Momingstar.\u201d\nOne week earlier, on 7 October 2011, Momingstar filed its initial petition for writ of mandamus to compel Mr. Krulik to issue the requested formal determination regarding the Drive. In Respondents\u2019 answer, they denied Momingstar\u2019s right to petition for writ of mandamus but also attached a formal determination from Mr. Krulik dated 16 November 2011 (\u201cthe 16 November Determination\u201d), which stated, in pertinent part, that\n[w]hile I did not make a specific determination as to whether the use of the concrete drive/easement constitutes a commercial use of the East Oaks property in violation of the Ordinance, my issuance of the East Oaks zoning permit... necessarily required that I determine the submitted use of the entire property covered by the permit is not restricted by the Warren County Zoning Ordinance.\nThe drive is shown as a \u201c20\u2019 wide private access easement\u201d on East Oaks\u2019 development plans. Warren County\u2019s Ordinance does not specifically regulate easements \u2014 whether or not they cross varying zoning jurisdictions. . . . [T]o my knowledge, there has been no attempt by Warren County to regulate such easements through its zoning regulations.\nAfter Mr. Krulik issued the 16 November Determination, Momingstar dismissed its petition for writ of mandamus without prejudice.\nThereafter, Momingstar noticed its appeal of the 16 November Determination (\u201cthe Drive Appeal\u201d). By letter dated 17 January 2012, Warren County\u2019s attorney advised Momingstar that the Drive Appeal would not be placed on the BOA\u2019s agenda. On 14 May 2012, Momingstar filed another petition for writ of mandamus in Warren County Superior Court, seeking \u2014\u25a0 this time \u2014 to compel Respondents to place the Drive Appeal on the BOA\u2019s agenda for a hearing on the merits. On 13 September 2012, Judge Hobgood granted Momingstar\u2019s petition and issued a writ of mandamus ordering Respondents to place the appeal on the BOA\u2019s agenda. Respondents filed a timely notice of appeal to this Court.\nAnalysis\nAs an initial matter, Respondents argue that the 16 November Determination was not a \u201cnew\u201d determination from which Momingstar could appeal to the BOA because it merely echoed Mr. Krulik\u2019s 21 April Determination. We disagree. The 21 April Determination did not explicitly address the use of the Drive. Moreover, in its first petition for writ of mandamus, Momingstar alleged: \u201cAs of the date of this Petition, Mr. Krulik has not issued the requested formal determination [regarding the Drive].\u201d Respondents admitted this allegation in their answer and then \u2014 referencing the 16 November Determination \u2014 provided that \u201csuch formal determination is hereto attached.\u201d Thus, we consider Mr. Krulik\u2019s 16 November letter to be a formal determination from which Momingstar may appeal.\nWe now turn our attention to whether the criteria for the issuance of a writ of mandamus were satisfied. \u201cA writ of mandamus is an extraordinary court order to a board, corporation, inferior court, officer or person commanding the performance of a specified official duty imposed by law.\u201d Graham Cty. Bd. of Elections v. Graham Cty. Bd. of Comm\u2019rs, 212 N.C. App. 313, 322, 712 S.E.2d 372, 379 (2011) (citation and quotation marks omitted). A writ of mandamus is the proper remedy when (1) the party seeking relief has \u201ca clear legal right to the act requested;\u201d (2) the respondent has \u201ca legal duty to perform the act requested;\u201d (3) the act at issue is \u201cministerial in nature and [does] not involve the exercise of discretion;\u201d (4) the respondent has failed to perform the act requested and the time for performance has expired; and (5) there is no legally adequate alternative remedy. In re T.H.T., 362 N.C. 446, 453-54, 665 S.E.2d 54, 59 (2008). \u201cA court cannot refuse a petition for writ of mandamus when it is sought to enforce a clearly-established legal right.\u201d Id. at 453, 665 S.E.2d at 59.\nHere, Respondents\u2019 primary contention is that mandamus was not appropriate because Momingstar lacked standing to appeal Mr. Krulik\u2019s 16 November Determination and, as such, did not have a \u201cclear legal right\u201d to have its appeal placed on the BOA\u2019s agenda. However, because we believe that Mr. Krulik had a statutory duty to transmit Momingstar\u2019s appeal to the BOA and that the existence \u2014 or nonexistence \u2014 of standing is a legal determination that must be made by the BOA, we affirm the trial court\u2019s order issuing a writ of mandamus compelling Respondents to place the appeal on the BOA\u2019s agenda.\nAt all times relevant to this action, N.C. Gen. Stat. \u00a7 153A-345 provided, in relevant part, as follows:\n(b) A zoning ordinance... adopted pursuant to the authority granted in this Part shall provide that the 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. Any person aggrieved or any officer, department, board, or bureau of the county may take an appeal. Appeals shall be taken within times prescribed by the board of adjustment by general rule, by filing with the officer from whom the appeal is taken and with the board of adjustment a notice of appeal, specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which action appealed from was taken.\nN.C. Gen. Stat. \u00a7 153A-345(b) (emphasis added). The purpose of N.C. Gen. Stat. \u00a7 153A-345 is \u201cto provide a right of review, and statutes providing for review of administrative decisions should be liberally construed to preserve and effectuate that right.\u201d Mize v. Cty. of Mecklenburg, 80 N.C. App. 279, 283, 341 S.E.2d 767, 769 (1986).\nNeither N.C. Gen. Stat. \u00a7 153A-345 nor any other provision of North Carolina law confers upon a zoning administrator the power to make a legal decision as to whether a party seeking to appeal to the BOA from a zoning decision is a \u201cperson aggrieved\u201d for standing purposes. North Carolina law does, however, mandate that the zoning administrator transmit the record of an appeal to the BOA if the appeal is taken within the prescribed time period. Pursuant to N.C. Gen. Stat. \u00a7 153A-345(b), a zoning administrator has no discretion regarding whether to perform his duty of transmitting the record to the BOA once the appeal has been noticed. Instead, as quoted above, the statute expressly states that the zoning administrator from whom the appeal is being taken \u201cshall forthwith transmit to the board all the papers constituting the record upon which action appealed from was taken.\u201d N.C. Gen. Stat. \u00a7 153A-345(b) (emphasis added). The Warren County Zoning Ordinance \u2014 in accordance with \u00a7 153A-345(b) \u2014 also specifically provides that \u201c[a]ppeals from the enforcement and interpretation of this ordinance . . . shall be filed with the Zoning Administrator, who shall transmit all such records to the Board of Adjustment.\u201d Warren County, N.C., Zoning Ordinance \u00a7 IX-4 (emphasis added).\nOur appellate courts have consistently held that the use of the word \u201cshall\u201d in a statute indicates what actions are required or mandatory. See Multiple Claimants v. N.C. Dep\u2019t of Health & Human Servs., 361 N.C. 372, 378, 646 S.E.2d 356, 360 (2007) (\u201cIt is well established that the word \u2018shall\u2019 is generally imperative or mandatory.\u201d (citations and quotation marks omitted)); Internet E., Inc. v. Duro Communications, Inc., 146 N.C. App. 401, 405-06, 553 S.E.2d 84, 87 (2001) (\u201cThe word \u2018shall\u2019 is defined as \u2018must\u2019 or \u2018used in laws, regulations, or directives to express what is mandatory.\u2019 \u201d (citation omitted)). As such, we conclude that the act of placing Momingstar\u2019s appeal on the BOA agenda is ministerial in nature and does not involve any discretion on the part of the zoning administrator.\nWe also hold that Momingstar has a legal right to have its appeal transmitted to the BOA and placed on the agenda. Momingstar appealed the 16 November Determination on 14 December 2011. In accordance with the provisions of the Warren County Zoning Ordinance, Momingstar filed its appeal with Mr. Krulik, the officer from whom the appeal was taken, and included a $150.00 filing fee for the appeal. See Warren County, N.C., Zoning Ordinance \u00a7 IX-4 (\u201cAppeals from the enforcement and interpretation of this ordinance . . . shall be filed with the Zoning Administrator_\u201d); id. at \u00a7 IX-2 (listing $150.00 as fee for appeals to the BOA). Because Momingstar complied with the requirements for taking an appeal, it had a right to have its appeal placed on the BOA\u2019s agenda. See id. at \u00a7 IX-3 (\u201cThe Board of Adjustment shall have the following powers and duties .. . [t]o hear and decide any appeal from and review any order, requirement, decision, or determination made by the Zoning Administrator.\u201d); id. at \u00a7 IX-4 (\u201cThe Board of Adjustment shall fix a reasonable time, not to exceed 30 days, for the hearing of the appeal-\u201d).\nMr. Krulik, as the zoning officer from whom the appeal was taken, therefore had a statutory duty to transmit the appeal to the BOA. This duty was mandatory, as indicated by the use of the word \u201cshall,\u201d and did not involve the exercise of discretion. Because Mr. Krulik failed to comply with the statutory mandate and instead made clear his unwillingness to do so, mandamus was Momingstar\u2019s only available remedy. Momingstar\u2019s ability to appeal to the BOA was foreclosed by Mr. Krulik\u2019s refusal to place the appeal on the BOA\u2019s agenda. Moreover, Momingstar could not appeal the substance of the zoning administrator\u2019s decision directly to the superior court because only BOA decisions are subject to judicial review. See N.C. Gen. Stat. \u00a7 153A-345(e2) (\u201cEach decision of the board is subject to review by the superior court by proceedings in the nature of certiorari.\u201d (emphasis added)).\nThe trial court\u2019s order compelling Respondents to place Momingstar\u2019s appeal on the BOA agenda does not allow Momingstar to circumvent the requirement of standing. To the contrary, its order fully recognizes that in accordance with \u00a7 153A-345, Momingstar must establish that it is an aggrieved party in order to have the merits of its appeal heard by the BOA. We believe the order correctly provides that the determination of whether Momingstar has standing to appeal must be made by the BOA rather than by Mr. Krulik. We express no opinion as to whether Momingstar does or does not possess standing to appeal because that issue is not before us.\nSmith v. Forsyth Cty. Bd. of Adjust., 186 N.C. App. 651, 652 S.E.2d 355 (2007), the case the dissent relies upon in concluding that mandamus was not appropriate, did not involve a petition for a writ of mandamus or in any way address the authority of a zoning administrator to make a determination as to standing. Rather, the issue in Smith was whether the superior court correctly dismissed the petitioner\u2019s appeal from a BOA decision for lack of standing. Id. at 652, 652 S.E.2d at 357. This Court concluded that the petitioner\u2019s application to the BOA appealing the zoning officer\u2019s decision had not alleged special damages as required in order for the petitioner to qualify as a \u201cperson aggrieved.\u201d Id. at 654-55, 652 S.E.2d at 358.\nWe do not read Smith as suggesting that a zoning officer would have the authority to refuse to transmit an appeal to the BOA based simply on his own belief that the appellant lacked standing. We cannot agree with the dissent that our holding in Smith somehow confers a gatekeeper role onto zoning officers given that such a role is nowhere conferred by statute or, for that matter, identified in our decision in that case. Rather, we believe that Smith is consistent with the notion that it is the BOA that has the duty of determining whether a party has made the requisite showing of standing such that the merits of the appeal may be reached.\nStanding is a question of law. Cook v. Union Cty. Zoning Bd. of Adjust., 185 N.C. App. 582, 588, 649 S.E.2d 458, 464 (2007). A determination of standing involves a determination of \u201cwhether a particular litigant is a proper party to assert a legal position.\u201d Id. As such, we are unable to conclude that a zoning officer is vested with the authority to make such legal determinations regarding standing, particularly where the result, as here, would be to insulate that very same officer\u2019s decision from review.\nRespondents also contend that their motion to dismiss the petition for writ of mandamus was improperly denied because (1) Momingstar failed to join a necessary party (East Oaks); and (2) Momingstar\u2019s petition for mandamus was merely an attempt to bypass the fact that the time period for appealing the 21 April Determination or the consent order reinstating that determination had already passed. We are not persuaded by either of these arguments.\n\u201cA necessary party is one whose presence is required for a complete determination of the claim, and is one whose interest is such that no decree can be rendered without affecting the party.\u201d McCraw v. Aux, 205 N.C. App. 717, 719, 696 S.E.2d 739, 740, disc. review denied, 364 N.C. 617, 705 S.E.2d 362 (2010). As we have explained above, the present action commenced when Momingstar attempted to appeal the 16 November Determination and Mr. Krulik refused to place the appeal on the BOA\u2019s agenda. Momingstar then sought a writ of mandamus directing Respondents to perform the ministerial, nondiscretionary task of placing the appeal on the BOA\u2019s agenda for a hearing. The order issuing mandamus in no way addressed the merits of any substantive issues concerning (1) whether Momingstar was an aggrieved party with standing to appeal; or (2) whether East Oaks\u2019 use of the Drive is permitted under the Warren County Zoning Ordinance. Rather, as Momingstar notes, the present action is \u201ca purely procedural issue between Momingstar and the Respondents.\u201d\nRespondents nevertheless assert that under N.C. Gen. Stat. \u00a7 160A-393, Momingstar was required to name East Oaks as a respondent. See N.C. Gen. Stat. \u00a7 160A-393(e) (2013) (\u201cIf the petitioner is not the applicant before the decision-making board whose decision is being appealed, the .petitioner shall also name that applicant as a respondent.\u201d). However, the scope of N.C. Gen. Stat. \u00a7 160A-393 is specifically limited to appeals in the nature of certiorari from decision-making boards to superior courts and, thus, does not apply to the present action for mandamus. N.C. Gen. Stat. \u00a7 160A-393(a) (\u201cThis section applies to appeals of quasi-judicial decision-making boards when that appeal is to superior court and in the nature of certiorari . . . .\u201d). As such, we agree with the trial court\u2019s conclusion that \u201cthe Warren County Zoning Board of Adjustment and East Oaks, LLC are not necessary parties to this mandamus action. The parties sought to be compelled to take action in this mandamus action are the Respondents.\u201d\nFinally, Respondents argue that the trial court improperly denied their motion to dismiss because Momingstar only sought mandamus in an attempt to take an untimely appeal of the substance of the 21 April Determination. Respondents correctly state that \u201c[a]n action for mandamus may not be used as a substitute for an appeal. This 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. N.C. Bd. of Architecture, 273 N.C. 559, 570, 160 S.E.2d 719, 727 (1968) (citations, quotation marks, and italics omitted).\nHowever, as previously discussed, the 16 November Determination \u2014 unlike the 21 April Determination \u2014 specifically addresses the Drive, and was, in fact, a formal determination concerning the Drive. Once the 16 November Determination was made, Momingstar attempted to bring a timely appeal to the BOA but was prevented by Mr. Krulik from doing so. We therefore cannot agree with Respondents\u2019 argument that Momingstar\u2019s petition for mandamus was filed \u201cfor the sole purpose of getting around the appeal deadline [for the 21 April Determination] which had passed.\u201d Accordingly, this argument is overruled.\nConclusion\nFor the reasons stated above, we affirm the trial court\u2019s order issuing a writ of mandamus compelling Respondents to place Momingstar\u2019s appeal on the BOA\u2019s agenda. Because we hold that the trial court properly issued the writ of mandamus, we also affirm the trial court\u2019s denial of Respondents\u2019 motion for attorneys\u2019 fees.\nAFFIRMED.\nJudge McCULLOUGH concurs.\n. N.C. Gen. Stat. \u00a7 153A-345 was in effect during the time period relevant to the present action but has since been repealed. N.C. Gen. Stat. \u00a7 160A-388 now governs appeals to county boards of adjustment.\n. The trial court\u2019s order issuing mandamus specifically explains that \u201c[t]his Order only directs that a hearing be conducted by the Warren County Board of Adjustment but does not direct that Board concerning the merits of the case.\u201d", "type": "majority", "author": "DAVIS, Judge." }, { "text": "ELMORE, Judge,\ndissenting.\nI respectfully disagree with the majority\u2019s conclusion that Mr. Krulik had a statutory duty to transmit the appeal to the Board of Adjustment (BOA) pursuant to N.C. Gen. Stat. \u00a7 153A-345. As a result, I would reverse the trial court\u2019s order granting petitioner\u2019s writ of mandamus. I concur in all other aspects of the majority opinion.\nThe majority is correct in that N.C. Gen. Stat. \u00a7 153A-345 mandates that any person aggrieved by a zoning decision shall be afforded a statutory right of review before the BOA. This Court has defined a \u201cperson aggrieved\u201d as \u201cone adversely affected in respect of legal rights, or suffering from an infringement or denial of legal rights.\u201d Cnty. of Johnston v. City of Wilson, 136 N.C. App. 775, 779, 525 S.E.2d 826, 829 (2000) (citations and quotations omitted). \u201cIt is well settled that an appeal may only be taken by an aggrieved real party in interest.\u201d Id.\nWhile the majority argues that Smith v. Forsyth County Bd. of Adjustment is inapposite to the outcome of the instant case, I disagree. 186 N.C. App. 651, 652 S.E.2d 355 (2007). IxvSmith, we specifically looked to whether the petitioner had standing to appeal a zoning determination from the Zoning Officer to the BOA. To establish standing to appeal, this Court required that an aggrieved party \u201cshow either some interest in the property affected,\u201d or, if plaintiffs are adjoining property owners, \u201cthey must present evidence of a reduction in their property values. Mere proximity to the site of the zoning action at issue is insufficient to establish \u2018special damages.\u2019 \u201d Id. at 654, 652 S.E.2d at 358. We concluded that because the petitioner\u2019s application to the BOA for appeal of the Zoning Officer\u2019s decision failed to allege that the zoning decision had decreased the value of the petitioner\u2019s property or would do so in the future, the petitioner \u201cfailed to allege, or show, special damages; therefore, she did not have standing to appeal from the Zoning Officer to the [BOA].\u201d Id. at 654-55, 652 S.E.2d at 358.\nI read Smith as suggesting that the Zoning Officer is vested with authority to refuse to transmit an appeal to the BOA if the appealing party\u2019s application is devoid of any allegations of special damages, namely a decrease in property value. Without alleging special damages in an application for appeal, the appealing party cannot demonstrate that it is aggrieved, and therefore the Zoning Officer may unilaterally dismiss the appeal for want of standing. Simply put, to fall under the purview of N.C. Gen. Stat. \u00a7 153A-345, Momingstar must have shown that it was aggrieved, which it could have done by alleging special damages in its appeal of the 16 November determination. However, Momingstar neglected to do so. Without alleging special damages, Momingstar is not \u201caggrieved\u201d under N.C. Gen. Stat. \u00a7 153A-354, and it had no standing to appeal. Thus, Mr. Krulik was not compelled to place Momingstar\u2019s appeal on the BOA\u2019s agenda.\nFurther, without standing, Momingstar could not demonstrate a \u201cclear legal right\u201d to petition for writ of mandamus. Because Momingstar failed to satisfy the first element of mandamus, the trial court erred in granting its petition. Accordingly, the trial court\u2019s order should be reversed.", "type": "dissent", "author": "ELMORE, Judge," } ], "attorneys": [ "Robinson, Bradshaw & Hinson, RA., by John H. Carmichael, for petitioner-appellee.", "Turrentine Law Firm, PLLC, by Karlene S. Turrentine, for respondents-appellants." ], "corrections": "", "head_matter": "MORNINGSTAR MARINAS/EATON FERRY, LLC, Petitioner v. WARREN COUNTY, NORTH CAROLINA and KEN KRULIK, WARREN COUNTY PLANNING AND ZONING ADMINISTRATOR, IN HIS OFFICIAL CAPACITY, Respondents\nNo. COA13-458\nFiled 18 March 2014\n1. Mandamus \u2014 writ of mandamus \u2014 zoning dispute \u2014 zoning administrator \u2014 transmission of appeal to Board of Adjustment\nThe trial court did not err by issuing a writ of mandamus in favor of petitioner in connection with a zoning dispute. The zoning administrator had a statutory duty to transmit petitioner\u2019s appeal to the Board of Adjustment (BOA) and the petitioner\u2019s standing was a legal determination to be made by the BOA, not the zoning administrator; the act of placing petitioner\u2019s appeal on the BOA agenda was ministerial in nature and did not involve any discretion on the part of the zoning administrator; petitioner had a legal right to have its appeal transmitted to the BOA and placed on the agenda; and mandamus was petitioner\u2019s only available remedy.\n2. Mandamus \u2014 writ of mandamus \u2014 motion to dismiss \u2014 failure to join necessary party \u2014 attempt to circumvent untimely appeal\nThe trial court did not err in a case involving a zoning dispute by denying respondents\u2019 motion to dismiss petitioner\u2019s petition for writ of mandamus. Petitioner did not fail to join a necessary party and N.C.G.S. \u00a7 160A-393 was not applicable to this action for mandamus. Furthermore, petitioner was not seeking mandamus in an attempt to take an untimely appeal of the substance of the 21 April Determination but was instead appealing from the 16 November Determination.\nJudge ELMORE dissenting.\nAppeal by respondents from order entered 13 September 2012 by Judge Robert H. Hobgood in Warren County Superior Court. Heard in the Court of Appeals 6 November 2013.\nRobinson, Bradshaw & Hinson, RA., by John H. Carmichael, for petitioner-appellee.\nTurrentine Law Firm, PLLC, by Karlene S. Turrentine, for respondents-appellants." }, "file_name": "0023-01", "first_page_order": 33, "last_page_order": 43 }