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  "id": 12206092,
  "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",
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    "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"
    ],
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      {
        "text": "JACKSON, Justice.\nIn this case we consider whether a zoning officer may refuse to transmit an appeal from his own zoning determination to the county board of adjustment for its review. We conclude that a zoning officer does not have this authority and therefore that the Superior Court, Warren County, properly entered an order compelling respondents to place petitioner\u2019s appeal on the agenda of the Warren County Board of Adjustment (the Board).\nMomingstar Marinas (petitioner) owns land abutting Lake Gaston in Warren County, where it operates a commercial marina known as Eaton Ferry. Petitioner\u2019s property is zoned for business development pursuant to the Warren County Zoning Ordinance (the Ordinance). East Oaks, LLC (East Oaks) owns land approximately 145 feet away, across a small cove. Pursuant to the Ordinance, 8.5 acres of that property are zoned as residential and 1.91 acres are zoned for commercial use. The commercial portion of the property is improved with a boat storage building and a parking lot.\nIn April 2011, East Oaks filed a petition seeking a conditional use permit to develop a townhouse community (the Townhouse Project) on the residential portion of the property. The site plan for the Townhouse Project showed a proposed access easement for a driveway (the Drive) connecting the boat storage building on the commercial portion of the property to a boat launch area on Lake Gaston located on the residential portion of the property. The Drive was to be utilized to transport boats from the boat storage facility to the boat slips and launching area on the residential property.\nOn 21 April 2011, before the Board had an opportunity to rule on the petition, Warren County Planning and Zoning Administrator Ken Krulik issued a formal determination concluding that townhouses were a permitted use in the subject residential district and therefore, a conditional use permit was not required. As a result, East Oaks withdrew its application for a conditional use permit and obtained a zoning permit to develop the townhouses.\nPetitioner appealed Krulik\u2019s 21 April formal determination to the Board and argued that the Townhouse Project did not constitute a permitted use in the East Oaks residential property pursuant to the Ordinance. As Krulik\u2019s formal determination did not specifically address the Drive portion of the site plan, petitioner wrote Krulik a letter requesting that he issue a formal determination pursuant to the Ordinance regarding whether the Drive constituted a commercial use of the East Oaks residential property in violation of the Ordinance. Krulik responded by e-mail that he would not make a determination on the Drive, explaining that it was \u201cnot a relevant issue to [his] determination on townhouses as a permitted use or issuing the zoning permit.\u201d\nWhen the Board heard petitioner\u2019s appeal in August 2011, it overturned Krulik\u2019s interpretation of the Ordinance and revoked the zoning permit previously issued to East Oaks. On 12 September, East Oaks successfully petitioned the superior court for a writ of certiorari to review the Board\u2019s order. On 14 October 2011, East Oaks and Warren County entered into a consent order, approved by the court, in which East Oaks and Warren County agreed that the zoning permit issued based upon Krulik\u2019s interpretation of the Ordinance would be reinstated, thereby allowing East Oaks to continue the Townhouse Project. The consent order, to which petitioner was not a party, also stated the trial court\u2019s conclusions of law that \u201cMomingstar is not a \u2018person aggrieved\u2019 pursuant to N.C. Gen. Stat. \u00a7153A-345(b)\u201d and that the Board \u201chad no jurisdiction or authority to hear the appeal of Momingstar.\u201d\nMeanwhile, on 7 October 2011, petitioner filed its first petition for writ of mandamus with the Superior Court, Warren County, in which it requested that the court compel Krulik to issue a formal determination regarding the Drive. Warren County and Krulik (respondents) filed an answer in which they contended that petitioner lacked standing to appeal and to petition for the writ of mandamus. Respondents also attached a determination letter from Krulik dated 16 November 2011, which stated in pertinent part:\nWhile 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\u2019 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 [foot] 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.\nIn light of Krulik\u2019s determination regarding the Drive, petitioner voluntarily dismissed its mandamus action without prejudice and on 14 December 2011, noticed its appeal to the Board from Krulik\u2019s 16 November determination. Petitioner again asserted that \u201cthe Drive constitutes a commercial use of the East Oaks Property, which is zoned Residential District, in violation of the Ordinance.\u201d\nIn January 2012, the county attorney informed petitioner that she had advised Krulik not to place the December appeal from Krulik\u2019s November 2011 determination on the Board\u2019s agenda because, inter alia, the Board \u201chas no authority or jurisdiction to hear an appeal by [petitioner] because East Oaks\u2019 permit issue has been settled by\u201d the 14 October 2011 consent order between East Oaks and Warren County.\nPetitioner filed another petition for writ of mandamus in Superior Court, Warren County, requesting that the court compel respondents to place the 14 December 2011 appeal on the Board\u2019s next available agenda for a hearing. Petitioner asserted that the consent order, to which it was not a party and which dealt with a separate issue, did not concern the subject of the instant appeal, which involved the Drive. Respondents again argued in their response to the petition that \u201cPetitioner-Momingstar was neither an aggrieved party to the \u2018Prior Action\u2019 nor an aggrieved party to this action.... As such Petitioner-Momingstar has no standing to appeal the actions of the Planning and Zoning Administrator, nor to bring this action for mandamus.\u201d\nOn 13 September 2012, the court granted the petition and issued a writ of mandamus ordering respondents to place the appeal on the Board\u2019s agenda for a hearing on the merits. The court added that its order \u201conly directed] that a hearing be conducted by the [Board] but [did] not direct that Board concerning the merits of the case.\u201d Respondents appealed the order to the Court of Appeals, which affirmed the trial court\u2019s order in a divided opinion. Morningstar Marinas/Eaton Ferry, LLC v. Warren County, 233 N.C. App. 23, 755 S.E.2d 75 (2014).\nNotwithstanding respondents\u2019 contention that petitioner lacked standing, the majority determined that Krulik had a mandatory statutory duty to transmit petitioner\u2019s appeal to the Board pursuant to section 153A-345, and that \u201cthe existence \u2014 or nonexistence \u2014 of standing is a legal determination that must be made by the [Board].\u201d Id. at 27, 755 S.E.2d at 78. The majority further concluded that petitioner had complied with the requirements for taking an appeal as set forth in the Ordinance and that petitioner thus had a right to have its appeal placed on the Board\u2019s agenda. Id. at 28-29, 755 S.E.2d at 79. In addition, the majority determined that \u201cmandamus was [petitioner\u2019s] only available remedy.\u201d Id. at 29, 755 S.E.2d at 80. Accordingly, the majority held that the trial, court did not err by granting the petition for writ of mandamus. Id. at 32, 755 S.E.2d at 81.\nThe dissent disagreed with the majority that section 153A-345 required Krulik to transmit the appeal to the Board and for that reason would have reversed the trial court\u2019s order. Relying upon Smith v. Forsyth County Board of Adjustment, 186 N.C. App. 651, 652 S.E.2d 355 (2007), the dissent asserted that a party must first demonstrate that it has standing to appeal pursuant to section 153A-345 in order for the statute to compel a zoning officer to transmit an appeal to the Board. Id. at 33, 755 S.E.2d at 82. (Elmore, J., dissenting). According to the dissent, Smith suggests that a zoning officer \u201cis vested with authority to refuse to transmit an appeal to the [Board] if the appealing party\u2019s application [does not allege any] special damages\u201d demonstrating that it is \u201caggrieved\u201d pursuant to section 153A-354. Id. at 33, 755 S.E.2d at 82. Therefore, the dissenting judge believed that a zoning officer \u201cmay unilaterally dismiss the appeal for want of standing.\u201d Id. at 33, 755 S.E.2d at 82. The dissent concluded that because petitioner neglected to allege special damages in its appeal from the 16 November determination, petitioner failed to show that it was \u201caggrieved\u201d and thus had no standing to appeal to the Board. Id. at 33, 755 S.E.2d at 82. For that reason the dissent would have held that petitioner had not met the first requirement for issuance of a writ of mandamus that the party seeking relief \u201cdemonstrate a clear legal right to the act requested.\u201d In re T.H.T., 362 N.C. 446, 453, 665 S.E.2d 54, 59 (2008) (citation omitted). Nonetheless, the dissenting judge \u201cconcurfred] in all other aspects of the majority opinion.\u201d Id. at 233 N.C. App. at 32, 755 S.E.2d at 81. Respondents filed their appeal of right based on the dissenting opinion.\n\u201cThe writ of mandamus is an order from a court of competent jurisdiction to a board, corporation, inferior court, officer or person commanding the performance of a specified official duty imposed by law.\u201d Sutton v. Figgatt, 280 N.C. 89, 93, 185 S.E.2d 97, 99 (1971) (citations omitted). A writ of mandamus is an appropriate remedy when the following circumstances are present: (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) performance of the act at issue is \u201cministerial in nature and [does] not involve the exercise of discretion\u201d; (4) the respondent did not perform the act requested and the time for performance of the act has expired; and (5) no \u201calternative, legally adequate remedy\u201d is available. In re T.H.T., 362 N.C. at 453-54, 665 S.E.2d at 59 (citations omitted).\nRespondents argue based upon the dissent that the trial court erred by granting petitioner\u2019s request for writ of mandamus because petitioner lacks standing as a party \u201caggrieved\u201d to appeal Krulik\u2019s 16 November determination; therefore petitioner does not have \u201ca clear legal right\u201d to have its appeal placed on the Board\u2019s agenda. We agree with the Court of Appeals\u2019 conclusion that Krulik is bound by statute to transmit petitioner\u2019s appeal to the Board and that the legal determination whether petitioner has standing falls within the province of the Board. As a result, we hold that petitioner has a clear legal right to have its appeal transmitted to the Board and placed on the agenda, and we affirm the Court of Appeals\u2019 determination that mandamus was proper. In reaching this conclusion, we do not decide whether petitioner, in fact, has standing because that decision first must be made by the Board of Adjustment.\nSubsection 153A-345(b) of the North Carolina General Statutes, which governed county board of adjustment appeals at all times relevant to this matter, states that\nthe 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.G.S. \u00a7 153A-345(b) (2012). \u201cIt is well established \u2018that the word \u201cshall\u201d is generally imperative or mandatory\u2019 \u201d when used in our statutes. Multiple Claimants v. N.C. Dep\u2019t of Health & Human Servs., 361 N.C. 372, 378, 646 S.E.2d 356, 360 (2007) (quoting State v. Johnson, 298 N.C. 355, 361, 259 S.E.2d 752, 757 (1979)). Our reading of subsection 153A-345(b) does not deviate from this precedent. The statute specifically states that \u201c[t]he 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.\u201d N.C.G.S. \u00a7 153A-345(b) (emphasis added). The statute does not establish any exception or other circumstances in which the officer may decline to transmit the appropriate materials. Accordingly, when Momingstar appealed Krulik\u2019s 16 November determination in its 14 December letter to Krulik, it was mandatory that Krulik immediately transmit the appeal to the Board.\nAlthough subsection 153A-345(b) clearly includes the standing requirement that only a \u201cperson aggrieved ... may take an appeal,\u201d neither the statute nor the Ordinance includes any language suggesting that this determination is to be made by a zoning officer. We have stated that, \u201c[i]n general, the zoning administrator is a purely administrative or ministerial agent following the literal provisions of the ordinance.\u201d County of Lancaster v. Mecklenburg County, 334 N.C. 496, 507, 434 S.E.2d 604, 612 (1993) (citation omitted). Consistent with subsection 153A-345(b), the Ordinance states 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 (2010). The Ordinance further indicates that \u201c[t]he Board of Adjustment shall fix a reasonable time, not to exceed 30 days, for the hearing of the appeal.\u201d Id. The plain language in both the statute and the Ordinance mandates that the zoning officer forward the documents constituting the record to the Board\u2014 an act that is ministerial in nature, involving no discretion. Conversely, \u201c[w]hether a party has standing is a question of law.\u201d McCrann v. Pinehurst LLC, 225 N.C. App. 368, 372, 737 S.E.2d 771, 775, disc. rev. denied, 366 N.C. 593, 743 S.E.2d 221 (2013). In light of the ministerial role of the zoning officer in the appeal process, as designated and required by subsection 153A-345(b), we conclude that these officers are not vested with authority to dismiss or foreclose an appeal based upon their legal determination that the appealing party lacks standing. Moreover, we do not believe the statute was intended to permit zoning officers to single-handedly block appeals from their own zoning determinations. The county board of adjustment, not the zoning officer, determines the fate of such an appeal.\nOur decision does not address the issue of whether petitioner in fact has standing, nor does it allow petitioner to evade the standing requirement. Although subsection 153A-345(b) requires petitioner to demonstrate to the Board that it is an aggrieved party before its challenge can be heard on the merits, in any event, petitioner has a clear legal right to have its appeal transmitted to the Board. Respondents do not dispute that petitioner complied with the requirements for taking an appeal pursuant to both subsection 153A-345(b) and the Ordinance. Subsection 153A-345(b) requires a zoning officer to transmit an appeal to the applicable board of adjustment, \"without consideration of that zoning officer\u2019s judgment regarding whether or not the petitioner possesses standing to appeal. By refusing to place petitioner\u2019s appeal on the Board\u2019s agenda, Krulik failed to comply with this statutory mandate.\nAccordingly, as to the issue on direct appeal based upon the dissenting opinion, we affirm the Court of Appeals\u2019 determination that the trial court did not err by granting mandamus and by ordering respondents to place petitioner\u2019s appeal on the Board\u2019s agenda. This case is remanded to the Court of Appeals for further remand to the trial court for any additional proceedings necessitated by and consistent with this opinion.\nAFFIRMED AND REMANDED.\n. Accordingly, the other holding by the Court of Appeals dealing with attorney\u2019s fees is not before this Court on appeal. The Court denied respondents\u2019 petition for discretionary review of that and other issues.\n. This statute was repealed by the General Assembly, effective 1 October 2013, but was in effect during the relevant time period of the present case. N.C.G.S. \u00a7 160A-388 now governs appeals to county boards of adjustment. See N.C.G.S. \u00a7 153A-345.1 (2013) (making the provisions of section 160A-388 applicable to counties). Significantly, the revised statute requires that\n[t]he official who made the decision shall transmit to the board all documents and exhibits constituting the record upon which the action appealed from is taken. The official shall also provide a copy of the record to the appellant and to the owner of the property that is the subject of the appeal if the appellant is not the owner.\nId. \u00a7 160A-388(bl)(5) (2013). In addition, the revisions now mandate that the appeal itself be filed \u201cwith the [county] clerk,\u201d id. \u00a7 160A-388(bl)(l), a procedure that is more analogous to notices of appeal filed pursuant to both Chapter 150B and in the General Court of Justice. See N.C. R. App. P. 3(a).",
        "type": "majority",
        "author": "JACKSON, Justice."
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    ],
    "attorneys": [
      "Robinson Bradshaw & Hinson, P.A., by John H. Carmichael, for petitioner-appellee.",
      "Tmrentine Law Firm, PLLC, by Karlene S. Turrentine, for respondent-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. 131A14\nFiled 6 November 2015\nZoning \u2014 appeal from zoning officer \u2014 duty to transmit to board\nThe Court of Appeals correctly concluded that a zoning officer (Krulik) was bound by statute to transmit petitioner\u2019s appeal to the Board and that the legal determination of whether petitioner had standing fell within the province of the Board. N.C.G.S. \u00a7 153A-345(b) specifically states that \u201c[t]he 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.\u201d It does not establish any exception or other circumstances in which the officer may decline to transmit the appropriate materials.\nAppeal pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, _ N.C. App. _, 755 S.E.2d 75 (2014), affirming an order entered on 13 September 2012 by Judge Robert H. Hobgood in Superior Court, Warren County. Heard in the Supreme Court on 16 February 2015.\nRobinson Bradshaw & Hinson, P.A., by John H. Carmichael, for petitioner-appellee.\nTmrentine Law Firm, PLLC, by Karlene S. Turrentine, for respondent-appellants."
  },
  "file_name": "0360-01",
  "first_page_order": 510,
  "last_page_order": 517
}
