Recently in the case, Sanco of Wilmington Service Corp. v. New Hanover County, 601 S.E.2d 889, 2004 N.C. App. LEXIS 1740 (2004), the North Carolina Court of Appeals discussed the limited discretion a local government has in making ministerial or administrative land use decisions. Sanco had applied for approval of its subdivision plat to build a condominium complex and received preliminary approval from the Technical Review Committee of the New Hanover Planning Board (the "TRC") in accordance with the New Hanover County Ordinance. After approval, a group calling itself "Concerned Citizens for Neighborhood Preservation" submitted a petition signed by thirteen individuals to the Planning Department. The petition requested a public hearing and despite Sanco’s objections, the Board of Commissioners held a hearing on the matter. At the hearing it was properly stated that the proceeding was "an administrative action, not a quasi-judicial action." However, after hearing from those present, the Board voted to "amend" the approval of the TRC to reduce the number of approved condominium units from 427 units to 213 units.

Sanco filed a Petition for a Writ of Certiorari with the Superior Court seeking a declaration that the approval of the project was a ministerial decision in which policy considerations were not proper and because according to the New Hanover Subdivision Ordinance, only the subdivider had a right to appeal the decision of the TRC to the Board. The Court held that the Board’s actions were not proper and reinstated the original approval of Sanco’s subdivision plat. The County appealed and the North Carolina Court of Appeals affirmed the Superior Court’s reversal of the Board’s action.

First, the Court noted, the County’s Ordinance plainly afforded only the applicant the right to appeal beyond the Planning Board to the Board of Commissioners. Such a limited right of appeal was consistent with the remainder of the ordinance, which did not require that there be public hearings or public comment on preliminary subdivision reviews.

Additionally, the Court held that New Hanover County, like many counties and municipalities, had a ministerial or administrative review of subdivision plats. While the County could have chosen to employ a quasi-judicial process, which would require that certain due process standards, including notice and an opportunity to be heard, be met, it did not. The fact that the subdivision approval was ministerial was significant as explained by the Court:

When designed as a ministerial process the plat approval is unlike the zoning process because issues ‘such as density and character of the neighborhood and streets’ are not addressed by the local governmental authority. Nazziola v. Landcraft Props., Inc., 143 N.C. App. 564, 566-67, 545 S.E.2d 801, 803 (2001). As such, under a ministerial scheme, an applicant’s compliance with the established procedures and requirements of the plat approval process renders the applicant entitled to the permit as a matter of law. Quadrant Corp. v. City of Kinston, 22 N.C. App. 31, 32, 205 S.E.2d 324, 325 (1974).

Therefore, the Board did not have the discretion to have amended the TRC’s approval.

If you have any questions regarding this alert or other Land Use and Zoning issues, please contact Kacey Ragsdale at 919.783.2957 or kragsdale@poynerspruill.com or Robin Tatum at 919.783.2931 or rtatum@poynerspruill.com.