                                     NO. COA13-458

                      NORTH CAROLINA COURT OF APPEALS

                               Filed:    18 March 2014


MORNINGSTAR MARINAS/EATON
FERRY, LLC,
     Petitioner

    v.                                         Warren County
                                               No. 12 CVS 180
WARREN COUNTY, NORTH CAROLINA
and KEN KRULIK, WARREN COUNTY
PLANNING AND ZONING ADMINISTRATOR,
IN HIS OFFICIAL CAPACITY,
     Respondents.


    Appeal 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.


    Robinson, Bradshaw & Hinson, P.A., by John H. Carmichael,
    for petitioner-appellee.

    Turrentine Law Firm, PLLC, by Karlene S. Turrentine, for
    respondents-appellants.


    DAVIS, Judge.


    Warren      County     and    Ken    Krulik     (“Mr.    Krulik”),       in    his

official   capacity      as    the    Warren     County    Planning    and    Zoning

Administrator      (collectively        “Respondents”),       appeal       from    the

trial   court’s    order      issuing   a   writ   of     mandamus    in   favor    of

Morningstar       Marinas/Eaton         Ferry,     LLC      (“Morningstar”)         in
                                           -2-


connection with a zoning dispute.                        After careful review, we

affirm the trial court’s order.

                                  Factual Background

       The      facts    relevant     to     this    appeal        are   as     follows:

Morningstar operates a full-service marina on a 5.03 acre parcel

of land (“the Morningstar Property”) located at 1835 Eaton Ferry

Road in Littleton, North Carolina.                  The Morningstar Property is

zoned commercial in the Lakeside Business District under the

Warren       County      Zoning     Ordinance       (“the        Ordinance”).        Its

commercial marina offers wet slips and dry storage for boats and

a fuel dock.       The Morningstar 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     (“East      Oaks”).

Approximately         8.5   acres   of     the    East    Oaks    property    is   zoned

residential (“the Residential Property”) under the Ordinance.

Adjacent to the Residential Property is a 1.91 acre parcel of

land owned by East Oaks and zoned commercial (“the Commercial

Property”).        The Commercial Property is improved with a boat

storage building from which East Oaks operates a dry storage

facility.

       East 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 (“the Drive”)
                                                 -3-


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.

       Before the Warren County Board of Adjustment (“BOA”) ruled

on East Oaks’ petition for a conditional use permit, Mr. Krulik

reviewed the Ordinance and issued a formal determination on 21

April    2011     (“the           21     April     Determination”),               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.

       Morningstar appealed the 21 April Determination to the BOA,

asserting that neither the townhouses nor the Drive portions of

East    Oaks’    site        plan        were     permitted      under       the     Ordinance.

Because the 21 April Determination did not expressly address the

Drive    portion       of     East        Oaks’    site       plan,     on    12     May     2011,

Morningstar      requested               that     Mr.     Krulik           issue     a      formal

determination as to whether East Oaks’ 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, “I am not going to make a determination on

this . . . .            [because] it is not a relevant issue to my
                                              -4-


determination on townhouses as a permitted use or issuing the

zoning permit.”

       On 15 August 2011, the BOA heard Morningstar’s appeal and

voted unanimously to reverse the 21 April Determination and to

revoke East Oaks’ 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’s 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’ zoning

permit and adopt Mr. Krulik’s interpretation of the Ordinance so

as to allow East Oaks to develop the property pursuant to its

site plan.          Morningstar was not a party to the consent order,

and     the   trial     court     concluded          as   a   matter   of    law    that

“Morningstar is not a ‘person aggrieved’ pursuant to N.C. Gen.

Stat.    §    153A-345(b)”       and    that        the   “Warren   County   Board    of

Adjustment had no jurisdiction or authority to hear the appeal

of Morningstar.”

       One week earlier, on 7 October 2011, Morningstar filed its

initial petition for writ of mandamus to compel Mr. Krulik to

issue the requested formal determination regarding the Drive.

In    Respondents’      answer,        they    denied      Morningstar’s     right    to

petition      for    writ   of    mandamus          but   also   attached    a     formal
                                      -5-


determination from Mr. Krulik dated 16 November 2011 (“the 16

November Determination”), which stated, in pertinent part, that

                 [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.

                 The drive is shown as a “20’ wide
            private access easement” on East Oaks’
            development   plans.       Warren  County’s
            Ordinance does not specifically regulate
            easements — 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.

After     Mr.   Krulik   issued    the      16   November    Determination,

Morningstar dismissed its petition for writ of mandamus without

prejudice.

      Thereafter,    Morningstar      noticed    its   appeal    of    the   16

November Determination (“the Drive Appeal”).            By letter dated 17

January 2012, Warren County’s attorney advised Morningstar that

the Drive Appeal would not be placed on the BOA’s agenda.                On 14

May     2012,   Morningstar   filed    another    petition      for   writ   of

mandamus in Warren County Superior Court, seeking — this time —

to compel Respondents to place the Drive Appeal on the BOA’s

agenda for a hearing on the merits.          On 13 September 2012, Judge
                                                 -6-


Hobgood    granted          Morningstar’s         petition      and    issued      a    writ    of

mandamus ordering Respondents to place the appeal on the BOA’s

agenda.     Respondents filed a timely notice of appeal to this

Court.

                                           Analysis

    As      an    initial          matter,       Respondents       argue     that       the     16

November Determination was not a “new” determination from which

Morningstar could appeal to the BOA because it merely echoed Mr.

Krulik’s 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,

Morningstar alleged:                “As of the date of this Petition, Mr.

Krulik     has        not       issued    the     requested       formal      determination

[regarding the Drive].”                  Respondents admitted this allegation in

their     answer           and     then      —    referencing          the    16        November

Determination          —    provided       that    “such     formal       determination         is

hereto attached.”                Thus, we consider Mr. Krulik’s 16 November

letter to be a formal determination from which Morningstar may

appeal.

    We now turn our attention to whether the criteria for the

issuance of a writ of mandamus were satisfied.                                    “A 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.”
                               -7-


Graham Cty. Bd. of Elections v. Graham Cty. Bd. of Comm’rs, 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 “a clear legal

right to the act requested;” (2) the respondent has “a legal

duty to perform the act requested;” (3) the act at issue is

“ministerial in nature and [does] not involve the exercise of

discretion;” (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).    “A court cannot

refuse a petition for writ of mandamus when it is sought to

enforce a clearly-established legal right.”       Id. at 453, 665

S.E.2d at 59.

    Here, Respondents’ primary contention is that mandamus was

not appropriate because Morningstar lacked standing to appeal

Mr. Krulik’s 16 November Determination and, as such, did not

have a “clear legal right” to have its appeal placed on the

BOA’s agenda.   However, because we believe that Mr. Krulik had a

statutory duty to transmit Morningstar’s appeal to the BOA and

that the existence — or nonexistence — of standing is a legal

determination that must be made by the BOA, we affirm the trial

court’s order issuing a writ of mandamus compelling Respondents

to place the appeal on the BOA’s agenda.
                               -8-


     At all times relevant to this action, N.C. Gen. Stat. §

153A-3451 provided, in relevant part, as follows:

          (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.

N.C. Gen. Stat. § 153A-345(b) (emphasis added).     The purpose of

N.C. Gen. Stat. § 153A-345 is “to provide a right of review, and

statutes providing for review of administrative decisions should

be liberally construed to preserve and effectuate that right.”

Mize v. Cty. of Mecklenburg, 80 N.C. App. 279, 283, 341 S.E.2d

767, 769 (1986).

     Neither N.C. Gen. Stat. § 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

1
  N.C. Gen. Stat. § 153A-345 was in effect during the time period
relevant to the present action but has since been repealed.
N.C. Gen. Stat. § 160A-388 now governs appeals to county boards
of adjustment.
                                              -9-


appeal to the BOA from a zoning decision is a “person aggrieved”

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.     §   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 “shall forthwith transmit to the board all

the papers constituting the record upon which action appealed

from   was     taken.”      N.C.       Gen.        Stat.   §   153A-345(b)       (emphasis

added).       The Warren County Zoning Ordinance — in accordance with

§ 153A-345(b) — also specifically provides that “[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.”                       Warren County, N.C.,

Zoning Ordinance § IX-4 (emphasis added).

       Our appellate courts have consistently held that the use of

the    word    “shall”     in    a     statute       indicates       what    actions    are

required or mandatory.            See Multiple Claimants v. N.C. Dep’t of

Health & Human Servs., 361 N.C. 372, 378, 646 S.E.2d 356, 360

(2007)    (“It    is     well    established          that     the    word    ‘shall’   is

generally imperative or mandatory.”                        (citations and quotation
                                         -10-


marks omitted)); Internet E., Inc. v. Duro Communications, Inc.,

146 N.C. App. 401, 405-06, 553 S.E.2d 84, 87 (2001) (“The word

‘shall’ is defined as ‘must’ or ‘used in laws, regulations, or

directives to express what is mandatory.’” (citation omitted)).

As   such,   we    conclude     that    the     act      of   placing     Morningstar’s

appeal on the BOA agenda is ministerial in nature and does not

involve any discretion on the part of the zoning administrator.

      We also hold that Morningstar has a legal right to have its

appeal   transmitted       to    the    BOA        and    placed     on   the    agenda.

Morningstar       appealed      the    16     November        Determination      on    14

December 2011.       In accordance with the provisions of the Warren

County Zoning Ordinance, Morningstar 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     §     IX-4     (“Appeals       from     the   enforcement      and

interpretation of this ordinance . . . shall be filed with the

Zoning Administrator . . . .”); id. at § IX-2 (listing $150.00

as fee for appeals to the BOA).                    Because Morningstar complied

with the requirements for taking an appeal, it had a right to

have its appeal placed on the BOA’s agenda.                        See id. at § IX-3

(“The 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.”); id. at § IX-4 (“The Board of Adjustment
                                              -11-


shall fix a reasonable time, not to exceed 30 days, for the

hearing of the appeal . . . .”).

       Mr. 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       “shall,”      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      Morningstar’s            only       available         remedy.

Morningstar’s ability to appeal to the BOA was foreclosed by Mr.

Krulik’s      refusal     to    place     the       appeal    on     the      BOA’s    agenda.

Moreover,         Morningstar    could        not    appeal    the      substance       of    the

zoning administrator’s decision directly to the superior court

because only BOA decisions are subject to judicial review.                                    See

N.C. Gen. Stat. § 153A-345(e2) (“Each decision of the board is

subject to review by the superior court by proceedings in the

nature of certiorari.” (emphasis added)).

       The    trial    court’s        order    compelling        Respondents          to    place

Morningstar’s         appeal      on     the        BOA    agenda       does     not        allow

Morningstar to circumvent the requirement of standing.                                     To the

contrary, its order fully recognizes that in accordance with §

153A-345, Morningstar 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
                                          -12-


determination of whether Morningstar has standing to appeal must

be made by the BOA rather than by Mr. Krulik.                             We express no

opinion    as    to    whether      Morningstar     does      or    does    not   possess

standing to appeal because that issue is not before us.

       Smith 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’s appeal from

a BOA decision for lack of standing.                    Id. at 652, 652 S.E.2d at

357.    This Court concluded that the petitioner’s application to

the BOA appealing the zoning officer’s decision had not alleged

special    damages      as    required    in     order    for      the    petitioner      to

qualify as a “person aggrieved.”                  Id. at 654-55, 652 S.E.2d at

358.

       We 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,
                                     -13-


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.

    Standing 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

“whether a particular litigant is a proper party to assert a

legal position.”       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’s

decision from review.

    Respondents also contend that their motion to dismiss the

petition for writ of mandamus was improperly denied because (1)

Morningstar failed to join a necessary party (East Oaks); and

(2) Morningstar’s 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.

    “A 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
                                   -14-


party.”    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

Morningstar attempted to appeal the 16 November Determination

and Mr. Krulik refused to place the appeal on the BOA’s agenda.

Morningstar then sought a writ of mandamus directing Respondents

to perform the ministerial, nondiscretionary task of placing the

appeal on the BOA’s agenda for a hearing.              The order issuing

mandamus   in   no   way   addressed   the   merits   of   any   substantive

issues concerning (1) whether Morningstar was an aggrieved party

with standing to appeal; or (2) whether East Oaks’ use of the

Drive is permitted under the Warren County Zoning Ordinance.2

Rather, as Morningstar notes, the present action is “a purely

procedural issue between Morningstar and the Respondents.”

    Respondents nevertheless assert that under N.C. Gen. Stat.

§ 160A-393, Morningstar was required to name East Oaks as a

respondent.     See N.C. Gen. Stat. § 160A-393(e) (2013) (“If 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.”).           However, the scope of N.C.

Gen. Stat. § 160A-393 is specifically limited to appeals in the


2
  The trial court’s order issuing mandamus specifically explains
that “[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.”
                                              -15-


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. § 160A-393(a) (“This section applies

to appeals of quasi-judicial decision-making boards when that

appeal is to superior court and in the nature of certiorari . .

. .”).     As such, we agree with the trial court’s conclusion that

“the 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.”

    Finally, Respondents argue that the trial court improperly

denied their motion to dismiss because Morningstar only sought

mandamus      in    an     attempt     to     take    an   untimely      appeal     of    the

substance of the 21 April Determination.                        Respondents correctly

state    that      “[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.”           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).

    However,             as    previously        discussed,        the     16      November

Determination — unlike the 21 April Determination — specifically

addresses the Drive, and was, in fact, a formal determination
                                       -16-


concerning the Drive.         Once the 16 November Determination was

made, Morningstar attempted to bring a timely appeal to the BOA

but was prevented by Mr. Krulik from doing so.                     We therefore

cannot    agree   with     Respondents’       argument    that   Morningstar’s

petition for mandamus was filed “for the sole purpose of getting

around   the    appeal    deadline    [for    the   21   April   Determination]

which had passed.”       Accordingly, this argument is overruled.

                                   Conclusion

    For the reasons stated above, we affirm the trial court’s

order issuing a writ of mandamus compelling Respondents to place

Morningstar’s appeal on the BOA’s agenda.                Because we hold that

the trial court properly issued the writ of mandamus, we also

affirm    the   trial    court’s     denial   of    Respondents’    motion   for

attorneys’ fees.

    AFFIRMED.

    Judge McCULLOUGH concurs.

    Judge ELMORE dissents by separate opinion.

                                   NO. COA13-458

                         NORTH CAROLINA COURT OF APPEALS

                             Filed:     18 March 2014


MORNINGSTAR MARINAS/EATON FERRY,
LLC,
     Petitioner,

     v.                                       Warren County
                                              No. 12 CVS 180
                                -17-


WARREN COUNTY, NORTH CAROLINA and
KEN KRULIK, WARREN COUNTY PLANNING
AND ZONING ADMINISTRATOR, IN HIS
OFFICIAL CAPACITY,
     Respondents.



       ELMORE, Judge, dissenting.


       I respectfully disagree with the majority’s conclusion that

Mr. Krulik had a statutory duty to transmit the appeal to the

Board of Adjustment (BOA) pursuant to N.C. Gen. Stat. § 153A-

345.     As a result, I would reverse the trial court’s order

granting petitioner’s writ of mandamus.     I concur in all other

aspects of the majority opinion.

       The majority is correct in that N.C. Gen. Stat. § 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 “person aggrieved” as “one adversely affected in

respect of legal rights, or suffering from an infringement or

denial of legal rights.”     Cnty. of Johnston v. City of Wilson,

136 N.C. App. 775, 779, 525 S.E.2d 826, 829 (2000)       (citations

and quotations omitted).    “It is well settled that an appeal may

only be taken by an aggrieved real party in interest.”    Id.

       While 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).        In
                                              -18-


Smith,     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 “show either some interest in

the property affected,” or, if plaintiffs are adjoining property

owners, “they 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 ‘special damages.’”

Id. at 654, 652 S.E.2d at 358.                       We concluded that because the

petitioner’s application to the BOA for appeal of the Zoning

Officer’s decision failed to allege that the zoning decision had

decreased the value of the petitioner’s property or would do so

in   the    future,      the       petitioner     “failed          to    allege,       or       show,

special damages; therefore, she did not have standing to appeal

from the Zoning Officer to the [BOA].”                              Id. at 654-55, 652

S.E.2d at 358.

      I    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’s        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
                                         -19-


under the purview of N.C. Gen. Stat. § 153A-345, Morningstar

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,      Morningstar         neglected       to        do    so.

Without alleging special damages, Morningstar is not “aggrieved”

under N.C. Gen. Stat. § 153A-354, and it had no standing to

appeal.        Thus,   Mr.    Krulik        was    not     compelled          to        place

Morningstar’s appeal on the BOA’s agenda.

    Further,       without         standing,        Morningstar          could            not

demonstrate    a   “clear    legal       right”    to    petition     for      writ        of

mandamus.      Because     Morningstar       failed      to   satisfy     the           first

element   of   mandamus,     the    trial       court    erred   in   granting            its

petition.       Accordingly,       the    trial     court’s      order    should           be

reversed.
