                              NO. COA13-447

                   NORTH CAROLINA COURT OF APPEALS

                       Filed:   18 February 2014


MOUNT ULLA HISTORICAL
PRESERVATION SOCIETY, INC.,
et al.,
     Petitioners

     v.                              Rowan County
                                     No. 11 CVS 2793
ROWAN COUNTY, DAVIDSON COUNTY
BROADCASTING, INC., RICHARD and
DORCAS PARKER, and MAURICE E.
and MARY LEE PARKER,
     Respondents


    Appeal by respondent from order entered 27 September 2012 by

Judge W. David Lee in Rowan County Superior Court.     Heard in the

Court of Appeals 23 October 2013.


    Smith Moore Leatherwood LLP, by Thomas E. Terrell, Jr. and
    Elizabeth Brooks Scherer; Kluttz, Reamer, Hayes, Randolph,
    Adkins & Carter, L.L.P., by Richard R. Reamer; and Sherrill
    and Cameron, PLLC, by Carlyle Sherrill, for petitioner-
    appellees.

    Parker Poe Adams & Bernstein LLP, by Anthony Fox and Benjamin
    Sullivan, for respondent-appellant Rowan County.


    CALABRIA, Judge.


    Respondent Rowan County (“the County”) appeals from the trial

court’s order reversing the decision of the Rowan County Board of

Commissioners (“the Board”) to issue a conditional use permit
                                 -2-
(“CUP”) to respondent Davidson County Broadcasting, Inc. (“DBCI”)

on the basis that the CUP application was barred by the doctrines

of res judicata and collateral estoppel.      We affirm.

                            I. Background

     On 18 January 2005, DCBI applied to the Board for a CUP (“the

2005 CUP application”) to construct a 1,350 foot radio tower (“the

tower”) on property owned by respondents Richard and Dorcas Parker

(“the Parkers”).   After conducting a public hearing regarding the

application, the Board voted to deny the CUP. The written decision

denying the application indicated that it was denied because the

proposed tower would pose an air safety hazard to Miller Airpark,

a nearby private airport.

     DCBI and the Parkers then filed a petition for writ of

certiorari in Rowan County Superior Court to review the Board’s

decision.   The court granted the petition and affirmed the denial

of the CUP.    DCBI and the Parkers appealed to this Court, which

affirmed the decision of the superior court.           Davidson Cty.

Broadcasting, Inc. v. Rowan Cty. Bd. of Comm'rs, 186 N.C. App. 81,

649 S.E.2d 904 (2007)(“DCBI I”).

     On 26 May 2010, DCBI applied to the Board for a CUP for a

1,200   foot   radio   tower   (“the   2010   CUP   application”)   in

substantially the same proposed location as the tower in the 2005
                                      -3-
application that had been denied.           On 24 March 2011, DCBI filed a

supplemental application to include property owned by respondents

Maurice E. Parker and Mary Lee Parker as a fall zone.         Petitioners1

moved to dismiss the 2010 CUP application as being barred by the

doctrines of res judicata and collateral estoppel.                 The Board

denied the motion on 5 July 2011.            Beginning 1 August 2011, the

Board   held   a     quasi-judicial    hearing     to   consider    the   new

application.       On 6 September 2011, the Board entered a written

decision approving the CUP.     The Board found, inter alia, that the

proposed tower would not create any hazardous safety conditions.

     On 3 October 2011, petitioners filed a petition for writ of

certiorari in Rowan County Superior Court, seeking review of the

Board’s CUP approval.     Petitioners once again argued that the 2010

CUP application was barred by res judicata and collateral estoppel.

Petitioners also alleged that the approved CUP did not conform to

the Rowan County Zoning Ordinance.

     On 27 September 2012, the superior court entered an order

reversing the Board’s approval of the 2010 CUP application.               The




1 Petitioners consist of Mt. Ulla Historical Preservation Society,
Inc., Miller Air Park Owners Association, and several dozen private
individuals.
                               -4-
court concluded that the 2010 CUP application was barred by res

judicata and collateral estoppel.    Respondents appeal.2

                     II.   Standard of Review

     “Special and conditional use permit decisions are quasi-

judicial zoning decisions.”   County of Lancaster v. Mecklenburg

County, 334 N.C. 496, 508, 434 S.E.2d 604, 613 (1993).      “Our task,

in reviewing a superior court order entered after a review of a

board decision is two-fold: (1) to determine whether the trial

court exercised the proper scope of review, and (2) to review

whether the trial court correctly applied this scope of review.”

Whiteco Outdoor Adver. v. Johnston County Bd. of Adjust., 132 N.C.

App. 465, 468, 513 S.E.2d 70, 73 (1999).

          The proper standard for the superior court’s
          judicial review depends upon the particular
          issues   presented   on   appeal.   When   the
          petitioner questions (1) whether the agency’s
          decision was supported by the evidence or (2)
          whether   the  decision   was   arbitrary   or
          capricious, then the reviewing court must
          apply the whole record test. However, [i]f a
          petitioner contends the [b]oard’s decision was
          based on an error of law, de novo review is
          proper. Moreover, the trial court, when
          sitting as an appellate court to review a
          [decision of a quasi-judicial body], must set
          forth sufficient information in its order to
          reveal the scope of review utilized and the
          application of that review.


2 While all respondents entered notice of appeal from the superior
court’s order, only respondent Rowan County filed a brief with
this Court.
                                     -5-


Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13,

565   S.E.2d   9,   17   (2002)    (internal   quotations   and   citations

omitted).

                            III.    Res Judicata

      The County argues that the superior court erred by reversing

the Board’s approval of the 2010 CUP application because the

application was barred by the doctrine of res judicata.                 We

disagree.

      “Under the doctrine of res judicata, a final judgment on the

merits in a prior action in a court of competent jurisdiction

precludes a second suit involving the same claim between the same

parties or those in privity with them.” Nicholson v. Jackson Cty.

School Bd., 170 N.C. App. 650, 654, 614 S.E.2d 319, 322 (2005)

(internal quotations and citation omitted). “The purpose of the

doctrine of res judicata is to protect litigants from the burden

of relitigating previously decided matters and to promote judicial

economy by preventing unnecessary litigation.”          Holly Farm Foods

v. Kuykendall, 114 N.C. App. 412, 417, 442 S.E.2d 94, 97 (1994).

“[W]hether the doctrine of res judicata operates to bar a cause of

action is a question of law reviewed de novo on appeal.” Housecalls

Home Health Care, Inc. v. State, ___ N.C. App. ___, ___, 738 S.E.2d

753, 758 (2013).
                                 -6-
     Our Supreme Court has specifically held that res judicata “is

available with respect to the proceedings and final decision of a

judicial or quasi-judicial body.” Little v. Raleigh, 195 N.C. 793,

795, 143 S.E. 827, 828 (1928).     In Little, a building permit to

construct a gasoline filling station was denied by the building

inspector and the board of adjustment, and the denial was upheld

by our Supreme Court.   See Harden v. Raleigh, 192 N.C. 395, 135

S.E. 151 (1926).   The property owner then petitioned the building

inspector to reopen the case.    Little, 195 N.C. at 793, 143 S.E.

at 827.   The building inspector reversed his prior determination

and the previously-denied building permit was issued.       Id.   The

issuance of the permit was upheld by the board of adjustment and

the superior court. Id. at 793-94, 143 S.E. at 827-28.     On appeal,

our Supreme Court reversed the issuance of the building permit on

the basis of res judicata:

          There is no allegation, no proof, and no
          finding by the trial court that the facts in
          the case at bar are in anywise different from
          the facts in the case of Harden v. Raleigh.
          Indeed, the trial judge finds that Mrs. Harden
          applied to the building inspector “to reopen
          and rehear its former decision upon the
          building of the filling station upon her said
          lot.”

          Upon these circumstances we are constrained to
          hold that the plea of res judicata, duly filed
          in apt time by the petitioners, was available,
          and therefore that the owner of the lot is not
                                -7-
           entitled to reopen and rehear the case upon
           the identical facts presented in the former
           record.

Id. at 795, 143 S.E. at 828.

       Little was subsequently distinguished by In re Broughton

Estate, 210 N.C. 62, 185 S.E. 434 (1936).   In Broughton, a permit

was issued to construct a filling station. Id. at 62, 185 S.E. at

434.    The permit issuance was challenged because, inter alia, a

similar application had been denied three years earlier. Id.   The

superior court reversed the granting of the permit based upon

Little, concluding that there had been “no substantial change in

conditions” since the prior permit denial. Id. at 62-63, 185 S.E.

at 434.    That decision was then appealed to our Supreme Court,

which reversed the superior court after determining that Little

was inapplicable:

           The trial court held that the case was
           controlled by the decision in Little v.
           Raleigh, 195 N. C., 793, 143 S. E., 827. The
           two cases are not alike. In the first place,
           the cited case was on application “to reopen
           and rehear” a former decision which had
           received judicial approval sub nomine Harden
           v. Raleigh, 192 N. C., 395, 135 S. E., 151.
           Not so here. In the next place, Little's case,
           supra, was not only identical in allegation
           and fact with the original case, but was in
           truth the same case. Here, the traffic
           conditions as found by the board, “have
           materially    changed    since   the    former
           application was acted on . . . .”
                                 -8-
Id. at 63, 185 S.E. at 435.

     The County contends that, when read together, Little and

Broughton stand for the proposition that res judicata applies to

quasi-judicial land use decisions only when the applicant is

attempting to “reopen and rehear the case upon the identical facts

presented in the former record.”       Little, 195 N.C. at 795, 143

S.E. at 828.      However, the County reads the Broughton Court’s

interpretation of Little too narrowly.

     The Broughton Court determined that the use of res judicata by

the trial court was improper based upon two differences between

the permit approval before it and the permit approval at issue

in Little.     First, the permit issued in Little was based upon an

“application ‘to reopen and rehear’ a former decision which had

received judicial approval . . . .” Broughton, 210 N.C. at 63, 185

S.E. at 435.    Second, the Court noted that “the traffic conditions

as found by the board, ‘have materially changed since the former

application was acted on . . . .’”      Id. (emphasis added).   Thus,

the Broughton Court did not conclude that res judicata did not

apply merely because the two applications at issue in that case

were not exactly the same.     The Court’s conclusion also depended

upon the board’s finding that there was a material change in

conditions between the prior permit application and the subsequent
                                       -9-
permit application. This requirement of a material change in order

to preclude the use of the defense of res judicata for quasi-

judicial land use decisions is consistent with the law in other

jurisdictions       which   have   considered   the   question,    see,   e.g.,

Curless v. County of Clay, 395 So. 2d 255, 258 (Fla. Dist. Ct.

App. 1981); Whittle v. Board of Zoning Appeals, 125 A.2d 41, 46

(Md. 1956); Fisher v. City of Dover, 412 A.2d 1024, 1027 (N.H.

1980); and Cohen v. Fair Lawn, 204 A.2d 375, 377 (N.J. Super. Ct.

App. Div. 1964), as well as with general res judicata principles.

See Restatement (Second) of Judgments § 24 cmt. f. (1982)(“Material

operative facts occurring after the decision of an action with

respect to the same subject matter may in themselves, or taken in

conjunction with the antecedent facts, comprise a transaction

which may be made the basis of a second action not precluded by

the first.”).

     Although       our   Courts   have   not   specifically   defined     what

constitutes     a    material      change,   the   consensus      among   other

jurisdictions which have analyzed whether res judicata bars a

quasi-judicial land use decision appears to be that

          [t]he change in conditions or circumstances
          which would justify the reconsideration of an
          action must be a change in the particular
          circumstance or condition which induced the
          prior denial. The change in circumstances must
          be such that the application for the same or
                                -10-
          a substantially similar special exception or
          variance no longer can be characterized as the
          same claim.

83 Am. Jur. 2d Zoning and Planning § 700 (2013)(footnotes omitted).

This definition of material change makes sense in the context of

quasi-judicial land use decisions because

          [w]hen the facts and circumstances which
          actuated an order or a decision are alleged
          and shown to have so changed as to vitiate or
          materially affect the reasons which produced
          and supported it and no vested rights have
          intervened, it is reasonable and appropriate
          to the functions of the board that the
          subject-matter be re-examined in the light of
          the altered circumstances.

St. Patrick's Church Corp. v. Daniels, 154 A. 343, 345 (Conn.

1931).

     We find the preceding authorities persuasive and utilize them

to formulate the following definition of “material change” in the

context of quasi-judicial land use decisions in North Carolina: a

material change which precludes the use of the defense of res

judicata occurs when the specific facts or circumstances which led

to the prior quasi-judicial land use decision have changed to the

extent that they “vitiate . . . the reasons which produced and

supported” the prior decision such that the application “can no

longer can be characterized as the same claim.”   Id.; 83 Am. Jur.

2d Zoning and Planning § 700.
                                -11-
       In the instant case, the 2005 CUP application was denied

because the proposed tower was determined to be a safety hazard to

Miller Airpark.   See DCBI I, 186 N.C. App. at 91-92, 649 S.E.2d at

912.   Accordingly, in order to avoid being barred by res judicata,

DCBI’s 2010 CUP application must have materially changed the design

of the proposed tower in such a way as to vitiate the concerns

regarding air safety which led to the denial of the 2005 CUP

application.

       Although the Board denied petitioners’ motion to dismiss on

the basis of res judicata, it did not include, as part of its

written decision approving the 2010 CUP application, any findings

which suggest that there was a material change from the denied

2005 CUP application.   However, by denying petitioners’ motion to

dismiss, the Board necessarily found that there was a material

change between the two applications.   This inference is consistent

with Rowan County Commissioner Jim Sides, Jr.’s explanation of his

motion to deny petitioners’ motion to dismiss:

           [t]here has been considerable change in this
           application from the previous application, and
           I realize that the previous decision was made
           based primarily on safety factors. We do not
           know, at this point, based on a 1200 feet (sic)
           tower versus a 1350 feet (sic) tower, what the
           facts would be in relation to safety. Based
           on that, I would move against the motion to
           dismiss . . . .”
                                     -12-
The County makes substantially the same argument to this Court,

contending that the lowering of the tower by 150 feet in the 2010

CUP application was a material change that would preclude the use

of res judicata.

     Prior to determining whether the Board’s finding of a material

change was correct, we must first determine the proper standard of

review,    which      our   Courts   have    not   explicitly     considered

previously.      The consensus from other jurisdictions is that the

determination of whether a subsequent application demonstrates a

material change from a prior application is a factual question,

with deference given to the quasi-judicial body’s finding. See

Russell v. Bd. of Adjustment of Borough of Tenafly, 155 A.2d 83,

88 (N.J. 1959)(“Whether the requirement [of a material change] has

been met is for the board, in the first instance, to determine.

This finding, as any other made by the board, will be overturned

on review only if it is shown to be unreasonable, arbitrary or

capricious.”     (internal     citation   omitted));   Freeman    v.   Ithaca

Zoning Bd. of Appeals, 403 N.Y.S.2d 142, 143 (N.Y. App. Div.

1978)(“[I]t is for the board to determine whether or not changed

facts or circumstances are presented and, in so doing, it may give

weight    even   to   slight   differences   not   easily    discernible[.]”

(internal quotations and citation omitted).                 This deferential
                                     -13-
standard is consistent with Broughton, in which our Supreme Court

overturned the superior court’s conclusion “that there had been no

substantial    change   in     conditions”     based   upon    the       board   of

adjustment’s     finding     that   “traffic   conditions      .    .    .   ‘have

materially changed since the former application was acted on . .

. .’” 210 N.C. at 63, 185 S.E. at 434-35. Accordingly, we conclude

that the deferential whole record test applies to the Board’s

finding of a material change.          We note that the superior court

correctly applied this standard of review below, holding that “[a]

whole record review . . . fails to disclose competent, material or

substantial evidence that the height variance materially alters

the   proposed    use   from    that    use    proposed   in       the    earlier

application.”

      “When utilizing the whole record test, . . . the reviewing

court must examine all competent evidence (the “whole record”) in

order to determine whether the agency decision is supported by

substantial evidence.” Mann Media, 356 N.C. at 14, 565 S.E.2d at

17 (internal quotations and citation omitted). “The ‘whole record’

test does not allow the reviewing court to replace the Board’s

judgment as between two reasonably conflicting views, even though

the court could justifiably have reached a different result had
                                 -14-
the matter been before it de novo.” Thompson v. Board of Education,

292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977).

     The County is correct that the lowering of the tower by 150

feet constituted a change from the denied 2005 CUP application.

However, a review of the whole record does not reveal any evidence

that this change would undermine the reasoning behind the denial

of the 2005 CUP application. The County points to general evidence

presented during the 2010 CUP application hearing that the proposed

1,200 foot tower would be safe for air travel, but fails to connect

this evidence in any way to the change in the height of the tower

from the 2005 CUP application.     The safety evidence cited by the

County would be equally applicable to both a 1,350 foot tower and

a 1,200 foot tower.   As this Court explicitly recognized in DCBI

I, the 2005 CUP application was supported by “evidence from which

the Board could have found that the tower would not pose an

unreasonable or unjustifiable safety hazard” to air travel, but

the Board nonetheless found that evidence to be outweighed by other

evidence that the tower would create such a hazard. 186 N.C. App.

at 92, 649 S.E.2d at 913.    Since there is nothing in the whole

record which suggests that the prior evidence regarding the tower’s

potential safety hazard to air travel from the 2005 CUP application

hearing was vitiated by lowering the tower by 150 feet, the Board’s
                                   -15-
finding in the instant case that there was a material change in

the 2010 CUP application was not supported by the evidence.            See

St. Patrick’s Church, 154 A. at 345.          The whole record reflects

that the Board essentially considered the same information in both

the 2005 and 2010 CUP applications and reached different decisions.

Res judicata forbids such a result.         See King v. Grindstaff, 284

N.C. 348, 355, 200 S.E.2d 799, 804 (1973)(“(W)hen a fact has been

agreed upon or decided in a court of record, neither of the parties

shall be allowed to call it in question, and have it tried over

again at any time thereafter, so long as the judgment or decree

stands unreversed.” (internal quotation and citation omitted)).

Ultimately, as there was no material change between the 2005 and

2010   CUP   applications,   res   judicata     barred   the   Board   from

reconsidering its previous decision.            Therefore, the superior

court properly concluded that res judicata required the Board to

dismiss the 2010 CUP application.         This argument is overruled.

                             IV.   Conclusion

       Res judicata generally applies to quasi-judicial land use

decisions unless there is a material change in the facts or

circumstances since the prior decision was rendered.               In the

instant case, a whole record review provides no evidence that the

lowering of the proposed tower by 150 feet in the 2010 CUP
                                      -16-
application    constituted     a   material    change.     Therefore,      the

superior court properly concluded that the 2010 CUP application

was   barred   by   res   judicata.     The   superior   court’s   order   is

affirmed.

      Affirmed.

      Judges BRYANT and HUNTER, Jr., Robert N. concur.
