              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA16-292

                               Filed: 15 November 2016

Chatham County, No. 14 CV S778

DANIEL HIRSCHMAN, JASON & JOAN HICKEY, WILLIAM HLAVAC,
CHRISTOPHER & AMY GAMBER, JAMES MILLER, JEFFREY C. PUGH and
JANICE M. RIVERO, Petitioners,

             v.

CHATHAM COUNTY, Respondent.


      Appeal by petitioners from Order entered 29 October 2015 by Judge Paul C.

Ridgeway in Chatham County Superior Court. Heard in the Court of Appeals 21

September 2016.


      The Brough Law Firm, PLLC, by G. Nicholas Herman, for petitioners.

      Poyner Spruill, LLP, by Richard J. Rose, for respondent Chatham County.

      Smith Moore Leatherwood, LLP, by Karen M. Kemerait and M. Gray Styers,
      Jr., for respondents New Cingular Wireless PCS, LLC and American Tower,
      LLC.


      ELMORE, Judge.


      Daniel Hirschman, Jason and Joan Hickey, William Hlavac, Christopher and

Amy Gamber, James Miller, and Jeffrey C. Pugh and Janice M. Rivero (petitioners)

appeal from the Chatham County Superior Court’s order dismissing with prejudice

their petition for writ of certiorari. After careful review, we affirm.
                           HIRSCHMAN V. CHATHAM CNTY.

                                  Opinion of the Court



                                  I. Background

      According to the petition, on 30 April 2014, American Tower, LLC and AT&T

Mobility (the applicant) applied to Chatham County (respondent) for a conditional-

use permit to erect and operate a monopole telecommunications tower. The Chatham

County Board of Commissioners (BOC) held a quasi-judicial hearing on the matter

on 16 June 2014, and it forwarded the application to the county planning board for a

recommendation. On 5 August 2014, the county planning board recommended that

the conditional-use permit be approved. The BOC held a meeting on 15 September

2014 in which it granted the conditional-use permit by adopting a resolution. The

BOC’s decision was filed with the clerk of the BOC on 6 October 2014.

      Petitioners are citizens and residents of Chatham County who live “within

plain view” of the proposed tower. On 31 October 2014, petitioners filed a “Petition

for Review in the Nature of Certiorari,” seeking review of the BOC’s decision to grant

the applicant a conditional-use permit. Petitioners alleged that they had standing to

bring the petition because they were “owners of residences and lots in close proximity

to the tower site such that the tower will be plainly visible from [p]etitioners’

properties,” and they “will sustain a diminution in the fair market values of their

properties and an impairment of the residential integrity and character of their

community.”




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      On 10 November 2014, the Chatham County Superior Court issued a writ of

certiorari. Respondent filed a response to the petition and a motion to dismiss,

arguing that the petition was deficient in that petitioners failed to name the applicant

as a respondent as required by N.C. Gen. Stat. § 160A-393(e). Thus, respondent

claimed that the superior court lacked jurisdiction. Second, respondent argued that

petitioners lacked standing because there was no evidence to establish that they

would suffer special damages. On 30 April 2015, petitioners filed a “motion for entry

of consent order allowing motion to intervene, or, in the alternative, for an order to

include the applicant and other parties designated in the consent order [to] be added

as respondents.”

      After a hearing on respondent’s motion, the trial court entered an order

concluding that it lacked subject matter jurisdiction over the cause “because the

appeal was not properly perfected in accordance with N.C. Gen. Stat. § 160[A]-393(e)

in that the [p]etitioners were not the applicants before the decision-making board

whose decision is being appealed, and the [p]etitioners failed to name the applicants,

AT&T and American Towers, as respondents in their petition.” Accordingly, the trial

court granted respondent’s motion to dismiss and dismissed the petition with

prejudice. Petitioners appeal.

                                     II. Analysis

      “The appellate court reviews de novo an order of the trial court allowing a



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motion to dismiss for lack of subject matter jurisdiction[.]” Cooke v. Faulkner, 137

N.C. App. 755, 757, 529 S.E.2d 512, 513 (2000) (citation omitted).

          Petitioners argue that their failure to name the applicant as a respondent in

the petition did not deprive the trial court of subject matter jurisdiction, relying

exclusively on our holding in MYC Klepper/Brandon Knolls L.L.C. v. Board of

Adjustment for City of Asheville, 238 N.C. App. 432, 436–37, 767 S.E.2d 668, 671

(2014).      Respondent claims that the trial court correctly dismissed the petition

because petitioners failed to comply with N.C. Gen. Stat. § 160A-393(e), which

constituted a jurisdictional defect. Alternatively, pursuant to Rule 10(c)1 of the North

Carolina Rules of Appellate Procedure, respondent argues that the petition must be

dismissed because petitioners lack standing.

                  When deciding special use permits or conditional use
                  permits, the board of county commissioners or planning
                  board shall follow quasi-judicial procedures. . . . Every
                  such decision of the board of county commissioners or
                  planning board shall be subject to review of the superior
                  court in the nature of certiorari consistent with G.S. 160A-
                  388.




1   N.C. R. App. P. 10(c) (2016) provides:

                  Without taking an appeal, an appellee may list proposed issues on
                  appeal in the record on appeal based on any action or omission of the
                  trial court that was properly preserved for appellate review and that
                  deprived the appellee of an alternative basis in law for supporting the
                  judgment, order, or other determination from which appeal has been
                  taken.

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                                    Opinion of the Court



N.C. Gen. Stat. § 153A-340(c1) (2015). Section 160A-388(e2)(2) provides: “Every

quasi-judicial decision shall be subject to review by the superior court by proceedings

in the nature of certiorari pursuant to G.S. 160A-393.” N.C. Gen. Stat. § 160A-

388(e2)(2) (2015). Furthermore, “[a] petition for review shall be filed with the clerk

of superior court by the later of 30 days after the decision is effective or after a written

copy thereof is given in accordance with subdivision (1) of this subsection.” Id.

       N.C. Gen. Stat. § 160A-393, entitled “Appeals in the nature of certiorari,”

applies to “appeals of quasi-judicial decisions of decision-making boards when that

appeal is to superior court and in the nature of certiorari as required by this Article.”

N.C. Gen. Stat. § 160A-393(a) (2015); see also 2009 N.C. Sess. Law 2009-421 (“An act

to clarify the law regarding appeals of quasi-judicial decisions made under Article 19

of Chapter 160A and Article 18 of Chapter 153A of the General Statutes.”). “An

appeal in the nature of certiorari shall be initiated by filing with the superior court a

petition for writ of certiorari.”    N.C. Gen. Stat. § 160A-393(c).        Relevant here,

subsection (e), entitled “Respondent” provides:

              The respondent named in the petition shall be the city
              whose decision-making board made the decision that is
              being appealed, except that if the petitioner is a city that
              has filed a petition pursuant to subdivision (4) of
              subsection (d) of this section, then the respondent shall be
              the decision-making board. 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. . . .



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N.C. Gen. Stat. § 160A-393(e) (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.” Morningstar Marinas/Eaton Ferry, LLC v. Warren

Cnty., 233 N.C. App. 23, 28, 755 S.E.2d 75, 79, disc. review denied, 367 N.C. 508, 758

S.E.2d 862 (2014), and aff’d, 368 N.C. 360, 777 S.E.2d 733 (2015).

      Here, respondent directs our attention to two unpublished opinions that have

addressed this precise issue. In Whitson v. Camden County Board of Commissioners,

COA12-1282, 2013 WL 3770664, at *1 (N.C. Ct. App. July 16, 2013), the Camden

County Board of Commissioners approved Camden Plantation Properties, Inc.’s

application for a conditional-use permit. Mr. Whitson, a nearby landowner, filed a

petition for writ of certiorari, seeking review of the board’s decision. Id. Pursuant to

the county’s motion, the superior court dismissed the petition because Mr. Whitson

failed to name the applicant as a respondent in his petition, as required by statute.

Id. On appeal, this Court observed that “[a]s the trial court concluded, ‘[N.C. Gen.

Stat.] § 160A-393(e) is jurisdictional in nature.’ ” Id. at *2. Citing the “clear and

unambiguous” language in N.C. Gen. Stat. § 160A-393(e), we concluded that the trial

court properly dismissed the petition. Id.

      In Philadelphus Presbyterian Foundation, Inc. v. Robeson County Board of

Adjustment, COA13-777, 2014 WL 47325, at *1 (N.C. Ct. App. Jan. 7, 2014), disc.

review denied, 367 N.C. 504, 758 S.E.2d 873 (2014), this Court similarly affirmed a



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trial court’s order for the same reason. The Robeson County Board of Commissioners

approved Buie Lakes Plantation, LLC’s application for a conditional-use permit. Id.

The petitioners, a number of individuals and two corporations, filed a petition for writ

of certiorari, seeking review of the board’s decision. Id. The petitioners did not name

the applicant, Buie Lakes, as a respondent. Id. The named respondents moved to

dismiss the petition, which the superior court allowed because the petitioners failed

to name the applicant as a respondent in the petition, as required by statute. Id. at

*2.

      On appeal, this Court acknowledged that Whitson was not binding, but we

concluded that

             it is consistent with and compelled by our decision in
             McCrann v. Village of Pinehurst, 216 N.C. App. 291, 716
             S.E.2d 667 (2011), in which the petitioner’s challenge to the
             issuance of a conditional use permit was not filed within
             the thirty day period specified in N.C. Gen. Stat. § 160A-
             388(e2) and in which we held that this deficiency, like the
             failure to note an appeal in a timely manner, deprived the
             reviewing court of any jurisdiction to hear and determine
             the issues raised in the petition. . . .

             Although the filing of a certiorari petition certainly bears
             some resemblance to the institution of a civil action, as
             Petitioners implicitly assert, the analogy between an
             appeal and a request for certiorari review made in
             McCrann is clearly the correct one. In such certiorari
             proceedings, the “superior court is not a trier of fact, but
             assumes the posture of an appellate court.” In re Appeal of
             Willis, 129 N.C. App. 499, 500, 500 S.E.2d 723, 725
             (1998). . . . For that reason, we conclude that the extent to
             which a trial court obtains jurisdiction to address the


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             issues raised in a certiorari petition should be analyzed in
             the same manner as the extent to which an appellate court
             obtains jurisdiction over an appeal from the General Court
             of Justice or an administrative agency.

Philadelphus Presbyterian Found., Inc., 2014 WL 47325, at *3.

      The Philadelphus Court also addressed the petitioners’ argument that, based

on our decision in Mize v. Mecklenburg County, 80 N.C. App. 279, 341 S.E.2d 767

(1986), the trial court was obligated to allow their motion to amend the petition.

Philadelphus Presbyterian Found., Inc., 2014 WL 47325, at *5. In Mize, the trial

court dismissed the petitioners’ “Petition in the Nature of Certiorari,” filed under N.C.

Gen. Stat. § 153A-345, for failing to join a necessary party. Mize, 80 N.C. App. at

280–81, 341 S.E.2d at 768. This Court reversed, noting that a dismissal “under Rule

12(b)(7) is proper only when the defect cannot be cured” and “under the circumstances

presented, the court abused its discretion by failing to allow the petitioners to amend

the petition to join the Zoning Board of Adjustment.” Id. at 283–84, 341 S.E.2d at

769–70. The Philadelphus Court stated that the petitioners’ reliance on Mize was

misplaced because the Mize Court specifically noted the following:

             The language of [N.C. Gen. Stat. § ] 153A-345 requires only
             that any petition seeking review by the superior court be
             filed with the clerk of superior court within 30 days after
             the decision of the Board is filed or after a written copy has
             been delivered to every aggrieved party. The petitioners
             complied with all the express requirements of this vague
             statute by filing a petition in Mecklenburg County Superior
             Court within 30 days of the decision of the Board.



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                                   Opinion of the Court



Philadelphus Presbyterian Found., Inc., 2014 WL 47325, at *5 (quoting Mize, 80 N.C.

App. at 283, 341 S.E.2d at 769) (emphasis added).

      The Philadelphus Court stated that “although the Mize petitioners failed to

join a necessary party, they did comply with all of the statutorily prescribed

prerequisites for the filing of a valid certiorari petition.” Id.; see Mize, 80 N.C. App.

at 281, 341 S.E.2d at 768 (“The statute[, N.C. Gen. Stat. § 153A-345,] does not set

forth who is to be named as a respondent or defendant in a proceeding under its

provisions.”). In contrast, the Philadelphus petitioners “failed to comply with the

additional statutory requirements for a valid certiorari petition spelled out in N.C.

Gen. Stat. § 160A-393, a statutory section which was enacted over two decades after

the issuance of our decision in Mize.” Philadelphus Presbyterian Found., Inc., 2014

WL 47325, at *5. Accordingly, we stated: “[G]iven that the petitioners’ failure to join

a necessary party in Mize did not, unlike the failure to join a necessary party at issue

here, constitute a jurisdictional defect, Mize provides no basis for an award of the

relief which Petitioners seek in this case.” Id.

      Nonetheless, here petitioners argue that our holding in MYC Klepper, 238 N.C.

App. at 436–37, 767 S.E.2d at 671, is “dispositive of the question presented by the

instant appeal[.]” In MYC Klepper, the petitioner, a billboard sign owner, filed a

petition for writ of certiorari, seeking review of the City of Asheville Board of

Adjustment’s decision to uphold a notice of violation regarding a billboard sign it



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owned. Id. at 433–35, 767 S.E.2d at 669–71. The petitioner named the “Board of

Adjustment for the City of Asheville,” not the “City of Asheville,” as required by N.C.

Gen. Stat. § 160A-393(e) (“The respondent named in the petition shall be the city

whose decision-making board made the decision that is being appealed[.]”). Id. at

436, 767 S.E.2d at 671. On appeal, this Court stated that the “defect” amounted to

a failure to join a necessary party, “the City was on notice of this action and

participated in the defense thereof[,]” and “the City’s participation in the proceedings

cured the defect in the petition[.]” Id. at 436–37, 767 S.E.2d at 671.

      The facts of MYC Klepper are distinguishable from the current facts. In that

case, the issue involved a notice of violation, not the granting of a conditional-use

permit, and the petitioner was the billboard sign owner, not an interested neighbor.

Id. at 433–35, 767 S.E.2d at 669–71. The MYC Klepper Court’s holding did not

address the statutory requirement that the applicant be named as a respondent when

the petitioner is not the applicant. See N.C. Gen. Stat. § 160A-393(e).

      We note that in Darnell v. Town of Franklin, 131 N.C. App. 846, 849–50, 508

S.E.2d 841, 844 (1998), a case decided before the enactment of N.C. Gen. Stat. § 160A-

393, this Court held that the petitioner should have been allowed to amend her

petition for writ of certiorari under Rule 15 in order to establish her status as an

aggrieved party and to show that jurisdiction exists.       The Court stated that “a

pleading may not be amended so as to confer jurisdiction in a particular case stated;



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                                        Opinion of the Court



but there may be an amendment to show that the jurisdiction exists.” Id. at 850, 508

S.E.2d at 844 (citations omitted). We also note, though, that in Crossman v. Moore,

341 N.C. 185, 187, 459 S.E.2d 715, 717 (1995), our Supreme Court interpreted Rule

15 and stated that it “speaks of claims and allows the relation back of claims if the

original claim gives notice of the transactions or occurrences to be proved pursuant

to the amended pleading. When the amendment seeks to add a party-defendant or

substitute a party-defendant to the suit, the required notice cannot occur.” Thus, the

Court held that Rule 15 “is not authority for the relation back of a claim against a

new party.” Id. Since then, this Court “has construed the Crossman decision to mean

that Rule 15(c) is not authority for the relation back of claims against a new party,

but may allow for the relation back of an amendment to correct a mere misnomer.”

Piland v. Hertford Cnty. Bd. of Comm’rs, 141 N.C. App. 293, 299, 539 S.E.2d 669, 673

(2000).

       While Whitson and Philadelphus Presbyterian Foundation, Inc.                               are

unpublished and, therefore, not binding,2 we find their analyses persuasive and

directly applicable here. See Henderson v. Cnty. of Onslow, ___ N.C. App. ___, ___,

782 S.E.2d 57, 60 (Feb. 2, 2016) (COA Nos. 14-1355 and 14-1356) (relying on and

quoting Philadelphus Presbyterian Foundation, Inc., 2014 WL 47325, at *6, for the

proposition that “certiorari proceedings conducted pursuant to N.C. Gen. Stat. §


2N.C. R. App. P. 30(e)(3) (2016) (“An unpublished decision of the North Carolina Court of Appeals does
not constitute controlling legal authority.”).

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                                    Opinion of the Court



160A-393 . . . bear a much greater resemblance to appellate proceedings than to

ordinary civil actions”). Recently, the Henderson Court stated:

             A petition for certiorari is not an action for civil redress or
             relief as is a suit for damages or divorce; a petition for
             certiorari is simply a request for the court addressed to
             judicially review a particular decision of some inferior
             tribunal or government body. . . . [A] petition for certiorari
             is not the beginning of an action for relief . . . .; in effect it
             is an appeal from a decision made by another body or
             tribunal. Certiorari was devised by the early common law
             courts as a substitute for appeal and it has been so
             employed in our jurisprudence since the earliest times.

Henderson, ___ N.C. App. at ___, 782 S.E.2d at 61 (quoting Little v. City of Locust, 83

N.C. App. 224, 226–27, 349 S.E.2d 627, 629 (1986)).

      According to well-established law, “an appeal is not a matter of absolute right,

but the appellant must comply with the statutes and rules of Court as to the time and

manner of taking and perfecting his appeal.” Caudle v. Morris, 158 N.C. 594, 595, 74

S.E. 98, 98 (1912); see also In re Halifax Paper Co., 259 N.C. 589, 592, 131 S.E.2d 441,

444 (1963) (“There is no inherent or inalienable right of appeal from an inferior court

to a superior court or from a superior court to the Supreme Court.”); Northfield Dev.

Co. v. City of Burlington, 165 N.C. App. 885, 887, 599 S.E.2d 921, 924 (2004)

(“[A]venues of appeal are created by statute.”). Moreover, “[c]ompliance with the

requirements for entry of notice of appeal is jurisdictional.” State v. Oates, 366 N.C.

264, 266, 732 S.E.2d 571, 573 (2012) (citing Dogwood Dev. & Mgmt. Co. v. White Oak

Transp. Co., 362 N.C. 191, 197–98, 657 S.E.2d 361, 364–65 (2008)) (“The appellant’s


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                                   Opinion of the Court



compliance with the jurisdictional rules governing the taking of an appeal is the

linchpin that connects the appellate division with the trial division and confers upon

the appellate court the authority to act in a particular case.”). Therefore, “a default

precluding appellate review on the merits necessarily arises when the appealing

party fails to complete all of the steps necessary to vest jurisdiction in the appellate

court.” Dogwood Dev. & Mgmt. Co., 362 N.C. at 197, 657 S.E.2d at 364.

      Here, petitioners were not the applicant before the decision-making board

whose decision was appealed.      Therefore, under N.C. Gen. Stat. § 160A-393(e),

petitioners were required to name the applicant as a respondent, which they failed to

do. As this Court has previously stated, “[t]he real adverse party in interest is the

party in whose favor the Zoning Board’s decision has been made.” Mize, 80 N.C. App.

at 282–83, 341 S.E.2d at 769 (noting that the zoning board was a necessary party

because “the Board [was] the agency having custody of the record that [was] being

reviewed”). In order to avoid the dilemmas our courts have previously faced in

attempting to ascertain the required respondents in an appeal of a quasi-judicial

decision, see, e.g, id. at 281, 341 S.E.2d at 768 (“First we address whether the Zoning

Board of Adjustment is a necessary party to a petition filed pursuant to G.S. 153A-

345(e).”), our General Assembly specifically listed the required respondents in N.C.

Gen. Stat. § 160A-393(e). Thus, when an applicant is granted a conditional-use

permit and an outsider appeals the decision through a petition for writ of certiorari



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but does not include the applicant as a respondent in the appeal, the superior court

is without jurisdiction to review the merits. Accordingly, the trial court correctly

concluded that it lacked jurisdiction because petitioners did not properly perfect their

appeal in accordance with N.C. Gen. Stat. § 160A-393. We do not reach respondent’s

alternative argument on standing.

                                   III. Conclusion

      The trial court did not err in dismissing the petition. We affirm.

      AFFIRMED.

      Judges ZACHARY and ENOCHS concur.




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