               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-903

                                Filed: 19 March 2019

Avery County, No. 16 CVS 256

PETRA WEISHAUPT-SMITH, Petitioner

              v.

TOWN OF BANNER ELK, TOWN OF BANNER ELK BOARD OF ADJUSTMENT,
and AMERICAN TOWERS, LLC, Respondents


        Appeal by Petitioner from Order entered 18 May 2018 by Judge R. Gregory

Horne in Avery County Superior Court. Heard in the Court of Appeals 28 January

2019.


        Miller & Johnson, PLLC, by Nathan A. Miller, for petitioner-appellant.

        Eggers, Eggers, Eggers & Eggers, PLLC, by Stacy C. Eggers, IV and Kimberly
        M. Eggers, for respondent-appellee Town of Banner Elk.

        Nexsen Pruet, PLLC, by David S. Pokela, for respondent-appellee American
        Towers, LLC.


        HAMPSON, Judge.


        Petra Weishaupt-Smith (Petitioner) appealed from an Order affirming the

decision of the Town of Banner Elk Board of Adjustment (the Board) to grant a

Variance to American Towers, LLC (American Towers) and issue a Conditional Use

Permit to American Towers to construct a telecommunications tower. Upon filing

Notice of Appeal, Petitioner’s counsel also filed a Motion to Substitute Party on behalf
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of William Stevenson (Stevenson), citing N.C.R. App. P. 38 and seeking to substitute

Stevenson for Petitioner. This Motion was granted by the trial court by a consent

order. We, however, determine Stevenson is not an aggrieved party with standing to

appeal the trial court’s Order. Therefore, we dismiss this appeal.

                         Factual and Procedural Background

       On 13 June 2013, American Towers entered into an agreement to lease 14.26

acres of land, including easement rights, (the Property) within the extra-territorial

jurisdiction of the Town of Banner Elk (the Town).

       On 21 June 2013, American Towers submitted an application for a Conditional

Use Permit to construct a 100-foot monopole telecommunications tower on the

Property. At its 19 August 2013 meeting, the Board conducted an initial public

hearing on the Conditional Use Permit. Petitioner and several others, including

Stevenson, sought to intervene as parties in the quasi-judicial proceeding. The Board

allowed Petitioner, who owned property adjacent to the Property, to intervene as a

party. The Board did not permit Stevenson or other property owners to intervene as

parties in the public hearing.1 During this public hearing, it came to light the

advertised notice of the hearing was defective, and the Board declared “a mistrial.”




       1   It appears the Board employed a formal intervention process in determining who could
participate in the hearing. It does not appear the Board’s intervention process was limited to
determining solely issues of standing because the Board denied the additional requests to intervene,
at least in part, on the basis the evidence would be cumulative to that presented by Petitioner. No
party appealed these rulings.

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The Board subsequently held a full public hearing on 18 November 2013. By written

order dated 3 December 2013, the Board granted a Conditional Use Permit to

American Towers.

      On 4 January 2014, Petitioner filed a Petition for Writ of Certiorari, seeking

review of the Board’s decision, in Avery County Superior Court, which issued its Writ

on the same day. The trial court entered an order on 23 October 2014, remanding the

case back to the Board for further proceedings and to hear and receive additional

evidence on several issues. This included a determination of whether the Property

met the Town’s requirements for a right-of-way to access the Property.

      Because American Towers only had rights in a 20-foot-wide access easement

to the Property, and the Town’s zoning ordinance required a 25-foot-wide right-of-

way, American Towers filed a Variance request on 3 February 2015 with the Town,

seeking a Variance from the 25-foot-wide right-of-way requirement. The Variance

request was heard on 16 March 2015 in conjunction with the hearing on the

Conditional Use Permit application on remand from the 23 October 2014 order.

      At the 16 March 2015 hearing, the Board heard arguments on the threshold

issue of whether American Towers’s Variance request related back to the original

Conditional Use Permit application and whether the Variance request related back

to, and was subject to, the zoning ordinance in effect in June 2013 when American

Towers first applied for its Conditional Use Permit or to a December 2013 revision of



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the ordinances governing telecommunications towers passed shortly after the Town

initially approved the Conditional Use Permit. By written order dated 10 April 2015,

the Board found American Towers’s Variance request did not relate back to the

original application and was thus “time barred.” As a result, the Board also ruled

that a sufficient right-of-way did not exist and denied American Towers’s application

for a Conditional Use Permit.

      On 29 April 2015, American Towers filed a Petition for Writ of Certiorari to

the Avery County Superior Court, seeking review of the Board’s orders denying its

Variance request and Conditional Use Permit application. The Writ of Certiorari

issued that same day. Following a hearing, the trial court entered an order on 8

March 2016, reversing the Board’s orders on the Variance request and Conditional

Use Permit application. Further, the trial court remanded the case back to the Board

with instructions to consider the merits of the Variance request and to grant the

Conditional Use Permit if the Board determined the Variance should be granted.

      On 20 June 2016, the Board conducted another public hearing on the Variance

request and Conditional Use Permit application, per the trial court’s 8 March 2016

order. After receiving evidence and hearing arguments, the Board unanimously

voted to grant the Variance request. In accordance with the 8 March 2016 order, the

Board then voted on the Conditional Use Permit, which was also unanimously




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approved. On 3 October 2016, the Board filed its written order with the Town Clerk,

granting both the Variance request and Conditional Use Permit.

      On 2 November 2016, Petitioner filed a new Petition for Writ of Certiorari

seeking review of the Board’s 3 October 2016 decision. This Petition was filed on

Petitioner’s own behalf, alleging her standing as a neighboring property owner and

as a party to the quasi-judicial proceedings before the Board. There is no indication

Petitioner filed as a representative party or on behalf of a group or association.

Stevenson did not seek to intervene in this proceeding. The trial court issued its Writ,

bringing the record of the proceedings before the court. On 18 May 2018, the trial

court entered an order affirming the Board’s decision to grant the Variance and

Conditional Use Permit.

      Petitioner timely filed her Notice of Appeal on 15 June 2018. The same day,

Stevenson, by and through Petitioner’s counsel, filed a Motion to Substitute Party,

pursuant to Rule 38 of the North Carolina Rules of Appellate Procedure. Stevenson

alleged he owns property immediately adjacent to the Property and requested to be

substituted for Petitioner, who had allegedly recently sold her house and now lacked

standing to continue this appeal. Stevenson further alleged he was actively involved

in the proceedings before the Board and trial court, including attending all hearings

before the Board and trial court. With consent of the parties, the trial court entered




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an order on 10 July 2018, allowing Stevenson to substitute for Petitioner in this

appeal.

                               Appellate Jurisdiction

      No party to this case raises the issue of Stevenson’s standing to pursue this

appeal. Indeed, his substitution is entirely ignored in briefing, with the exception of

a single sentence in the procedural history recitation of Appellant’s brief.

Nevertheless, “standing is a jurisdictional issue and this Court may raise the question

of subject matter jurisdiction on its own motion.” Town of Midland v. Morris, 209

N.C. App. 208, 223, 704 S.E.2d 329, 340 (2011) (citations and quotation marks

omitted).

      “Standing typically refers to the question of whether a particular litigant is a

proper party to assert a legal position. Standing carries with it the connotation that

someone has a right; but, quaere, is the party before the court the appropriate one to

assert the right in question.” Id. at 224-25, 704 S.E.2d at 341 (citations and quotation

marks omitted). “[I]t is well settled that an appeal may only be taken by an aggrieved

real party in interest.” Id. at 224, 704 S.E.2d at 341 (citations omitted); see also King

Fa, LLC v. Ming Xen Chen, ___ N.C. App. ___, ___, 788 S.E.2d 646, 650 (2016).

      In Duke Power Co. v. Board of Adjustment, this Court addressed an analogous

case. 20 N.C. App. 730, 202 S.E.2d 607, cert. denied, 285 N.C. 235, 204 S.E.2d 22

(1974). There, Duke Power Company sought a variance to construct a power line in



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a residential neighborhood, which was denied. Id. at 730, 202 S.E.2d at 607. Duke

Power Company petitioned for judicial review by certiorari from the superior court,

which reversed the decision and ordered the variance be granted and permit issued.

Id. at 730-31, 202 S.E.2d at 607-08.        Neighboring landowners who opposed the

variance, but who made no motion to intervene or be made parties in the superior

court proceeding, sought to appeal the superior court ruling to this Court. Id.

      This Court recognized:

             While the persons complaining of the court's ruling may have
          been aggrieved by the proximity of their land to the proposed
          power line of the petitioner, it does not necessarily follow that
          they have the right to appeal. In addition to being aggrieved, they
          must have been parties to the suit from which they wish to
          appeal.

Id. at 731, 202 S.E.2d at 608. Our Court reasoned “[s]ince [the property owners] were

not parties, they have no right to appeal or otherwise complain of the ruling of the

court” and dismissed the appeal. Id. at 732, 202 S.E.2d at 608 (citations omitted).

Under the holding of Duke Power Co., dismissal of the appeal would be the clear and

obvious result in this case.

      The    question   remains,    however,     whether   Stevenson’s   post-judgment

substitution pursuant to N.C.R. App. P. 38 requires a different outcome. Certainly,

it appears the parties to the appeal impliedly assume their consent to the substitution

resolves any standing issue.       However, “[s]ubject matter jurisdiction cannot be




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conferred upon a court by consent, waiver or estoppel . . . .” In re T.R.P., 360 N.C.

588, 595, 636 S.E.2d 787, 793 (2006) (citations and quotation marks omitted).

       N.C.R. App. P. 38, in relevant part, provides:

               (a) Death of a Party. No action abates by reason of the death
           of a party while an appeal may be taken or is pending, if the cause
           of action survives. If a party acting in an individual capacity dies
           after appeal is taken from any tribunal, the personal
           representative of the deceased party in a personal action, or the
           successor in interest of the deceased party in a real action may be
           substituted as a party on motion filed by the representative or the
           successor in interest or by any other party with the clerk of the
           court in which the action is then docketed. . . .

               ....

              (b) Substitution for Other Causes. If substitution of a
           party to an appeal is necessary for any reason other than death,
           substitution shall be effected in accordance with the procedure
           prescribed in subsection (a).

N.C.R. App. P. 38(a)-(b).2 Our Courts have not addressed the scope of Rule 38.

However, a plain reading of N.C.R. App. P. 38 demonstrates it is not intended to be a

vehicle to broadly permit non-parties to swap-in for existing parties or to

automatically vest a non-party with standing to appeal as a party aggrieved. Indeed,

such a plain reading calls into question the viability of the parties’ consent order

allowing Stevenson’s substitution in this case.




       2Subsection (c) goes on to address substitution with respect to public officers and parties
named in official or representative capacities. N.C.R. App. P. 38(c).

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      Stevenson’s Motion seems to invoke N.C.R. App. P. 38(b), reciting: “A

substitution is needed at this point as the Petitioner . . . has recently sold her property

. . . .” Thus, the inquiry becomes whether “substitution of a party to an appeal is

necessary for any reason other than death[.]” N.C.R. App. P. 38(b). We find guidance

on this question in case law interpreting the analogous federal appellate rule. See,

e.g., Ellison v. Alexander, 207 N.C. App. 401, 405, 700 S.E.2d 102, 106 (2010)

(“Although we are not bound by federal case law, we may find their analysis and

holdings persuasive.” (citations and quotation marks omitted)).

      Rule 43(b) of the Federal Rules of Appellate Procedure provides: “If a party

needs to be substituted for any reason other than death, the procedure prescribed in

Rule 43(a) [applicable to substitution in cases involving death of a party] applies.”

Fed. R. App. P. 43(b).     The previous version of Federal Rule 43(b) tracked the

language of our Rule 38(b) and allowed substitution when “necessary for any reason

other than death.” Compare Fed. R. App. P. 43(b) (1986), with N.C.R. App. P. 38(b).

When Federal Rule 43(b) was amended to its current version, the Advisory

Committee Notes indicated that the change in Federal Rule 43(b) was “intended to

be stylistic only.”   Fed. R. App. P. 43(b) advisory committee’s notes to 1998

amendments.

      In Alabama Power Co. v. Interstate Commerce Commission, the District of

Columbia Circuit (D.C. Circuit) held the inclusion of the world “necessary” in the 1986



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version of Federal Rule 43(b) meant substitution is available only when “a party to

the suit is unable to continue to litigate, not . . . [when] an original party has

voluntarily chosen to stop litigating.” 852 F.2d 1361, 1366 (D.C. Cir. 1988). In

reaching this conclusion, the D.C. Circuit examined subsections (a) and (c) of Federal

Rule 43, which allow for substitution when a party dies or is removed from office, and

thus necessarily cannot continue an appeal, and concluded that the “most natural

reading” of Federal Rule 43(b) “is to permit substitution in similar situations where

a party is incapable of continuing the suit, such as where a party becomes

incompetent or a transfer of interest in the company or property involved in the suit

has occurred.” Id.; see also Fed. R. App. P. 43(a), (c).

      The posture of Alabama Power Co. was similar to the present case. There, two

railroad trade associations, among others, brought a petition for judicial review of an

agency decision, but later dismissed their petition. On appeal from the judicial review

order, Conrail sought to substitute itself for the trade associations despite having not

filed a petition for review and having not moved to intervene in the proceedings below.

The D.C. Circuit denied Conrail’s motion to substitute where the original appellants

were fully capable of proceeding, but had voluntarily dropped their case. Id.

      We find the D.C. Circuit’s interpretation of the prior version of Federal Rule

43(b) persuasive and hold that it is equally applicable to N.C.R. App. P. 38(b). Under

Rule 38(b) of our Rules of Appellate Procedure, a substitution is appropriate only



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where “necessary,” and “ ‘[n]ecessary’ means that a party to the suit is unable to

continue to litigate.” See id. Therefore, substitution is permissible only when “a party

to the suit is unable to continue to litigate” and not when “an original party has

voluntarily chosen to stop litigating.” See id. The clear teaching of Alabama Power

Co. is that a non-party to litigation below cannot be permitted to simply substitute in

an appeal where the original party (or their successor) has ceased litigation.

      In this case, Stevenson does not allege he is a successor in interest to

Petitioner’s real property or her personal representative. Petitioner has sold her

property, thus abandoning the litigation, and her actual successor in interest in her

property has not sought substitution, thus dropping the case. Stevenson, as a non-

party to the proceedings in the trial court below, has no right to appeal the trial

court’s ruling to this Court.

      Indeed, the D.C. Circuit made an important point, equally applicable to this

case: to allow substitution by a party who failed to timely petition for agency review

or timely request intervention under the governing statutes would “condone the

impermissible—an evasion of clear jurisdictional requirements ordained by Congress

for obtaining judicial review.” Id. at 1366-67. Here, Stevenson could have timely

filed his own Petition for Writ of Certiorari alleging his own standing to challenge the

Board’s decision. See N.C. Gen. Stat. §§ 160A-388, -393 (2017). Stevenson could have

also sought to timely intervene in the judicial review proceedings in the trial court.



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See N.C. Gen. Stat. § 160A-393(h)(2).           To allow Stevenson’s substitution to

automatically provide him standing as an aggrieved party on appeal would be to

condone evasion of the clear jurisdictional requirements of N.C. Gen. Stat. §§ 160A-

388 and -393 governing judicial review of municipal quasi-judicial decisions. See

McCrann v. Vill. of Pinehurst, 216 N.C. App. 291, 294, 716 S.E.2d 667, 670 (2011)

(failure to timely file petition for writ of certiorari for judicial review of the issuance

of a special use permit was a jurisdictional defect requiring dismissal).

      Consequently, we conclude the trial court’s substitution of Stevenson for

Petitioner in this appeal does not alter our result under Duke Power Co. v. Board of

Adjustment. Because Stevenson is not an aggrieved party with standing to appeal,

we must dismiss the appeal. See Duke Power Co., 20 N.C. App. at 732, 202 S.E.2d at

608; see also King Fa, LLC, ___ N.C. App. at ___, 788 S.E.2d at 650.

                                      Conclusion

      Accordingly, for the foregoing reasons, we dismiss the appeal for lack of

appellate jurisdiction.

      APPEAL DISMISSED.

      Chief Judge McGEE and Judge HUNTER concur.




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