Appalachian Outdoor Advertising Co. v. Town of Boone

ORR, Judge. The sole issue on appeal is whether the trial court erred in granting summary judgment in defendant’s favor. For the following reasons, we hold that the trial court did not err and affirm its judgment of 2 August 1990. Under N.C. Gen. Stat. § 1A-1, Rule 56(c) (1990), a motion for summary judgment may be granted “if the pleadings, depositions, . . ., together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” A defending party is entitled to summary judgment if he can show that a plaintiff cannot overcome an affirmative defense or that no claim for relief exists. Rolling Fashion Mart, Inc. v. Mainor, 80 N.C. App. 213, 216, 341 S.E.2d 61, 63 (1986) (citation omitted). The party moving for summary judgment has the burden of establishing the lack of any triable issue of material fact, and all inferences are resolved in favor of the non-movant. Joel T. Cheatham, Inc. v. Hall, 64 N.C. App. 678, 308 S.E.2d 457 (1983). With these general principles in mind, we now turn to whether summary judgment was appropriate in the present case. In support of its motion, defendant argues that N.C. Gen. Stat. § 160A-388(e) governs appeals from the Board of Adjustment decisions, and requires that such decisions be appealed within 30 days after the aggrieved party receives written notice of the decision. There is no dispute that plaintiff received written notice of the decision against him on 7 June 1989 and never filed notice of appeal pursuant to § 160A-388(e). Defendant further argues that plaintiff may not circumvent the requirements of that statute by filing a complaint [506] under § 136-131.1 for just compensation when the just compensation argument was made before the Board and rejected. We agree. In Durham County v. Addison, 262 N.C. 280, 136 S.E.2d 600 (1964), defendant’s application for a variance permit to build a house was denied by the Durham County Board of Adjustment and defendant failed to appeal pursuant to G.S. 153-266.17 (now § 153A-345(e), which is virtually identical to § 160A-388(e); the only difference is that the former applies to appeals from county boards and the latter applies to appeals from town or city boards). The defendant then proceeded to build the house and Durham County filed an action to enjoin defendant from building. In ruling for the plaintiff, our Supreme Court stated: Moreover, with reference to the adverse decision by the Board of Adjustment, the applicable statutes provide: “Every decision of such board shall be subject to review by the superior court by proceedings in the nature of certiorari.” G.S. 153-266.17; Session Laws of 1949, Chapter 1043, Section 8. The decision of the Board of Adjustment is not subject to collateral attack. As stated ... [cite]: “When ... the building inspector’s decision was affirmed by the board of adjustment the defendant should have sought a remedy by proceedings in the nature of cer-tiorari for the purpose of having the validity of the ordinances finally determined in the Superior Court, and if necessary by appeal to the Supreme Court. This he failed to do and left effective the adjudication of the board of adjustment.” Id. at 283-84, 136 S.E.2d at 603. See also New Hanover County v. Pleasant, 59 N.C. App. 644, 297 S.E.2d 760 (1982) (to allow a collateral attack on an unappealed board of adjustment’s decision would make the decision meaningless). Thus, plaintiff’s attempts in the case before us to raise collateral issues for just compensation, or in the alternative, to have the Board’s decision rescinded, is precluded by plaintiff’s failure to appeal within the appropriate time pursuant to § 160A-388(e). Plaintiff argues that Durham County and New Hanover County do not apply here because plaintiff requested just compensation which had not been raised before the Board and did not request that the prior judgment be declared invalid. We have reviewed the record before us and find that plaintiff did, in fact, raise the issue of just compensation before the Board and requested in its [507] complaint that the Board’s decision be rescinded. We find no merit to plaintiff’s contentions. For the above reasons, we hold that the trial court did not err in granting summary judgment in defendant’s favor and therefore affirm its judgment of 2 August 1990. Affirmed. Judges COZORT and WYNN concur.