County of Lancaster v. Mecklenburg County, 334 N.C. 496 (1993)

A "use by right subject to special requirements" is an administrative permit that can be issued by the zoning administrator. There is no impermissible bias when a zoning administrator acts on an administrative permit application submitted by his employing governmental unit.

In 1988, after a superior court judge ruled that Mecklenburg County's landfill zoning ordinance was unconstitutional, the county amended the ordinance to provide that a landfill may be located in any zoning district if certain enumerated conditions are met. Thereafter, the county applied for a permit under the ordinance. Plaintiffs instituted this action challenging the validity of the revised ordinance alleging that Mecklenburg County exceeded its statutory authority by delegating the duty under G.S. 153A-340 to issue special use permits and by failing to provide for a fair, unbiased tribunal since the county is the judge of its own zoning application. On appeal from the trial court's ruling in favor of plaintiffs, the Court of Appeals reversed, holding that the county properly delegated authority to issue a special use permit to the zoning administrator and that the plaintiff had not shown that the officer has the kind of direct, personal, and concrete interest in the outcome that evinces bias.

A unanimous N.C. Supreme Court outlined the four categories of zoning decisions - legislative, advisory, quasi-judicial and administrative. Focusing on quasi- judicial decisions, which require the application of zoning policies to individual situations in a manner that involves discretion of a judicial nature, and administrative decisions, the routine, nondiscretionary matters carried out by staff, the Court noted that a distinction is important since due process requirements for quasi-judicial decisions mandate trial-like standards while administrative decisions do not require a hearing at all. Turning to the relevant ordinance provisions, the Court read the ordinance as establishing three categories of permits - "permitted uses," "special uses," and the intermediate category of "uses by right subject to special requirements." The landfill permit in question is in this intermediate category. Since the determinations required in the intermediate category are of a kind that can be reasonably made by the zoning administrator without the exercise of the kind of discretion that requires an evidentiary hearing, the Court concluded that the permit merely required an administrative decision that the administrator could properly make.

Turning to the issue of bias, the Court first noted that due process requires an impartial decision maker. Since the permit in question involves the determination of objective facts without an element of discretion, the Court indicated that matters of personal financial impact and pre-consideration opinion or ex parte communications are not likely to come into play. Furthermore, since the decision is subject to de novo review before the board of adjustment, the fact that the application is made by the administrator's employing unit of government does not in and of itself constitute impermissible bias.

Note: Contrary to the Court of Appeals' holding, the Supreme Court stated that "quasi-judicial special use permit decisions may not be assigned to the zoning administrator." The Court bases this statement on the fact that the zoning enabling statutes assign the duty of issuing special or conditional use permits to the board of adjustment or governing board and do not authorize a delegation of that authority to an administrative official.

[Land Use; Administrative Authority; Bias]