Powell Place: City seeks to have writ dismissed

Published 5:35 pm Wednesday, September 15, 2021

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The City of Washington has filed a motion to dismiss with prejudice the petition and writ of certiorari filed by the property owners seeking to turn the defunct Washington Racquet Club into a new subdivision called Powell Place. The city also filed a motion to strike the petition from the court record.

Those filings, which were recently received in Beaufort County Superior Court, were accompanied by a response to the writ issued July 30. A writ of certiorari is an order from a higher court to a lower board to send in all documents on a case so the court can review the board’s decision.

The petition for a writ of certiorari was submitted by Powell Properties East LLC, Marben LLC, Dale Peele and William “Bill” Peele. Their property is located near the corner of Avon Avenue and Atkins Drive. City Council has denied the Powell Place preliminary plat twice this year. Both times, the city planning board recommended that City Council approve the plat.

The petitioners asked the court to determine if the they “were granted their due process rights, that (City Council’s) decision was based upon, competent, material, and substantial evidence in the whole record, was impartial in nature, and that the decision was not arbitrary and capricious.”

The grounds on which the city filed the motion to dismiss the petition and writ include a lack of subject matter jurisdiction. In the motion, the city wrote that an appeal of a denial of a subdivision plat by way of a writ of certiorari is “only available when the applicable subdivision regulation provides that the decision is quasi-judicial.”

“The City’s applicable regulation provides for an administrative decision rather than a quasi-judicial decision,” the motion reads, “and the procedure before the Washington City Council followed the City’s subdivision regulation’s administrative decision-making process. Therefore, the court lacks subject matter jurisdiction over this action and the petition and writ should be dismissed with prejudice.”

Secondly, the city said the dismissal should be granted on the grounds due to the petitioners’ “failure to meet their affirmative burden to establish standing on the record at the City Council and on the face of the petition.

The city also said that the writ should be dismissed for “failure to allege a claim on which relief can be granted as a matter of law. Taking the facts as alleged in the petition to be true and supported by the record, which the city submits is not the case, the petitioner is not entitled to the relief requested as a matter of law.”

Quoting state law, the city made its motion to strike the writ from the record for “failure to provide allegations ‘in numbered paragraphs, the contents of each of which be limited as far as practicable to a statement of a single set of circumstances’ such that ‘a paragraph may be referred to by a number in all succeeding pleadings.’”

The city called that a “blatant failure to follow long standing rules of procedure which allow for the orderly presentation of allegations and responses.”

The write of certiorari was filed July 30, and the city originally had 30 days from that point to submit its account of the proceedings regarding the Powell Place property. On Aug. 10, the city was its request for an extension. The deadline for its response was extended to Sept. 13.

The city eventually responded to the writ with its motions to dismiss and strike, as well as its records of the proceedings from the June City Council meeting, when the subdivision plat was denied for a second time.