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Draft August 13, 2018 property. There was no appeal taken of his determination that a Special Use Permit was required. She was not the 1 attorney for the opposing individuals at that time, but by the time the public hearing was held by the Board of 2 Adjustment, evidence suggests that Kara Brewer was proceeding voluntarily. Nonetheless, Kara Brewer chose to seek3 a Special Use Permit from the Board of Adjustment. The Board of Adjustment held hearings, received evidence, 4 considered the facts, and denied the Special Use Permit on the grounds that it did not mean the facts that the board 5 must find in order to grant one. That occurred in 2015 and one of the documents before the board is the order of the 6 decision determining that in 2015. 7 8 LeAnn Brown asked the board to receive into evidence Exhibit 2, which was handed to board members a few minutes 9 earlier. 10 11 MOTION by Randy Herman to accept Exhibit 2 into evidence. Barry Katz seconded. 12 VOTE:UNANIMOUS13 14 LeAnn Brown noted she had just passed copies of Exhibits 3, 4 and 5 to James Bryan for distribution to the board. She 15 reviewed that Exhibit 3 is the petition to deny the Special Use Permit; Exhibit 4 is the writ of certiorari granted by the 16 court, which means the court was intending to hear it; and Exhibit 5 was a dismissal with prejudice of the appeal. The 17 building involved and the land involved is the same as before the board now. She noted this is a quasi-judicial hearing18 and the doctrines of res judicata and collateral estoppel apply in quasi-judicial hearings. She has copies of a case, 19 Mount Ulla Historical Society v. Rowan County, that talks about the doctrine of res judicata. Res judicata in a zoning 20 case is for the purpose of protecting litigates from re-litigating previously decided matters. It applies to Board of 21 Adjustment quasi-judicial decisions. If you can show that the fact and reasons obviate the reason the denial occurred, 22 then it would not apply, but otherwise it applies. In the Mount Ulla case, there was a three-year period of time between 23 the first Board of Adjustment decision and the second. It involves a radio tower and the radio tower was 1,250 feet in 24 the first application and it was changed to 1,000 feet in the second. The board determined that it was a different tower 25 because it was a different height and the court reversed that and said res judicata that the concerns expressed by the 26 board with regard to the reasons for denial and not been obviated. 27 28 LeAnn Brown said the doctrine of collateral estoppel also applies to this proceeding. She noted collateral estoppel 29 means determination of an issue in a prior judicial or administrative proceeding precludes re-litigation of that issue. It 30 bars a subsequent adjudication of a previously determined issue even if a subsequent action is based on an entirely 31 different claim. It is designed to prevent repetitive lawsuits over matters which have been decided and which have 32 remained substantially static factually and legally. And it applies to quasi-judicial opinions. There is a 2013 Court of 33 Appeals opinion called Hillsboro Partners v. the City of Fayetteville, which is again a land use matter in which this 34 doctrine was held to apply. The filings that have occurred in this case: May 18, 2015, application for a Special Use 35 Permit, as LeAnn Brown had mentioned, Michael Harvey had originally indicated to Kara Brewer, who was seeking the 36 permit through her entity that owned the property, Southeast Property Group, LLC, that she had to have a permit. Kara 37 Brewer did proceed. It was denied on November 9, 2015. The order is included in Exhibit 2. It was appealed and it was 38 dismissed with prejudice. LeAnn Brown noted she has said “with prejudice” twice because she thinks it is very 39 significant.40 41 Barry Katz asked what that means.42 43 LeAnn Brown answered that it means this matter was litigated, the board had a quasi-judicial hearing, it was appealed 44 by Southeast Property Group, LLC, and Kara and Chris Brewer to Superior Court. It was never heard and when it was 45 dismissed, it was dismissed with prejudice, which means it was dismissed without an opportunity to bring it back to 46 court. She said it is her contention and has been her contention that once the decision was made to dismiss that 47 petition, that’s the end of the story and whatever has happened subsequent to that with regard to this property, whether 48 or not the statute should have applied then or now is foreclosed by that. It’s foreclosed under the doctrines of res 49 judicata and collateral estoppel, LeAnn Brown said. 50 8