State Ex Rel. Utilities Commission v. TOWN OF KILL DEVIL HILLS

I respectfully dissent from the majority’s holding that the Commission had jurisdiction both to review Dominion’s premature appeal and to preempt the Town’s ordinance.

Preliminarily, because Dominion has failed to apply for a conditional use permit or variance, I would dismiss the matter for Dominion’s failure to exhaust its administrative remedies. “If a plaintiff has failed to exhaust its administrative remedies, the court lacks subject matter jurisdiction and the action must be dismissed.” Justice for Animals, Inc. v. Robeson Cty., 164 N.C. App. 366, 369, 595 S.E.2d *574773, 775 (2004)…