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MINUTES OF THE BURLINGTON PLANNING
AND ZONING COMMISSION MEETING
June 23, 2003
Council Chamber, Burlington Municipal Building
MEMBERS: EXTRATERRITORIAL MEMBERS:
Don Starling, Chairman, Present Bud Apple, Present
George Byrd, Secretary, Present John Enoch, Absent
Jim Burwell, Absent Celo
Paul Cobb, Present Gale
Rev. Greg Hargrave, Present Richard Franks,
Gordon Millspaugh, Present Ellis Piper,
Robert R. Harkrader, Planning
John Emerson, Zoning/Subdivision
Dianne Fogleman, Office Assistant
NO. 1: Mr. Don Starling, Chairman, called the meeting to order at 7:00
NO. 2: Minutes of the meeting held May 19, 2003, were unanimously
approved. This was a City and
NO. 3: Consent agenda: (City)
Mark Averette, representing Habitat for Humanity, presented an application for
preliminary plan approval of the Habitat for Humanity/Ross Street
Subdivision. The property is located on
the western side of Ross Street and to the south of Lower Hopedale Road as
shown on preliminary plans by Alley, Williams, Carmen and King, Inc., dated May
6, 2003, and containing 14 lots.
Harold Vaden, representing Burlington Industries Transportation Division,
presented an application for final plat approval of the B.I. Transportation
Subdivision. The property is located at
the southeastern corner of Tucker Street and Industry Drive as shown on a plat
by Borum, Wade and Associates containing two lots.
recommended approval of Item A contingent upon all engineering details being
submitted to the City of Burlington Engineering Department and approval of same
by the City Engineering Department prior to beginning construction. Staff also recommended approval of Item B.
Member Cobb made a motion to approve Item A with the contingency outlined by
staff and recommended approval of Item B.
Gordon Millspaugh seconded the motion.
The Commission voted unanimously to approve Item A contingent upon all
engineering details being submitted to the City of Burlington Engineering
Department and approval of same by the City Engineering Department prior to
beginning construction. The Commission
also voted unanimously to recommend approval of Item B.
Commission found that the plats as presented met all requirements of the
Mark Reich, representing Empire Homes, presented an application for preliminary
plan approval of the Burch Creek Subdivision.
The property is located at the southeastern corner of Burch Bridge Road
and Old Glencoe Road as shown on plans by Alley, Williams, Carmen and King,
Inc., dated May 7, 2003, and containing 47 lots.
Carl Buckland of 913 Old Glencoe Road, Burlington, stated that he and Bob Dyer
developed land adjacent to the development being proposed in Item 3 (A)
(Extraterritorial). He stated that he
had looked at the proposed plans, and the homes to be built by Empire Homes
will be an asset and be compatible with the community. However, he stated that he had a problem
with the way subdivisions are approved by the City. He distributed information from a website of a hearing before the
North Carolina Supreme Court with Guilford Financial Services, LLC, versus the
City of Brevard. He told the Commission
that according to the court case, subdivisions need to be heard before a
quasi-judicial hearing. He pointed out
that the Planning Commission is not a quasi-judicial body and that he felt like
the court's findings should apply to Burlington also. He asked that the information concerning the court case be made a
part of these minutes and stated that when the court speaks, we should listen.
addition, Mr. Buckland stated that the City is assessing Empire Homes $22,500
for water lines that Empire Homes will not have to provide. He stated that he and Bob Dyer paid for the
water lines and it is wrong for the City to assess Empire Homes for something
they didn't provide. He told the
Commission that the City needs to re-assess water and sewer assessments.
Buckland also stated that sewer lines were installed with HUD funds and not
City funds and that the forum for assessing subdivisions by the City is unfair
Buckland then stated that it was time for the Commission to tell the truth
about the Time-Warner plat.
Member Fletcher stated that the truth had been told over and over again.
Chairman Starling pointed out to Mr. Buckland that what he was now discussing
had nothing to do with anything on the agenda, and if he had anything to add to
an agenda item, the Commission would be glad to listen.
recommended approval of the preliminary plan contingent upon all engineering
details being submitted to the City of Burlington Engineering Department and
approval of same by the City Engineering Department prior to beginning
Member Franks made a motion to approve the preliminary plan with the
contingency outlined by staff. Gordon Millspaugh seconded the motion. The Commission voted unanimously to approve
the preliminary plan contingent upon all engineering details being submitted to
the City of Burlington Engineering Department and approval of same by the City
Engineering Department prior to beginning construction.
Mark Reich, representing Empire Homes, was scheduled to present an application
for final plat approval of Phase One, Section One, of the Burch Creek Subdivision. The property is located at the southeastern
corner of Burch Bridge Road and Old Glencoe Road as shown on a plat by Alley,
Williams, Carmen and King, Inc., dated May 20, 2003, and containing three lots. In addition, the applicant was scheduled to
request a waiver from Section 33-6(c)(2) of the Subdivision Regulations that
requires a final plat contain a minimum of 10 lots when the final plat is a
portion of an approved preliminary plan.
item was withdrawn by the applicant prior to the meeting.
There being no further business to
discuss, the meeting was adjourned at 7:08 p.m.
Donald C. Starling, Chairman
A. Byrd, Jr., Secretary
(At the June 23, 2003, meeting of the Burlington Planning and Zoning
Commission, Mr. Carl Buckland, 913 Old Glencoe Road, Burlington, NC, requested
that the following Supreme Court Case between Guilford Financial Services, LLC,
and the City of Brevard be made a part of the June minutes.)
All opinions are subject to modification and
technical correction prior to official publication in the North Carolina
Reports and North Carolina Court of Appeals Reports. In the event of
discrepancies between the electronic version of an opinion and the print
version appearing in the North Carolina Reports and North Carolina Court of
Appeals Reports, the latest print version is to be considered authoritative.
IN THE SUPREME COURT OF NORTH
FILED: 28 FEBRUARY 2003
FINANCIAL SERVICES, LLC,
CITY OF BREVARD, a municipal corporation,
pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the
Court of Appeals, 150 N.C. App. 1, 563 S.E.2d 27 (2002), vacating a judgment
entered 2 November 2000 by Judge J. Marlene Hyatt in Superior Court,
Transylvania County, and remanding the case with instructions. Heard in the
Supreme Court 5 February 2003.
Smith Moore LLP, by James G. Exum, Jr.,
and Robert R. Marcus; and Van Winkle, Buck, Wall, Starnes and Davis, P.A., by
Craig D. Justus, for petitioner-appellant.
Ramsey, Hill, Smart, Ramsey & Pratt,
P.A., by Michael K. Pratt; and James M. Kimzey, for respondent-appellee.
the reasons stated in the dissenting opinion, we reverse the decision of the
Court of Appeals.
opinions are subject to modification and technical correction prior to official
publication in the North Carolina Reports and North Carolina Court of Appeals
Reports. In the event of discrepancies between the electronic version of an
opinion and the print version appearing in the North Carolina Reports and North
Carolina Court of Appeals Reports, the latest print version is to be considered
NORTH CAROLINA COURT OF
Filed: 7 May 2002
FINANCIAL SERVICES, LLC,
THE CITY OF BREVARD, a municipal corporation,
by petitioner from judgment entered 2 November 2000 by Judge J. Marlene Hyatt
in Transylvania County Superior Court. Heard in the Court of Appeals 28
Smith, Helms, Mullis &
Moore, L.L.P., by James G. Exum, Jr. and Robert R. Marcus, and Van Winkle,
Buck, Wall, Starnes and Davis, P.A., by Craig D. Justus, for
Ramsey, Hill, Smart, Ramsey & Pratt,
P.A., by Michael K. Pratt and James M. Kimzey, for respondent-appellee.
Guilford Financial Services, LLP (“petitioner”) appeals from a judgment by the
superior court affirming the disapproval by the City of Brevard (“the City”) of
petitioner's preliminary subdivision plat. For the reasons given below, we
vacate and remand to the superior court for remand to the Brevard City Council
(“the Council”) for further proceedings.
seeks to develop an affordable housing community called Laurel Village on
approximately five acres located in the City near Outland Avenue. On 28 January
2000, petitioner filed a preliminary subdivision plat with the City's Technical
Advisory Committee (“the Committee”). The initial plat showed the sitebeing
subdivided into fifteen lots containing a community building and fourteen
duplexes. The duplexes comprised twenty-eight units, each having one, two, or
three bedrooms. After reviewing the plat, the Committee suggested several
changes, none of which are at issue here. Except for the suggested changes, the
Committee believed that the preliminary plat complied with the City's Zoning
Ordinance and Subdivision Regulations. The Committee recommended that the
City's Planning and Zoning Board (“the Planning Board”) approve the preliminary
plat subject to six enumerated “conditions and/or contingencies.”
The Planning Board first considered the preliminary plat at its 15 February
2000 meeting. Some members of the Planning Board and a neighboring resident
expressed concerns regarding increased traffic outside the development. The
Planning Board tabled consideration of the plat until a later meeting so that
traffic information could be obtained.
Subsequent to the 15 February meeting of the Planning Board, petitioner revised
the preliminary plat. The revised plat showed sixteen lots containing fifteen
duplexes and a community building. The duplexes in the revised plat comprised
thirty units: twenty- eight one-bedroom units and two two-bedroom units. The
basic lot and street layout were unchanged. Petitioner explained that the
design was changed following a decision to target the elderly and disabled
rather than families.
The Planning Board considered the revised preliminary plat at its 21 March 2000
meeting. A neighboring resident presented thePlanning Board with a petition
containing 147 signatures of those opposed to the development and read a
statement detailing the reasons for their opposition. These reasons included
traffic impact and safety. Two neighbors addressed the Planning Board and
expressed their concerns related to other matters. A member of the Planning
Board questioned whether the proposed development complied with the density
requirements of the City's Subdivision Regulations and Land Use Plan.
Ultimately, the Planning Board approved the preliminary plat with three
conditions, none of which is relevant to this appeal.
Following the Planning Board's recommendation to approve the preliminary plat,
the Council held a public hearing on the matter on 17 April 2000. The Council
listened to a presentation from petitioner's counsel and petitioner's land
surveyor and engineer and to a presentation from the attorney representing a
group of residents in the affected neighborhood who opposed the plan. The
attorney representing the neighborhood group submitted a petition to Council,
signed by over 150 people, expressing opposition to the plan. The Council then
allowed citizens to comment on the proposed plan and accepted their written
comments. (See footnote 1)
The Council voted to continue the public hearing until 1 May 2000 in order to
accommodate all citizens who wanted to be heard. On 15 May 2000, the Council
again resumed the public hearing. The City Manager advised the Council that the
Planning Board had determined that the proposed subdivision conformed to the
City's Zoning Ordinance and Subdivision Regulations; he did not address whether
the plat conformed to the density requirements of the Land Use Plan. In the interim
between the 17 April and 15 May meetings of the Council, petitioner had
submitted a third preliminary plat, in which revisions had been made to address
the conditions imposed by the Planning Board on the revised plat. One Council
member expressed confusion regarding which of the three plats was actually
before the Council. Council members expressed their concerns regarding
increased traffic from and the density of the proposed development. Ultimately,
the Council voted to disapprove the preliminary plat.
Pursuant to the Subdivision Regulations, the reasons for the Council's
disapproval were recorded in a letter to petitioner, dated 13 July 2000 (“the
Letter”). The Letter states that the reasons for the Council's decision
(1) Section 90 of the [Subdivision Regulations] provides that the Council may
consider a higher standard than those included in the [Subdivision
Regulations], if the [Subdivision Regulations] minimum standards do not
reasonably protect or provide for the public health safety or welfare. Council
considered the public health, safety and welfare in making their decision;
Section 703.1 of the [Zoning Ordinance] speaks to density, and requires that
two-family dwellings be “unconcentrated.” Council was concerned that the
proposed subdivision plat violates this section by concentrating the number of
two-familydwellings in one small area;
Your clients confused Council by presenting different versions of the plat for
consideration. While it was my opinion that Council was reviewing the
preliminary plat dated January 27, 2000, some members of Council apparently
thought that they were reviewing the preliminary plat dated February 29, 2000.
This confusion made it difficult for Council to make a decision in connection
with this matter. In fact, I was somewhat confused on that, and stated at the
May 15 meeting, that it was the February 29, 2000, plat that we were reviewing,
when I now believe that to be an error;
Council was concerned about the width and present layout of Outland Avenue with
regard to the issues of safety, health and general welfare. They were concerned
that the new development might present traffic hazards and safety concerns in
Council wanted further clarification on several issues regarding safety, health
and general welfare from the Planning Board;
Council was concerned about how the language of Section 703.1 [of the City's
Zoning Ordinance] containing the “unconcentrated” language referred to
hereinabove, is modified or affected by Section 703.5112, containing a 10,000
square foot requirement.
appealed the Council's disapproval of its preliminary plat to the superior
court, which affirmed the Council's decision. Petitioner now appeals the
superior court's decision.
General Assembly authorized cities to regulate the subdivision of land by
enacting N.C. Gen. Stat. § 160A-371 (1999). If a city chooses to adopt a
subdivision ordinance, that ordinance:shall contain provisions setting forth
the procedures to be followed in granting or denying approval of a subdivision
plat prior to its registration.
The ordinance may provide that final approval of each individual subdivision
plat is to be given by
(1) The city council,
(2) The city council on recommendation of a planning agency, or
(3) A designated planning agency.
Gen. Stat. § 160A-373 (1999).
The City of Brevard has chosen the second alternative provided by N.C.G.S. §
160A-373. Its Subdivision Regulations set out specific requirements with which
a developer must comply and vests discretion with the Council in determining
whether the application ultimately should be approved or denied. Section 85.8
of the City's Subdivision Regulations provides:
Upon receipt of the preliminary plat and the planning board's recommendation,
the city council shall hold a public hearing in accordance with the provisions
of G.S. 160A- 364. The city council shall then review the plat at its next
regularly scheduled meeting and decide approval or disapproval. If the city
council decides disapproval, the reasons for such action shall be stated in
writing, and specific references shall be made to regulations with which the
preliminary plat does not comply.
adopting these procedures, the City has provided that these decisions be made
in a quasi-judicial forum. The City argues that the process is legislative
because of the reference in its Subdivision Regulations to N.C. Gen. Stat. §
160A-364, which specifies that before adopting or amending an ordinance a city
must hold a public hearing preceded by notice as prescribed by the statute. See N.C. Gen. Stat. § 160A-364 (1999).
We do notbelieve, however, that the type of notice determines the nature of the
proceeding. Rather, the type of decision to be made is the critical factor. See County
of Lancaster v. Mecklenburg County, 334 N.C. 496, 507, 434 S.E.2d 604, 612
(1993) (characterizing quasi-judicial decisions as those “involv[ing] the
application of zoning policies to individual situations”); Northfield Dev. Co. v. City of Burlington, 136 N.C. App. 272, 282,
523 S.E.2d 743, 750 (“Quasi-judicial decisions involve the application of ...
policies to individual situations rather than the adoption of new policies.”
(internal quotation marks omitted) (alteration in original)), aff'd, 352 N.C. 671, 535 S.E.2d 32 (2000)
(per curiam). Thus, while “[t]he purpose of a legislative hearing is to secure
broad public comment on the proposed action,” the “purpose of a quasi- judicial
hearing on an individual project . . . is to gather evidence in order to make
factual findings.” David W. Owens, Legislative
Zoning Decisions 53 (2d ed. 1999); see
generally id. at 10-11
(discussing the various types of zoning decisions).
The dissent would have this Court require approval on the ground that the
subdivision approval decision is automatic, and “of right,” once minimum
requirements are met. While there are cases indicating that in some
circumstances a petitioner is entitled to a permit as of right upon a prima facie showing of compliance with
minimum requirements, those cases are based on different ordinances and do not
apply here. See, e.g., Nazziola v. Landcraft Props., Inc., 143
N.C. App. 564, 566, 545 S.E.2d 801, 803 (2001) (characterizing as “ministerial”
an ordinance providing that“'[t]he Site Plan or Plot Plan shall be approved
when it meets all requirements of this ordinance'”). Here, the Subdivision
Regulations specifically give the Council discretion to disapprove the proposed
While the City of Brevard could have adopted a “ministerial” subdivision
ordinance, it did not. Instead, the City has enacted an ordinance establishing
a quasi-judicial process, and specifically giving the City discretion to
disapprove a proposed subdivision. The General Assembly clearly granted it the
authority to do so, and we are bound to review this case by reference to the
particular ordinance involved. We have not found other similar ordinances in
North Carolina, and this analysis does not apply to any municipality whose
ordinances establish a different type of process for subdivision approval.
In Refining Company v. Board of Aldermen,
284 N.C. 458, 202 S.E.2d 129 (1974), our Supreme Court set out the requirements
for a quasi-judicial proceeding. The Council was required to:
(1) follow the procedures specified in the ordinance; (2) conduct its hearings
in accordance with fair-trial standards; (3) base its findings of fact only
upon competent, material, and substantial evidence; and (4) in allowing or
denying the application, . . . state the basic facts on which it relied with
sufficient specificity to inform the parties, as well as the court, what
induced its decision.
Id. at 471, 202 S.E.2d at 138.
The Council here did not conduct its hearing “in accordance with fair-trial
standards,” nor did it state the facts upon which it based its denial with
“sufficient specificity” to allow the court to review its decision. The
“essential elements” of a fair trial are:
(1) The party whose rights are being determined must be given the opportunity
to offer evidence, cross-examine adverse witnesses, inspect documents, and
offer evidence in explanation and rebuttal; (2) absent stipulations or waiver
such a board may not base findings as to the existence or nonexistence of
crucial facts upon unsworn statements; and (3) crucial findings of fact which
are unsupported by competent, material and substantial evidence in view of the
entire record as submitted cannot stand.
Id. at 470, 202 S.E.2d at 137
(citation and internal quotation marks omitted). Here, the City Attorney
clearly believed and apparently advised the Council that the proceeding was
legislative; he has continued to take the position, even before this Court on
appeal, that it was a legislative proceeding. Indeed, the City Attorney
acknowledged in the hearing before the superior court that “if [the proceeding]
should have been a quasi-judicial hearing, I think we have to start from
scratch, because the only thing I could see the Court doing is remanding it, to
put witnesses under oath and start over again.” In response, counsel for
petitioner stated that petitioner waived certain procedural rights guaranteed
by Refining Company.
The proceedings conducted by the Council, believing the process was
legislative, do not bear any of the hallmarks of a “fair trial.” The entire
process was designed to provide comment and opinion, not to produce evidence or
to resolve factual issues. (See footnote 2) Counsel
for petitioner attempted after the fact to waive the right to have witnesses
sworn and to cross-examine witnesses. This does not alter the fundamental
legislative nature of what should have been a quasi-judicial proceeding.
Additionally, the Council failed to making findings of fact “with sufficient
specificity to inform the parties, as well as the court, what induced its
decision.” Id. at 471, 202 S.E.2d at
138. The Council merely stated that it had considered the public health, safety
and welfare, expressed its “concerns” regarding density and traffic issues, and
expressed its confusion over which plat was before it for review. Moreover, the
Council had to revisit the matter once the City Attorney told Council members
that they had to give reasons for their denial of the application in accordance
with the ordinance; until that point, the Council apparently thought all it had
to do was vote.
Our Supreme Court has acknowledged that we should give latitude to “findings”
made by lay bodies, such as a city council: “Since . . . city councils are
generally composed of laymen who do not always have the benefit of legal
advice, they cannot reasonably be held to the standards required of judicial
bodies.” Id. at 470, 202 S.E.2d at
137. However, the Council here did not make anyproper findings of fact, and its
statements of concern are too generalized for us to conduct a review.
For example, as evidenced by paragraph three of the Letter, the Council
specifically declined to decide which plat was before it for review. In
addition, the Council stated in its Letter that it was “concerned that the new
development might present traffic hazards and safety concerns in that
neighborhood.” The Council failed to make any specific finding regarding
traffic increase due to the development. In its brief, the City cites a
memorandum from the City's Planning Director to the Planning Board, in which it
is stated that Travis Marshall, a Transportation Engineer with the N.C.
Department of Transportation, opined that the proposed development would
generate an average of four daily trips per unit. According to the City, based
on calculations that do not appear in that part of the record that was before
the Council, this constitutes a 39% increase. Petitioner cites in its brief
another memorandum from the City's Planning Director to the Planning Board,
observing that Reuben Moore, a Division Engineer with the N.C. Department of
Transportation, “[b]ased upon his professional opinion and his familiarity with
a similar project in Sylva, . . . estimated two trips per day,” which would
have an “imperceptible” impact on the existing traffic. The Council neither
acknowledged nor resolved this conflicting evidence.
Although the dissent would have us find facts based on the record before us on
appeal, it is clear that “[i]t is not the function of the reviewing court, in
such a proceeding, to find thefacts but to determine whether the findings of
fact made by the [governing body] are supported by the evidence before the
[governing body] and whether the [governing body] made sufficient findings of
fact.” Rentals, Inc. v. City of
Burlington, 27 N.C. App. 361, 364, 219 S.E.2d 223, 226 (1975); see Long
v. Board of Adjustment, 22 N.C. App. 191, 205 S.E.2d 807 (1974). In Triple E Associates v. Town of Matthews,
105 N.C. App. 354, 413 S.E.2d 305, disc.
review denied, 332 N.C. 150, 419 S.E.2d 578 (1992), cited by the dissent,
we remanded the case back to the Town Board “with instructions to conduct a de novo evidentiary hearing . . . and to
make specific findings of fact,” id.
at 362, 413 S.E.2d at 310, after we determined that some of the evidence on
which the Town Board had relied to deny a permit was not competent and
material, see id. at 360, 413 S.E.2d at 309. “[W]e [were] not prepared to say
that all of the Town's evidence regarding the [relevant issue] was not
competent and material so as to be insufficient to rebut petitioners' showing
of compliance” with the ordinance in question, and we recognized that we do not
find the facts, in lieu of the Town Board. Id.
at 360-61, 413 S.E.2d at 309. On remand, the Council should make factual
findings that are sufficiently specific to enable review.
the Council did not resolve the critical issues of fact in a quasi-judicial
hearing, we cannot adequately review its ultimate decision to disapprove the
subdivision application. Accordingly, we remand to the superior court for
further remand to the Brevard City Council, so that the Council may conduct
additional proceedings consistent with the requirements of Refining Company. See Rentals, Inc., 27 N.C. App. at 365, 219
S.E.2d at 227 (remanding to superior court for order directing “that a further
hearing be held by the Board [of Adjustment] for a determination, on competent
and substantial evidence, of petitioner's asserted rights”).
Vacated and remanded.
Judge TIMMONS-GOODSON concurs.
Judge TYSON concurs in part and dissents in part.
TYSON, Judge, concurring in part and dissenting in part.
I concur in part II of the majority opinion to the extent that the proper forum
is a quasi-judicial and not a legislative hearing. I respectfully dissent from
the remainder of part II and part III of the majority opinion. I would hold
that petitioner complied with the requirements in the Zoning Ordinance and
Subdivision Regulations and is entitled to approval of its subdivision plat.
Compliance with the requirements of the ordinance and regulations ensures that
each application for approval of a subdivision plat will be considered on its
own merits, and notgranted or denied based on improper or irrelevant factors. See Clark v. City of Asheboro, 136 N.C.
App. 114, 119, 524 S.E.2d 46, 50 (1999). It also provides predictability of
future use, as well as the approval process. Id.
An applicant seeking approval for a subdivision plat who produces competent,
material, and substantial evidence of compliance with the requirements of the
ordinance and regulations, establishes a prima
facie case of entitlement to approval.
Id. at 119-20, 524 S.E.2d at 50 (citing Coastal
Ready-Mix Concrete Co. v. Board of Commissioners, 299 N.C. 620, 625, 265
S.E.2d 379, 382 (1980)); Triple E Assocs.
v. Town of Matthews, 105 N.C. App. 354, 358-59, 413 S.E.2d 305, 308 (1992).
The disapproval of the plat must “be based upon findings contra which are
supported by competent, material, and substantial evidence appearing in the
record.” Id. (citations omitted).
I concur with the majority that the Brevard City Council's (“Council”) decision
to disapprove the preliminary subdivision plat was a quasi-judicial action.
However, the unique requirement of a public hearing for subdivision plat
approval does not relieve the Council of its legal obligation to approve the
plat if the requirements of the Ordinance and Subdivision Regulations are met.
I. Standard of Review
proper standard of review of a decision by a city council acting in a
quasi-judicial capacity in the context of conditional use permits was announced
by our Supreme Court in Coastal Ready-Mix
Concrete Co. v. Board of Commissioners, supra. The Court held thatthe task
of the reviewing court includes:
(1) Reviewing the record for errors in law,
(2) Insuring that procedures specified by law in both statute and ordinance are
(3) Insuring that appropriate due process rights of a petitioner are protected
including the right to offer evidence, cross-examine witnesses, and inspect
(4) Insuring that decisions of town boards are supported by competent, material
and substantial evidence in the whole record, and
(5) Insuring that decisions are not arbitrary and capricious.
Id. at 626, 265 S.E.2d at 383.
In reviewing the sufficiency and competency of the evidence, this Court
determines “not whether the evidence before the superior court supported that
court's order[,] but whether the evidence before the Town Council supported the
Council's action.” Ghidorzi Constr., Inc.
v. Town of Chapel Hill, 80 N.C. App. 438, 440, 342 S.E.2d 545, 547 (1986).
The evidence before the Council supported the approval of the preliminary
subdivision plat for Laurel Village.
The proper standard for judicial review “depends upon the particular issues
presented on appeal.” Amanini v. North
Carolina Dep't of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114,
118 (1994). Reviewing courts conduct a “de
novo” review when a party alleges an error of law in the Council's
determination and use a “whole record test” when sufficiency of the evidence is
challenged or when a decision is alleged to have been arbitrary or capricious. See In re Willis, 129 N.C. App. 499,
501, 500 S.E.2d 723, 725 (1998).
II. Fair-trial Standards
majority opinion avoids addressing the complex merits of petitioner's appeal,
and seeks to remand to the Council for a new hearing “in accordance with
fair-trial standards” and findings of fact with “sufficient specificity to
inform the parties, as well as the court, what induced its decision.” I would hold
that the public hearing before the Council was not procedurally flawed and that
remand for a new hearing is unnecessary. See
Howard v. City of Kinston, ___ N.C.
App. ___, ___, 558 S.E.2d 221, 226 (2002).
Petitioner in this case does not contend that it was denied the procedural
guarantees required in a quasi-judicial hearing. Both the petitioner and the
opposition were represented by counsel at all hearings before the Council. Both
sides made statements to the Council in explanation for their proposition of
approval or denial and rebuttal of statements or information given by the other
side or witnesses.
The Council received: (1) the staff reports concerning traffic information and
density; (2) a petition signed by neighboring residents opposed to the development;
(3) letters from concerned citizens and heard unsworn statements from six
concerned citizens, for and against the development, at the 17 April 2000
public hearing; and (4) additional letters from concerned citizens and heard
unsworn statements from twenty concerned citizens, for and against the
development, at the 1 May 2000 public hearing.
Neither petitioner nor the opposition made a request that those concerned
citizens be sworn, that they have the right to cross-examine the witnesses, or
that they have the right to presentevidence in rebuttal. The right to insist
that the witnesses be under oath, the right to cross-examine witnesses, and the
right to present evidence in rebuttal are waivable and are not crucial for
proper review by this Court. See Howard,
supra; Craver v. Zoning Bd. of Adjustment of Winston-Salem, 267 N.C. 40, 42, 147 S.E.2d 599, 601 (1966); Burton v. New Hanover County Zoning Bd. of
Adjustment, 49 N.C. App. 439, 442, 271 S.E.2d 550, 552 (1980).
III. Findings of Fact
receiving, hearing, and reviewing all of the evidence, the Council entered
specific findings of fact in support of its conclusion to disapprove the plat.
The Council denied approval of the plat for three primary reasons: (1) section
90 of the Subdivision Regulations, (2) section 703.1 of the Zoning Ordinance,
and (3) confusion over which plat was being considered.
The superior court made an additional finding for denial: the requirements of
the City's Land Use Plan. Respondent's letter to petitioner, dated 13 July
2000, does not recite noncompliance with the Land Use Plan as a basis for the
disapproval. “[A] reviewing court, in dealing with the determination . . .
which an administrative agency alone is authorized to make, must judge the
propriety of such action solely by the grounds invoked by the agency.” Godfrey v. Zoning Bd. of Adjustment of
Union County, 317 N.C. 51, 64, 344 S.E.2d 272, 279-80 (1986) (citations
omitted). It was error for the superior court to substitute this reason and
rely on it in affirming the decision of the Council. See Ballenger Paving Co. v. North Carolina State Highway Comm'n,
258 N.C. 691,695, 129 S.E.2d 245, 248 (1963) (review pursuant to writ of certiorari of an administrative
decision is for error of law only and the superior court judge may not make
I disagree with the majority's opinion that the Council failed to make
“sufficient” findings of fact and merely expressed “concerns.” The fact that
the Council expressed “concerns” regarding traffic issues and density does not
negate the fact that the Council made specific findings of fact. The record
reflects that the “findings contra” to approval were not supported by
competent, material, and substantial evidence.
IV. Competent, Material, and
its petition for judicial review, petitioner argued that the decision of the
Council was not supported by substantial evidence, was arbitrary and
capricious, and was affected by errors of law. Therefore, we apply a de novo review as to errors in law and
the whole record test as to whether the decision was supported by substantial
evidence, or was arbitrary and capricious. See
Willis, 129 N.C. App. at 501, 500 S.E.2d at 725.
A. Subdivision Regulations
disapproving the preliminary plat, the Council relied on section 90 of the
Subdivision Regulations, stating that:
Section 90 of the Code provides that the Council may consider a higher standard
than those included in the Code, if the Code minimum standards do not
reasonably protect or provide for the public health safety or welfare. Council
considered the public health, safety and welfare in making their decision.
The Council cited public health, safety, and welfare concerns withrespect to
the width and layout of Outland Avenue, the public access adjoining the
proposed development, and, particularly, an increase in traffic.
There is no evidence in the record to support the disapproval of the plat on
the basis of public health, safety, and welfare pursuant to section 90 of the
Subdivision Regulations. The information furnished by the Brevard Police
Department was before the Council as part of a staff report by the Planning
Director, and indicated that the traffic count for Outland Avenue was 290
vehicle trips, within a twenty-four hour period, and that zero to one accident
occurred on Outland Avenue between 1995 and 1999. Reuben Moore, Division
Engineer with the North Carolina Department of Transportation, informed the
Planning Director that the proposed development would average two daily trips
per unit. Travis Marshall, Transportation Engineer with the North Carolina
Department of Transportation, informed the Planning Director that the proposed
development would average four daily trips per unit. Respondent argues and the
superior court found that the proposed development would increase traffic by
thirty-nine percent. The percentage of traffic increase standing alone without
additional evidence of the impact of that increase is irrelevant. Additionally,
Reuben Moore stated to the Planning Director that the impact on traffic from
the proposed development would be “imperceptible.” There was no other evidence
before the Council to contradict this opinion. Accordingly, there is no
evidence to support this finding by the Council or superior court.
B. Zoning Ordinance
Council also cited section 703.1 of the Zoning Ordinance as a reason for
disapproving the preliminary plat, stating that:
Section 703.1 of the Code speaks to density, and requires that two-family
dwellings be “unconcentrated.” Council was concerned that the proposed
subdivision plat violates this section by concentrating the number of two-
family dwellings in one small area.
The Council raised a concern as to the meaning of “unconcentrated” as stated in
the “Purpose” section and the specific minimum lot requirement of 10,000 square
feet stated in section 703.51 of the Zoning Ordinance. The general rule is that
a zoning ordinance, being in derogation of common law property rights, should
be construed in favor of the free use of property. See Yancey v. Heafner, 268 N.C. 263, 266, 150 S.E.2d 440, 443
(1966); City of Sanford v. Dandy Signs,
Inc., 62 N.C. App. 568, 569, 303 S.E.2d 228, 230 (1983). This construction
is particularly required where petitioner's proposed use is an expressly
permitted use of right under the Zoning Ordinance.
The parcel of land upon which petitioner proposes to develop Laurel Village is
zoned R-2 Residential. Duplex dwellings are expressly permitted uses of right
under section 703.2 of the Zoning Ordinance. The purpose for R-2 zoning is
stated in section 703.1:
Purpose. This district is established to protect areas in which the principal
use of the land is for medium density single and unconcentrated two-family
dwellings and for related recreational, religious, and educational facilities
normally required to provide for an orderly and attractive residential area.
The minimum lot areas for R-2 zoning are defined in section 703.51. Subsection
703.5112 states that the minimum lot area for a duplex is “10,000 square feet.”
Respondent argues that “unconcentrated” in the “Purpose” section is an
additional requirement to the “minimum lot area” of 10,000 square feet. I
disagree. In statutory construction, the sections of the Zoning Ordinance are
read in para materia, and not in
isolation of one another.
This Court held in C. C. & J.
Enterprises, Inc. v. City of Asheville, 132 N.C. App. 550, 554, 512 S.E.2d
766, 770 (1999), that “a generalized statement of intent of the specifications
that follow” cannot be used as a basis to reject a permit that meets all the
requirements. The purpose of the R-2 district is “to protect areas in which the
principal use of the land is for medium density single and unconcentrated
two-family dwellings. . . .” Article IV of the Zoning Ordinance specifically defines
density as “[t]he number of dwelling units per acre [of] land developed or used
for residential purposes. Unless
otherwise clearly stated, density requirements in this ordinance are expressed
in dwelling units per net acre . . . .” (emphasis supplied). Section
703.5112 specifically states the “minimum lot area” required to meet the
purpose of “unconcentrated” two-family dwellings. In light of the definition of
density and section 703.5112 of the Zoning Ordinance, I conclude that the
statement of purpose in section 703.1 is “only a generalized statement of
intent of the specifications that follow.” Respondent argues that in the case
of statutory construction, the word “unconcentrated” must be given its ordinary
meaning - “not clustered or gathered together closely.” The superior court
found that, using the ordinary meaning of “unconcentrated,” fifteen duplexes on
sixteen lots is not “unconcentrated.” There is no evidence to support this
finding by the Council and superior court. “Unconcentrated” is a general term
set out in the “Purpose” section and, when read in para materia, is specifically defined in section 703.51 and
subsection 703.5112 of the Zoning Ordinance.
“[W]here a zoning ordinance specifies standards to apply in determining whether
to grant a special use permit and the applicant fully complies with the
specified standards, a denial of the permit is arbitrary as a matter of law.” Woodhouse v. Board of Comm'rs of Nags Head,
299 N.C. 211, 219, 261 S.E.2d 882, 887 (1980) (citation omitted). Here, petitioner
fully complied with the standards specified in the Subdivision Regulations and
Zoning Ordinance. Both the City Manager and the City Attorney advised the
Council that the preliminary plat was in full compliance.
Statements by the Council members that “It bothers me to see things like that
[children riding their bicycles, skating down the street, playing ball in that
street, balls rolling down the street]” or “I've known a number of these people
in [the adjoining neighborhood] . . . in my conscience I just cannot vote for
this project,” opine about possible and subjective effects of the proposed
development and are not adequate grounds for disapproval of the preliminary
plat. See id. at 220, 261 S.E.2d at
888(speculatory or mere opinion testimony about the possible effects of a
permit are insufficient to support the Council's findings); Triple E, 105 N.C. App. at 359, 413 S.E.2d at 308 (“The Town Board
may not create new requirements not outlined in the ordinance to deny the
Humble Oil & Refining Co. v. Board of
Aldermen of Chapel Hill, 284 N.C. 458, 202 S.E.2d 129 (1974), dealt with a
special use permit which has additional requirements not present in this case
of subdivision plat approval. In the present case, petitioner made a prima
facie showing of compliance with the Subdivision Regulations and Zoning
Ordinance. No evidence appears in the record to support the findings for denial
of petitioner's preliminary plat. I conclude that the Council acted arbitrarily
and capriciously in denying petitioner's preliminary plat. Woodhouse, 299 N.C. at 219, 261 S.E.2d at 887 (if no competent,
material evidence appears to support findings for denial, the reviewing body
must grant the special use permit when the applicant fully complies with the
specified standards and failure to do so is arbitrary as a matter of law).
would reverse the decision of the superior court, affirming the disapproval by
the Council and remand, not for a new hearing, but for entry of an order
directing the Council to approve petitioner's subdivision plat.
One citizen submitted a deed
showing that he had a right-of- way across the land to be developed, which the
proposed development infringed. The City Manager explained to the Council that
the “private right-of-way issue is [not] something for the city to be concerned
about,” because “it's not the city's responsibility to protect a right-of-way.”
We find the cases permitting
waiver of certain rights, see, e.g., Jarrell v. Board of Adjustment, 258 N.C.
476, 128 S.E.2d 879 (1963), distinguishable in this regard. In Jarrell, for
example, although the Supreme Court recognized that the right to have witnesses
sworn could be waived, see id. at 481, 128 S.E.2d at 883, it was clear in that
case that the Board of Adjustment had conducted a hearing for the purpose of
receiving evidence and making findings of fact. See id. at 478-79, 128 S.E.2d
at 881-82; see also Burton v. Zoning Board of Adjustment, 49 N.C. App. 439,
441, 271 S.E.2d 550, 551 (1980) (Board heard “extensive testimony from both
sides” and “made findings of fact”), cert. denied, 302 N.C. 217, 276 S.E.2d 914