Clark v. City of Asheboro

• Decision Date: 21 December 1999
• Docket Number: No. COA99-240.,COA99-240.
• Citation: 136 NC App. 114,524 S.E.2d 46
• Parties: Michael CLARK and Patrick Newton, Petitioners, v. CITY OF ASHEBORO, a Municipal Corporation; W. Joseph Trogdon, Mayor; David H. Smith, Councilman; Barbara Hochuli, Councilwoman; John McGlohon, Councilman; David Jarrell, Councilman; Nancy Hunter, Councilwoman; Archie Priest, Councilman; and Talmadge Baker, Councilman, Respondents.
• Court: North Carolina Court of Appeals

524 S.E.2d 46

136 NC App. 114

Michael CLARK and Patrick Newton, Petitioners, v. CITY OF ASHEBORO, a Municipal Corporation; W. Joseph Trogdon, Mayor; David H. Smith, Councilman; Barbara Hochuli, Councilwoman; John McGlohon, Councilman; David Jarrell, Councilman; Nancy Hunter, Councilwoman; Archie Priest, Councilman; and Talmadge Baker, Councilman, Respondents.

No. COA99-240.

Court of Appeals of North Carolina.

December 21, 1999.

Gavin, Cox, Pugh, Etheridge and Wilhoit, L.L.P., by Alan V. Pugh, for petitioner appellees.

Smith & Alexander, L.L.P., by Archie L. Smith, Jr., Asheboro, for respondent appellants.

HORTON, Judge.

The North Carolina Constitution provides that the "General Assembly shall provide for the organization and government and the fixing of boundaries of counties, cities and towns, and other governmental subdivisions, and ... may give such powers and duties to counties, cities and towns and other governmental subdivisions as it may deem advisable." N.C. Const. Art. VII, § 1. Pursuant to this constitutional provision, our legislature has delegated its zoning powers to the various municipalities located throughout the State. N.C. Gen.Stat. § 160A-381(a) provides that:

For the purpose of promoting health, safety, morals, or the general welfare of the community, any city may regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lots that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes and to provide density credits or severable development rights for dedicated rights-of-way pursuant to G.S. 136-66.10 or G.S. 136-66.11. These regulations may provide that a board of adjustment may determine and vary their application in harmony with their general purpose and intent and in accordance with general or specific rules therein contained. The regulations may also provide that the board of adjustment or the city council may issue special use permits or conditional use permits in the classes of cases or situations and in accordance with the principles, conditions, safeguards, and procedures specified therein and may impose reasonable and appropriate conditions and safeguards upon these permits.

Id. (Cum.Supp.1998) (emphasis added).

Here, petitioners applied for a special use permit, which our Supreme Court has defined as "`one issued for a use which the ordinance expressly permits in a designated zone upon proof that certain facts and conditions detailed in the ordinance exist.'" Coastal Ready Mix Concrete Co. v. Board of Commissioners of Town of Nags Head, 299 N.C. 620, 623, 265 S.E.2d 379, 381 (citation omitted), reh'g denied, 300 N.C. 562, 270 S.E.2d 106 (1980).

Pursuant to N.C. Gen.Stat. § 160A-381, the Asheboro City Council created a zoning ordinance to regulate the use of land located within the municipality of Asheboro. The Asheboro Zoning Ordinance includes a "Special Uses" section titled "Article 600," which provides guidelines for obtaining a special use permit.

Article 600 provides that one who wishes to obtain a special use permit must first submit an application to the zoning administrator. The planning director then prepares an analysis of the application for consideration by the City Council. The zoning administrator then gives public notice of a hearing before the Council regarding the applicant's request for a special use permit. At the hearing, the Council is to receive evidence in the form of testimony and documents in support of the application for the special use permit. In an effort to persuade the Council, the applicant must satisfy four "General Standards" for approval of a special use permit:

1. That the use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved.

2. That the use meets all required conditions and specifications.

3. That the use will not substantially injure the value of adjoining or abutting property, or that the use is a public necessity, and,

4. That the location and character of the use if developed according to the plan as submitted and approved will be in harmony with the area in which it is to be located and in general conformity with the plan of development of Asheboro and its environs.

The Ordinance provides further that the Council make "general findings based upon substantial evidence contained in its proceedings." The Ordinance also provides that Council make a decision following the hearing, either to approve the application, approve it with conditions attached, or deny it.

If the Council denies the application, its decision "shall be subject to review by the superior court by proceedings in the nature of certiorari." N.C. Gen.Stat. § 160A-381(c) (Cum.Supp.1998). Our Supreme Court has defined the role of the superior court in reviewing a decision of a city council:

[I]t is clear that the task of a court reviewing a decision on an application for a conditional use permit made by a town board sitting as a quasi-judicial body includes:

(1) Reviewing the record for errors in law,

(2) Insuring that procedures specified by law in both statute and ordinance are followed,

(3) Insuring that appropriate due process rights of a petitioner are protected including the right to offer evidence, cross-examine witnesses, and inspect documents,

(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.

....

In reviewing the sufficiency and competency of the evidence at the appellate level, the question is not whether the evidence before the superior court supported that court's order but whether the evidence before the town board was supportive of its action. In proceedings of this nature, the superior court is not the trier of fact. Such is the function of the town board. The trial court, reviewing the decision of a town board on a conditional use permit application, sits in the posture of an appellate court. The trial court does not review the sufficiency of evidence presented to it but reviews that evidence presented to the town board.

Concrete Co., 299 N.C. at 626-27, 265 S.E.2d at 383 (emphasis added) (citations omitted). The "arbitrary and capricious" standard applies, among other things, to a town council's refusal of a request for a mobile home park. The Council "cannot deny applicants a permit in their unguided discretion or, stated differently, refuse it solely because, in their view, a mobile-home park would `adversely affect the public interest.' "In re Application of Ellis, 277 N.C. 419, 425, 178 S.E.2d 77, 81 (1970) (citation omitted). Further, the Council "must also proceed under standards, rules, and regulations, uniformly applicable to all who apply for permits." Id. Therefore, in making a decision on an application for a special use permit, the Council may not arbitrarily violate its own rules, but must comply with the provisions of its Ordinance. See Humble Oil & Refining Co. v. Board of Aldermen of Town of Chapel Hill, 284 N.C. 458, 467, 202 S.E.2d 129, 135 (1974). Compliance with the Ordinance provisions ensures that each application for a special use permit will be considered on its own merits, and not granted or denied based on improper or irrelevant factors. It also allows some predictability of future use to persons who invest in real property.

Here, respondent City contends the trial court erred in concluding as a matter of law that petitioners presented competent, material and substantial evidence establishing their compliance with the pre-conditions of the Ordinance relating to the issuance of a special use permit. We note that the issue of whether "competent, material and substantial evidence" is present in the record is a conclusion of law. "Conclusions of law drawn by the trial court from its findings of fact are reviewable de novo on appeal." State v. ILA Corporation, 132 N.C.App. 587, 591, 513 S.E.2d 812, 816 (1999). The "competent, material and substantial evidence" standard is part of a test adopted by our Supreme Court, which

outlined the two-step decision-making process the town had to follow in granting or denying an application for a special use permit:

(1) When an applicant has produced competent, material, and substantial evidence tending to establish the existence of the facts and conditions which the ordinance requires for the issuance of a special use permit, prima facie he is entitled to it. (2) A denial of the permit should be based upon findings contra which are supported by competent, material, and substantial evidence appearing in the record.

Concrete Co., 299 N.C. at 625, 265 S.E.2d at 382 (citations omitted). Here, the superior court concluded that:

2. The Petitioners in this cause presented competent, material and substantial evidence establishing facts sufficient to meet all four general standards set out in Section § 602 as well as the specific standards set out in Section § 629 of the Asheboro City Zoning Ordinance necessary for the issuance of a special use permit.

3. The evidence presented contra to Petitioners' application was insufficient to support Respondents' denial of Petitioners' application for a special use permit, and therefore said denial was not supported by competent, material and substantive evidence contra.

4. The Respondents failed to follow the procedures specified in case law by failing to make findings of fact based on the evidence presented necessary to support its[ ] conclusions that one or more of the general standards in its ordinance were not met, nor sufficient to allow this Court to review the application by Respondents of such facts to the ordinance had such facts existed.

In order to review properly the judgment of the superior court, we must...