Cordell Earthworks, Inc. v. The Town of Chapel Hill, No. COA04-189 (NC 6/7/2005)
| Decision Date | 07 June 2005 |
| Docket Number | No. COA04-190,No. COA04-189,COA04-189,COA04-190 |
| Court | North Carolina Supreme Court |
| Parties | CORDELL EARTHWORKS, INC., Petitioner-Appellant, v. THE TOWN OF CHAPEL HILL, NORTH CAROLINA, and THE TOWN OF CHAPEL HILL BOARD OF ADJUSTMENT, Respondents-Appellees, |
Appeal by petitioner from orders dated 25 July 2003, 28 August 2003, and 14 January 2004 by Judge Kenneth C. Titus in Superior Court, Orange County. Heard in the Court of Appeals 3 November 2004. As the issues presented by petitioner's appeals involve common questions of law, we have consolidated the appeals pursuant to Rule 40 of the North Carolina Rules of Appellate Procedure. N.C.R. App. P. 40 (2004).
Faison & Gillespie, by Reginald B. Gillespie, Jr. and Keith D. Burns, for petitioner-appellant.
Ralph D. Karpinos and Robert Terrell Milner for respondents-appellees.
This action arose from a zoning violation involving real property located at 430 and 432 Erwin Road in Durham, North Carolina. The property is located within the extra territorial planning jurisdiction of Chapel Hill and is subject to the Chapel Hill Development Ordinance (the ordinance). The property is zoned Rural Transition (RT), which allows the land to be "used for agricultural, very low-intensity residential, or open space uses," but may be converted "to more intensive urban uses at such time as community services are available and community needs for such uses are present." Chapel Hill Development Ordinance § 3.1.9 (2002). Under the ordinance, if the type of use is changed from residential to agricultural, then a zoning compliance permit (ZCP) is required. Commercial use is not permitted in the RT zone.
The Town of Chapel Hill (the Town) gave notice to Cordell Earthworks, Inc. (petitioner) of the expansion of an existing zoning violation in a letter dated 4 April 2002. The letter summarized a prior meeting between the Town and petitioner in which the Town had explained that "the use of this property as a landscape business was a violation of the Chapel Hill Development Ordinance[.]" The letter also stated that during a site visit, the Town had found that petitioner was expanding the landscape business and that "[e]xpansion of a violation [was] not permitted." The letter further advised petitioner that if petitioner wished to change the type of land use from residential to agricultural, as petitioner had indicated it might in a letter dated 1 April 2002, petitioner would need to apply for a ZCP. The Town suspended the penalties for the zoning violation to allow petitioner to relocate its business but required that petitioner remove "all of the landscape materials, i.e., mulch, gravel, top soil, sand, potted plants," and equipment, such as "Bobcats, front end loaders, delivery trucks, tractors, etc." as of 1 July 2002. The letter also stated that by 1 October 2002, petitioner must discontinue using a mobile home as an office and return the property to residential use only. Petitioner filed a timely notice of appeal with the Chapel Hill Board of Adjustment (Board of Adjustment) regarding this alleged zoning violation.
Petitioner also applied for a ZCP in May 2002, seeking to change the use of the land from residential to agricultural in order to operate a nursery on the property. Petitioner requested that its ZCP application receive administrative staff approval rather than site plan approval. However, the Planning Director (Town Manager) determined that the requested change in use required site plan approval from the Town's Planning Board and therefore denied petitioner's application for a ZCP. Petitioner filed a timely notice of appeal to the Board of Adjustment.
At a hearing before the Board of Adjustment, the Town asserted that petitioner had violated the ordinance by changing the type of land use from residential to commercial in that petitioner, who was renting the land, had begun conducting a landscaping business on the property, and was using the land for the storage and maintenance of its landscaping equipment. The Town also asserted that petitioner had changed the use of the land from residential to agricultural without first obtaining a ZCP. Petitioner contended that it was operating as a nursery, not a landscaping business, and was therefore exempt from the zoning ordinances, because nurseries were within the bona fide farm exception to the zoning rules. Regarding the Town's denial of a ZCP, petitioner additionally argued that the Town improperly denied petitioner's request because the Town incorrectly interpreted sections 19.2 and 19.4 of the ordinance. Specifically, petitioner argued that according to petitioner's reading of the ordinance, its request for a ZCP should have been decided administratively through the Town Manager. The Town countered, however, that petitioner misread the ordinance, that administrative approval was not appropriate in petitioner's case, and that petitioner's request for a ZCP was not denied, but rather required that petitioner submit a site plan before petitioner's request could be approved. The Board of Adjustment affirmed the Town's decision that petitioner had violated the ordinance and upheld the Town's denial of administrative approval for petitioner's ZCP request.
Petitioner petitioned the trial court for a writ of certiorari, which was granted.1 In two separate orders dated 25 July 2003, the trial court affirmed the Board of Adjustment's decisions. Pursuant to N.C. Gen. Stat. § 1A-1, Rule 52, petitioner moved to have the trial court alter or amend its orders. In an order dated 28 August 2003, the trial court denied petitioner's motion to alter or amend its decision regarding the Town's denial of a ZCP. In a 14 January 2004 order, the trial court denied petitioner's motion to alter or amend the order affirming petitioner's violation of the ordinance. Petitioner appeals the trial court's orders of 25 July 2003, 28 August 2003, and 14 January 2004.
For both the zoning violation and the denial of the ZCP, petitioner's assignments of error are that the trial court erred in affirming the decision of the Board of Adjustment and in denying petitioner's motion made to alter or amend the judgment. The assignments of error do not set forth any legal issue for our determination. See McManus v. McManus, 76 N.C. App. 588, 590, 334 S.E.2d 270, 272 (1985) (). Broad assignments of error that do not state the specific basis for the alleged error violate Rule 10 of the North Carolina Rules of Appellate Procedure. N.C.R. App. P. 10(c)(1) (); see also Pamlico Properties IV v. SEG Anstalt Co., 89 N.C. App. 323, 325, 365 S.E. 2d 686, 687 (1988) (). Petitioner's assignments of error are subject to dismissal pursuant to N.C.R. App. P. 10.
However, despite petitioner's broadly stated assignments of error, we can discern the legal issues to be determined from petitioner's actual arguments. The Town also responded to the merits of petitioner's arguments, demonstrating that it similarly discerned the legal issues raised by petitioner, and thus had notice of the basis upon which our Court might rule. See Viar v. N.C. DOT, 359 N.C. 400, 403, 610 S.E.2d 360, 361 (2005). We, therefore, address the merits of petitioner's arguments in our discretion. See N.C.R. App. P. 2.
In reviewing an order from a trial court acting in an appellate capacity, our scope of review is restricted to evaluating the trial court's order for errors of law. Shackleford-Moten v. Lenoir County Dep't of Soc. Servs., 155 N.C. App. 568, 572, 573 S.E.2d 767, 770 (2002) (citing ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)). "The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly." Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118-19 (1994). However, our Supreme Court has recently ruled that our "obligation to review for errors of law . . . `can be accomplished by addressing the dispositive issue(s) before the agency [or board] and the trial court' and determining how the trial court should have decided the case upon application of the appropriate standard of review." N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 665, 599 S.E.2d 888, 898 (2004) (quoting Capital Outdoor, Inc. v. Guilford County Board of Adjustment, 146 N.C. App. 388, 392, 552 S.E.2d 265, 268 (2001)(Greene, J., dissenting) (hereinafter Capital I)). Therefore, depending on the issues raised on appeal, "an appellate court must determine whether: `1) the board committed any errors in law; 2) the board followed lawful procedure; 3) the petitioner was afforded appropriate due process; 4) the board's decision was supported by competent evidence in the whole record; and 5) . . . the board's decision was arbitrary and capricious.'" Capital Outdoor, Inc. v. Guilford County Bd. of Adjustment, 152 N.C. App. 474, 475, 567 S.E.2d 440, 441 (2002) (quoting Capital I, 146 N.C. App. at 390, 552 S.E.2d at 267)).
The first dispositive issue before us is whether the trial court erred in affirming the Board of Adjustment's decision that petitioner's activities constituted a zoning violation. Petitioner argues that it was error to affirm this decision because petitioner was operating a bona fide farm and was therefore exempt from the ordinance. Section 12.4 of the ordinance states: "Bona fide farms are not subject to these use regulations [as...
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