Hodges v. MECKLENBURG COUNTY ZONING BD.

• Decision Date: 28 December 2001
• Docket Number: No. COA00-1426.,COA00-1426.
• Parties: Amanda Dixon Tucker and Jimmy L. HODGES and Becky J. Hodges, v. The MECKLENBURG COUNTY ZONING BOARD OF ADJUSTMENT, Marshall Gus Thomas, Jr. and Rhonda Golden-Thomas.
• Court: North Carolina Court of Appeals

557 S.E.2d 631

Amanda Dixon Tucker and Jimmy L. HODGES and Becky J. Hodges, v. The MECKLENBURG COUNTY ZONING BOARD OF ADJUSTMENT, Marshall Gus Thomas, Jr. and Rhonda Golden-Thomas.

No. COA00-1426.

Court of Appeals of North Carolina.

December 28, 2001.

Kennedy, Covington, Lobdell & Hickman, L.L.P., by John H. Carmichael, Charlotte, for petitioner-appellees.

Ruff, Bond, Cobb, Wade & Bethune, L.L.P., by James O. Cobb, Charlotte, for respondent-appellee.

Nelson, Mullins, Riley & Scarborough, L.L.P, by Paul J. Osowski, Charlotte, for the respondent-appellants.

THOMAS, Judge.

Respondents, Marshall Gus Thomas, Jr. and Rhonda Golden Thomas, appeal the trial court's reversal of a decision by the Mecklenburg County Zoning Board of Adjustment (Board).

The Board determined that respondents' kennel is not a "commercial kennel" and is thus allowable in a district zoned multi-family residential under the Mecklenburg County Zoning Ordinance (Ordinance). The trial court, finding the kennel to be commercial, reversed the Board's decision and issued a cease and desist order. We reverse the decision of the trial court.

The pertinent facts are as follows: Respondents established Project HALO Corporation (HALO) as a non-profit organization with the primary goal being the rescue of stray and unwanted dogs. Respondents, who pay the county licensing and registration fees and taxes, own all of the animals in their kennel. HALO then pays all expenses associated with caring for the dogs. On average, respondents keep approximately ten to fifteen dogs in pens located between their residence and the rear lot line.

Some of the dogs are eventually adopted, and those taking the animals sign an adoption contract. The contract includes provisions requiring the adoptive family to establish regular contact with a veterinarian, provide the animal with health check-ups, inoculations, and heartworm treatment. The new owner also must notify HALO if the animal is no longer wanted. The contract provides that ownership of the animal "reverts to Project: H.A.L.O." if the conditions are not met. Despite this provision, we note that at the time of adoption, respondents, and not HALO, legally own the dogs. In addition, a donation to HALO is requested but not required.

In March of 1999, a zoning enforcement code inspector with the Mecklenburg County Engineering and Building Standards Department conducted an inspection of the kennel and concluded it was in violation of the ordinance. The inspector issued a notice of violation, and respondents appealed to the Mecklenburg County Zoning Board of Adjustment. After a hearing, the Board reversed the inspector's decision by a 5-1 vote and ruled that respondents operate a private kennel that is permitted as an accessory use in the multi-family zoning district.

Petitioners, Amanda Dixon Tucker, Jimmy L. Hodges, and Becky J. Hodges, neighbors of respondents, filed a petition in superior court for writs of certiorari and mandamus and a decree of mandatory injunction. The trial court reversed the Board, finding that respondents do operate a commercial kennel in violation of the zoning ordinance. Respondents appeal.

I. Scope and Standard of Review

A. Initial Reviewing Court

Judicial review of town decisions is provided for in N.C. Gen.Stat. § 160A-388(e): "Every decision of the board shall be subject to review by the superior court by proceedings in the nature of certiorari." N.C. Gen.Stat. § 160A-388(e) (1999). Although the North Carolina Administrative Procedure Act (APA) expressly excludes from its purview the decisions of local municipalities, "[w]e cannot believe that our legislature intended that persons subject to a zoning decision of a town board would be denied judicial review of the standard and scope we have come to expect under the North Carolina APA." Concrete Co. v. Board of Commissioners, 299 N.C. 620, 624, 265 S.E.2d 379, 382,reh'g denied,300 N.C. 562, 270 S.E.2d 106 (1980). Accordingly, our Supreme Court extrapolated from the Act in determining the task of the initial reviewing court:

(1) reviewing the record for errors of law;

(2) ensuring that procedures specified by law in both statute and ordinance are followed;

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

(4) ensuring that decisions of town boards are supported by competent, material and substantial evidence in the whole record; and,

(5) ensuring that decisions are not arbitrary and capricious.

Id. at 626, 265 S.E.2d at 383.

The proper standard of review for the superior court depends on the particular nature of the issues presented on appeal. See In re Appeal of Willis, 129 N.C.App. 499, 501, 500 S.E.2d 723, 725 (1998)

. When the petitioner correctly contends that the agency's decision was either unsupported by the evidence or arbitrary and capricious, the appropriate standard of review for the initial reviewing court is "whole record" review. Id. (citing In re Appeal by McCrary, 112 N.C.App. 161, 165, 435 S.E.2d 359, 363 (1993)). If, however, petitioner properly alleges that the agency's decision was based on error of law, de novo review is required. Id.

De novo review requires a court to consider the question anew, as if not considered or decided by the agency or, as here, the local zoning board. Id. (citing Amanini v. N.C. Dept. of Human Resources, 114 N.C.App. 668, 674, 443 S.E.2d 114, 118 (1994)). The "whole record" test requires the reviewing court to examine all competent evidence (the "whole record") to determine whether the board's decision is supported by substantial evidence. Id. A reviewing court may use more than one standard of review if the nature of the issues raised so requires. See Willis, 129 N.C.App. at 502, 500 S.E.2d at 726.

B. Appellate Review

On review of a superior court order regarding a board's decision, this Court examines the trial court's order for error of law by determining whether the superior court: (1) exercised the proper scope of review, and (2) correctly applied this scope of review. Id. at 501-02, 500 S.E.2d at 726 (stating that, although our Supreme Court articulated this two-step process for agency decisions, "[w]e believe appellate review of a superior court judgment on writ of certiorari regarding the action of a quasi-judicial body (such as the Board herein), being derivative of the power of the superior court to review the action ... is `likewise governed by analogy to the APA.'") (internal quotations omitted). Further, this Court determines the actual nature of the contended error and then proceeds with an application of the proper standard of review. Id. at 501, 500 S.E.2d at 725-26.

Here, the parties presented arguments to the superior court regarding: (1) whether the Board's determination that respondents operated a private kennel is an error of law; (2) whether the Board's decision is not supported by substantial evidence in the whole record; and (3) whether the Board's decision is arbitrary and capricious.

The superior court states in its order that, regarding issues (2) and (3) above, the proper standard of review is a whole record review. After finding that the odor, noise, and increased traffic caused by the dogs impairs the use and enjoyment of petitioners' properties and makes it difficult for them to sleep, the superior court concluded that the Board's decision was not supported by competent, material and substantial evidence, and that it was arbitrary and capricious.

The standard the superior court applied to issue (1) is not as clear. The court stated in its order that, "the Board's conclusion that the kennel operated on [respondents'] [p]roperty is a private kennel ... is a question of interpretation and as such, it is subject to review by this [c]ourt." The court then concluded the Board's decision on this issue is "erroneous."

Because the actual nature of the contended error in this case is a question of law, we apply review de novo. See Willis,129 N.C.App. at 501,500 S.E.2d at 725 (errors of law require de novo review); see also Amanini, 114 N.C.App. at 675,

443 S.E.2d at 118 (where the initial reviewing court should have conducted de novo review, this Court will directly review the [quasi-judicial] decision under a de novo review). All parties here agree that respondents operate a kennel in a multi-family district, and that the kennel complies with the technical requirements of an accessory use. The error each party assigns is with respect to the interpretations of "private kennel" and "commercial kennel," and to a lesser extent, "principal use" and "accessory use." Thus, the sole issue presented is whether the Board correctly interpreted definitions in the zoning ordinance in determining that respondents operate a private kennel as a permitted accessory use, and the proper standard of review is de novo review.

We note initially that the function of a board of adjustment is to interpret local zoning ordinances. CG & T Corp. v. Bd. of Adjustment of Wilmington, 105 N.C.App. 32, 39, 411 S.E.2d 655, 659 (1992). Some deference is given to the board's interpretation of its own city code. Id. Therefore, on review we do not determine whether another interpretation might reasonably have been reached by the Board, but whether the Board acted arbitrarily, oppressively, manifestly abused its authority, or committed an error of law. Taylor Home of Charlotte v. City of Charlotte, 116 N.C.App. 188, 193, 447 S.E.2d 438, 442, disc. review denied, 338 N.C. 524, 453 S.E.2d 170 (1994).

II. Analysis

The Board here determined that, under the Ordinance, respondents operate a private kennel permitted as an accessory use in the multi-family zoning district. Section 12.410 of the Ordinance provides that a private kennel is permitted as an accessory use if it meets the following conditions:

(1) [The kennel] is ... located between the principal structure and rear

...