Citation571 S.E.2d 588, 153 NC App. 737
Case DateNovember 05, 2002
CourtCourt of Appeal of North Carolina (US)

Thomas C. Worth and George B. Currin, Raleigh, for petitioners-appellants. Satisky & Silverstein, by John Silverstein, Raleigh for respondent-appellee Raleigh Board of Adjustment; Poyner & Spruill L.L.P., by Robin Tatum Morris and Kacey Coley Sewell, Raleigh, for respondents-appellees Society for the Preservation of Historic Oakwood and Mozelle Jones.

THOMAS, Judge.

Raleigh Rescue Mission, Inc. and Coggins Construction Company, petitioners, appeal the trial court's order affirming a decision of respondent Board of Adjustment of the City of Raleigh (Board).

The Board determined that the facility which petitioners plan to construct fails to meet multi-family housing requirements because of its proposed use. In actuality, according to the Board, the facility is a form of "transitional housing." Transitional housing is not permitted in a district zoned Shopping Center, and Office and Institution-II under the Raleigh City Code. Multi-family housing, however, is permitted.

Petitioners' primary contention is that the Board lacked jurisdiction to even hear the matter. For the reasons herein, we agree and reverse the order of the trial court.

The Rescue Mission is a charitable organization providing food and shelter to the homeless and others in need. It proposes here to build a residential facility for women and children on a 7.72 acre site at the corner of New Bern Avenue and Swain Street in Raleigh, North Carolina. The area is locally known as "Historic Oakwood."

Respondents Mozelle Jones, a neighboring property owner, and the Society for the Preservation of Historic Oakwood (Oakwood) oppose the development. When the Rescue Mission initially sought site plan approval for the facility as a "hotel," Jones and Oakwood appealed to the Board for an interpretation of that term based on the Raleigh City Code. Following a hearing on 14 December 1998, the Board concluded that the Rescue Mission's proposal did not meet the definition of a hotel. The decision was not appealed. Instead, the Rescue Mission revised its site plan and re-characterized the facility as a "multi-family dwelling." In July of 1999, the revision was submitted to the Comprehensive Planning Committee of the Raleigh City Council.

Later, in response to an inquiry from Deputy City Attorney Ira Botvinick, Zoning Inspector Supervisor Larry Strickland issued a memorandum of his opinion of the contentions in the parties' briefs. Strickland stated that while the multi-family building proposed by petitioners is permitted by the zoning code, the proposed use "may not be."

On 14 September 1999, the Comprehensive Planning Committee, a subcommittee of the Raleigh City Council, reviewed the plan and determined that the facility was a permissible multi-family dwelling. It referred the matter to the City Council with a recommendation for approval. Oakwood and Jones, however, again appealed to the Board for an interpretation, citing Strickland's memorandum and the Comprehensive Planning Committee's recommendation as bases for the appeal. On 21 September 1999, the City Council approved the revised site plan while noting the pending appeal.

The hearing on the appeal came before the Board on 13 December 1999. The Rescue Mission did not participate in the hearing other than for the limited purpose of contesting the Board's authority and jurisdiction to proceed.

The Board ruled that the proposed facility can not be properly classified "multi-family housing," which is permitted in the zoning district. Rather, it would be a type of "transitional housing/emergency shelter," which is not allowed. In reaching its decision, the Board concluded, "Although the zoning classifications applicable to the subject property would permit the development of multi-family housing on the site, it is the nature of the use that determines whether it can be located in the zoning district, and not the nature of the zoning classification that determines what the proposed use is called."

Petitioners appealed to Wake County Superior Court. The trial court concluded that the Board "had jurisdiction to review the order, decision, or determination of Zoning Inspections Supervisor, Larry Strickland," and affirmed the decision of the Board. Petitioners appeal.

On review of a trial court's order regarding a board's decision, we examine for error of law by determining whether the trial court: (1) exercised the proper scope of review; and (2) correctly applied this scope of review. Tucker v. Mecklenburg County Zoning Bd. of Adjustment, 148 N.C.App. 52, 55, 557 S.E.2d 631, 634 (2001), disc. review allowed, 355 N.C. 758, 566 S.E.2d 483 (2002). Here, petitioners had contended in their petition for writ of certiorari to Wake County Superior Court that the Board lacked jurisdiction to hear the matter. The trial court stated that it applied a whole record review and ruled the Board had jurisdiction and the Board's decision contained no errors of law. Because the issue of whether the Board had jurisdiction is a question of law, the trial court applied the incorrect standard of review. The appropriate review is de novo. See id. (if petitioner argues the board's decision was based on error of law the trial court applies de novo review). For the same reason, this Court applies de novo review. Id. (after determining the actual nature of the contended error the appellate court then proceeds with the proper standard of review). De novo review requires us to consider the question anew, as if not previously considered or decided. Id.

By their first assignment of error, petitioners claim the trial court erred in concluding that the Board had jurisdiction to review Strickland's memorandum, because it did not constitute an "order ... decision, or determination," as required by N.C. Gen.Stat. § 160A-388(b) and the Code.

Section 160A-388(b) of the North Carolina General Statutes provides:

The board of adjustment shall hear and decide appeals from and review any order, requirement, decision, or determination made by an administrative official charged with the enforcement of any ordinance adopted pursuant to this Part. An appeal may be taken by any person aggrieved or by an officer, department, board, or bureau of the city.

N.C. Gen.Stat. § 160A-388(b) (2001) (emphasis added).

Under the Raleigh Zoning Code, the Board "may exercise any and all powers prescribed by general law." Raleigh Zoning Code § 10-1061. It likewise provides that among the Board's duties is hearing "[a]ppeals from alleged errors in orders, decisions, or determinations of administrative officials charged with the enforcement or requests by such officials for interpretations of Chapter 2 of this Part." Raleigh Zoning Code § 10-1061(c)(1) (emphasis added).

Additionally, section 10-2142(a) of the Code states:

Any person aggrieved or any agency or officer, department, board, including the governing board of the City of Raleigh affected by any decision, order, requirement, or determination relating to the interpretation, compliance, or application of chapters 1 and 2 of this Part and made by an administrative official charged with the enforcement of these chapters may file an appeal to the Board of Adjustment.

Raleigh City Code § 10-2142(a) (emphasis in original). Since the Board had no authority to hear requests by Jones and Oakwood for interpretations of the Code, see Raleigh Zoning Code § 10-1061(c)(1), we must determine whether Jones and Oakwood appealed from an "order ... decision, or determination" of an administrative official. N.C. Gen.Stat. § 160A-388(b); see also Raleigh City Code § 10-2142(a).

Both parties agree that Zoning Inspector Strickland is an "administrative official." Petitioner, however, disputes Oakwood and Jones's contention that Strickland issued an "order ... decision, or determination" upon which they could base an appeal. We agree with petitioners that Strickland issued no appealable decision.

In response to questions by Botvinick regarding whether the proposed facility was permitted under the Code, Strickland reviewed the written arguments submitted by both parties to the Comprehensive Planning Committee. He then issued the...

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