Northwest Property Grp. v. Town of Carrboro
| Decision Date | 22 December 2009 |
| Docket Number | No. COA08-929.,COA08-929. |
| Citation | 687 S.E.2d 1 |
| Parties | NORTHWEST PROPERTY GROUP, LLC, Petitioner v. TOWN OF CARRBORO; the Town of Carrboro Board of Aldermen; the Honorable Mark Chilton, in his official capacity; Joal Hall Broun, Dan Coleman, Jacquelyn Gist, John Herrera, Randee Haven-O'Donnell, Alex Zaffron, in their official capacities as Members of the Town of Carrboro Board of Aldermen, Respondents. |
| Court | North Carolina Court of Appeals |
Nexsen Pruet, PLLC, by M. Jay DeVaney and Brian T. Pearce, Greensboro, for petitioner-appellant.
The Brough Law Firm, by Michael T. Brough, Chapel Hill, for respondent-appellees.
Northwest Property Group, LLC (Petitioner) appeals from a Memorandum and Order entered by the trial court on 25 April 2008 on certiorari review of the 25 September 2007 decision of the Town of Carrboro's (Town) Board of Aldermen (Board) to grant a conditional use permit (permit) to Petitioner subject to certain conditions, including two conditions to which petitioner objects. After careful consideration of the record in light of the applicable law, we conclude that the trial court erred by failing to find that the Board did not make the findings of fact required to support the addition of the challenged conditions to the permit and that this matter should be remanded to the trial court for further remand to the Board for the making of a new decision that addresses all of the issues that arise as the result of Petitioner's application for the issuance of a permit.
On 8 June 2006, Petitioner applied to the Town for the issuance of a permit allowing the development of a 7.1 acre tract of real property (property) located at the intersection of Jones Ferry Road and Barnes Street in Carrboro, North Carolina. As part of the development process, Petitioner had engaged in negotiations with Harris-Teeter to build and operate a grocery store on the property. In addition, Petitioner's development plans contemplated the construction of two additional buildings that would house other commercial establishments. The plans for the development proposed for the property included unrestricted access to the property from Barnes Street.
As part of the application process, Petitioner provided the Town with a Traffic Impact Analysis (traffic study) that concluded that the estimated increase in traffic on Barnes Street did not meet North Carolina Department of Transportation (NCDOT) Standards for the addition of a traffic signal or roundabout. According to the traffic study, the proposed development was expected to generate over 5,000 vehicle trips per day, approximately 25% of which would involve use of Barnes Street to access the development site. The traffic study indicated that ten accidents had occurred at the intersection of Jones Ferry Road and Barnes Street during the past five years and that the "intersection of Jones Ferry Road and Barnes Street ranks as the third worst intersection in Carrboro, in terms of crash severity at high speed intersections[.]" The traffic study concluded with respect to the intersection of Jones Ferry Road and Barnes Street and the proposed Barnes Street access point that "the intersection will operate at an acceptable level of service during both the A.M. and P.M. peak hours."
The Town's Planning Staff (Staff) issued a report (Staff Report) that recommended that the Board grant the proposed permit subject to certain conditions, including a proposed condition providing:
That additional right-of-way at the corner of Barnes Street and Jones Ferry Road be dedicated to the Town of Carrboro and NCDOT for the possible future construction of a round about at this intersection prior to the Certificate of Occupancy being issued for the proposed buildings. Amount [sic] of right of way dedication shall be sufficient to construct 120 foot diameter roundabout.
Petitioner "agree[d] to comply with this recommendation, assuming that the roundabout is centered on the existing intersection." The Staff Report did not propose any limitation relating to the use of the proposed Barnes Street ingress and egress point.
A number of Town advisory boards made recommendations relating to the proposed Barnes Street ingress and egress point. The Planning Board suggested that Petitioner "take[ ] measures, including signage and tenant regulations, to prevent delivery trucks from using the Barnes Street ingress/egress" point. Petitioner agreed to comply with this recommendation. In addition, the Planning Board stated:
Planning Board strongly supports the Board of Alderm[e]n in negotiations with NCDOT that will bring some resolution of serious safety concerns at the intersection of Jones Ferry. Particularly, the Planning Board wants a clearly marked crosswalk on the north side of Jones Ferry, and some form of signalization at this intersection, a flashing warning light at the very least if not a traffic light.
The Transportation Advisory Board (TAB) recommended "[t]hat ... delivery, service and/or dumpster traffic be prohibited via the Barnes Street [ingress and egress] point." Petitioner agreed to this recommendation as well. In addition, the TAB proposed that the Barnes Street ingress and egress point be limited to incoming traffic only; however, Petitioner declined to accept this recommendation on the grounds that Harris-Teeter would "not proceed with involvement in this project without two means of ingress and egress." Since NCDOT regulations precluded multiple access points onto the property from Jones Ferry Road, Petitioner contended that the additional ingress and egress point required by Harris-Teeter would have to be built on Barnes Street.
On 18 September 2007, a public hearing was held on Petitioner's application. At that hearing, a number of citizens expressed concern about the impact of the proposed development on nearby neighborhoods, with the stated concerns including references to "the dangerous traffic" pattern that would result from the creation of the Barnes Street ingress and egress point. The hearing on Petitioner's application was continued until 25 September 2007.
On or about 24 September 2007, a group of "[r]esidents of Lincoln Park" submitted a petition to the Board requesting denial of the application unless vehicular access to the proposed development from Barnes Street was prohibited. According to the Lincoln Park residents:
Under the current layout, developers estimate that at least 1,250 additional vehicles per day would use Barnes Street for access to the [development]; this vehicle load will be dangerous for pedestrians, bicyclists, and drivers, and will negatively impact the surrounding neighborhood due to noise and air pollution. This road was designed as a residential street and should remain one.
In light of the concerns expressed by the residents of the neighborhood, Petitioner agreed to "move the Barnes Street driveway approximately 160 feet north [towards Jones Ferry Road] to help reduce the project's effect on the Barnes Street residences." However, Petitioner insisted, given Harris-Teeter's need for multiple points of entrance, that the Barnes Street ingress and egress point be retained.
As scheduled, a second public hearing was conducted on 25 September 2007. At that hearing, additional Carrboro citizens testified about their concerns relating to the proposed Barnes Street ingress/egress point. After the 25 September 2007 public hearing was closed, the following proceedings occurred:
The effect of the Board's decision was to conclude that the Petitioner's application was complete, that it "complie[d] with all applicable requirements of the Land Use Ordinance," and that the Permit should be approved, subject to 37 conditions. Although Petitioner had agreed to the vast majority of the conditions attached to the Permit by the Board, it objected to the following conditions:
(2) If any of the conditions affixed hereto or any part thereof shall be held invalid or void, then this permit shall be void and of no effect.
. . . .
(15) The relocated entrance/exit onto Barnes Street ... will be restricted to emergency use only and that appropriate bollards or other physical devices shall be erected to prevent the movement of traffic other than emergency vehicles.1
On 23 October 2007, Petitioner filed a Petition For Writ Of Certiorari with the Orange County Superior Court in which it contested the validity of Condition Nos. 2 and 15. On 20 November 2007, Petitioner's petition was granted for the purpose of allowing review of the Board's decision. Petitioner's substantive challenge to the Board's decision was heard before the trial court on 17 March 2008. On 25 April 2008, the trial court entered a Memorandum and Order upholding the Board's decision to adopt the challenged conditions. Petitioner noted an appeal to this Court from the trial court's decision.
The General Assembly authorized municipalities to issue conditional use permits in N.C. Gen.Stat. § 160A-381(c), which provides, in pertinent part, that:
[T]he board of adjustment or the city council may issue special use permits or conditional use permits in the...
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