Tate Terrace Realty Investors, Inc. v. Currituck County

• Decision Date: 19 August 1997
• Docket Number: No. COA96-731,COA96-731
• Citation: 488 S.E.2d 845,127 N.C.App. 212
• Court: North Carolina Court of Appeals
• Parties: TATE TERRACE REALTY INVESTORS, INC., Petitioner, v. CURRITUCK COUNTY and its Board of Commissioners, Respondents.

Page 845

488 S.E.2d 845

127 N.C.App. 212

TATE TERRACE REALTY INVESTORS, INC., Petitioner, v. CURRITUCK COUNTY and its Board of Commissioners, Respondents.

No. COA96-731.

Court of Appeals of North Carolina.

Aug. 19, 1997.

Hornthal, Riley, Ellis & Maland, L.L.P. by M.H. Hood Ellis and John D. Leidy, Elizabeth City, and Michael B. Brough & Associates by Michael B. Brough, Chapel Hill, for petitioner-appellee.

Currituck County Attorney William H. Romm, Jr., and Poyner & Spruill, L.L.P. by H. Glenn Dunn and Timothy P. Sullivan, Raleigh, for respondent-appellant.

JOHN, Judge.

Respondents appeal judgment entered upon Writ of Certiorari issued 26 December 1995 by the trial court. Respondents contend the court erred by (1) determining the denial by the Currituck County Board of Commissioners (the Board) of petitioner's application for a sketch plan/special use permit (permit) was not supported by competent, material and substantial evidence, was erroneous as a matter of law, and was arbitrary and capricious, (2) ordering the Board to issue the permit, and (3) taxing costs to respondents. We reverse the trial court.

Relevant facts and procedural history are as follows: Petitioner Tate Terrace purchased a 519.7 acre tract in northern Currituck County (the property) at public auction on 22 April 1994. The sale was confirmed 29 April 1994 by the U.S. Bankruptcy Court for the Eastern District of North Carolina and petitioner received a deed to the property 10 June 1994.

Petitioner's predecessor in title, Moyock Investment Group, had obtained sketch plan approval from the Board 17 October 1988 to construct a 429 lot residential subdivision designated "Country Side" on the property along with an eighteen-hole golf course. Respondents concede petitioner purchased the property with a vested right to develop it in accordance with this sketch plan as approved.

Petitioner's representatives met with Currituck County planning staff to discuss development of the property as an 800 lot planned residential development without a golf course. Petitioner learned such modifications to the approved sketch plan would require the property to be rezoned from agriculture ("A") to basic residential ("R") or mixed residential ("RA"), followed by approval of a special use permit/sketch plan allowing a planned residential development (PRD). Petitioner submitted an application 19 July 1994 seeking to rezone the property from "A" to "R," but subsequently requested in a letter dated 8 August 1994 that action by the Board thereon be delayed until September.

On 2 September 1994, in lieu of its rezoning request, petitioner applied for a special use permit and sketch plan approval of a 601 lot subdivision called "The Plantations." The new subdivision was not a PRD and consequently rezoning was not required by the Currituck County Unified Development Ordinance (UDO). Nonetheless, because the development qualified as a "major subdivision" under the UDO and the property was zoned "A," it was necessary for the Board to issue a special use permit and approve the sketch plan.

In August 1994, the Planning Board suggested amending UDO § 1402(2) in response to substantial growth in the County. It was recommended that the Board be allowed to deny a special use permit if a proposed development more probably than not would "exceed the county's ability to provide adequate facilities, including, but not limited to, schools, fire and rescue, law enforcement, and other county facilities." A public hearing concerning the amendment was conducted 3 October 1994, and the proposal was adopted at the Board's 17 October 1994 meeting and codified as UDO § 1402(2)(e).

While the amendment was under consideration, the special use/sketch plan approval application of petitioners for The Plantations was also being reviewed. It likewise was accorded a public hearing 3 October 1994, and was scheduled for consideration by the Board at its 17 October 1994 meeting. However, petitioner requested the matter be continued until the next scheduled meeting, 7 November 1994, and thereafter received additional delays. A further public hearing was conducted 5 December 1994. Finally, on 6 February 1995, the Board unanimously denied petitioner's application based solely upon the provisions of § 1402(2)(e), concluding that the proposed development exceeded "the county's ability to provide adequate public school facilities."

On 20 March 1995, petitioner filed a Petition for Writ of Certiorari pursuant to N.C.G.S. § 153A-340 (1991) in Currituck County Superior Court, seeking review of the 6 February decision. A writ was issued 21 March 1995. Following respondents' 2 May 1995 answer, petitioner filed an Amended Petition for Writ of Certiorari (Petition) on 18 August 1995.

The matter came on for hearing 16 October 1995, and in an order filed 26 December 1995, the trial court reversed the decision of the Board and ordered respondents to issue the sketch plan/special use permit for "The Plantations." Respondents filed timely notice of appeal.

I.

We note as a threshold matter that petitioner has submitted a brief utilizing fourteen characters per inch type size as opposed to the ten characters per inch mandated by N.C.R.App. P. 26(g). Petitioner's appellate brief as submitted is of the maximum length allowed under N.C.R.App. P. 28(j). Use of the diminutive type thus in effect permitted petitioner to increase the length of its presentation to forty percent more than allowed by our rules. We have previously indicated that violation of the type size restriction would result in the imposition of sanctions pursuant to N.C.R.App. P. 25(b) and 34(b). See Lewis v. Craven Regional Medical Center, 122 N.C.App. 143, 147, 468 S.E.2d 269, 273 (1996).

In addition, a considerable portion of petitioner-appellee's brief is devoted to issues not addressed in respondent-appellant's brief and not preserved by cross assignment of error. See N.C.R.App. P. 28(c)(additional questions raised by appellee's brief limited to those presented by cross assignment of error). Petitioner's improper submission of these new arguments moved respondent to submit a reply brief that presumably would not otherwise have been forthcoming. See N.C.R.App. P. 28(h)(1).

Because we reverse the order of the superior court, petitioner is required to bear the costs of this appeal. However, in view of the violations of our appellate rules noted above, we exercise our powers pursuant to N.C.R.App. P. 25(b) and 34(b)(2)(a) and impose double costs, the additional amount to be paid by counsel for petitioner. See Roberts v. First-Citizens Bank and Trust Co., 124 N.C.App. 713, 715-16, 478 S.E.2d 809, 811 (1996), supersedeas granted, 345 N.C. 346, 483 S.E.2d 176 (1997).

II.

When a legislative body such as the Board grants or denies a special use permit, it is sitting as a quasi-judicial body. See Coastal Ready Mix Concrete Co. v. Board of Commissioners, 299 N.C. 620, 626, 265 S.E.2d 379, 383, reh'g denied, 300 N.C. 562, 270 S.E.2d 106 (1980). Such decisions "shall be subject to review by the superior court by proceedings in the nature of certiorari," G.S. § 153A-340, wherein the superior court sits as an appellate court, and not as a trier of facts. Capricorn Equity Corp. v. Town of Chapel Hill, 334 N.C. 132, 135-36, 431 S.E.2d 183, 186 (1993).

Although the superior court's review of the decision of a local board functioning as a quasi-judicial body is not governed by the North Carolina Administrative Procedures Act (the APA), N.C.G.S. § 150B-l et seq. (1995), the principles of the APA are "highly pertinent" to the process of judicial review. See Concrete Co., 299 N.C. at 625, 265 S.E.2d at 382. As such, "the task of a court reviewing a decision ... made by a town board sitting as a quasi-judicial body," id. at 626, 265 S.E.2d at 382, 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.

Charlotte Yacht Club v. County of Mecklenburg, 64 N.C.App. 477, 479, 307 S.E.2d 595, 597 (1983)(quoting Concrete Co., 299 N.C. at 626, 265 S.E.2d at 383). However, the scope of review is limited to errors alleged to have occurred before the local board. Godfrey v Zoning Bd. of Adjustment, 317 N.C. 51, 63, 344 S.E.2d 272, 279 (1986).

When it is alleged that the action of a quasi-judicial body was not supported by substantial evidence or was arbitrary and capricious, the reviewing court must apply the "whole record" test. Ballas v. Town of Weaverville, 121 N.C.App. 346, 349, 465 S.E.2d 324, 326 (1996). Further, the body's findings of fact are binding if supported by substantial competent evidence presented at the hearing. Capricorn, 334 N.C. at 135-36, 431 S.E.2d at 186. The reviewing court may not substitute its own judgment for that of the body when the record contains competent and substantial evidence supporting the findings indicated by the quasi-judicial body, even though conflicting evidence in the record would have allowed the court to reach a contrary finding if proceeding de novo. CG & T Corp. v. Bd. of Adjustment of Wilmington, 105 N.C.App. 32, 40, 411 S.E.2d 655, 660 (1992). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Id.

As our Supreme Court has explained,

a zoning board of adjustment, or a board of aldermen conducting a quasi-judicial hearing, can dispense with no essential element of a fair trial: (1) The party whose rights are being determined must be given the opportunity to offer evidence, cross-examine adverse witnesses, inspect...