Ward v. Inscoe
| Decision Date | 19 October 2004 |
| Docket Number | No. COA03-1649.,COA03-1649. |
| Citation | 603 S.E.2d 393,166 NC App. 586 |
| Court | North Carolina Court of Appeals |
| Parties | Robert WARD and wife, Betty Moticka, James R. Mccullough and wife, Laura J. Mccullough, Ralph E. Outcalt, and David Keith Johnson, Petitioners, v. Mike C. INSCOE, C. Ruxton Bobbitt, Jr., Jerry Parrish, Dave Stallings, David E. Meekins, Bailey Alston, Arline Richardson, Joseph Brown, Richard I. Vaughan, Jr., William F. Taylor, Frank M. Hester, Jr., Gene C. Ayscue, Rusty Renshaw, and Garry Daeke in their official capacity as the Henderson Zoning Board of Adjustment, W. Brownell Wright, Zoning Administrator of the City of Henderson, Branch Banking & Trust Company, Respondents. |
Browne, Flebotte, Wilson & Horn, P.L.L.C., by Daniel R. Flebotte, Creedmoor, for petitioners-appellants.
No brief filed for respondents-appellees Mike C. Inscoe, C. Ruxton Bobbitt, Jr., Jerry Parrish, Dave Stallings, David E. Meekins, Bailey Alston, Arline Richardson, Joseph Brown, Richard I. Vaughan, Jr., William F. Taylor, Frank M. Hester, Jr., Gene C. Ayscue, Rusty Renshaw, and Garry Daeke in Their Official Capacity as the Henderson Zoning Board of Adjustment, W. Brownell Wright, Zoning Administrator of the City of Henderson.
Royster, Cross & Currin, LLP, by Dale W. Hensley, Oxford, for respondent-appellee Branch Banking & Trust Company.
Robert Ward, Betty Moticka, James R. Mccullough, Laura J. Mccullough, Ralph E. Outcalt, and David Keith Johnson ("petitioners") appeal the trial court's order, which affirmed the Henderson Zoning Board of Adjustment's ("Board") issuance of a Special Use Permit to respondent Branch Banking and Trust Company ("BB&T"). We affirm.
BB&T applied to construct a bank building in a mixed use neighborhood that is zoned for office-institutional use under the City of Henderson Zoning Ordinance ("Ordinance"). The plans included four drive-thru lanes. Section 300B of the Ordinance allows drive-thru lanes with issuance of a special use permit by the Board. BB&T petitioned both the Board and the North Carolina Department of Transportation ("DOT") for approval of access permits and to construct the building with the drive-thru lanes.
On 3 October 2000, the Board, including members Mike C. Inscoe, C. Ruxton Bobbitt, Jr., Dave Stallings, David E. Meekins, Bailey Alston, Arline Richardson, Richard I. Vaughan, Jr., William F. Taylor, Gene C. Ayscue, and Rusty Renshaw conducted a public hearing and heard from BB&T's representatives supporting the application and from petitioners and other neighborhood residents opposing the construction. BB&T offered its plans for development. Petitioners and other opponents expressed concerns over the project's impact and raised safety, traffic, aesthetic, and economic issues. The Board continued the hearing for thirty days to await DOT's decision.
The Board reconvened on 7 November 2000 and additional evidence was heard and received from both sides. BB&T's representatives and a city engineer offered design plans showing the building and surrounding land use. Discussion addressed the possibility of widening the surrounding streets to accommodate increased traffic flow and access, ingress, egress to and from the new bank.
Petitioners testified concerning the project's potential impacts and effects on nearby residents. Their first concerns included increased traffic flows and the resulting safety issues for pedestrians and neighborhood children, the likelihood of property values being adversely affected, increased difficulty of residential parking, and that widening the street would require removal of many large, old shade trees. Other opponents voiced similar concerns.
After hearing from all those present at the meeting who wished to speak or present evidence, the Board voted four-to-one to approve the issuance of the special use permit. Several conditions were placed on the issuance, including: (1) not removing more trees than necessary, (2) planting buffer hedges between the site and neighboring homes, and (3) involving neighborhood residents in decisions concerning permanent sidewalks and steps.
Petitioners filed a Complaint and Petition for Writ of Certiorari on 1 December 2000 in the Vance County Superior Court, seeking review of the Board's decision. Petitioners alleged the Board failed to comply with procedures set forth in Sections 803 and 804 of the Ordinance and asserted the Board failed to make inquiries on the impact of the development on the neighborhood and to make factual findings. Board members Mike C. Inscoe, C. Ruxton Bobbitt, Jr., Jerry Parrish, Dave Stallings, David E. Meekins, Bailey Alston, Arline Richardson, Joseph Brown, Richard I. Vaughan, Jr., William F. Taylor, Frank M. Hester, Jr., Gene C. Ayscue, Rusty Renshaw, Garry Daeke, and W. Brownell Wright, Zoning Administrator of the City of Henderson, (collectively, "City Defendants") answered on 28 December 2000. BB&T answered on 6 March 2001.
The matter was heard on 5 July 2001 before Judge Hobgood. The trial court originally found:
(1) The decision rendered by the Board of Adjustment on November 7, 2000 was deficient in that the required findings of fact by the Board of Adjustment were merely a recitation of the standards imposed upon the Board of Adjustment for the issuance of a special use permit by the General Statutes of North Carolina and the City of Henderson Zoning Ordinances, rather than providing a detailed listing of the facts which the Board found from the preponderance of the evidence presented at the public hearing and which facts caused the Board of Adjustment to issue the special use permit to the Bank.
The trial court conducted a whole record review and found the Board considered all the evidence presented at the public hearing. The trial court ruled that substantial, competent, and material evidence supported the issuance of the special use permit and affirmed the Board's decision. Petitioners filed a timely notice of appeal to this Court on 31 January 2002.
In an unpublished opinion filed 5 May 2003, this Court vacated the trial court's decision. The case was remanded to the trial court to enter an order directing the Board to make factual findings sufficiently specific to facilitate judicial review of the Board's decision. Ward v. Inscoe, 157 N.C.App. 366, 578 S.E.2d 710 (2003) (unpublished).
The trial court issued an order on 3 June 2003. Later that day, the Board found facts supporting issuance of the special use permit. The Board did not receive or hear additional evidence. The permit was signed on 1 July 2003.
On 1 August 2003, petitioners filed a Petition for Writ of Certiorari and for Judicial Review alleging: (1) the Board's permit lacked evidence to support its findings of fact and conclusions of law; (2) the Board violated procedural requirements and committed errors of law; and (3) the Board violated the petitioners' due process rights. Petitioners based their last claim on failure to receive personal or general notice of or an opportunity to present evidence at the 3 June 2003 hearing. Both City Defendants and BB&T answered the petition.
The trial court entered a Stipulation and Consent Order on 2 September 2003 signed by all parties agreeing to treat petitioners' request and answers of the City Defendants and BB&T as motions for review of the Board's findings of fact. The trial court conducted a whole record review and affirmed the Board's decision on 16 September 2003. It found the Board's order contained sufficient factual findings for review and the existence of substantial, competent, and material evidence to support issuance of the special use permit. Petitioners appeal.
The issues on appeal are whether: (1) petitioners' due process rights were violated by not receiving personal notice of or an opportunity to be heard at the 3 June and 1 July 2003 meetings; and (2) the trial court abused its discretion by finding that substantial, competent, and material evidence supported the Board's issuance of the special use permit.
Petitioners contend the Board, sitting as a quasi-judicial body, failed to provide them with the "essential elements" of a fair trial. The Board met on 3 June 2003 and 1 July 2003 to find facts as directed by the trial court's order and did not provide personal notice to petitioners. Petitioners argue this failure to personally notify them of the hearings violated their due process rights under the Ordinance, North Carolina General Statutes, and North Carolina case law. We disagree.
Section 804 of the Ordinance states the Board is a quasi-judicial body. In Refining Co. v. Board of Aldermen, our Supreme Court set out the following requirements for a quasi-judicial proceeding:
(1) follow the procedures specified in the ordinance; (2) conduct its hearings in accordance with fair-trial standards; (3) base its findings of fact only upon competent, material, and substantial evidence; and (4) in allowing or denying the application, ... state the basic facts on which it relied with sufficient specificity to inform the parties, as well as the court, what induced its decision.
284 N.C. 458, 471, 202 S.E.2d 129, 138 (1974). Section 804.6 of the Ordinance requires the Board to allow all parties the right to present their case, call witnesses, offer exhibits, and cross-examine. There is no dispute that all parties availed themselves with each of these rights at the two public hearings.
This Court addressed a similar issue in In re Application of Raynor, 94 N.C.App. 173, 379 S.E.2d 884,appeal dismissed and disc. rev. denied, 325 N.C. 546, 385 S.E.2d 495 (1989). The landowner applied to a town board for a conditional use permit to allow construction of a mobile home park on his property. Raynor,94 N.C.App. at 174,379 S.E.2d at 885. The neighbors petitioned the board to re-zone his property for only single family residences. Id. at 174, 379 S.E.2d at 885. Public hearings were...
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