1. Zoning--special use permit--notice
The trial court did not err in a zoning case regarding a special use permit application by
concluding that petitioners received adequate notice of a public hearing under § 11 of the Union
County Land Use Ordinance since N.C.G.S. § 153A-345 confers authority to handle zoning
matters on the county board of adjustment, and even if the more general rule under N.C.G.S. §
1A-1, Rule 6 applied, petitioners have not demonstrated that they were prejudiced by any lack of
notice since they did not seek to obtain any new or different evidence other than that already
presented, nor did they show how they would have benefitted from a later hearing.
2. Zoning--Board of Adjustment--discretion in limiting testimony
The trial court did not err in a zoning case regarding a special use permit application by
determining that interested persons were permitted to testify before the Board of Adjustment
because the record reveals that both sides were given adequate time to present evidence, and case
law, as well as § 101(b) and (c) of the Union County Land Use Ordinance, gives the Board
discretion in equitably limiting testimony.
3. Zoning--special use permit--completion of application
The trial court did not err in a zoning case regarding a special use permit application by
concluding that the Administrator of the Union County Inspection Department complied with §
56(a) of the Union County Land Use Ordinance when he reported to the Board of Adjustment
that the application was complete when it was missing the square feet in the lot and the
identification of individual trees eighteen inches in diameter or more because the Ordinance
allows for more or less information depending on the application, and petitioners offer no
evidence to show the Administrator's decision to accept less was in error.
4. Zoning--Board of Adjustment--burden of persuasion--established standards
The trial court did not err in a zoning case regarding a special use permit application by
concluding that the Board of Adjustment did not improperly combine established standards or
alter petitioners' burden of persuasion because: (1) there is no indication that the Board's
combining of the standards was arbitrary, oppressive, or attended with manifest abuse of
authority; (2) the Board, as an administrative agency, is presumed to properly perform its duties
unless there is a showing that the agency was arbitrary or capricious in its decision-making; (3)
neither the record nor petitioners' brief sets out evidence to show how the Board's combining of
these considerations prejudiced them; (4) petitioners do not cite any rule or case law which
shows that the Board erroneously combined the considerations; and (5) the Ordinance does not
require that the Board must deny the permit even if one of the four considerations is found.
5. Zoning--special use permit--application requirements
The trial court did not err in a zoning case regarding a special use permit application by
concluding that the Board of Adjustment's action of granting the permit was based on
conclusions fully supported by the findings of fact, even though the Board did not make written
findings of fact a part of its motion to issue the permit, because nowhere in the Union County
Land Use Ordinance is there a requirement that the Board's vote to approve the permit must be
simultaneous with its written approval.
Clark, Griffin & McCollum, LLP, by Joe P. McCollum, Jr., for
petitioner-appellants.
John T. Burns and Lewis R. Fisher for respondent-appellees.
HUNTER, Judge.
Petitioner-appellants, Carroll Douglas Richardson, et al.,
(“petitioners”) seek to reverse the trial court's order affirming
respondent-appellee Union County Board of Adjustment's (“Board”)
decision to approve the special use permit application of
respondent-appellee, GHB Broadcasting Corporation (“GHB”), to build
a radio tower in petitioners' community. Petitioners argue that
the trial court erred in finding that the Board complied with the
Union County Land Use Ordinance (“Ordinance”) then in effect
regarding specific stages of GHB's application process, namely:
(1) that all adjoining property owners received adequate notice;
(2) that interested persons were permitted to testify before the
Board regarding the application; (3) that the Administrator of the
Union County Inspection Department complied with the Ordinance when
he reported to the Board that the application was complete; (4)
that the Board did not improperly combine established standards or
alter petitioners burden of persuasion to petitioners' detriment;(5) that the Board's action to grant the special use permit was
fully supported by findings of fact; and (6) that the Board
followed all required procedures in considering and acting on GHB's
application. Petitioners argue that as a result of the foregoing
assignments of error, the trial court's order affirming the Board's
granting of the special use permit is erroneous. However, we
disagree and therefore affirm the trial court's ruling.
The relevant and undisputed facts are as follows: GHB desired
to construct and operate a broadcast tower, 500 feet in height, and
a transmitter building, 20 feet by 20 feet, for the purpose of
broadcasting the radio station WIST-FM. On 4 March 1996, before
beginning construction, GHB filed the proper application and
attachments with the Board for a special use permit as required by
the Ordinance. On 7 March 1996, GHB engaged Robert Morrison of
Morrison Appraisal, Inc. to conduct an appraisal of the property in
question, specifically with regard to whether “the proposed
development [would] substantially injure the value of the adjoining
or abutting property.” On 15 March 1996, Mr. Morrison proffered
his appraisal comparing the applicant site to three other existing
tower sites, along with his opinion as to the impact of the
applicant property's proposed use. In that opinion, Mr. Morrison
stated:
Based on the information [I have] gathered, it
is the appraiser's opinion that if the
proposed site plans is [sic] followed and all
other county requirements are met, then the
proposed use of the property will not
substantially injure the value of the
adjoining or abutting property.
As required by Article VI § 102 of the Ordinance, the Boardresponded by sending out a “Notice of Public Hearing of Union
County Board of Adjustment” to the applicant property owner,
adjoining property owners and interested property owners. Thenotice was mailed on 22 March 1996 with the hearing date set for 1
April 1996. On the date of the hearing, petitioners' attorney
faxed a letter to GHB's attorney of record objecting to the hearing
being held, stating “the required ten (10) days notice has not been
given” and that “[b]ecause of the short period of notice the
parties have not had sufficient time to obtain necessary evidence
for the hearing.” However, the hearing went on as scheduled for 1
April 1996, and petitioners fully participated.
Following the hearing, on 23 April 1996 the Board issued its
written decision to grant GHB the special use permit. In its
decision, the Board found GHB's application to be “complete in all
respects,” and found that the permit issuance would: (a) not
materially endanger the public health or safety; (b) not
substantially injure the value of adjoining or abutting property;
(c) be in harmony with the area in which it is to be located; and
(d) be in general conformity with the land development plan,
thoroughfare plan, or other plan officially adopted by the Board.
[1]Petitioners' first assignment of error settles on whether
the period between 22 March and 1 April is “adequate notice” by
law. We conclude that it is.
In their brief before this Court, petitioners argue that §
102(2) of the Ordinance which requires notice to be given “[a]t
least ten days before the meeting” was violated. It is
petitioners' contention that the Ordinance's wording of “at least”
actually means more than. However, in citing § 11 of the Ordinance
which states that “in computing such period, the day of the event
[here, the hearing] shall not be included but the day of the action[the mailing] shall be included,” petitioners' argument is
misplaced. In applying § 11 of the Ordinance, we begin counting on
the mailing date of 22 March and end 31 March, the day before the
hearing. We conclude ten days of notice was given.
In the alternative, petitioners argue that N.C. Gen. Stat. §
1A-1, Rule 6 applies which requires the same 10-day notice,
although computed differently. We hold that Rule 6 does not apply.
The Legislature confers on each county's board of adjustment
the authority to
hear and decide appeals . . . . The board of
adjustment shall fix a reasonable time for the
hearing of the appeal, give due notice of the
appeal to the parties, and decide the appeal
within a reasonable time. . . .
The board shall hear and decide all matters
referred to it or upon which it is required to
pass under the zoning ordinance.
N.C. Gen. Stat. § 153A-345(b) and (c) (1991) (emphasis added). In
the case at bar, the general principles of statutory interpretation
must be applied.
Where one statute deals with a subject in
detail with reference to a particular
situation . . . and another statute deals with
the same subject in general and comprehensive
terms . . . , the particular statute will be
construed as controlling in the particular
situation unless it clearly appears that the
General Assembly intended to make the general
act controlling in regard thereto.
State v. Leeper, 59 N.C. App. 199, 202, 296 S.E.2d 7, 9, cert.
denied, 307 N.C. 272, 299 S.E.2d 218 (1982).
The language of § 11 of the Ordinance is clear and
unambiguous. It requires a minimum ten-day “notice of a public
hearing” be given and further states how that ten days should be
calculated. Furthermore, § 11 of the Ordinance is also very
specific and particular in its application, stating that this
notice is a required action of “the zoning administrator.” On the
other hand, N.C. Gen. Stat. § 1A-1, Rule 6 comprehensively covers
the computation of “any period of time prescribed,” but addresses
no particular event or issue. Therefore, in construing § 11 of the
Ordinance and Rule 6 in para materia, the Legislature's intent to
confer authority to handle such zoning matters to the county board
of adjustment is clear. Further, petitioners neither offer nor do
we find any authority holding that Rule 6 applies to ordinances of
local governments. Thus, we hold that the Board did not err in
applying § 11 of the Ordinance and, under the Ordinance, there was
adequate notice. Notwithstanding, even if Rule 6 were applicable, this Court
has held that petitioners
do[] not have an absolute right to the notice
requirement of Rule 6. Notice may be waived.
Also, a new trial [or hearing] will not be
granted for a mere technical error. It is
incumbent on [petitioners] to show [they were]
prejudiced.
Jenkins v. Jenkins, 27 N.C. App. 205, 206, 218 S.E.2d 518, 519
(1975).
In the case at bar, the Board specifically asked petitioners'
attorney, “if you had had more time, what would have occurred?” In
response, petitioners offered only the possibility of having a real
estate agent do an appraisal to determine “what they thought the
impact was.” However, petitioners did not suggest that the
appraisal they sought would be any different from that already
presented by Morrison Appraisal, Inc.
This Court has long held that where petitioners “suggested no
additional testimony that would have been available to [them] at a
later hearing and fail[ed] to show how [they] might have benefited
from a later hearing[,]” they were not prejudiced by the Board's
failure to postpone the hearing. Brandon v. Brandon, 10 N.C. App.
457, 461, 179 S.E.2d 177, 180 (1971). See also Symons Corp. v.
Quality Concrete Constr., Inc., 108 N.C. App. 17, 422 S.E.2d 365
(1992) (no reversible error where the party arguing lack of notice
was not prejudiced by it); J. D. Dawson Co. v. Robertson Marketing,
Inc., 93 N.C. App. 62, 376 S.E.2d 254 (1989) (where defendant
attended and participated in the hearing, suggested no additional
testimony which would have been available to him at a laterhearing, and did not show how he would have benefited from a later
hearing, defendant has waived the notice requirement).
In light of the fact that petitioners at bar did not seek to
obtain any new or different evidence than that already presented by
GHB, nor did they show how they would have benefited from a later
hearing, petitioners have not demonstrated to this Court they were
prejudiced by any lack of notice. Thus, we find no error on the
part of the trial court regarding notice.
[2]Petitioners next argue that the trial court erred in
finding interested persons, along with adjoining and non-adjoining
property owners, were permitted to testify at the hearing.
Sections 101(b) and (c) of the Ordinance require that:
[T]he hearing shall be open to the public and
all persons interested in the outcome of the
appeal application shall be given an
opportunity to present evidence and arguments
. . . .
[However,] [t]he board . . . may place
reasonable and equitable limitations on the
presentation of evidence and arguments . . .
so that the matter at issue can be heard and
decided without undue delay.
We hold that the very ordinance on which petitioners stand is
the same ground on which their argument is lost. The record
reveals the Board gave adequate time for both sides to present
evidence. Though the attorney for GHB stated he had four
witnesses, it appears only two actually testified on behalf of the
permit. Yet there were ten persons allowed to testify in
opposition to the permit, several of which were not adjoiningproperty owners. Additionally, two of the adjoining property
owners testified they did not live on the property affected.
The requirement that a public hearing be held is mandatory.
However, we find that not only does the Ordinance specifically give
the Board discretion in equitably limiting testimony but case law
does as well:
The contention that the [Board was]
required to hear all persons in attendance
without limitation as to number and time is
untenable. The opponents as well as the
proponents were at liberty to select those
whom they regarded as their best advocates to
speak for them. [The law does] not
contemplate that all persons entertaining the
same views [should] have an unqualified right
to iterate and reiterate these views in
endless repetition.
Freeland v. Orange County, 273 N.C. 452, 457, 160 S.E.2d 282, 286
(1968). Having heard testimony from both sides of the issue, the
Board was not obligated to allow every person to testify. Nothing
in the record reflects an abuse of discretion in its limiting
testimony. Therefore, we reject petitioners' argument.
[3]Petitioners' third assignment of error is that the trial
court erred in finding the Administrator complied with § 56(a) of
the Ordinance when he reported to the Board that GHB's application
was complete. Petitioners argue that missing from GHB's
application was the number of square feet in the lot, as required
by Appendix A, § A-2, and the identification by common or specific
name of individual trees eighteen inches in diameter or more, as
required by Appendix A, § A-5(b)(2); thus, the Board should havedetermined GHB's application to be incomplete. We find this
argument unpersuasive.
Section 56 of the Ordinance simply requires the Administrator
(or some staff member) to submit to the Board a report with the
application that sets out his “findings concerning the
application's compliance” with § 49 of the Ordinance regarding
completeness. The record does not contain such a report. However,
in the record, the issued permit lays out the Board's findings
which it made from GHB's application, the Administrator's
recommendation and the public hearing. These findings include the
square footage and exact acreage to the thousandth of an acre.
Furthermore, petitioners' other claims regarding the completeness
of the application are addressed by § 49(d) of the Ordinance which
states:
The presumption established by this
ordinance is that all of the information set
forth in Appendix A is necessary to satisfy
the requirements of this section. However, it
is recognized that each development is unique,
and therefore the permit issuing authority may
allow less information or require more
information to be submitted according to the
needs of the particular case. . . . [T]he
applicant may rely in the first instance on
the recommendations of the administrator as to
whether more or less information than that set
forth in Appendix A should be submitted.
Because the Ordinance allows for more or less information depending
on the application, and because petitioners offer no evidence to
show the Administrator's decision to accept less was in error, we
reject petitioners' argument. [4]As its fourth assignment of error, petitioners contend the
trial court erred in finding that the Board did not improperly
combine standards altering petitioners' burden of persuasion. This
argument is also unpersuasive.
Regarding the standard of reviewing the decision of the Board
of Adjustment, the superior court is bound by the Board's findings
of fact if they are supported by evidence introduced at the hearing
before the Board. Godfrey v. Zoning Bd. of Adjustment, 317 N.C.
51, 344 S.E.2d 272 (1986). Those findings of fact are conclusive
and the Board's decisions are final. Id. “The inquiry on review
upon writ of certiorari under N.C.G.S. Sec. 153A-345 is whether the
Board committed an error of law or whether an order of the Board is
arbitrary, oppressive or attended with manifest abuse of
authority.” Teen Challenge Training Center, Inc. v. Bd. of
Adjustment of Moore County, 90 N.C. App. 452, 453, 368 S.E.2d 661,
663 (1988).
In the case at bar, § 54(c) of the Ordinance sets out four
considerations which, upon finding any one of them, the Board “may
still deny the permit.” It is petitioners' contention that in
combining the last two considerations, the Board altered its burden
of persuasion. However, the record reveals no evidence presented
by petitioners that any of the four considerations “more probably
[existed] than not” as required by the Ordinance. In fact, from
the record, we find no indication that the Board's combining of the
standards was arbitrary, oppressive or attended with manifest abuse
of authority. On the contrary, the transcript reveals that theBoard considered all four separately and then, toward the end of
its discussion, combined standards three and four.
As an arm of the county zoning board, a Board of Adjustment is
a municipal agency governed by general administrative agency
statutes. Refining Co. v. Board of Aldermen, 284 N.C. 458, 202
S.E.2d 129 (1974). As such, the law in North Carolina presumes
that the Board (the administrative agency) has properly performed
its duties, and the presumption is rebutted only by a showing that
the agency was arbitrary or capricious in its decision making.
Adams v. N.C. State Bd. of Reg. for Prof. Eng. and Land Surveyors,
129 N.C. App. 292, 501 S.E.2d 660 (1998). Having failed to show
that the Board was either arbitrary or capricious in its combining
of the standards, petitioners have failed to rebut the presumption
as well.
Additionally, neither the record nor petitioners' brief to
this Court sets out evidence to show how the Board's combining of
these considerations prejudiced them. Although petitioners state
that their burden of persuasion was heightened, they provide no
evidence that if the Board agreed with them that one of the
standards existed, the Board would have denied GHB's permit. As
cited by petitioners in its brief, even where the trial court has
committed error, if that error is not prejudicial, then it is
harmless. Responsible Citizens v. City of Asheville, 308 N.C. 255,
302 S.E.2d 204 (1983).
Finally as to this assignment of error, petitioners do not
cite any rule or case law which shows that the Board erroneouslycombined the considerations. Thus, we find that the Board had the
right to combine the considerations, just as it had the right to
still allow the application even if it had found one of the
considerations to be more probable than not. The Ordinance does
not require that the Board deny the permit even if one of the four
considerations is found; it simply states it “may” deny the permit
on those grounds.
[5]For its fifth assignment of error, petitioners argue that
the trial court erred in finding that the Board's action of
granting the permit was based on conclusions fully supported by
findings of fact. It is petitioners' position that because the
Board did not make written findings of fact a part of its motion to
issue GHB's permit, that the findings in the permit document signed
by the Board's chairman are void. We reject this argument also.
Section 58 of the Ordinance sets out what issues should be
considered by the Board in its decision to approve an application.
It requires the Board to consider whether the application is
complete and complies with all the applicable requirements. If no
adverse action is taken, the Board's nonaction “shall be taken as
an affirmative finding by the [B]oard that the application is
complete” and “it shall issue the permit.” Additionally, this
section of the Ordinance requires specific findings, based on the
evidence to be set out only where the permit is denied.
It is true that § 106 of the Ordinance requires the Board to
reduce its decision to issue a special use permit to writing, and
to include its “findings and conclusions, as well as supportingreasons or facts, whenever this [O]rdinance requires the same as a
prerequisite to taking action.” However, we find that the Board's
issued permit satisfies this requirement. Nowhere in the Ordinance
do we find that the Board's vote to approve the permit must be
simultaneous with its written approval, and petitioners offer no
evidence to the contrary.
Since petitioners' remaining two assignments of error are
based on previous assignments of error, it is unnecessary to
address them. Furthermore, once GHB submitted a completed
application to the Board, the burden shifted to petitioners to show
why the permit should be denied. From the record, we find no
evidence that petitioners met its burden. Instead, we conclude the
trial court had sufficient evidence to affirm the Board's decision.
Affirmed.
Judges GREENE and WALKER concur.
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