C. DWIGHT HOWARD
v
.
CITY OF KINSTON
Dal F. Wooten for the petitioner-appellant.
Vernon H. Rochelle for the respondent-appellee.
EAGLES, Chief Judge.
C. Dwight Howard (“petitioner”) appeals from the trial court's
order denying his petition for a writ of certiorari requesting
review of the Kinston City Council's (“the City”) denial of his
application for a conditional use permit. On appeal, petitioner
asserts that the trial court erred in denying the petition because
(1) the City denied him the procedural guarantees required in a
quasi-judicial hearing and (2) the City's decision was not
supported by competent evidence in the record. After careful
review, we affirm the trial court.
The evidence tended to show that petitioner and his wife owned
a thirty-seven acre tract of land located in Kinston, North
Carolina. Approximately thirty years before the commencement of
this action, the City zoned petitioner's land RA-6, which allows
for the construction of multi-family dwellings on the land. Petitioner's land adjoins a subdivision known as Westwood
(comprised of Westwood I and Westwood II), which the City zoned RA-
8 and limited to single family dwellings approximately twenty-five
years ago. In 2000, petitioner filed an application with the City
for a conditional use permit requesting approval of construction of
a major subdivision on his land. In his application, petitioner
sought to subdivide his thirty-seven acre tract of land into
thirty-three separate lots on which to construct multi-family
units.
On 20 March 2000, a public hearing on petitioner's application
was held before a joint session of the Kinston Planning Board
(“Planning Board”) and the City Council. At this hearing, the City
limited both sides' number of witnesses and the amount of time each
witness could speak. Initially, Ed Lynch of the City's Planning
Department testified that the number of vehicular trips in the area
would increase if petitioner's proposal was approved.
Next, petitioner provided the City with unsworn statements in
support of his application. The City then allowed eight of the
approximately thirty residents of Westwood in attendance to provide
unsworn testimony in opposition to petitioner's application. The
witnesses's testimony was of the general nature that the potential
subdivision would reduce property values, increase traffic, and
endanger the public health and safety.
Following the hearing, on 27 March 2000, the Planning Board
met and recommended that the City deny petitioner's application.
Thereafter, on 3 April 2000, the City issued an order denying theapplication because it determined that the proposal would endanger
the public health and safety. On 17 April 2000, the City vacated
its 3 April 2000 order and entered a second order denying
petitioner's application. In the 17 April 2000 order, the City
concluded that the proposed subdivision would materially endanger
the public health and safety, would affect existing property
values, and would not be in harmony with existing development and
uses in the area.
Petitioner filed a petition for a writ of certiorari
requesting review of the denial of his application in Lenoir County
Superior Court. On 5 June 2000, petitioner's case came on for
hearing before the Honorable Jerry Braswell. After the hearing,
the trial court entered an order denying the petition. In its
order, the trial court ruled that the City's decision “in denying
Petitioner's request for a Conditional Use Permit was not arbitrary
and capricious and was supported by competent evidence.”
Petitioner appeals.
Every decision of a city council issuing or denying a
conditional use permit “shall be subject to review by the superior
court by proceedings in the nature of certiorari.” G.S. § 160A-
381(c). During review pursuant to writ of certiorari under G.S. §
160A-381(c), “the superior court judge [sits] as an appellate
court, not a trial court.” Batch v. Town of Chapel Hill, 326 N.C.
1, 11, 387 S.E.2d 655, 662 (1990). Review is based solely upon the
record as certified, and “[t]he test is whether the findings offact are supported by competent evidence in the record; if so,
they are conclusive upon review.” Id.
“Our task, in reviewing a superior court order entered after
a review of a board decision is two-fold: (1) to determine
whether the trial court exercised the proper scope of review, and
(2) to review whether the trial court correctly applied this scope
of review.” Whiteco Outdoor Adver. v. Johnston County Bd. of
Adjust., 132 N.C. App. 465, 468, 513 S.E.2d 70, 73 (1999). Here,
the trial court made its determination “based upon the record
evidence.” Accordingly, we conclude that the trial court exercised
the proper scope of review. Next, we must review whether the trial
court exercised that scope of review correctly.
Zoning decisions regarding conditional use permits are quasi-
judicial in nature. See Concrete Co. v. Board of Commissioners,
299 N.C. 620, 626, 265 S.E.2d 379, 383 (1980). Generally,
the task of a court reviewing a decision on an
application for a conditional use permit made
by a town board sitting as a quasi-judicial
body includes: &nb
sp;
(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, &n
bsp;
(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.
Id.
When, as here, “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.'” Tate Terrace Realty Investors, Inc. v. Currituck
County, 127 N.C. App. 212, 218, 488 S.E.2d 845, 849 (1997). “'The
“whole record” test requires the reviewing court to examine all the
competent evidence . . . which comprise[s] the “whole record” to
determine if there is substantial evidence in the record to support
the [quasi-judicial body's] findings and conclusions.'” Sun Suites
Holdings, LLC v. Board of Aldermen of Town of Garner, 139 N.C. App.
269, 273, 533 S.E.2d 525, 528, writ of supersedeas and disc. review
denied, ___ N.C. ___, 546 S.E.2d 397 (2000) (quoting Ellis v. N.C.
Crime Victims Compensation Comm., 111 N.C. App. 157, 162, 432
S.E.2d 160, 164 (1993)). “Substantial evidence is that which a
reasonable mind might accept as adequate to support a conclusion.”
Tate Terrace, 127 N.C. App. at 218, 488 S.E.2d at 849. “In
reviewing the sufficiency and competency of the evidence at the
appellate level, the question is not whether the evidence before
the superior court supported that court's order but whether the
evidence before the town board was supportive of its action.”
Concrete Co., 299 N.C. at 626, 265 S.E.2d at 383. At the outset, we note that as part of the record on appeal
the parties submitted a videotape of the City's 20 March 2000
public hearing. “The parties stipulated that the video tape filed
with the Clerk of the Court of Appeals is an exact copy of the tape
viewed, heard, and considered by Judge Braswell at the hearing of
this cause on June 5, 2000.” No written transcripts accompanied
the record or briefs.
In Shillington v. K-Mart Corp., 102 N.C. App. 187, 190, 402
S.E.2d 155, 157 (1991), this Court expressed the view that the
submission of videotapes of trial proceedings, in lieu of written
transcripts, is disfavored. We opined that “the use of videotapes
in this Court for appellate review greatly frustrates effective
review of the trial proceedings . . . .” Id. Nevertheless, “in
the interests of judicial economy and a timely resolution of th[is]
appeal[] and in the absence of a rule from the Supreme Court
requiring a written transcript in cases that are appealed to this
Court,” we choose to proceed with a resolution of this case. Id.
Petitioner contends that the trial court erred in denying his
petition for certiorari because the City denied him the procedural
guarantees required in a quasi-judicial hearing. We disagree.
Procedurally, a city council
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 documents, and offerevidence in explanation and rebuttal;
(2) absent stipulations or waiver such a
board may not base findings as to the
existence or nonexistence of crucial facts
upon unsworn statements; and
;
(3) crucial findings of fact which are
“unsupported by competent, material and
substantial evidence in view of the entire
record as submitted” cannot stand.
Refining Co. v. Board of Aldermen, 284 N.C. 458, 470, 202 S.E.2d
129, 137 (1974) (citation omitted). Here, petitioner contends that
the City dispensed with the procedural guarantees required in a
quasi-judicial hearing by (1) limiting the number of witnesses and
the amount of time each witness could speak, (2) relying on the
unsworn testimony of witnesses in opposition to his application,
and (3) allowing the submission of letters in opposition to his
application after the hearing.
As to the City's limiting testimony of witnesses,
[t]he contention that the [City was] required
to hear all persons in attendance without
limitation as to number and time is untenable
. . . . [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). Here, the record reflects that approximately thirty
residents of Westwood were in attendance and ready to testify in
opposition to petitioner's application at the hearing. The City
limited the discussion by individuals to three minutes each, groups
to five minutes each, and each side to a total of five witnesses(the City actually heard from eight residents in opposition).
“Having heard testimony from both sides of the issue, the [City]
was not obligated to allow every person to testify.” Richardson v.
Union County Bd. of Adjust., 136 N.C. App. 134, 140, 523 S.E.2d
432, 437 (1999). Accordingly, we conclude that the City did not
abuse its discretion in limiting testimony.
Next, as to the City's reliance on the unsworn testimony of
witnesses, a city may not base critical findings of fact on unsworn
statements absent stipulations or waiver. See Jarrell v. Board of
Adjustment, 258 N.C. 476, 481, 128 S.E.2d 879, 883 (1963).
“However, by voluntary participation in a hearing, a [petitioner
providing unsworn testimony] may waive the right to insist that the
witnesses should be under oath.” Craver v. Board of Adjustment,
267 N.C. 40, 42, 147 S.E.2d 599, 601 (1966); see also Burton v.
Zoning Board of Adjustment, 49 N.C. App. 439, 442, 271 S.E.2d 550,
552 (1980). Here, petitioner was not sworn as a witness.
Moreover, petitioner was accompanied by counsel to the hearing.
Neither petitioner nor counsel made a request that those in
opposition to the application be sworn, that petitioner have the
right to cross-examine the witnesses, or that he have the right to
present evidence in rebuttal. Thus, we conclude that petitioner
waived these rights.
Lastly, the City allowed the “submission of letters after the
public hearing,” which petitioner claims “denied [him] his right to
cross examine . . . .” In its 17 April 2000 order, the City statedthat its decision was based upon “all of the evidence and arguments
presented at the public hearing, . . . the reports from the City
Planning Staff and . . . the recommendation of the City Planning
Board concerning the application . . . .” While the City admitted
in its order that it “receiv[ed] additional objections and
petitions from property owners in the affected subdivision[],” the
record does not reflect that the City actually considered these
letters in rendering its decision. In the absence of evidence that
the City considered these letters, petitioner's argument as to his
being denied the right to cross-examine is moot.
In sum, we conclude that the public hearing before the City
was not procedurally flawed. Accordingly, petitioner was not
denied any of the rights afforded a party during a quasi-judicial
proceeding.
Next, petitioner contends that the trial court erred in
denying his petition for writ of certiorari because the City's
decision was not supported by competent evidence in the record.
After careful examination of the record, we disagree.
The Kinston Unified Development Ordinance (“UDO”) provides
that
[e]ven if the permit-issuing board finds that
the application complies with all other
provisions of this chapter, it may still deny
the permit if it concludes, based upon the
information submitted at the hearing, that if
completed as proposed, the development:
(1) Will materially endanger the public
health or safety; or
(2) Will substantially injure the valueof adjoining or abutting property; or
(3) Will not be in harmony with existing
development and uses within the area in
which it is to be located; or
(4) Will not be in general conformity
with the land use plan, thoroughfare
plan, or other plan officially adopted by
the council.
Kinston UDO § 54(d) (emphasis added). In denying petitioner's
application for a conditional use permit, the City concluded that
the proposal would “materially endanger the public health or safety
of the residents, including children, in the adjacent
subdivision[],” would “affect existing property values,” and would
“not be in harmony with existing development and uses in the area
in which it is to be located.” The enumerated bases for denying a
permit are listed in the ordinance in the disjunctive and any one
will suffice. “If even one of the reasons articulated by the
[City] for denial of the subdivision permit is supported by valid
enabling legislation and competent evidence on the record, the
[City's] decision must be affirmed.” Batch, 326 N.C. 1, 12, 387
S.E.2d 655, 662.
When an applicant for a conditional use permit “produces
competent, material, and substantial evidence of compliance with
all ordinance requirements, the applicant has made a prima facie
showing of entitlement to a permit.” SBA, Inc. v. City of
Asheville City Council, 141 N.C. App. 19, 27, 539 S.E.2d 18, 22
(2000). Once an applicant makes this showing, the burden of
establishing that the approval of a conditional use permit wouldendanger the public health, safety, and welfare falls upon those
who oppose the issuance of the permit. See Woodhouse v. Board of
Commissioners, 299 N.C. 211, 219, 261 S.E.2d 882, 888 (1980).
Denial of a conditional use permit must be based upon findings
which are supported by competent, material, and substantial
evidence appearing in the record. See SBA, 141 N.C. App. at 27,
539 S.E.2d at 22.
A city council may not deny a conditional use permit in their
unguided discretion or because, in their view, it would adversely
affect the public interest. See In re Application of Ellis, 277
N.C. 419, 425, 178 S.E.2d 77, 81 (1970). Moreover, a city
council's denial of a conditional use permit based solely upon the
generalized objections and concerns of neighboring community
members is impermissible. See Gregory v. County of Harnett, 128
N.C. App. 161, 165, 493 S.E.2d 786, 789 (1997). Speculative
assertions, mere expression of opinion, and generalized fears
“about the possible effects of granting a permit are insufficient
to support the findings of a quasi-judicial body.” Sun Suites, 139
N.C. App. at 276, 533 S.E.2d at 530. In other words, the denial of
a conditional use permit may not be based on conclusions which are
speculative, sentimental, personal, vague, or merely an excuse to
prohibit the requested use. See Woodhouse, 299 N.C. at 220, 261
S.E.2d at 888.
Here, the City concluded that “[t]he proposed subdivision will
create from [300] to [800] additional daily trips on existingstreets which will materially endanger the public health or safety
of the residents, including children, in the adjacent
subdivision[].” In reaching this conclusion, the City relied on
the testimony of Ed Lynch, a member of the City's Planning
Department, and Phyllis Gay, a Westwood resident testifying in
opposition to petitioner's application.
At the public hearing, Mr. Lynch provided a presentation on
the impact of petitioner's proposal on existing traffic in the
area. In sum, Mr. Lynch concluded that the proposed subdivision
would significantly increase vehicular activity in the area by
approximately 300 to 800 trips a day. Ms. Gay also testified
during the public hearing. During her testimony, Ms. Gay testified
that approximately 100 children lived in Westwood, that existing
traffic has caused near accidents involving children while they
were walking and riding their bicycles, and increased traffic would
endanger the health and safety of the children.
We note that Ms. Gay based her testimony about the adverse
effects of the proposed subdivision on traffic congestion and
safety upon her personal knowledge and observations. Thus, unlike
Gregory, Sun Suites, and Woodhouse, cited above, we conclude that
Ms. Gay's concerns were valid and not the result of speculative
assertions, mere expression of opinion, or her generalized fears.
“An increase in traffic does not necessarily mean an
intensification of traffic congestion or a traffic hazard.”
Refining Co., 284 N.C. 458, 469, 202 S.E.2d 129, 136.
Nevertheless, Mr. Lynch's testimony regarding an increase intraffic, in conjunction with Ms. Gay's testimony regarding danger
to the public health and safety does constitute competent,
material, and substantial evidence. See In re Application of
Goforth Properties, 76 N.C. App. 231, 332 S.E.2d 503 (1985)
(holding that testimony regarding increased traffic, as well as
witness testimony expressing concern for the safety of children
walking and riding bicycles, constituted competent, material, and
substantial evidence supporting a town's denial of a special use
permit). Accordingly, we conclude that competent, material, and
substantial evidence in the record supports the City's denial of
petitioner's conditional use permit, and we affirm the trial court.
Having concluded that there is competent evidence to support
the Council's denial of the conditional use permit, we need not
consider whether all of the City's other findings were supported by
competent evidence. The trial court's order denying petitioner's
petition for writ of certiorari is
Affirmed.
Judges HUDSON and CAMPBELL concur.
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