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GUILFORD FINANCIAL SERVICES, LLC,
Petitioner,
v
.
THE CITY OF BREVARD, a municipal corporation,
Respondent.
Smith, Helms, Mullis & Moore, L.L.P., by James G. Exum, Jr.
and Robert R. Marcus, and Van Winkle, Buck, Wall, Starnes and
Davis, P.A., by Craig D. Justus, for petitioner-appellant.
Ramsey, Hill, Smart, Ramsey & Pratt, P.A., by Michael K. Pratt
and James M. Kimzey, for respondent-appellee.
HUDSON, Judge.
Guilford Financial Services, LLP (“petitioner”) appeals from
a judgment by the superior court affirming the disapproval by the
City of Brevard (“the City”) of petitioner's preliminary
subdivision plat. For the reasons given below, we vacate and
remand to the superior court for remand to the Brevard City Council
(“the Council”) for further proceedings.
The Planning Board first considered the preliminary plat at its 15 February 2000 meeting. Some members of the Planning Board and a neighboring resident expressed concerns regarding increased traffic outside the development. The Planning Board tabled consideration of the plat until a later meeting so that traffic information could be obtained.
Subsequent to the 15 February meeting of the Planning Board, petitioner revised the preliminary plat. The revised plat showed sixteen lots containing fifteen duplexes and a community building. The duplexes in the revised plat comprised thirty units: twenty- eight one-bedroom units and two two-bedroom units. The basic lot and street layout were unchanged. Petitioner explained that the design was changed following a decision to target the elderly and disabled rather than families.
The Planning Board considered the revised preliminary plat at its 21 March 2000 meeting. A neighboring resident presented thePlanning Board with a petition containing 147 signatures of those opposed to the development and read a statement detailing the reasons for their opposition. These reasons included traffic impact and safety. Two neighbors addressed the Planning Board and expressed their concerns related to other matters. A member of the Planning Board questioned whether the proposed development complied with the density requirements of the City's Subdivision Regulations and Land Use Plan. Ultimately, the Planning Board approved the preliminary plat with three conditions, none of which is relevant to this appeal.
Following the Planning Board's recommendation to approve the preliminary plat, the Council held a public hearing on the matter on 17 April 2000. The Council listened to a presentation from petitioner's counsel and petitioner's land surveyor and engineer and to a presentation from the attorney representing a group of residents in the affected neighborhood who opposed the plan. The attorney representing the neighborhood group submitted a petition to Council, signed by over 150 people, expressing opposition to the plan. The Council then allowed citizens to comment on the proposed plan and accepted their written comments. (See footnote 1)
The Council voted to continue the public hearing until 1 May 2000 in order to accommodate all citizens who wanted to be heard. On 15 May 2000, the Council again resumed the public hearing. The City Manager advised the Council that the Planning Board had determined that the proposed subdivision conformed to the City's Zoning Ordinance and Subdivision Regulations; he did not address whether the plat conformed to the density requirements of the Land Use Plan. In the interim between the 17 April and 15 May meetings of the Council, petitioner had submitted a third preliminary plat, in which revisions had been made to address the conditions imposed by the Planning Board on the revised plat. One Council member expressed confusion regarding which of the three plats was actually before the Council. Council members expressed their concerns regarding increased traffic from and the density of the proposed development. Ultimately, the Council voted to disapprove the preliminary plat.
Pursuant to the Subdivision Regulations, the reasons for the Council's disapproval were recorded in a letter to petitioner, dated 13 July 2000 (“the Letter”). The Letter states that the reasons for the Council's decision include:
(1) Section 90 of the [Subdivision Regulations] provides that the Council may consider a higher standard than those included in the [Subdivision Regulations], if the [Subdivision Regulations] minimum standards do not reasonably protect or provide for the public health safety or welfare. Council considered the public health, safety and welfare in making their decision;
(2) Section 703.1 of the [Zoning
Ordinance] speaks to density, and requires
that two-family dwellings be “unconcentrated.”
Council was concerned that the proposed
subdivision plat violates this section by
concentrating the number of two-familydwellings in one small area;
(3) Your clients confused Council by
presenting different versions of the plat for
consideration. While it was my opinion that
Council was reviewing the preliminary plat
dated January 27, 2000, some members of
Council apparently thought that they were
reviewing the preliminary plat dated February
29, 2000. This confusion made it difficult
for Council to make a decision in connection
with this matter. In fact, I was somewhat
confused on that, and stated at the May 15
meeting, that it was the February 29, 2000,
plat that we were reviewing, when I now
believe that to be an error;
(4) Council was concerned about the width
and present layout of Outland Avenue with
regard to the issues of safety, health and
general welfare. They were concerned that the
new development might present traffic hazards
and safety concerns in that neighborhood;
(5) Council wanted further clarification
on several issues regarding safety, health and
general welfare from the Planning Board;
(6) Council was concerned about how the
language of Section 703.1 [of the City's
Zoning Ordinance] containing the
“unconcentrated” language referred to
hereinabove, is modified or affected by
Section 703.5112, containing a 10,000 square
foot requirement.
Petitioner appealed the Council's disapproval of its
preliminary plat to the superior court, which affirmed the
Council's decision. Petitioner now appeals the superior court's
decision.
The ordinance may provide that final approval of each individual subdivision plat is to be given by
(1) The city council,
(2) The city council on recommendation of a planning agency, or
(3) A designated planning agency.
N.C. Gen. Stat. § 160A-373 (1999).
The City of Brevard has chosen the second alternative provided
by N.C.G.S. § 160A-373. Its Subdivision Regulations set out
specific requirements with which a developer must comply and vests
discretion with the Council in determining whether the application
ultimately should be approved or denied. Section 85.8 of the
City's Subdivision Regulations provides:
Upon receipt of the preliminary plat and the
planning board's recommendation, the city
council shall hold a public hearing in
accordance with the provisions of G.S. 160A-
364. The city council shall then review the
plat at its next regularly scheduled meeting
and decide approval or disapproval. If the
city council decides disapproval, the reasons
for such action shall be stated in writing,
and specific references shall be made to
regulations with which the preliminary plat
does not comply.
By adopting these procedures, the City has provided that these
decisions be made in a quasi-judicial forum. The City argues that
the process is legislative because of the reference in its
Subdivision Regulations to N.C. Gen. Stat. § 160A-364, which
specifies that before adopting or amending an ordinance a city must
hold a public hearing preceded by notice as prescribed by the
statute. See N.C. Gen. Stat. § 160A-364 (1999). We do notbelieve, however, that the type of notice determines the nature of
the proceeding. Rather, the type of decision to be made is the
critical factor. See County of Lancaster v. Mecklenburg County,
334 N.C. 496, 507, 434 S.E.2d 604, 612 (1993) (characterizing
quasi-judicial decisions as those “involv[ing] the application of
zoning policies to individual situations”); Northfield Dev. Co. v.
City of Burlington, 136 N.C. App. 272, 282, 523 S.E.2d 743, 750
(“Quasi-judicial decisions involve the application of ... policies
to individual situations rather than the adoption of new policies.”
(internal quotation marks omitted) (alteration in original)),
aff'd, 352 N.C. 671, 535 S.E.2d 32 (2000) (per curiam). Thus,
while “[t]he purpose of a legislative hearing is to secure broad
public comment on the proposed action,” the “purpose of a quasi-
judicial hearing on an individual project . . . is to gather
evidence in order to make factual findings.” David W. Owens,
Legislative Zoning Decisions 53 (2d ed. 1999); see generally id. at
10-11 (discussing the various types of zoning decisions).
The dissent would have this Court require approval on the
ground that the subdivision approval decision is automatic, and “of
right,” once minimum requirements are met. While there are cases
indicating that in some circumstances a petitioner is entitled to
a permit as of right upon a prima facie showing of compliance with
minimum requirements, those cases are based on different ordinances
and do not apply here. See, e.g., Nazziola v. Landcraft Props.,
Inc., 143 N.C. App. 564, 566, 545 S.E.2d 801, 803 (2001)
(characterizing as “ministerial” an ordinance providing that“'[t]he Site Plan or Plot Plan shall be approved when it meets all
requirements of this ordinance'”). Here, the Subdivision
Regulations specifically give the Council discretion to disapprove
the proposed subdivision.
While the City of Brevard could have adopted a “ministerial”
subdivision ordinance, it did not. Instead, the City has enacted
an ordinance establishing a quasi-judicial process, and
specifically giving the City discretion to disapprove a proposed
subdivision. The General Assembly clearly granted it the authority
to do so, and we are bound to review this case by reference to the
particular ordinance involved. We have not found other similar
ordinances in North Carolina, and this analysis does not apply to
any municipality whose ordinances establish a different type of
process for subdivision approval.
In Refining Company v. Board of Aldermen, 284 N.C. 458, 202
S.E.2d 129 (1974), our Supreme Court set out the requirements for
a quasi-judicial proceeding. The Council was required to:
(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.
Id. at 471, 202 S.E.2d at 138. The Council here did not conduct
its hearing “in accordance with fair-trial standards,” nor did it
state the facts upon which it based its denial with “sufficient
specificity” to allow the court to review its decision. The “essential elements” of a fair trial are:
(1) The party whose rights are being
determined must be given the opportunity to
offer evidence, cross-examine adverse
witnesses, inspect documents, and offer
evidence 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.
Id. at 470, 202 S.E.2d at 137 (citation and internal quotation
marks omitted). Here, the City Attorney clearly believed and
apparently advised the Council that the proceeding was legislative;
he has continued to take the position, even before this Court on
appeal, that it was a legislative proceeding. Indeed, the City
Attorney acknowledged in the hearing before the superior court that
“if [the proceeding] should have been a quasi-judicial hearing, I
think we have to start from scratch, because the only thing I could
see the Court doing is remanding it, to put witnesses under oath
and start over again.” In response, counsel for petitioner stated
that petitioner waived certain procedural rights guaranteed by
Refining Company.
The proceedings conducted by the Council, believing the
process was legislative, do not bear any of the hallmarks of a
“fair trial.” The entire process was designed to provide comment
and opinion, not to produce evidence or to resolve factual issues.
(See footnote 2)
Counsel for petitioner attempted after the fact to waive the right
to have witnesses sworn and to cross-examine witnesses. This does
not alter the fundamental legislative nature of what should have
been a quasi-judicial proceeding.
Additionally, the Council failed to making findings of fact
“with sufficient specificity to inform the parties, as well as the
court, what induced its decision.” Id. at 471, 202 S.E.2d at 138.
The Council merely stated that it had considered the public health,
safety and welfare, expressed its “concerns” regarding density and
traffic issues, and expressed its confusion over which plat was
before it for review. Moreover, the Council had to revisit the
matter once the City Attorney told Council members that they had to
give reasons for their denial of the application in accordance with
the ordinance; until that point, the Council apparently thought all
it had to do was vote.
Our Supreme Court has acknowledged that we should give
latitude to “findings” made by lay bodies, such as a city council:
“Since . . . city councils are generally composed of laymen who do
not always have the benefit of legal advice, they cannot reasonably
be held to the standards required of judicial bodies.” Id. at 470,
202 S.E.2d at 137. However, the Council here did not make anyproper findings of fact, and its statements of concern are too
generalized for us to conduct a review.
For example, as evidenced by paragraph three of the Letter,
the Council specifically declined to decide which plat was before
it for review. In addition, the Council stated in its Letter that
it was “concerned that the new development might present traffic
hazards and safety concerns in that neighborhood.” The Council
failed to make any specific finding regarding traffic increase due
to the development. In its brief, the City cites a memorandum from
the City's Planning Director to the Planning Board, in which it is
stated that Travis Marshall, a Transportation Engineer with the
N.C. Department of Transportation, opined that the proposed
development would generate an average of four daily trips per unit.
According to the City, based on calculations that do not appear in
that part of the record that was before the Council, this
constitutes a 39% increase. Petitioner cites in its brief another
memorandum from the City's Planning Director to the Planning Board,
observing that Reuben Moore, a Division Engineer with the N.C.
Department of Transportation, “[b]ased upon his professional
opinion and his familiarity with a similar project in Sylva, . . .
estimated two trips per day,” which would have an “imperceptible”
impact on the existing traffic. The Council neither acknowledged
nor resolved this conflicting evidence.
Although the dissent would have us find facts based on the
record before us on appeal, it is clear that “[i]t is not the
function of the reviewing court, in such a proceeding, to find thefacts but to determine whether the findings of fact made by the
[governing body] are supported by the evidence before the
[governing body] and whether the [governing body] made sufficient
findings of fact.” Rentals, Inc. v. City of Burlington, 27 N.C.
App. 361, 364, 219 S.E.2d 223, 226 (1975); see Long v. Board of
Adjustment, 22 N.C. App. 191, 205 S.E.2d 807 (1974). In Triple E
Associates v. Town of Matthews, 105 N.C. App. 354, 413 S.E.2d 305,
disc. review denied, 332 N.C. 150, 419 S.E.2d 578 (1992), cited by
the dissent, we remanded the case back to the Town Board “with
instructions to conduct a de novo evidentiary hearing . . . and to
make specific findings of fact,” id. at 362, 413 S.E.2d at 310,
after we determined that some of the evidence on which the Town
Board had relied to deny a permit was not competent and material,
see id. at 360, 413 S.E.2d at 309. “[W]e [were] not prepared to
say that all of the Town's evidence regarding the [relevant issue]
was not competent and material so as to be insufficient to rebut
petitioners' showing of compliance” with the ordinance in question,
and we recognized that we do not find the facts, in lieu of the
Town Board. Id. at 360-61, 413 S.E.2d at 309. On remand, the
Council should make factual findings that are sufficiently specific
to enable review.
Vacated and remanded.
Judge TIMMONS-GOODSON concurs.
Judge TYSON concurs in part and dissents in part.
TYSON, Judge, concurring in part and dissenting in part.
I concur in part II of the majority opinion to the extent that the proper forum is a quasi-judicial and not a legislative hearing. I respectfully dissent from the remainder of part II and part III of the majority opinion. I would hold that petitioner complied with the requirements in the Zoning Ordinance and Subdivision Regulations and is entitled to approval of its subdivision plat.
Compliance with the requirements of the ordinance and regulations ensures that each application for approval of a subdivision plat will be considered on its own merits, and notgranted or denied based on improper or irrelevant factors. See Clark v. City of Asheboro, 136 N.C. App. 114, 119, 524 S.E.2d 46, 50 (1999). It also provides predictability of future use, as well as the approval process. Id.
An applicant seeking approval for a subdivision plat who produces competent, material, and substantial evidence of compliance with the requirements of the ordinance and regulations, establishes a prima facie case of entitlement to approval. Id. at 119-20, 524 S.E.2d at 50 (citing Coastal Ready-Mix Concrete Co. v. Board of Commissioners, 299 N.C. 620, 625, 265 S.E.2d 379, 382 (1980)); Triple E Assocs. v. Town of Matthews, 105 N.C. App. 354, 358-59, 413 S.E.2d 305, 308 (1992). The disapproval of the plat must “be based upon findings contra which are supported by competent, material, and substantial evidence appearing in the record.” Id. (citations omitted).
I concur with the majority that the Brevard City Council's (“Council”) decision to disapprove the preliminary subdivision plat was a quasi-judicial action. However, the unique requirement of a public hearing for subdivision plat approval does not relieve the Council of its legal obligation to approve the plat if the requirements of the Ordinance and Subdivision Regulations are met.
(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.
Id. at 626, 265 S.E.2d at 383.
In reviewing the sufficiency and competency of the evidence, this Court determines “not whether the evidence before the superior court supported that court's order[,] but whether the evidence before the Town Council supported the Council's action.” Ghidorzi Constr., Inc. v. Town of Chapel Hill, 80 N.C. App. 438, 440, 342 S.E.2d 545, 547 (1986). The evidence before the Council supported the approval of the preliminary subdivision plat for Laurel Village.
The proper standard for judicial review “depends upon the particular issues presented on appeal.” Amanini v. North Carolina Dep't of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994). Reviewing courts conduct a “de novo” review when a party alleges an error of law in the Council's determination and use a “whole record test” when sufficiency of the evidence is challenged or when a decision is alleged to have been arbitrary or capricious. See In re Willis, 129 N.C. App. 499, 501, 500 S.E.2d 723, 725 (1998).
Petitioner in this case does not contend that it was denied the procedural guarantees required in a quasi-judicial hearing. Both the petitioner and the opposition were represented by counsel at all hearings before the Council. Both sides made statements to the Council in explanation for their proposition of approval or denial and rebuttal of statements or information given by the other side or witnesses.
The Council received: (1) the staff reports concerning traffic information and density; (2) a petition signed by neighboring residents opposed to the development; (3) letters from concerned citizens and heard unsworn statements from six concerned citizens, for and against the development, at the 17 April 2000 public hearing; and (4) additional letters from concerned citizens and heard unsworn statements from twenty concerned citizens, for and against the development, at the 1 May 2000 public hearing.
Neither petitioner nor the opposition made a request that those concerned citizens be sworn, that they have the right to cross-examine the witnesses, or that they have the right to presentevidence in rebuttal. The right to insist that the witnesses be under oath, the right to cross-examine witnesses, and the right to present evidence in rebuttal are waivable and are not crucial for proper review by this Court. See Howard, supra; Craver v. Zoning Bd. of Adjustment of Winston-Salem, 267 N.C. 40, 42, 147 S.E.2d 599, 601 (1966); Burton v. New Hanover County Zoning Bd. of Adjustment, 49 N.C. App. 439, 442, 271 S.E.2d 550, 552 (1980).
The superior court made an additional finding for denial: the requirements of the City's Land Use Plan. Respondent's letter to petitioner, dated 13 July 2000, does not recite noncompliance with the Land Use Plan as a basis for the disapproval. “[A] reviewing court, in dealing with the determination . . . which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.” Godfrey v. Zoning Bd. of Adjustment of Union County, 317 N.C. 51, 64, 344 S.E.2d 272, 279-80 (1986) (citations omitted). It was error for the superior court to substitute this reason and rely on it in affirming the decision of the Council. See Ballenger Paving Co. v. North Carolina State Highway Comm'n, 258 N.C. 691,695, 129 S.E.2d 245, 248 (1963) (review pursuant to writ of certiorari of an administrative decision is for error of law only and the superior court judge may not make additional findings).
I disagree with the majority's opinion that the Council failed to make “sufficient” findings of fact and merely expressed “concerns.” The fact that the Council expressed “concerns” regarding traffic issues and density does not negate the fact that the Council made specific findings of fact. The record reflects that the “findings contra” to approval were not supported by competent, material, and substantial evidence.
Section 90 of the Code provides that the Council may consider a higher standard than those included in the Code, if the Code minimum standards do not reasonably protect or provide for the public health safety or welfare. Council considered the public health, safety and welfare in making their decision.
The Council cited public health, safety, and welfare concerns withrespect to the width and layout of Outland Avenue, the public access adjoining the proposed development, and, particularly, an increase in traffic.
There is no evidence in the record to support the disapproval of the plat on the basis of public health, safety, and welfare pursuant to section 90 of the Subdivision Regulations. The information furnished by the Brevard Police Department was before the Council as part of a staff report by the Planning Director, and indicated that the traffic count for Outland Avenue was 290 vehicle trips, within a twenty-four hour period, and that zero to one accident occurred on Outland Avenue between 1995 and 1999. Reuben Moore, Division Engineer with the North Carolina Department of Transportation, informed the Planning Director that the proposed development would average two daily trips per unit. Travis Marshall, Transportation Engineer with the North Carolina Department of Transportation, informed the Planning Director that the proposed development would average four daily trips per unit. Respondent argues and the superior court found that the proposed development would increase traffic by thirty-nine percent. The percentage of traffic increase standing alone without additional evidence of the impact of that increase is irrelevant. Additionally, Reuben Moore stated to the Planning Director that the impact on traffic from the proposed development would be “imperceptible.” There was no other evidence before the Council to contradict this opinion. Accordingly, there is no evidence to support this finding by the Council or superior court.
Section 703.1 of the Code speaks to density, and requires that two-family dwellings be “unconcentrated.” Council was concerned that the proposed subdivision plat violates this section by concentrating the number of two- family dwellings in one small area.
The Council raised a concern as to the meaning of “unconcentrated” as stated in the “Purpose” section and the specific minimum lot requirement of 10,000 square feet stated in section 703.51 of the Zoning Ordinance. The general rule is that a zoning ordinance, being in derogation of common law property rights, should be construed in favor of the free use of property. See Yancey v. Heafner, 268 N.C. 263, 266, 150 S.E.2d 440, 443 (1966); City of Sanford v. Dandy Signs, Inc., 62 N.C. App. 568, 569, 303 S.E.2d 228, 230 (1983). This construction is particularly required where petitioner's proposed use is an expressly permitted use of right under the Zoning Ordinance.
The parcel of land upon which petitioner proposes to develop Laurel Village is zoned R-2 Residential. Duplex dwellings are expressly permitted uses of right under section 703.2 of the Zoning Ordinance. The purpose for R-2 zoning is stated in section 703.1:
Purpose. This district is established to protect areas in which the principal use of the land is for medium density single and unconcentrated two-family dwellings and for related recreational, religious, and educational facilities normally required to provide for an orderly and attractive residential area.
The minimum lot areas for R-2 zoning are defined in section 703.51. Subsection 703.5112 states that the minimum lot area for a duplex is “10,000 square feet.”
Respondent argues that “unconcentrated” in the “Purpose” section is an additional requirement to the “minimum lot area” of 10,000 square feet. I disagree. In statutory construction, the sections of the Zoning Ordinance are read in para materia, and not in isolation of one another.
This Court held in C. C. & J. Enterprises, Inc. v. City of Asheville, 132 N.C. App. 550, 554, 512 S.E.2d 766, 770 (1999), that “a generalized statement of intent of the specifications that follow” cannot be used as a basis to reject a permit that meets all the requirements. The purpose of the R-2 district is “to protect areas in which the principal use of the land is for medium density single and unconcentrated two-family dwellings. . . .” Article IV of the Zoning Ordinance specifically defines density as “[t]he number of dwelling units per acre [of] land developed or used for residential purposes. Unless otherwise clearly stated, density requirements in this ordinance are expressed in dwelling units per net acre . . . .” (emphasis supplied). Section 703.5112 specifically states the “minimum lot area” required to meet the purpose of “unconcentrated” two-family dwellings. In light of the definition of density and section 703.5112 of the Zoning Ordinance, I conclude that the statement of purpose in section 703.1 is “only a generalized statement of intent of the specifications that follow.” Respondent argues that in the case of statutory construction, the word “unconcentrated” must be given its ordinary meaning - “not clustered or gathered together closely.” The superior court found that, using the ordinary meaning of “unconcentrated,” fifteen duplexes on sixteen lots is not “unconcentrated.” There is no evidence to support this finding by the Council and superior court. “Unconcentrated” is a general term set out in the “Purpose” section and, when read in para materia, is specifically defined in section 703.51 and subsection 703.5112 of the Zoning Ordinance.
“[W]here a zoning ordinance specifies standards to apply in determining whether to grant a special use permit and the applicant fully complies with the specified standards, a denial of the permit is arbitrary as a matter of law.” Woodhouse v. Board of Comm'rs of Nags Head, 299 N.C. 211, 219, 261 S.E.2d 882, 887 (1980) (citation omitted). Here, petitioner fully complied with the standards specified in the Subdivision Regulations and Zoning Ordinance. Both the City Manager and the City Attorney advised the Council that the preliminary plat was in full compliance.
Statements by the Council members that “It bothers me to see things like that [children riding their bicycles, skating down the street, playing ball in that street, balls rolling down the street]” or “I've known a number of these people in [the adjoining neighborhood] . . . in my conscience I just cannot vote for this project,” opine about possible and subjective effects of the proposed development and are not adequate grounds for disapproval of the preliminary plat. See id. at 220, 261 S.E.2d at 888(speculatory or mere opinion testimony about the possible effects of a permit are insufficient to support the Council's findings); Triple E, 105 N.C. App. at 359, 413 S.E.2d at 308 (“The Town Board may not create new requirements not outlined in the ordinance to deny the permit.”).
Humble Oil & Refining Co. v. Board of Aldermen of Chapel Hill, 284 N.C. 458, 202 S.E.2d 129 (1974), dealt with a special use permit which has additional requirements not present in this case of subdivision plat approval. In the present case, petitioner made a prima facie showing of compliance with the Subdivision Regulations and Zoning Ordinance. No evidence appears in the record to support the findings for denial of petitioner's preliminary plat. I conclude that the Council acted arbitrarily and capriciously in denying petitioner's preliminary plat. Woodhouse, 299 N.C. at 219, 261 S.E.2d at 887 (if no competent, material evidence appears to support findings for denial, the reviewing body must grant the special use permit when the applicant fully complies with the specified standards and failure to do so is arbitrary as a matter of law).
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