JAMES C. HEWETT
Petitioner,
v
.
THE COUNTY OF BRUNSWICK and THE ZONING BOARD OF ADJUSTMENT OF THE
COUNTY OF BRUNSWICK,
Respondents.
Baxley and Trest, by Roy D. Trest, for petitioner appellee.
Brunswick County Attorney Huey Marshall and Assistant County
Attorney J. Mark Seagle, for respondent appellants.
McCULLOUGH, Judge.
This case concerns the status of petitioner James C. Hewett's
special exception permit to operate a mine in Brunswick County,
North Carolina. The facts leading to this appeal are as follows:
On 3 March 1997, Mr. Hewett submitted an application to Brunswick
County for a special exception permit to mine sand and other
materials on five acres of his land, which was zoned as rural
property and was located off State Road 1125 within the Brunswick
County limits. The Board unanimously voted to approve Mr. Hewett's
application and granted him a special exception permit on 31 March
1997. Along with the special exception permit, the Zoning
Administrator sent Mr. Hewett a letter stating that “any changes in
the permit makes the special exception void and of no effect.” Thereafter, Mr. Hewett applied for and obtained a mining permit
from the North Carolina Department of Environment, Health, and
Natural Resources, Division of Land Resources, Land Quality Section
(DENR). Mr. Hewett's DENR permit was granted on 14 May 1997.
Shortly after he began operating his sand mine, Mr. Hewett
discovered marl and began extracting it from the mine. Mr. Hewett
purchased a crusher to process the marl in April 2000. He began
using the crusher the following month and powered it using a diesel
generator. Mr. Hewett contacted DENR and successfully amended his
permit to allow such activity. The amended DENR permit (dated 17
July 2000) allowed Mr. Hewett to extract and crush marl, mine up to
twenty acres, and dig to a depth of fifty feet.
During July 2000, Mr. Hewett contacted Brunswick Electrical
Membership Corporation (Brunswick Electrical) and requested a
three-phase electrical hookup for his crusher; he was told he first
had to obtain an electrical permit from the Brunswick County
Planning Department. Until Mr. Hewett contacted the Brunswick
County Planning Department, the Department did not know Mr. Hewett
was doing anything other than operating a five-acre sand pit, as
stated in his 1997 special exception permit and application.
On 2 October 2000, the Brunswick County Board of Commissioners
(the Board) adopted a zoning amendment which designated mining
operations in the County as either Class 1 or Class 2 mines. A
Class 1 mine was described as
[a] place where soil or other unconsolidated
material (i.e. sand, marl, rock, fossil
deposits, peat fill, or topsoil) is removed tobe used off-site, without further on-site
processing (i.e. use of conveyor systems;
screening machines; crushing; or other
mechanical equipment). It does not involve
dewatering or the use of explosives and has an
affected land area of no greater than 20
acres.
In rural areas, including the property upon which Mr. Hewett's mine
was located, only Class 1 mines were permitted. When Mr. Hewett
began extracting marl and processing it (by crushing and
dewatering) he was operating a Class 2 mine under the new
ordinance. The ordinance in effect from 1997 to 2 October 2000 was
silent on this issue.
During October 2000, the Brunswick County Planning Department
informed Mr. Hewett that he would not receive an electrical permit
until he applied for and was granted a modification to his original
1997 special exception permit. Mr. Hewett filed numerous documents
with the Brunswick County Planning Department to obtain the
necessary modification, and a hearing on the matter was held before
the Board on 9 November 2000. During the hearing, sworn testimony
was received from Mr. Hewett, his representative Mr. Harvey Lee
Hall, and two neighboring property owners. Mr. Hewett was
permitted to make any statements he wished and was also allowed to
ask questions of anyone present, including the Board itself. The
Zoning Administrator read the findings of fact aloud and the Board
members discussed and filled out a Special Exception Permit Board
Consideration Worksheet. On 1 December 2000, the Board unanimously
denied Mr. Hewett's request and stated the denial would take effect
whether Mr. Hewett's request was deemed a request for modificationof his 1997 special exception permit or a request for a new special
exception permit.
On 14 December 2000, Mr. Hewett filed a petition pursuant to
N.C. Gen. Stat. § 153A-45 requesting relief from the Board's denial
of his request for a permit. Brunswick County answered and
requested a dismissal. The matter was heard on 24 September 2001.
The trial court made a number of findings of fact and concluded:
1. That the Petitioner's mining operation
was in conformity with the Brunswick County
Zoning Ordinance as it then existed when he
began the operation of the crushing machine
which was prior to the amendment to the
Brunswick County Ordinance on October 2, 2000;
2. That the decision of the Board of
Adjustment in denying the petitioner's request
for a modification to his Special Exception
permit is arbitrary, oppressive, and
capricious in that it attempts to make a
distinction between the lawful operation of
the crushing machine pursuant to diesel
generated power and power provided through a
permanent electrical connection;
3. That reviewing the record as a whole
it appears that the Petitioner has established
that [] the denial of his request for a
Special Exception was a manifest abuse of
authority by the Brunswick County Board of
Adjustment[.]
(Emphasis added.) In the decretal portion of the judgment, the
trial court reversed the Board's decision, remanded the case to the
Board, and instructed the Board that Mr. Hewett was entitled to a
special exception permit. Brunswick County and the Board appealed.
On appeal, respondents argue the trial court committed
reversible error by (I) drawing up conclusions of law that were
contrary to and unsupported by the evidence presented and testimonygiven at the Board of Adjustment hearing; and (II) ordering that
Mr. Hewett be granted a new permit or a modification of his
original permit on the ground that the order is contrary to the
findings. Upon review, we affirm the decision of the trial court.
In the present case, the Board functioned as a quasi-judicial
body when it considered Mr. Hewett's request. See Refining Co. v.
Board of Aldermen, 284 N.C. 458, 469, 202 S.E.2d 129, 136-37
(1974). The superior court reviews decisions of the Board “by
proceedings in the nature of certiorari,” N.C. Gen. Stat. § 160A-
381(c) (2001), and functions as an appellate court rather than as
a trier of fact. Sun Suites Holdings, LLC v. Board of Aldermen of
Town of Garner, 139 N.C. App. 269, 271, 533 S.E.2d 525, 527, disc.
review denied, 353 N.C. 280, 546 S.E.2d 397 (2000). Our Supreme
Court has established the following superior court guidelines for
reviewing special zoning request decisions:
(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 272, 533 S.E.2d at 527.
“[T]he appellate court examines the trial court's order forerror of law. The process has been described as a twofold task:
(1) determining whether the trial court exercised the appropriate
scope of review and, if appropriate, (2) deciding whether the court
did so properly.” Amanini v. N.C. Dept. of Human Resources, 114
N.C. App. 668, 675, 443 S.E.2d 114, 118-19 (1994). See also Tate
Terrace Realty Investors, Inc. v. Currituck County, 127 N.C. App.
212, 219, 488 S.E.2d 845, 849, disc. review denied, 347 N.C. 409,
496 S.E.2d 394 (1997). The standard of review depends upon the
nature of the error of which the petitioner complains. If the
petitioner complains that the Board's decision was based on an
error of law, the reviewing court conducts a de novo review.
C.C. & J. Enter., Inc. v. City of Asheville, 132 N.C. App. 550,
552, 512 S.E.2d 766, 769 (1999). If the petitioner complains that
the Board's decision was not supported by the evidence or was
arbitrary and capricious, the reviewing court uses the whole record
test. Id. “The 'whole record' test requires the reviewing court
to examine all competent evidence (the 'whole record') in order to
determine whether the agency decision is supported by 'substantial
evidence.'” Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118. See
also Hedgepeth v. N.C. Div. of Servs. for the Blind, 142 N.C. App.
338, 347, 543 S.E.2d 169, 174 (2001).
Respondents contend that each of the trial court's three
conclusions of law were contrary to and unsupported by the evidence
presented by the parties at the Board hearing. They maintain the
trial court should have allowed the Board's decision to stand
because it was a proper exercise of its power, rather than anarbitrary and capricious act.
For his part, petitioner Hewett does not differentiate between
the arguments presented by the County and the Board; rather, he
makes an argument which encompasses all aspects of the case. Mr.
Hewett first argues no application for modification was required of
him because at the time he tried to obtain an electrical permit for
his crushing machine, Brunswick County did not differentiate
between Class 1 and Class 2 mines. The distinction took effect on
2 October 2000, at which time Mr. Hewett was already a permittee.
He contends he did not have to request a modification of his
original permit under the Brunswick County zoning ordinance, as the
zoning ordinance in effect at the time he received his initial
special exception permit issuance (in 1997) allowed him to extract
a number of items, including marl.
Mr. Hewett maintains that had he applied to modify his
Brunswick County permit prior to 2 October 2000, the Board and
Brunswick County would have been obligated to issue a modified
permit, as a denial would have constituted an arbitrary and
capricious act. Mr. Hewett further argues he passed all mining
inspections required by DENR and that, with his DENR-approved
permit, he was therefore substantively in compliance with both
state and county requirements. He believes the Board improperly
voided his original permit. During the 24 September 2001 motion
hearing in Brunswick County Superior Court, he contended he should
have been “grandfathered in” after the zoning ordinance was changed
on 2 October 2000 to include classifications for Class 1 and Class2 mines. Consequently, on appeal, Mr. Hewett believes the trial
court acted properly by reversing the Board's decision and by
remanding the matter back to the Board with directions to grant him
a special exception permit.
We must first determine the appropriate scope of review the
trial court should have employed in reaching its conclusions of
law. After the Board denied his request for a modification to the
1997 special exception permit, Mr. Hewett petitioned the Brunswick
County Superior Court for review and alleged the following errors:
A. The Board of Adjustment failed to
make proper findings of fact and conclusions
of law as required;
B. The Board of Adjustment failed to
follow procedure as established by N.C.G.S. §
153A-345;
C. The decision of the Board of
Adjustment is not supported by competent,
material and substantial evidence;
D. The appropriate due process rights of
the petitioner were not protected;
E. The decision of the Board of
Adjustment is arbitrary and capricious;
F. Such other regards as will be shown
by the record.
Upon examination, we believe the language of the judgment indicates
that the trial court applied the “whole record” test in concluding
that the Board abused its authority in denying Mr. Hewett the
special exception permit. This is the appropriate standard of
review when the trial court determines that the Board acted in an
arbitrary and capricious manner or abused its authority. C.C. & J.Enters., Inc., 132 N.C. App. at 552, 512 S.E.2d at 769.
Respondents further argue that the trial court erred in
concluding "[t]hat reviewing the record as a whole it appears that
the Petitioner has established that [] the denial of his request
for a Special Exception was a manifest abuse of authority by the
Brunswick County Board of Adjustment[.]" We agree with the trial
court's conclusion and find that the record shows the Board failed
to consider petitioner Hewett's application to modify his permit
and instead voided the permit, an act that exceeded its authority.
The Board went on to examine Mr. Hewett's application under the new
ordinance that became effective on 2 October 2000.
When the Board reviewed Mr. Hewett's application, it stated it
was treating Mr. Hewett's application as both a request for
modification of his original 1997 permit and as a request for a new
permit. The record reveals the Board rejected Mr. Hewett's
application as a request for modification because Mr. Hewett had
performed activities in violation of the terms of his original
permit. The Board concluded that such acts made his original
permit void and rendered it impossible to issue a modified permit,
as the Board could not modify a voided permit. In reaching this
conclusion, the Board relied on its 31 March 1997 letter: “If any
of the conditions affixed or any part thereof is held invalid or
void, then this permit shall be void and of no effect.” The Board
then treated Mr. Hewett's application as a request for a new
permit, but refused to grant his request because, under the new
ordinance, he was operating a Class 2 mine on rural property -- aprohibited act under the new ordinance.
In this ruling the Board erred. First, the language relied on
by the Board is vague and does not support the interpretation now
advanced by respondents. More importantly, however, is the fact
that nowhere in the statutes delegating the zoning authority to the
counties is any such power delegated. See N.C. Gen. Stat. §§ 153A-
340 and 153A-345 (2001). Mr. Hewett's failure to abide by the
conditions originally set forth in his 1997 application and permit
subjected his operation to civil and/or criminal penalties. N.C.
Gen. Stat. § 74-64 (2001). While the legislature allows counties
to impose “appropriate conditions and safeguards” upon conditional
use permits such as the one at issue in this case, N.C. Gen. Stat.
§ 153A-340(c), both that statute and N.C. Gen. Stat. § 153A-345(c)
make clear that any such conditions must be specified in the
ordinance.
From the date of the approval of the 1997 permit until 2
October 2000, the Brunswick County ordinance provided:
D. Special Exceptions Permissible by the
Zoning Board of Adjustment
After public notice and hearing, and subject
to appropriate conditions and safeguards, the
Zoning Board of Adjustment may permit:
* * * *
(4) Extraction of sand, marl, rock,
fossil deposits, peat, fill or
topsoil.
The ordinance did not define any specific “appropriate conditions
and safeguards.” The only conditions imposed are contained in theFindings of Fact attached to Brunswick County's permit of 31 March
1997. Those conditions were as follows:
4) The applicant is mandated to meet
all of the requirements of the North Carolina
Department of Environment, Health and Natural
Resources, Division of Environmental
Management, Division of Land Resources,
Division of Erosion and Sedimentation Control,
and the U. S. Army Corps of Engineers. The
necessary permits must be obtained from the
regulating agencies.
At the time of his application to amend his 1997 permit, Mr. Hewett
was in full compliance with these conditions. Instead of voiding
the original permit, the Board should then have considered Mr.
Hewett's application in light of the standards in effect prior to
2 October 2000.
A special use permit is “one issued for a use which the
ordinance expressly permits in a designated zone upon proof that
certain facts and conditions detailed in the ordinance exist.”
Refining Co., 284 N.C. at 467, 202 S.E.2d at 135. “[A]n applicant
has the initial burden of showing compliance with the standards and
conditions required by the ordinance for the issuance of a
conditional use permit.” Woodhouse v. Board of Commissioners, 299
N.C. 211, 217, 261 S.E.2d 882, 887 (1980). However,
[w]hen an applicant has produced
competent, material, and substantial evidence
tending to establish the existence of the
facts and conditions which the ordinance
requires for the issuance of a special use
permit, prima facie he is entitled to it. A
denial of the permit should be based upon
findings contra which are supported by
competent, material, and substantial evidence
appearing in the record.
Refining Co., 284 N.C. at 468, 202 S.E.2d at 136. See also
Signorelli v. Town of Highlands, 93 N.C. App. 704, 707, 379 S.E.2d
55, 57 (1989).
Here, Mr. Hewett carried his burden when he produced a current
DENR permit for the activities contemplated and the 1997 ordinance
had no other, more stringent conditions specified. Under Refining
Co., Mr. Hewett was then entitled to the issuance of a special
exception permit. The ordinance's use of the term “appropriate
conditions and safeguards” cannot be used to justify unbridled
discretion. See 8 McQuillin, Mun. Corp. § 25.165 (rev. 3d ed.
(2000)) pp. 614-15. It is apparent that had Mr. Hewett requested
to amend his original permit prior to the ordinance's revision on
2 October 2000, such would have been approved, as Brunswick County
had no grounds to deny the request. In denying the current
application, the Board abused its authority, and the trial court
properly ordered that the Board issue the permit. In light of this
conclusion, it is unnecessary to address respondents' other
arguments. Accordingly, the judgment of the trial court is
Affirmed.
*** Converted from WordPerfect ***