Appeal by petitioners from judgment entered 7 March 2001 by
Judge Dennis J. Winner in Polk County Superior Court. Heard in the
Court of Appeals 18 April 2002.
Roberts & Stevens, P.A., by Sarah Patterson Brison Meldrum and
Christopher Z. Campbell, and Callahan Law Offices, by
Christopher Callahan, for petitioners-appellants.
Prince, Youngblood & Massagee, by Sharon B. Alexander, and
Mullinax and Alexander, by William M. Alexander, Jr., for
respondents-appellees.
TYSON, Judge.
William E. Cantrell and Ellen C. Cantrell individually and as
trustees of the William E. Cantrell and Ellen C. Cantrell living
trust dated 18 March 1996 (collectively “petitioners”) appeal from
an order affirming the decision of the Polk County Board ofAdjustment (“Board”) that granted Jason Deck, Tina Deck, James L.
Deck, and Brenda H. Deck (collectively “respondents”) a conditional
use permit for construction and operation of a concrete plant. We
remand to the superior court to set forth and apply the appropriate
standard of review of the Board's decision.
I. Facts
Petitioners own the Green River Plantation, a forty-two room
house located on 366 acres, that operates as a bed and breakfast
inn located in Rutherfordton, North Carolina. Respondents own an
adjacent tract of undeveloped property zoned multiple use. On 3
August 2000, respondents appeared before the Board, verbally
requested a conditional use permit to build a concrete plant on
their property, and submitted preliminary plans for their project.
No action was taken at that meeting other than to receive the
application and plans and to set a hearing date.
On 24 August 2000, the Board conducted a hearing to consider
respondents' request for a conditional use permit. Petitioners
received notice of that meeting, appeared, and presented evidence.
After the hearing, the Board decided to tour the site of the
proposed concrete plant and to remain in open session. On 31
August 2000, the Board conducted another hearing. Petitioners
appeared with counsel and requested a continuance because their
regular lawyer was unavailable. The Board approved petitioners'
request and continued the hearing until 7 September 2000.
At the reconvened hearing, respondents and petitioners
presented and cross-examined witnesses under oath, and presentedand had the opportunity to examine all exhibits. After the
witnesses testified and exhibits were received, motion was made and
seconded to approve respondents' application with the following
conditions: (1) double rows of leland cypress or white pines around
the property, (2) no other operations, and (3) proper signage. The
motion was approved on a four to one vote. The Board held another
hearing on 5 October 2000 with petitioners' attorney present to
review the Board's findings of fact which were approved
unanimously. The Board's conclusions of law were approved by a
vote of four to one.
Petitioners filed a “Petition For Review And Certiorari” with
the superior court in Polk County on 3 November 2000 claiming that
the Board's decision “is contrary to law, was not rendered in
accordance with the procedures specified by law, is not supported
by competent, material and substantial evidence and is arbitrary
and capricious.” Respondents filed motions to dismiss on 9
November 2000. The Board filed a motion to dismiss on 11 January
2001. Respondents filed an answer on 26 February 2001. The Board
did not file an answer.
After a hearing, the superior court filed an order affirming
the Board's decision on 7 March 2001. Petitioners appeal.
II. Issues
The issues presented are whether: (1) the trial court applied
the proper standard of review to an agency decision, (2) the trial
court erred by ruling that a concrete batch plant is a
manufacturing use, (3) the trial court erred by failing to concludethat the Board did not follow proper procedure, and (4) petitioners
due process rights were violated,
III. Standard of Review
Petitioners contend that the superior court erred by not
applying the proper standard of review when it reviewed the Board's
granting of a conditional use permit, and argue that “[i]t is the
responsibility of the trial court, as a reviewing court, to review
the entire record to make the determinations required by
Coastal
Ready-Mix.” We are unable to determine from the superior court's
order whether it applied the appropriate standard of review to the
issues raised by petitioners.
“Zoning decisions regarding conditional use permits are quasi-
judicial in nature.”
Howard v. City of Kinston, ___ N.C. App. ___,
___, 558 S.E.2d 221, 225 (2002) (citing
Concrete Co. v. Board of
Comm'rs, 299 N.C. 620, 626, 265 S.E.2d 379, 383 (1980)). “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 Adjustment, 132
N.C. App. 465, 468, 513 S.E.2d 70, 73 (1999) (citations omitted).
“Such determination might well require remand of the case to the
trial court for its application of the proper standard of review.”
Sun Suites Holdings, LLC v. Board of Aldermen of Town of Garner,
139 N.C. App. 269, 274, 533 S.E.2d 525, 528 (2000) (citing
Sutton
v. N.C. Dep't. of Labor,
132 N.C. App. 387, 389, 511 S.E.2d 340,342 (“order vacated and case remanded where order failed to specify
standards of review and trial court's application thereof”)).
A court reviewing a board's decision on an application for a
conditional use permit issued must: (1) review the record for
errors in law; (2) insure that procedures specified by law in both
statute and ordinance are followed; (3) insure that appropriate due
process rights of petitioner are protected, including the right to
offer evidence, cross-examine witnesses and inspect documents; (4)
insure that the decisions of boards of adjustment are supported by
competent, material and substantial evidence in the whole record;
and (5) insure that decisions are not arbitrary and capricious.
Coastal Ready-Mix Concrete Co. Inc. v. Board of Comm'rs. of the
Town of Nags Head, 299 N.C. 620, 626, 265 S.E.2d 379, 383 (1980).
The superior court is not the trier of fact and it sits in the
posture of an appellate court when reviewing decisions of quasi-
judicial bodies.
Id. “[T]he scope of review is limited to errors
alleged to have occurred before the local board.”
Tate Terrace
Realty Investors, Inc. v. Currituck County, 127 N.C. App. 212, 218,
488 S.E.2d 845, 848-49 (1997)
(citing
Godfrey v. Zoning Bd. of
Adjustment, 317 N.C. 51, 63, 344 S.E.2d 272, 279 (1986)).
Here, petitioners alleged that the Board's decision was
“contrary to law, was not rendered in accordance with the
procedures specified by law, is not supported by competent,
material and substantial evidence and is arbitrary and capricious.”
“When it is alleged that the action of a quasi-judicial body
was not supported by substantial evidence or was arbitrary andcapricious, the reviewing court must apply the 'whole record'
test.”
Tate, 127 N.C. App. at 218, 488 S.E.2d at 849 (citing
Ballas v. Town of Weaverville, 121 N.C. App. 346, 349, 465 S.E.2d
324, 326 (1996)). “The 'whole record' test requires the reviewing
court to examine all the competent evidence and pleadings which
comprises the 'whole record' to determine if there is substantial
evidence in the record to support the [Board's] findings and
conclusions.”
Ellis v. N.C. Crime Victims Compensation Comm., 111
N.C. App. 157, 162, 432 S.E.2d 160, 164 (1993) (citation omitted).
“The reviewing court may not substitute its own judgment for
that of the body when the record contains competent and substantial
evidence supporting the findings indicated by the quasi-judicial
body, even though conflicting evidence in the record would have
allowed the court to reach a contrary finding if proceeding de
novo.”
Tate, 127 N.C. App. at 218, 488 S.E.2d at 849 (citing
CG &
T Corp. v. Bd. of Adjustment of Wilmington, 105 N.C. App. 32, 40,
411 S.E.2d 655, 660 (1992)). “Substantial evidence is that which a
reasonable mind might accept as adequate to support a conclusion.”
Id.
“If a petitioner contends the Board's decision was based on an
error of law,
de novo review is proper.”
Westminster Homes, Inc.
v. Town of Cary Zoning Bd. of Adjustment, 140 N.C. App. 99, 102,
535 S.E.2d 415, 417 (2000) (citing
JWL Invs., Inc. v. Guilford
County Bd. of Adjustment, 133 N.C. App. 426, 429, 515 S.E.2d 715,
717,
disc. review denied, 351 N.C. 357, 540 S.E.2d 349 (1999)).
“The role of appellate courts is to review the trial court's orderfor errors of law.
Westminster Homes, Inc.,
140 N.C. App. at
102-03, 535 S.E.2d at 417 (citing
In re Appeal of Willis, 129 N.C.
App. 499, 502, 500 S.E.2d 723, 726 (1998)).
Some issues presented for review to the trial court relate to
the proper interpretation of an ordinance, which presents a
question of law.
Ayers v. Bd. of Adjustment for Town of
Robersonville, 113 N.C. App. 528, 531, 439 S.E.2d 199, 201,
disc.
review denied, 336 N.C. 71, 445 S.E.2d 28 (1994) (citing
Capricorn
Equity Corp. v. Town of Chapel Hill, 334 N.C. 132, 431 S.E.2d 183
(1993)). Whether the Board erred in allowing the construction of
a concrete plant in a multiple use district raises an issue of law
and is subject to
de novo review.
Some issues presented for review to the trial court require
the whole record test to be applied.
The order reflects that the
trial court only “reviewed the record.” While this language
suggests that the court applied a “whole record test,” the order
did not expressly state what type of review it applied. We are
unable to conclude from the order whether the superior court
exercised the proper scope of review on all issues before it.
The order of the superior court is vacated. We remand to the
superior court to set forth and apply the appropriate standard of
review based on the alleged errors raised in petitioners' petition.
In light of our holding, we do not reach petitioners other
assignments of error.
Vacated and remanded.
Judges MARTIN and THOMAS concur.
Report per Rule 30(e).
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