1. Zoning_application for special use permit_real party in interest
An application for a special use permit did not fail for lack of the landowners' signature
on the application. The application was submitted by the prospective vendee, who is the real
party in interest.
2. Zoning_apartment complex_unified housing development
There was sufficient evidence supporting the Oxford Board of Adjustment's
determination that an apartment complex qualified as a unified housing development under the
Oxford zoning ordinance and qualified for a special use permit.
3. Zoning_special use permit_required plans for storm water drainage_oral
presentation
There was sufficient evidence that an application for a special use permit contained plans
for storm water drainage, as required by the zoning ordinance, where the minutes of a Board of
Adjustment meeting indicated that respondent's agent orally presented the storm drainage and
water removal plans.
4. Zoning_special use permit_board of adjustment_members not present at all
meetings
Neighbors opposing a special use permit for an apartment complex were not deprived of
due process by a change in the membership of the board of adjustment between two meetings at
which evidence was presented. The two members who did not attend the first meeting but who
did attend the second were provided access to the minutes of the first meeting and to the exhibits
presented by the parties. There was extensive presentation of evidence and cross-examination at
the second meeting, and the change in board membership had no effect on petitioners' ability to
present their arguments against the project.
5. Zoning_special use permit_acting chair of board of adjustment_relationship with
landowner
Neighbors opposing a special use permit for an apartment complex were not denied due
process by a familial relationship between the acting chair of the board of adjustment and
respondent Franklin Hancock, who wished to sell his land to the apartment builder. The party
claiming bias has the burden of proof, and there was no showing here of bias by the acting chairor that he stood to benefit from his vote on the project. Additionally, petitioners did not raise the
issue before or during the board's hearing.
Currin & Dutra, L.L.P., by Lori A. Dutra, for petitioner-
appellants.
Royster, Cross & Currin, L.L.P., by James E. Cross, Jr. and
Drew H. Davis, for respondent-appellees.
EAGLES, Chief Judge.
Petitioners appeal from an order affirming a decision by the
Board of Adjustment of the City of Oxford to issue a Special Use
Permit to respondents David Drye Company (“Drye Co.”) and Mr. and
Mrs. Franklin Hancock, IV. Petitioners assert three arguments on
appeal: (1) that respondents did not make a prima facie showing
that its application met the requirements for issuance of a permit;
(2) that the change in membership of the Board of Adjustment
deprived petitioners of due process; and (3) that the familial
relationship between the respondent landowners and the acting
chairman of the Board deprived petitioners of due process. After
careful review of the record, briefs and arguments by counsel, we
affirm.
The record evidence tends to show the following. Respondent
Drye Co. applied for a Special Use Permit from the City of Oxford's
Board of Adjustment. Drye Co. planned to build a 130-unit
apartment complex on land owned by respondents Franklin Hancock,
IV, and his wife Anne Hancock. The land was located outside theCity of Oxford but within the Board of Adjustment's jurisdiction.
The Board of Adjustment held a public hearing on 22 October 2001.
The Special Use Permit application was the only item on the Board's
agenda on 22 October. Board of Adjustment members attending the
four hour long 22 October meeting included Acting Chairman Tingley
Moore, Pat Thomas, Tom Thornton, Allan Baker, William Betts,
Chandler Currin, Jr., Marshall Cooper, and Howard Frazier. Acting
Chairman Tingley Moore is married to respondent Franklin Hancock's
aunt. Petitioners are landowners with homes adjacent to the
subject property. At the hearing on 22 October, petitioners stated
their objections to the issuance of the Special Use Permit.
Petitioners presented numerous exhibits and the testimony of
sixteen witnesses. The major focus of petitioners' complaints
against the building project centered around an existing storm
water runoff problem and fears that the proposed construction would
exacerbate that problem. Respondents presented information about
the drainage plan for the property and their construction plan.
The Board did not vote on the issuance of the Special Use
Permit during the 22 October meeting. Maxine Cox, one of the
petitioners, voiced concern about delaying the vote until the
following meeting. At approximately 11:30 p.m., Acting Chairman
Moore declared that the meeting was “recessed” until 5 November
2001. The parties were instructed by the City Attorney Thomas
Burnette to take their exhibits with them and return the exhibits
for the 5 November meeting. The City's Planning Director, Cheryl
Hart, certified that the parties' exhibits were in her office andthat she notified the Board members that the exhibits were
available for viewing in her office before the 5 November meeting.
On 5 November 2001, the Board resumed its consideration of the
Special Use Permit application filed by respondent Drye Co. The
membership of the Board of Adjustment changed between the 22
October and 5 November meetings. One member who was present at
the 22 October meeting, Chandler Currin, Jr., resigned before the
5 November meeting. The Board members present at the 5 November
meeting were Acting Chairman Tingley Moore, Pat Thomas, Tom
Thornton, Allan Baker, William Betts, Annie Nesbitt, Marshall
Cooper, Howard Frazier and Ellis Bagby. Two of these members,
Annie Nesbitt and Ellis Bagby, had not attended the 22 October
meeting. All Board members at the 5 November meeting were provided
with written minutes from the 22 October meeting. These minutes
were not verbatim transcripts, but contained a summary of the
exhibits and testimony from the 22 October meeting. Michael
Hedrick, representing respondent Drye Co., presented several
exhibits and testified further at the 5 November meeting.
Petitioners, along with their counsel, were present and cross-
examined Hedrick. Petitioners also presented testimony of
individuals opposed to the building project. After all of the
evidence was presented, the Board voted unanimously to approve the
Special Use Permit. By an order entered 21 March 2002, the trial
court affirmed the approval of the permit. Petitioners appeal.
As an appellate court, we must review the sufficiency and
competency of the evidence presented to the Board of Adjustment in
order to determine whether that evidence supported the Board'saction. See Concrete Co. v. Board of Commissioners, 299 N.C. 620,
626, 265 S.E.2d 379, 383 (1980); see also Grandfather Village v.
Worsley, 111 N.C. App. 686, 688, 433 S.E.2d 13, 15, disc. rev.
denied, 335 N.C. 237, 439 S.E.2d 146 (1993). The Supreme Court has
described the review of a decision about an application for a
conditional use permit as including:
(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.
Concrete Co., 299 N.C. at 626, 265 S.E.2d at 383.
[1] Petitioners first argue that the trial court incorrectly
found that substantial, competent and material evidence supported
the issuance of the Special Use Permit. Petitioners contend that
the application for the permit failed for three reasons: (1) the
respondent landowners did not sign the application; (2) an
apartment complex does not qualify as a “Unified Housing
Development” allowed by Special Use Permit in the RA zone; and (3)
the applicants failed to include information in the application
regarding storm drainage and sanitary sewerage. We disagree.
Petitioners contend that the permit application did not comply
with City of Oxford Zoning Ordinance § 630.2, which states in
pertinent part: The owner or owners of all property included
in the petition for a Special Use Permit shall
submit an application to the Building
Inspector. Such application shall include all
of the requirements pertaining to it in this
section.
Oxford Zoning Ordinance § 630.2. The respondent landowners,
Franklin Wills Hancock and Anne Hancock, did not sign the
application for the Special Use Permit. The application was
submitted by Michael Hedrick, an agent of respondent Drye Co.
Petitioners argue that the application was not submitted by the
property owners and does not comply with § 630.2. We disagree.
The Supreme Court has held that a prospective vendee whose purchase
of the property in question depends upon the granting of a Special
Use Permit is the real party in interest. See Refining Co. v.
Board of Aldermen, 284 N.C. 458, 464-65, 202 S.E.2d 129, 134
(1974). A prospective vendee is the appropriate party “in position
to furnish the plans, specifications, and other data which under
ordinance requirements, must accompany any application for a
special use permit.” Refining Co., 284 N.C. at 465, 202 S.E.2d at
134 (citing Burr v. City of Keene, 196 A.2d 63 (N.H. 1963)). Here,
respondent Drye Co. was the prospective vendee of the property. As
the prospective vendee, Drye Co. was a proper party to submit the
application for the Special Use Permit. Respondent Hancock was not
required to sign the application or otherwise participate in the
Board's decision regarding the Special Use Permit. This assignment
of error is overruled.
[2] Petitioners next argue that the granting of the Special
Use Permit was inappropriate because the definition of “Unified
Housing Development” allowed by the Special Use Permit does notinclude a multifamily apartment complex. The property at issue
here has been zoned by the Board as being within Zone “RA,” which
allows for residential and agricultural uses. Oxford Zoning
Ordinance § 301 contains a table of permitted uses for various
zoning districts. “Unified Housing Developments” are allowed
within an RA-zoned property only when a Special Use Permit is
granted. Oxford Zoning Ordinance § 301. “Unified Housing
Development” is defined within City of Oxford Zoning Ordinance §
612 as “consisting of one or more principal structures or buildings
and accessory structures or buildings to be constructed on a lot or
plot not subdivided into the customary streets and lots . . . .”
Single-family dwellings, two-family dwellings and the conversion of
an existing home into a two-family dwelling are allowed in the RA
district without a Special Use Permit. Oxford Zoning Ordinance §
301. Multi-family dwellings are not allowed within the RA zoned
district. Oxford Zoning Ordinance § 301. The Board found that the
construction project planned by respondent Drye Co. was a Unified
Housing Development allowable in the RA zoned district upon the
granting of a Special Use Permit. The Board then granted the
Special Use Permit.
On review, this Court must analyze the evidence presented to
the Board to determine whether the evidence supported the Board's
determination that the apartment complex qualified as a Unified
Housing Development. In addition, the evidence must support the
granting of the Special Use Permit. The City of Oxford Zoning
Ordinance § 612 contains all the requirements for a Unified Housing
Development, as follows: 612.1 The yard regulations and height
regulations set forth in this
ordinance may be modified for a
unified housing development,
provided that, for such development
as a whole, excluding driveways and
streets, but including parks and
other permanent open spaces,
densities shall not be greater than
ten (10) dwelling units per acre of
the site on which such development
is located. No unified housing
development shall contain less than
two (2) acres.
612.2 The use regulations in Article 300
may be modified to permit uses which
are necessary and incidental to the
operation of the development, such
as maintenance buildings and
management offices. Such structures
shall be in appropriate harmony and
character with surrounding property.
612.3 Points of access and egress shall
consist of a driveway or roadway at
least twenty (20) feet in width and
no wider than twenty-five (25) feet,
and shall be located a sufficient
distance from highway intersections
to minimize traffic hazards,
inconvenience and congestion.
612.4 The number, width and location of
curb cuts shall be such as to
minimize traffic hazards,
inconvenience and congestion.
612.5 Parking areas shall have a
stabilized surface as approved by
the Director of Public Works, and
all parking areas and traffic lanes
shall be clearly marked.
612.6 Storm and sanitary sewerage shall be
provided, as approved by the
Director of Public Works.
612.7 Adequate screening, by means of
planting or fencing, may be required
as needed to protect adjacent
property.
612.8 Plans shall be submitted showing:
1. Topography of the site, at
contour intervals no greater
than five (5) feet.
2. Location and approximate size
of all existing and proposed
buildings and structures within
the site and existing buildings
and structures within five
hundred (500) feet adjacent
thereto.
3. Proposed points of access and
egress together with the
proposed pattern of internal
circulation.
4. Proposed parking areas.
5. Proposed provision for storm
and sanitary sewerage,
including both natural and man-
made features, and the proposed
treatment of ground cover,
slopes, banks and ditches.
612.9 Off-street parking and loading shall
be provided in accordance with
Article 500.
Oxford Zoning Ordinance § 612. Respondents' representative,
Michael Hedrick, presented evidence satisfying each of these
requirements. Hedrick testified that the apartment complex would
be located on a parcel of land that was 13.1284 acres in area. The
apartment complex would contain 130 units, which did not exceed the
density requirement within § 612.1. The planned clubhouse and
management office were shown to be incidental to the use of the
remaining property according to § 612.2. The apartment complex
driveway, as shown by the plans, was 24 feet in width, within the
20 to 25 feet required under § 612.3. Also, the driveway was
planned and placed after consultation with a Department of
Transportation official, so that traffic hazards, congestion andtraffic were considered. Hedrick testified that only one curb cut,
as mentioned in § 612.4, was planned on Highway 158. The apartment
complex plan included 1.5 parking spaces for each residential unit.
In addition, the builder planned to do curbing work, provide a
gutter, and layer the parking area with asphalt, although those
additional improvements were not specifically required by § 612.5.
The preliminary plans submitted as part of the application showed
the locations of the complex's proposed connections to the City's
sewer line, as required by § 612.6. Hedrick also discussed the
placement of several detention basins for storm water, which were
included in the preliminary plans. Respondents also submitted a
landscape plan that outlined their plans to provide plants and
fencing around and within the apartment complex, according to §
612.7. Respondents submitted plans showing all the amenities
listed in § 612.8. Hedrick testified that the requirements of §
612.9 had been fulfilled, pointing out that all parking spaces were
eight feet and six inches wide and twenty feet long, while the
access areas were at least twenty feet wide. The Board was
provided evidence that each requirement of § 612 was fulfilled from
which it could have logically concluded that the apartment complex
plan constituted a Unified Housing Development as defined in City
of Oxford Zoning Ordinance § 612.
In addition to meeting the requirements of the Unified Housing
Development section of the zoning ordinance, respondents also were
required to show that a Special Use Permit was appropriate.
According to City of Oxford Zoning Ordinance § 630.4, a Special Use
Permit may be granted when an applicant demonstrates: 630.4.1 That the use will not materially
endanger the public health or safety
if located where proposed and
developed according to the plan as
submitted and approved.
630.4.2 That the use meets all required
conditions and specifications of
this ordinance.
630.4.3 That the use will not substantially
injure the value of adjoining or
abutting property, or that the use
of a public necessity, and
630.4.4 That the location and character of
the use if developed according to
the plan as submitted and approved
will be in harmony with the area in
which it is to be located and in
general conformity with the plan of
development of the City of Oxford
and its environs.
Oxford Zoning Ordinance § 630.4. Respondent Drye Co. offered
evidence showing that the apartment complex would not endanger
public health or safety. Hedrick testified regarding the plans for
traffic control as well as the project's surface water control and
containment systems. Hedrick submitted evidence tending to show
that the apartment complex would actually increase the value of the
surrounding property, rather than injure it. In addition, several
witnesses from the community spoke in favor of the project, showing
that affordable housing was a public necessity. Hedrick presented
a zoning map of the city, which indicated that adjoining land on
one side of the project was zoned as single-family residential
land. The adjoining land on the opposite side of the project
location was restricted to industrial use. Hedrick offered an
opinion that the proposed apartment complex could serve as a buffer
between the two areas, thus conforming with the general area. Asdiscussed above, Hedrick also offered ample evidence that the
proposed use met the requirements of zoning ordinance § 612.
Accordingly, we hold that substantial, competent, and material
evidence supported the Board's decision to grant the Special Use
Permit. This assignment of error is overruled.
[3] Petitioners argue that respondents' application was
incomplete because it did not contain plans for storm sewerage as
required by Zoning Ordinance § 612.8. This topic was the main
focus of many of the petitioners' objections to the project.
Ordinance § 612.8 only requires the submission of proposed plans
for storm drainage and water sewerage. Within the body of the
written application, respondent Drye Co. did not offer any evidence
demonstrating compliance with § 612.8, but on the face of the
application, beside § 612.8 a typed notation stated “[s]ee
accompanying sheets for each.” The record on appeal does not
contain these additional sheets. However, the minutes reflect that
Hedrick, on behalf of respondent Drye Co., orally presented and
discussed the proposed plans for two storm drainage detention
ponds, along with proposals for water removal from the apartment
complex site. This oral explanation took place at both the 22
October meeting and at the 5 November meeting. As a result of
this evidentiary presentation, extensive discussions among the
Board, petitioners and Hedrick took place at both meetings
regarding the issue of storm water drainage. This oral evidence by
Hedrick was sufficient, competent and material evidence to support
the Board's decision to grant the Special Use Permit. Therefore,
this assignment of error is overruled. [4] Petitioners' second contention on appeal is that they were
deprived of due process as a result of the change in Board
membership between the two meetings during which evidence was
presented. We disagree.
In a quasi-judicial proceeding, the petitioner's claim must be
afforded due process, including the opportunity for presentation of
evidence and cross-examination of witnesses. See Concrete Co., 299
N.C. at 626, 265 S.E.2d at 383. Petitioners argue that the eight
Board members who attended the 22 October meeting were not the same
members who attended the 5 November meeting. Nine Board members
attended the 5 November meeting. In fact, two members of the
Board, Annie Nesbitt and Ellis Bagby, were present on 5 November
but had not attended the 22 October meeting. One member, Chandler
Currin, Jr., attended the 22 October meeting but resigned before
the 5 November meeting. The remaining seven Board members were
present at both meetings. The 5 November meeting lasted
approximately two hours. During both the 22 October and 5 November
meetings, petitioners and their attorney were present. Petitioners
offered evidence of the existing storm water drainage problem and
their fears about how the proposed construction might exacerbate
that problem. At both meetings, petitioners' attorney had the
opportunity to cross-examine respondents' agent Hedrick and did so
extensively.
Petitioners contend that the continuity of the Board was
broken between the two meetings. Petitioners attempt to
distinguish this case from Baker and Brannock. See Brannock v.
Board of Adjustment, 260 N.C. 426, 132 S.E.2d 758 (1963)(percuriam) and Baker v. Town of Rose Hill, 126 N.C. App. 338, 485
S.E.2d 78 (1997). In Baker, a change in the Board's membership
occurred between two meetings when evidence was presented
concerning a Conditional Use Permit. See Baker, 126 N.C. App. at
343, 485 S.E.2d at 81-82. One new member was added to the Town
Board. Id. However, that new member was provided with a copy of
the entire record of the earlier meeting. Id. In Brannock, the
membership of the Winston-Salem Zoning Board of Adjustment changed
between the hearing on the special permit and the vote approving
the application. See Brannock, 260 N.C. at 427, 132 S.E.2d at 759.
However, the Supreme Court held that “the changes in membership did
not break the continuity of the Board” because “[t]he new members
had access to the minutes and records of the various hearings and
the required majority participated and joined in all decisions.”
Brannock, 260 N.C. at 427, 132 S.E.2d at 759.
Here, the two members of the Board who did not attend the 22
October meeting but did attend the 5 November meeting were provided
access to the minutes of the 22 October meeting at least two days
before the 5 November meeting. In addition, the members of the
Board were informed that all exhibits presented by the parties on
22 October were available for viewing in the City Planning
Director's office prior to the 5 November meeting. This access to
the minutes and exhibits from the earlier meeting, combined with
the extensive presentation of evidence and cross-examination at the
5 November meeting assures that petitioners were provided with due
process. The change in Board membership had no effect on
petitioners' ability to present their arguments against thebuilding project to the Board. This assignment of error is
overruled.
[5] Petitioners also argue that the familial relationship
between the Acting Chairman of the Board of Adjustment, Tingley
Moore, and respondent Franklin Hancock deprived petitioners of due
process. We disagree.
The Supreme Court has held that “[d]ue process requires an
impartial decisionmaker.” County of Lancaster v. Mecklenburg
County, 334 N.C. 496, 511, 434 S.E.2d 604, 614 (1993). In
addition, the Court held that “[a] fixed opinion that is not
susceptible to change may well constitute impermissible bias, as
will . . . a close familial or business relationship with an
applicant.” Id. at 511, 434 S.E.2d at 614 (citing Crump v. Bd. of
Educ., 326 N.C. 603, 392 S.E.2d 579 (1990); Leiphart v. N.C. School
of the Arts, 80 N.C. App. 339, 342 S.E.2d 914 (1986)). Here,
respondent landowner Hancock was married to Acting Chairman Moore's
aunt. Although this raises the possibility of partiality, it is
the burden of the party claiming bias to show that bias exists. See
Crump, 326 N.C. at 615-16, 392 S.E.2d at 585. Petitioners failed
to show any bias on Mr. Moore's part or that he stands to receive
any benefit from his vote on the proposed project. Therefore,
petitioners have not met their burden of proof to show that bias
existed. In addition, petitioners did not raise this issue during
or before the Board's hearing. This assignment of error is
overruled. For the reasons stated, we affirm the trial court's order
affirming the decision of the Board of Adjustment of the City of
Oxford to grant the Special Use Permit to respondent Drye Co.
Affirmed.
Judges TYSON and STEELMAN concur.
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