Zoning--sketch plan_-compliance with zoning and subdivision ordinances
The trial court erred by determining that respondent town board's decision to deny
petitioner's sketch plan proposing 145 single-family detached houses constructed on the pertinent
property was supported by competent, material, and substantial evidence and thus the trial court's
decision was arbitrary and capricious, because: (1) plaintiff presented competent, material, and
substantial evidence that it met the requirements of the pertinent zoning and subdivision
ordinances, thus establishing a prima facie case of entitlement to approval; and (2) the town
board did not present substantial evidence contra.
Appeal by petitioner from judgment entered 28 June 2002 by
Judge J. Gentry Caudill in Mecklenburg County Superior Court.
Heard in the Court of Appeals 20 August 2003.
Kennedy Covington Lobdell & Hickman, L.L.P., by John H.
Carmichael, for petitioner-appellant.
Parker, Poe, Adams & Bernstein, L.L.P., by Anthony Fox, and
Parham, Helms, Harris, Blythe & Morton, by Robert B. Blythe,
for respondents-appellees.
MARTIN, Judge.
On 16 July 2001, the William Brewster Company, Inc.
(hereinafter “Brewster”) submitted to the Town of Huntersville
(hereinafter “Huntersville”) an application and subdivision
sketch plan for approval of a subdivision, a 58.51 acre tract of
land, located in Mecklenburg County. The property, to be known
as “Riverdale,” was zoned as an Open Space District. The sketch plan proposed 145 single-family detached houses
constructed on the property at a gross density of 2.48 houses per
acre. Although the planning director noted that he would prefer
to see a lower density for the property, he nonetheless
recommended approval since the sketch plan met the technical
requirements of the Subdivision Ordinance.
On 18 December 2001, the Town Planning Board met to hear the
recommendation of the Planning Director and discuss the proposed
development. The Board expressed concern that the proposed
development, in which the lot sizes were approximately 6,000
square feet, was not consistent with the surrounding development
of Cashion Woods, a new subdivision in the preliminary plat stage
of development with 20,000 square foot lots. In addition, the
Board questioned whether the rural open space provided was
consistent with the provisions of the Zoning Ordinance. The
Planning Board voted seven to one to recommend denial of the
sketch plan because the proposed area did not conform with
neighboring development and because the proposed area was not
consistent with the intent of the Open Space zoning district. In
addition, the entrance to the proposed subdivision was located on
Beatties Ford Road, which already had traffic capacity problems
and water quality issues.
The Town Board met on 22 January 2002 and heard extensive
testimony regarding the proposed sketch plan. The Planning
Director informed the Town Board that the Planning Board had
recommended denial of the sketch plan. He explained thatalthough the subdivision complied with the density standards
under the Zoning Ordinance, he preferred a lower density in light
of the surrounding developments. Because changes had been made
to the sketch plan since the 18 December 2001 meeting of the
Planning Board, the Town Board unanimously agreed to defer the
decision until the 18 February 2002 meeting.
At the 18 February 2002 meeting, after hearing testimony,
the Town Board unanimously voted to deny approval of the sketch
plan. The findings of fact upon which denial was based included:
(1) The Zoning Ordinance did not state that the Town
Board of Commissioners must approve a proposed
subdivision sketch plan;
(2) The property did not comply with the requirements
of the Huntersville Subdivision Ordinance, Sections
6.200.1, Consistency and 6.200.2, Conformity;
(3) “There are no adopted public plans and/or policies
within more than 1.2 miles of the proposed Riverdale
subdivision” where 90 percent of the lots are as narrow
as 61 feet.
(4) The Riverdale subdivision does not comply with the
Huntersville Zoning Ordinance, Item 3.2.1, which
requires a minimum lot size of 20,000 square feet and a
minimum lot width of 90 feet.
(5) The subdivision sketch plan overpopulated and
violated the historical and rural character of the
Beatties Ford Road area.On 4 March 2002, the Town Board voted to affirm the denial of the
Riverdale subdivision, excluding the violation of Item 3.2.1 of
the Zoning Ordinance as support for denial.
On 15 March 2002 Brewster petitioned the Mecklenburg County
Superior Court for writs of certiorari and mandamus alleging,
inter alia, that the Town Board's decision to deny the
application was not supported by competent, material and
substantial evidence, that the decision was arbitrary and
capricious and that it was erroneous. After a hearing, the
superior court entered an order in which it determined that the
Town Board's decision was supported by competent, material and
substantial evidence in the whole record, was not arbitrary and
capricious and was without error of law. Brewster appeals.
______________________________
Petitioner first alleges the trial court erred in
determining that the Town Board's decision to deny the sketch
plan was supported by competent, material and substantial
evidence and was not arbitrary and capricious. We agree.
In reviewing a superior court order entered upon review of a
zoning decision by a municipality, the appellate court must
determine “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). When a petitioner alleges that the
decision was not supported by substantial evidence or wasarbitrary and capricious, the reviewing court applies the whole
record test. Tate Terrace Realty Investors v. Currituck County,
127 N.C. App. 212, 218, 488 S.E.2d 845, 849 (1997). The court
must examine all competent evidence to determine if the record
supports the board's findings and conclusions. SBA, Inc. v. City
of Asheville City Council, 141 N.C. App. 19, 26, 539 S.E.2d 18,
22 (2000). “[A] decision may be reversed as arbitrary and
capricious only where the petitioner establishes that the
decision was whimsical, made patently in bad faith, indicates a
lack of fair and careful consideration or 'fail[s] to indicate
any course of reasoning and the exercise of judgment....'”
Whiteco Outdoor Adver. v. Johnston County Bd. of Adjustment, 132
N.C. App. 465, 468-469, 513 S.E.2d 70, 73 (1999) (citation
omitted).
In its order, the superior court recited that it had used
the whole record test to determine that the findings of fact and
the decision made by the Town Board are supported by competent,
material and substantial evidence. Thus, the trial court
exercised the proper standard of review.
The Huntersville Subdivision Ordinance, Section 3.300,
states: “[T]he Town Board may approve the request, deny the
request, or approve the request with conditions relating to the
intent and standards of this ordinance.” Further, nothing in the
Subdivision Ordinance requires the Town Board to approve a plan
recommended for approval by the Planning Director. Therefore,
the Town Board had discretion to deny the application ifconditions of either the Subdivision Ordinance or the Zoning
Ordinance were not met.
Petitioner claims that by producing competent, material and
substantial evidence of the requirements of the Zoning and
Subdivision Ordinances, they have established a prima facie case
of entitlement and thus, the application should be approved as a
matter of right. Humble Oil & Ref. Co. v. Bd. of Aldermen, 284
N.C. 458, 468, 202 S.E.2d 129, 136 (1974). On the other hand, an
application may be denied if there are “findings contra which are
supported by competent, material, and substantial evidence
appearing in the record” Id. “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” State ex rel. Comm'r of Ins. v. North
Carolina Fire Ins. Rating Bureau, 292 N.C. 70, 80, 231 S.E.2d
882, 888 (1977).
Petitioner met the technical requirements of the Open Space
District as required by the Huntersville Zoning Ordinance,
Section 3.2.1, as follows:
(1) There was frontage on a public street for all
lots,
(2) The proposed density of 2.48 dwelling units
per acre was less than the maximum density
requirement of 2.5 dwelling units per acre,
and
(3) The subdivision exceeded the qualified openspace requirement of 15%.
In addition, the open space district did not require a minimum
lot size and the subdivision complied with all Surface Water
Improvement and Management (S.W.I.M) stream buffers and watershed
requirements. However, Section 3.2.1(d)(8) of the Zoning
Ordinance required all major subdivisions to meet the
requirements of the Huntersville Subdivision Ordinance.
In the 18 February 2002 meeting, the Town Board concluded
Riverdale did not comply with the consistency and conformity
requirements of the Huntersville Subdivision Ordinance. Section
6.200.1 requires consistency of the proposed subdivision with the
most recently adopted public plans and policies for the area.
Public plans and policies are final planning documents on file in
the offices of the Town of Huntersville. In its findings of
fact, the Town Council determined that there were no adopted
public plans or policies within 1.2 miles of the Riverdale
subdivision. Although the lot sizes were much smaller and the
proposed density was higher than in the surrounding areas,
without adopted public plans and policies for these areas, denial
of the subdivision for lack of consistency was not based on
competent, material and substantial evidence.
Petitioner further asserts that it met the requirements for
conformity. Section 6.200.2 of the Subdivision Ordinance,
requires that “[i]n areas with established development, new
subdivisions should be planned to protect and enhance thestability, environment, health and character of neighboring
areas.” The findings of fact determined that Riverdale, with lot
sizes much smaller than the 10,000 square foot lots in the
Beatties Ford Road area, did not conform with the established
area. However, most of the discussion in the town board meetings
centered on conformity with Cashion Woods, not Beatties Ford
Road. Cashion Woods, a subdivision in the preliminary stages of
development, does not meet the requirement for conformity with
“established development.” The only specific discussion of lot
sizes in the Beatties Ford Road area was during the 22 January
2002 meeting of the Town Board when Frank Jacobus, representing
Brewster, noted that of the homes located on Beatties Ford Road
nearest to Riverdale, six or seven were mobile homes on older,
larger lots, with square footage between 800 and 1,400 square
feet. Although relevant, this evidence alone is not adequate to
support a conclusion that Riverdale does not conform to the
surrounding areas. The findings further found that the Riverdale
subdivision “overpopulates and violates the historical and rural
character of the Beatties Ford Road area.” There is no evidence
contained in the record to support this conclusion.
Brewster presented competent, material and substantial
evidence that they met the requirements of the Zoning and
Subdivision Ordinances; thus, they established a prima facie case
of entitlement to approval. Because the Town Board did not
present substantial evidence contra, the Town Board's decision to
deny the subdivision sketch plan was not supported by competent,material and substantial evidence, See Clark v. City of Asheboro,
136 N.C. App. 114, 524 S.E.2d 46 (1999), Woodhouse v. Bd. of
Comm'rs of Town of Nags Head, 299 N.C. 211, 261 S.E.2d 882
(1980), and was arbitrary and capricious. The decision of the
Superior Court must be reversed, and this matter remanded for
entry of an order requiring the town to approve petitioner's
application.
Reversed.
Judges McCULLOUGH and LEVINSON concur.
*** Converted from WordPerfect ***