Visual Outdoor v Franklinton Commr's, (02-1055) 08/05/2003

Appeal by petitioner from order entered 6 June 2002 by Judge Robert H. Hobgood in Franklin County Superior Court. Heard in the Court of Appeals 20 May 2003.

Waller, Stroud, Stewart & Araneda, LLP, by Betty Strother Waller, for petitioner appellant.

Battle Winslow Scott & Wiley, P.A., by Sam S. Woodley and M. Greg Crumpler, for respondent appellee.

    McCULLOUGH, Judge.

    Petitioner Visual Outdoor Advertising, Inc. (Visual) is a North Carolina corporation which engages in off-site advertising and erects billboards throughout the State. On 1 October 2001, Visual applied for five special use permits for fifty-foot vinyl billboards it wanted to place on private property adjacent to U.S. Highway 1 in Franklin County, North Carolina. The property was within the zoning jurisdiction of the Town of Franklinton. The Town of Franklinton Board of Commissioners (Board of Commissioners) was the governing body that held public hearings and had the power to grant or deny applications for special use permits. Pursuant toZoning Code § 154.142, the Town of Franklinton Planning Board (Planning Board) was the entity which first received special use permit applications. The Planning Board had thirty days to review the applications before conducting a hearing on the matter and was then required to make recommendations to the Board of Commissioners.
    The Town of Franklinton's Planning Board and Board of Commissioners conducted meetings in October, November and December 2001, and January 2002. During the Planning Board's 15 October 2001 regular meeting, Mr. Terry Harkins made a special use permit request for Visual's five proposed signs and answered questions from the Planning Board members. Mr. Harkins indicated that his signs were within the State's height and size guidelines and that they were at least 500 feet apart. After noting the exact proposed locations of the signs, Mr. Harkins told the Planning Board that the signs would be profitable because they would promote businesses in the Town of Franklinton. He also maintained that the signs were of good quality and would not unduly interfere with the appearance of the Town as a whole.
    The Planning Board held another regular meeting on 19 November 2001; the first item of business was consideration of Visual's five applications. The Planning Board consulted Zoning Code § 154.056, entitled “Procedures for Granting Special and Conditional Uses,” which set forth six conditions that had to be considered by the Planning Board as part of its decision-making process:
        In order to issue a Special & Conditional UsePermit, the Board of Commissioners shall consider each of the following conditions, and based on the evidence presented at the hearing(s) make findings in regards to each and must find that the issuance of the Special & Conditional Use permit is in the best interest of the Town.

                1.    All applicable specific conditions pertaining to the proposed use have been or will be satisfied.

                2.    Access roads or entrance and exit drives are or will be sufficient in size and properly located to ensure automotive and pedestrian safety and convenience, traffic flow, and control and access in case of fire or other emergency.

        3.            Off-street parking, loading, refuse, and other service areas are located so as to be safe, convenient, allow for access in case of emergency; and minimize economic, glare, odor, and other impacts on adjoining properties in the general neighborhood.

                4.    Utilities, schools, fire, police and other necessary public and private facilities and services will be adequate to handle the proposed use.

                5.    The location and arrangement of the use on the site, screening, buffering, landscaping, and pedestrian ways harmonize with adjoining properties and the general area and minimize adverse impact.

                6.    The type, size, and intensity of the proposed use, including such considerations as hours of operation and number of people who are likely to utilize or be attracted to the use, will not have significant adverse impact on adjoining properties or the neighborhood.

                7.    The Board of Commissioners may continue the hearing until a certain date and time.
        If the Board of Commissioners approved the Special & Conditional Use Permit, it may as part of the terms of such approval, imposed any additional reasonable conditions and safeguards as may be necessary to insure that the criteria for the granting of such a permit will be complied with and to reduce or minimize any potentially injurious effect of the use on adjoining properties, the character of the neighborhood, or the health, safety, morals, or general welfare of the community. Where appropriate, such conditions may include requirements that street and utility rights- of-way be dedicated [to] the public and that provisions be made of recreational space and facilities.

Of the six aforementioned requirements, only Nos. 1, 3, 5, and 6 were deemed relevant to Visual's applications. The minutes of that meeting indicate that:
        Chairperson Roberts asked Mrs. Ray to begin by going through each item on 154.056 -- Procedures for Granting Special and Conditional Uses. Mrs. Ray read each item one at a time and the votes were as follows:

        Question 1 failed with Mr. Jones voting for, and Mr. Giani and Mrs. Young voting against it.

        Question 2 is not applicable.

        Question 3 passed with a unanimous vote.

        Question 4 is not applicable.

        Question 5 passed with Mrs. Young voting against, and Mr. Giani and Mr. Jones voting for.

        Question 6 failed with Mr. Giani and Mrs. Young voting against, and Mr. Jones voting for.

        Mr. Jones made a motion to approve the request for an Outdoor Advertising Display to be located at 4078 US Hwy #1. The motion failed due to the lack of a second.
        Mr. Giani made a motion to recommend denial of the special use permit. Mrs. Young seconded the motion. The motion passed with Mr. Jones being the only opposing vote.

        Ms. Young commented to Mr. Harkin[s] that she thought the signs were nice but did not feel that they were needed in a small town or in the ETJ of a small town but rather should be placed along interstates and opened roads.

        Mr. Giani stated he did not think the signs were compatible with our neighborhood. Mr. Jones stated he thought the Town needed to grow and he believed that the advertising signs would help to influence growth.

The official minutes reflect similar findings with respect to the other four special use permit applications tendered by Visual. The Planning Board concluded Visual had not complied with Zoning Code § 154.056's requirements and could not show substantial evidence of prima facie entitlement to the special use permits. As a result, all five of Visual's applications were denied.
    The Board of Commissioners first took up the issue of Visual's permit applications at its 20 November 2001 regular meeting. The matter was discussed at the public hearing portion of the meeting, during which Mr. Harkins answered questions regarding the size, nature, location, and content of the billboards. Planning Board member Tammy Ray informed Mayor Kearney and the other attendants that the Planning Board had considered the matter the day before and recommended denial of all five of Visual's applications because it believed the signs would have an adverse effect on the properties upon which they were located.
    Although the Board of Commissioners met on 18 December 2001,Visual's special use permit applications were not considered because the Commissioners unanimously agreed to table the matter until they got more information. At the regular meeting on 15 January 2002, the Mayor informed the Board of Commissioners that the Planning Board recommended denial of the applications due to Visual's non-compliance with Zoning Code § 154.056. The Board of Commissioners separately considered each of Visual's five applications for a special use permit. In each case, “Mayor Kearney asked for a motion[,]” and each “special use permit request died for lack of a motion from the board of commissioners.” Mr. Harkins was present at the meeting and requested a copy of the meeting's minutes. Visual formally learned of the denial of its special use permit applications on 28 February 2002, when the Board of Commissioners mailed it the minutes of the meetings held from October 2001 through January 2002.
    On 1 May 2002, Visual filed a Petition for Writ of Mandamus and sought an order compelling the Board of Commissioners
        to make and record the findings required by the Town of Franklinton Zoning Code; to record the vote of each member upon the question of whether to grant or deny each of the requested special use permits; and to file and deliver a written copy of the decision in accordance with N.C. Gen. Stat. § 160A-381(c).

The Board of Commissioners responded and stated that, when Visual's applications were before it for a vote, it considered the record before it, which contained the minutes of the 15 October and 19 November 2001 Planning Board meetings, as well as the minutes from the Board of Commissioners' 20 November and 18 December 2001meetings. The Board of Commissioners indicated that its failure to make a favorable decision on Visual's applications constituted “a denial of the application.”
    On 31 May 2002, the trial court conducted a hearing on Visual's Petition for Writ of Mandamus. After considering the evidence, the trial court denied the Petition on the grounds that (1) the Board of Commissioners' handling of Visual's applications for special use permits did not violate Visual's due process rights; and (2) the trial court lacked authority to order the Board of Commissioners to vote on Visual's applications because the Board of Commissioners was acting in its legislative capacity. Visual appealed.
    On appeal, petitioner argues the trial court erred by (I) finding that none of Visual's rights were violated in the Board of Commissioner's handling of its applications for five special use permits; (II) finding that the Board of Commissioners committed no procedural violations in its consideration of Visual's special use permit applications; and (III) concluding that the Board of Commissioners was acting in its legislative capacity during the special use permit procedures. For the reasons stated herein, we affirm the order of the trial court.

    Visual argues the trial court erred in finding that the Board of Commissioners did not violate any of its rights with respect to its five special use permit applications. Visual also contends the manner in which the Board of Commissioners disposed of itsapplications was procedurally defective. We do not agree.
    Visual does not specify which of its “due process rights” were violated. We assume, therefore, that Visual refers to its procedural due process rights. “The fundamental premise of procedural due process protection is notice and the opportunity to be heard. Moreover, the opportunity to be heard must be 'at a meaningful time and in a meaningful manner.'” Peace v. Employment Sec. Comm'n, 349 N.C. 315, 322, 507 S.E.2d 272, 278 (1998) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed. 2d 62, 66 (1965)) (citation omitted), motion denied, 526 U.S. 1144, 143 L. Ed. 2d 1030 (1999). See also Summers v. City of Charlotte, 149 N.C. App. 509, 518, 562 S.E.2d 18, 24-25, disc. review denied, 355 N.C. 758, 566 S.E.2d 482 (2002).
    We first note that “a proceeding to grant a variance or special use permit is quasi-judicial in nature.” Sherrill v. Town of Wrightsville Beach, 81 N.C. App. 369, 373, 344 S.E.2d 357, 360, appeal dismissed, disc. review denied, 318 N.C. 417, 349 S.E.2d 600 (1986). See also Refining Co. v. Board of Aldermen, 284 N.C. 458, 469, 202 S.E.2d 129, 136-37 (1974). Moreover,
        due process requirements for quasi-judicial zoning decisions mandate that all fair trial standards be observed when these decisions are made. This includes an evidentiary hearing with the right of the parties to offer evidence; cross-examine adverse witnesses; inspect documents; have sworn testimony; and have written findings of fact supported by competent, substantial, and material evidence.

County of Lancaster v. Mecklenburg County, 334 N.C. 496, 507-08, 434 S.E.2d 604, 612 (1993). “When an applicant has producedcompetent, 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.” Refining Co., 284 N.C. at 468, 202 S.E.2d at 136.
            [T]he task of a court reviewing a decision on an application for a conditional use permit made by a town board sitting as a quasi-judicial body includes:

            (1) Reviewing the record for errors of law,

            (2) Insuring that procedures specified by law in both statute and ordinances 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. v. Board of Commissioners, 299 N.C. 620, 626, 265 S.E.2d 379, 383, reh'g denied, 300 N.C. 562, 270 S.E.2d 106 (1980). “Both the superior court and the appellate courts are bound by all the standards of review noted above.” Id. at 627, 265 S.E.2d at 383.
    To better understand the procedural due process required in this case, we turn to the Zoning Code of the Town of Franklinton. Zoning Code § 154.142 provides:            (B) In the case of a special use permit application, the Planning Board shall be given 30 days to review the application before the hearing. The hearing shall not be held until a Planning Board recommendation has been received or 30 days have elapsed. The Planning Board shall give due notice to the applicant of any meetings at which the application will be considered.

            (C) The hearing shall be conducted in accordance with the general law and court decisions of the state. More specifically, any interested party must be given the opportunity to present evidence or testimony, to cross-examine witnesses, to inspect documents, and to offer evidence or testimony in explanation or rebuttal. Findings shall be based on substantial evidence or testimony which is competent, relevant and material. Findings as to the existence or nonexistence of crucial facts shall be based on sworn evidence or testimony unless the party or parties before the Board stipulate the facts or waive this requirement. Although a 4/5 majority is necessary for the Board of Adjustment to grant a permit, the Town Board does not have to meet this requirement in issuing special use permits. The clerk of the Board of Adjustment shall keep minutes of the proceedings, showing the vote of each member upon every question, or if absent or failing to vote, indicating that fact.

Zoning Code § 154.098 addresses off-site advertising signs (such as those applied for by Visual) and indicates that a special use permit shall be granted if the following five conditions are satisfied:
            (A) The property on which the sign is to be located must be adjacent to an interstate or federal aid primary highway.

            (B) The sign must be located within 660 feet of the edge of the right-of-way of such highway.

            (C) The sign shall comply with allregulations of the North Carolina Department of Transportation and with the North Carolina General Statutes.

            (D) No two such structures shall be places [sic] less than 500 feet apart. Distance shall be measured as specified in the North Carolina Administrative Code T19A:02E.0200.

            (E) The sign will be compatible with the general neighborhood in which it is located and will not have a detrimental effect on adjoining properties.

The crux of Visual's argument is that the Board of Commissioners was required to vote and make findings either accepting or rejecting its special use permit applications.
    The record indicates that Mr. Terry Harkins was allowed to apply for the five special use permits during the Planning Board's 15 October 2001 meeting. Mr. Harkins answered a number of questions posed by the Planning Board, indicated that the signs would comply with § 154.098(D), and offered to take photographs of the area and superimpose the signs into the pictures to assist the Planning Board in visualizing the project. On 19 November, the Planning Board held a regular meeting, considered Visual's five applications in light of Zoning Code § 154.056, and recommended denial of the applications based on Visual's failure to demonstrate substantial evidence of prima facie entitlement to the special use permits. Mr. Harkins was also present at the public hearing and regular meeting of the Board of Commissioners on 20 November 2001 and indicated that the signs would meet DOT regulations.
    Based on the foregoing, we believe the Planning Board hadbefore it some evidence regarding each of the six conditions in § 154.056, because it was able to determine that two conditions did not apply to Visual's application. The record further indicates that the Planning Board voted to recommend denial of Visual's applications due to its failure to meet two of the four applicable conditions. In other words, Visual did not present “substantial evidence or testimony” as required by § 154.142 to establish prima facie compliance with the applicable requirements in Zoning Code § 154.056. The Planning Board stated its decision using the language of the ordinance. This decision qualifies as “findings” for purposes of due process. If the findings “are sufficiently specific that the reviewing court can determine whether they are substantially supported by the record, and thus whether the decision is arbitrary[,]” they are sufficient to satisfy the law. See Piney Mt. Neighborhood Assoc. v. Town of Chapel Hill, 63 N.C. App. 244, 256, 304 S.E.2d 251, 258 (1983).
    With regard to the adequacy of the findings, we believe that, so long as the parties understood the Board of Commissioners' action in denying the applications, no more is required. “Nothing more is required . . . than that the parties have sufficient information to understand the Board's actions.” Neighborhood Assoc. v. Bd. of Adjustment, 35 N.C. App. 449, 457, 241 S.E.2d 872, 877, appeal dismissed, disc. review denied, 295 N.C. 91, 244 S.E.2d 263 (1978). See also Dockside Discotheque v. Bd. of Adjustment of Southern Pines, 115 N.C. App. 303, 307-08, 444 S.E.2d 451, 453-54, disc. review denied, 338 N.C. 309, 451 S.E.2d 635 (1994). Accordingly, a remand is not needed in this case, as we can discern from the record that the Board of Commissioners relied upon the Planning Board's determination that Visual had not demonstrated prima facie compliance with § 154.056 and was therefore not entitled to a special use permit on any of its five applications.