A de novo review revealed that the superior court erred in finding that, as a matter of law,
petitioners' application for a zoning compliance permit for petitioners' home did not meet the
requirements contained in respondent town's unified development ordinance (UDO) because
according to the UDO as written, the town could have considered any of the specific physical
effects listed in the UDO, but had no authority to consider the site plan's potential effect on
surrounding property values.
Frederic E. Toms & Associates, P.L.L.C., by Frederic E. Toms
and Allen Mills, for petitioner-appellants.
Holt, York, McDarris & High, L.L.P., by Bradford A. Williams,
for respondent-appellees.
HUDSON, Judge.
On 14 January 2002, petitioners Milton and Marva Knight
applied for, and initially received, permits from the Town of
Knightdale (“the Town”) to construct a modular home at 101 Dearing
Drive in the Lynnwood Estates subdivision. Subsequently, the Town
Council (“Council”) denied petitioners' application, and the
superior court affirmed. Petitioners appeal. For the reasons
discussed here, we reverse and remand.
The tract of land upon which petitioners' sought to build is
zoned Residential/Agricultural (“RA”). The Town's Planning Staff
(“Staff”) initially determined that petitioners' home was amanufactured home, and that pursuant to the Town's Unified
Development Ordinance (“UDO”), zoning compliance permits for
manufactured homes in an RA District require only staff, not
Council, approval. Staff issued the permits.
After Staff issued the permits, construction began on
petitioners' home. On 4 February 2002, several residents of the
Lynnwood Estates subdivision attended a Council meeting and raised
questions regarding petitioners' home. The Council directed Staff
and the Town attorney to research further whether petitioners' home
met the definition of a “manufactured” home.
Staff determined that petitioners' home was not
“manufactured,” but rather “modular.” Under the Town's UDO, a
modular home in the RA District requires a zoning compliance permit
with Council site plan approval. Therefore, the Town advised
petitioners by letter 12 February 2002 that it would not issue a
Certificate of Occupancy until after it took action on the zoning
compliance permit.
At its 20 February 2002 meeting, the Council took public
comment on petitioners' request for site plan approval, and then
referred petitioners' site plan to the Town's Planning and
Appearance Board (“Board”). The Board received a report from the
Land Use Administrator, and discussed the site plan at its 25
February 2002 meeting. Based upon that report, the Board voted to
recommend that the Council approve petitioners' site plan subject
to certain changes to which petitioners agreed. The changes
included adding a porch, constructing a concrete driveway and
sidewalk, and encasing the chimney in such materials as wouldresemble a traditional chimney.
At its 4 March 2002 meeting, the Council again addressed
petitioners' zoning compliance permit. The Council reviewed the
Land Use Administrator's report, and the Board's recommended
approval of petitioners' site plan with the above changes. Again,
the Council took public comment. After discussions, the Council
denied petitioners' permit application.
Petitioners sought review in the superior court in Wake
County. After a hearing, the superior court ruled that the
Council's decision was supported by the evidence and was not
arbitrary and capricious.
Petitioners appealed to this Court, which appeal we dismissed.
Petitioners then filed a petition for writ of certiorari, which we
granted on 13 March 2003.
First, petitioners argue that the superior court “erred in
finding that, as a matter of law, the petitioners' application for
a zoning compliance permit did not meet the requirements contained
in the [Town's UDO].” We agree, and for the following reasons
reverse the order of the superior court and remand for further
proceedings.
Upon review of a decision from a Board of Adjustment, the
superior court should:
(1) review the record for errors of law; (2)
ensure that procedures specified by law in
both statute and ordinance are followed; (3)
ensure that appropriate due process rights of
the petitioner are protected, including the
right to offer evidence, cross-examine
witnesses, and inspect documents; (4) ensure
that the decision is supported by competent,
material, and substantial evidence in the
whole record; and (5) ensure that the decisionis not arbitrary and capricious.
Whiteco Outdoor Adver. v. Johnston County Bd. of Adjust., 132 N.C.
App. 465, 468, 513 S.E.2d 70, 73 (1999). On review of the superior
court's order, this Court must determine whether the trial court
correctly applied the proper standard of review. Id.
To review the sufficiency of the evidence, this Court applies
the “whole record” test to determine “whether the Board's findings
are supported by substantial evidence contained in the whole
record.” Id. at 468, 513 S.E.2d at 73
. Substantial evidence is
that which a reasonable mind might accept as adequate to support a
conclusion. Id.
“Where the petitioner alleges that a board
decision is based on error of law, the reviewing court must examine
the record de novo, as though the issue had not yet been
determined.” Id. at 470, 513 S.E.2d at 74
.
Although the Council made no written findings of fact or
conclusions of law, the minutes of the 4 March 2002 meeting
indicate that the Coucil based the denial upon the likelihood of
diminution in the property values of those properties surrounding
petitioner. At oral argument, counsel for both parties agreed that
the Council denied the permit on this basis. Petitioners allege
that the Town and superior court erred as a matter of law in ruling
that petitioners' site plan was not in compliance with the Town's
UDO. We review the superior court's order de novo.
The superior court's order states that “[t]he evidence in the
whole [r]ecord established that Petitioners failed to carry their
burden, as set forth in Sections 4.3.5.4.3 and 4.3.5.4.3.2 of the
Town's UDO.” The pertinent sections of the Town's UDO read asfollows:
4.3.5.4.3
The Town Council shall approve, approve with conditions,
or deny, or take any other action consistent with its
usual rules of procedure on the site plan. Actions shall
be based on conformity with this chapter, the
Comprehensive Plan, and other adopted plans and
standards; however, no site plan shall be approved unless
the Town Council first finds that the plan meets all the
following:
***
4.3.5.4.3.2
The plan contains adequate measures to protect other
properties, including public corridors, from adverse
effects expected from the development, including without
limitation, stormwater, noise, odor, on and off-street
parking, dust, light, smoke and vibration.
“The rules applicable to the construction of statutes are
equally applicable to the construction of municipal ordinances.”
Cogdell v. Taylor, 264 N.C. 424, 428, 142 S.E.2d 36, 39 (1965).
The basic rule of statutory construction “is to ascertain and
effectuate the intention of the municipal legislative body.”
George v. Town of Edenton, 294 N.C. 679, 684, 242 S.E.2d 877, 880
(1978). “The best indicia of that intent are the language of the
statute or ordinance, the spirit of the act and what the act seeks
to accomplish.” Concrete Co. v. Board of Commissioners, 299 N.C.
620, 629, 265 S.E.2d 379, 385, reh'g denied, 300 N.C. 562, 270
S.E.2d 106 (1980).
The rule of statutory construction ejusdem generis provides
that:
where general words follow a designation of particular
subjects or things, the meaning of the general words will
ordinarily be presumed to be, and construed as,
restricted by the particular designations and as
including only things of the same kind, character and
nature as those specifically enumerated.
State v. Lee, 277 N.C. 242, 244, 176 S.E.2d 772, 774 (1970).
Referring specifically to zoning ordinances, our Supreme Court has
stated the following:
Since zoning ordinances are in derogation of common-law
property rights, limitations and restrictions not clearly
within the scope of the language employed in such
ordinances should be excluded from the operation thereof.
Capricorn Equity Corp. v. Town of Chapel Hill Bd. of Adjust., 334
N.C. 132, 138-39, 431 S.E.2d 183, 188 (1993).
Here, the adverse effects listed in Section 4.3.5.4.3.2 of the
Town's UDO (“stormwater, noise, odor, on and off-street parking,
dust, light, smoke and vibration”) are all physical in nature.
Nonetheless, respondents argue that the phrase “without limitation”
preceding the enumerated effects allows the Town to consider any
negative impact a plan would have on surrounding properties. We
disagree.
Given the Supreme Court's limitation of zoning restrictions as
laid out in Capricorn, we conclude that diminution in neighboring
property values is excluded from the scope and intent of Section
4.3.5.4.3.2 of the Town's UDO. According to the UDO as written,
therefore, Town could have considered any of the specific physical
effects listed in the UDO, but had no authority to consider the
site plan's potential effect on surrounding property values. We
hold that the Town erroneously denied petitioners' application for
site plan approval, and, in turn, the superior court erred in
upholding such denial. Thus, we reverse the decision of the
superior court and remand for entry of an order requiring
respondents to issue the zoning compliance permit for petitioners'
home. Reversed and remanded.
Judges TYSON and STEELMAN concur.
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