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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
ROBERT WARD and wife, BETTY MOTICKA, JAMES R. MCCULLOUGH and
wife, LAURA J. MCCULLOUGH, RALPH E. OUTCALT, and DAVID KEITH
JOHNSON, Petitioners, v. MIKE C. INSCOE, C. RUXTON BOBBITT, JR.,
JERRY PARRISH, DAVE STALLINGS, DAVID E. MEEKINS, BAILEY ALSTON,
ARLINE RICHARDSON, JOSEPH BROWN, RICHARD I. VAUGHAN, JR., WILLIAM
F. TAYLOR, FRANK M. HESTER, JR., GENE C. AYSCUE, RUSTY RENSHAW,
and GARRY DAEKE in their official capacity as the HENDERSON
ZONING BOARD OF ADJUSTMENT, W. BROWNELL WRIGHT, Zoning
Administrator of the City of Henderson, BRANCH BANKING & TRUST
Filed: 19 October 2004
1. Zoning_conduct of hearing_notice
The Henderson Zoning Board of Adjustment did not violate petitioners' due process
rights in its issuance of a special use permit allowing a bank to build drive-through lanes. The
Board provided petitioners with notice of the initial public hearings, at which all parties availed
themselves of the right to present their case. Although petitioners were not given specific notice
of two hearings after an appeal and remand, those hearings involved only more specific findings
on the evidence previously presented, and petitioners had general notice in that the hearings were
held at the regularly scheduled and advertised meetings.
2. Zoning_special use permit_sufficiency of evidence_issuance not arbitrary
The trial court did not abuse its discretion in applying the whole record test to a decision
by the Henderson Zoning Board of Adjustment to grant a special use permit for the construction
of drive-through lanes at a bank. The Board conducted a careful and thorough investigation and
the evidence supported issuance of the permit under the standards set out in the ordinance.
Appeal by petitioners from order entered 16 September 2003 by
Judge Robert H. Hobgood in Vance County Superior Court. Heard in
the Court of Appeals 15 September 2004.
Browne, Flebotte, Wilson & Horn, P.L.L.C., by Daniel R.
Flebotte, for petitioners-appellants.
No brief filed for respondents-appellees Mike C. Inscoe, C.
Ruxton Bobbitt, Jr., Jerry Parrish, Dave Stallings, David E.
Meekins, Bailey Alston, Arline Richardson, Joseph Brown,
Richard I. Vaughan, Jr., William F. Taylor, Frank M. Hester,
Jr., Gene C. Ayscue, Rusty Renshaw, and Garry Daeke in Their
Official Capacity as the Henderson Zoning Board of Adjustment,
W. Brownell Wright, Zoning Administrator of the City of
Royster, Cross & Currin, LLP, by Dale W. Hensley, for
respondent-appellee Branch Banking & Trust Company.
Robert Ward, Betty Moticka, James R. Mccullough, Laura J.
Mccullough, Ralph E. Outcalt, and David Keith Johnson
(petitioners) appeal the trial court's order, which affirmed the
Henderson Zoning Board of Adjustment's (Board) issuance of a
Special Use Permit to respondent Branch Banking and Trust Company
(BB&T). We affirm.
BB&T applied to construct a bank building in a mixed use
neighborhood that is zoned for office-institutional use under the
City of Henderson Zoning Ordinance (Ordinance). The plans
included four drive-thru lanes. Section 300B of the Ordinance
allows drive-thru lanes with issuance of a special use permit by
the Board. BB&T petitioned both the Board and the North Carolina
Department of Transportation (DOT) for approval of access permits
and to construct the building with the drive-thru lanes.
On 3 October 2000, the Board, including members Mike C.
Inscoe, C. Ruxton Bobbitt, Jr., Dave Stallings, David E. Meekins,
Bailey Alston, Arline Richardson, Richard I. Vaughan, Jr., William
F. Taylor, Gene C. Ayscue, and Rusty Renshaw conducted a public
hearing and heard from BB&T's representatives supporting the
application and from petitioners and other neighborhood residents
opposing the construction. BB&T offered its plans for development.
Petitioners and other opponents expressed concerns over the
project's impact and raised safety, traffic, aesthetic, andeconomic issues. The Board continued the hearing for thirty days
to await DOT's decision.
The Board reconvened on 7 November 2000 and additional
evidence was heard and received from both sides. BB&T's
representatives and a city engineer offered design plans showing
the building and surrounding land use. Discussion addressed the
possibility of widening the surrounding streets to accommodate
increased traffic flow and access, ingress, egress to and from the
Petitioners testified concerning the project's potential
impacts and effects on nearby residents. Their first concerns
included increased traffic flows and the resulting safety issues
for pedestrians and neighborhood children, the likelihood of
property values being adversely affected, increased difficulty of
residential parking, and that widening the street would require
removal of many large, old shade trees. Other opponents voiced
After hearing from all those present at the meeting who wished
to speak or present evidence, the Board voted four-to-one to
approve the issuance of the special use permit. Several conditions
were placed on the issuance, including: (1) not removing more
trees than necessary, (2) planting buffer hedges between the site
and neighboring homes, and (3) involving neighborhood residents in
decisions concerning permanent sidewalks and steps.
Petitioners filed a Complaint and Petition for Writ ofCertiorari on 1 December 2000 in the Vance County Superior Court,
seeking review of the Board's decision. Petitioners alleged the
Board failed to comply with procedures set forth in Sections 803
and 804 of the Ordinance and asserted the Board failed to make
inquiries on the impact of the development on the neighborhood and
to make factual findings. Board members Mike C. Inscoe, C. Ruxton
Bobbitt, Jr., Jerry Parrish, Dave Stallings, David E. Meekins,
Bailey Alston, Arline Richardson, Joseph Brown, Richard I. Vaughan,
Jr., William F. Taylor, Frank M. Hester, Jr., Gene C. Ayscue, Rusty
Renshaw, Garry Daeke, and W. Brownell Wright, Zoning Administrator
of the City of Henderson, (collectively, City Defendants)
answered on 28 December 2000. BB&T answered on 6 March 2001.
The matter was heard on 5 July 2001 before Judge Hobgood. The
trial court originally found:
(1) The decision rendered by the Board of
Adjustment on November 7, 2000 was deficient
in that the required findings of fact by the
Board of Adjustment were merely a recitation
of the standards imposed upon the Board of
Adjustment for the issuance of a special use
permit by the General Statutes of North
Carolina and the City of Henderson Zoning
Ordinances, rather than providing a detailed
listing of the facts which the Board found
from the preponderance of the evidence
presented at the public hearing and which
facts caused the Board of Adjustment to issue
the special use permit to the Bank.
The trial court conducted a whole record review and found the
Board considered all the evidence presented at the public hearing.
The trial court ruled that substantial, competent, and material
evidence supported the issuance of the special use permit and
affirmed the Board's decision. Petitioners filed a timely noticeof appeal to this Court on 31 January 2002.
In an unpublished opinion filed 5 May 2003, this Court vacated
the trial court's decision. The case was remanded to the trial
court to enter an order directing the Board to make factual
findings sufficiently specific to facilitate judicial review of the
Board's decision. Ward v. Inscoe, 157 N.C. App. 366, 578 S.E.2d
710 (2003) (unpublished).
The trial court issued an order on 3 June 2003. Later that
day, the Board found facts supporting issuance of the special use
permit. The Board did not receive or hear additional evidence.
The permit was signed on 1 July 2003.
On 1 August 2003, petitioners filed a Petition for Writ of
Certiorari and for Judicial Review alleging: (1) the Board's
permit lacked evidence to support its findings of fact and
conclusions of law; (2) the Board violated procedural requirements
and committed errors of law; and (3) the Board violated the
petitioners' due process rights. Petitioners based their last
claim on failure to receive personal or general notice of or an
opportunity to present evidence at the 3 June 2003 hearing. Both
City Defendants and BB&T answered the petition.
The trial court entered a Stipulation and Consent Order on 2
September 2003 signed by all parties agreeing to treat petitioners'
request and answers of the City Defendants and BB&T as motions for
review of the Board's findings of fact. The trial court conducted
a whole record review and affirmed the Board's decision on 16
September 2003. It found the Board's order contained sufficientfactual findings for review and the existence of substantial,
competent, and material evidence to support issuance of the special
use permit. Petitioners appeal.
The issues on appeal are whether: (1) petitioners' due
process rights were violated by not receiving personal notice of or
an opportunity to be heard at the 3 June and 1 July 2003 meetings;
and (2) the trial court abused its discretion by finding that
substantial, competent, and material evidence supported the Board's
issuance of the special use permit.
III. Petitioners' Due Process Concerns
 Petitioners contend the Board, sitting as a quasi-judicial
body, failed to provide them with the essential elements of a
fair trial. The Board met on 3 June 2003 and 1 July 2003 to find
facts as directed by the trial court's order and did not provide
personal notice to petitioners. Petitioners argue this failure to
personally notify them of the hearings violated their due process
rights under the Ordinance, North Carolina General Statutes, and
North Carolina case law. We disagree.
Section 804 of the Ordinance states the Board is a quasi-
judicial body. In Refining Co. v. Board of Aldermen, our Supreme
Court set out the following requirements for a quasi-judicial
(1) follow the procedures specified in the
ordinance; (2) conduct its hearings in
accordance with fair-trial standards; (3) base
its findings of fact only upon competent,
material, and substantial evidence; and (4) in
allowing or denying the application, . . .state the basic facts on which it relied with
sufficient specificity to inform the parties,
as well as the court, what induced its
284 N.C. 458, 471, 202 S.E.2d 129, 138 (1974). Section 804.6 of
the Ordinance requires the Board to allow all parties the right to
present their case, call witnesses, offer exhibits, and cross-
examine. There is no dispute that all parties availed themselves
with each of these rights at the two public hearings.
This Court addressed a similar issue in In re Application of
Raynor, 94 N.C. App. 173, 379 S.E.2d 884, appeal dismissed and
disc. rev. denied, 325 N.C. 546, 385 S.E.2d 495 (1989). The
landowner applied to a town board for a conditional use permit to
allow construction of a mobile home park on his property. Raynor,
94 N.C. App. at 174, 379 S.E.2d at 885. The neighbors petitioned
the board to re-zone his property for only single family
residences. Id. at 174, 379 S.E.2d at 885. Public hearings were
held to receive evidence supporting and opposing the application
and petition. Id. Following introduction of the evidence,
discussions continued during several regularly scheduled town
meetings over the course of a few months. Id. During one of the
meetings, the landowner offered to place conditions on his
application to address opponents' concerns. Id. The neighbors did
not receive personal notice of or attend the meeting. Id. The
landowner's application was then approved. Id. The neighbors
argued they were entitled to a fair opportunity to be heard in
quasi-judicial proceedings, and that right was denied by lack of
notice. Id. at 175, 379 S.E.2d at 885. This Court found no error. Id. at 178, 379 S.E.2d at 887. We
based our decision on several factors similar to those here. The
landowner did not offer additional evidence in the neighbors
absence. Id. The meetings were held during regularly scheduled
meeting times announced to the general public. Id. at 174, 379
S.E.2d at 885. The neighbors received opportunities to
cross-examine adverse witnesses and to offer evidence in support of
their position and in rebuttal of their opponents' contentions.
Id. at 177, 379 S.E.2d at 886.
In the prior appeal of this case, we held that the trial court
applied an improper review of the Board's decision. Ward, 157 N.C.
App. at 366, 578 S.E.2d at 710. The Order issuing the special use
permit contained testimony, discussed the standards for issuance,
and imposed conditions on the permit. It did not include findings
upon which the Board made its decision. The trial court determined
the [Board] must have considered the evidence in issuing the
permit despite the lack of findings, and affirmed the decision.
Id. This Court remanded this matter to the [trial] court for an
order directing the [Board] to make factual findings that are
sufficiently specific to enable review of the [Board's] decision.
This Court noted that extensive evidence was presented to the
Board in support of and in opposition to the issuance of the
Both parties acknowledge that no new evidence was considered
by the Board during the subsequent meetings in June and July of
2003. The Order indicates the Board members who heard the evidenceand arguments at the 3 October 2000 and 7 November 2000 hearings
made the factual findings and cited directly from the transcripts
of those public hearings. Public hearings ended on 7 November
2000. Any further meetings were intended solely to make findings
of fact on the evidence previously presented by all parties.
Petitioners received notice of and attended the public hearings and
utilized multiple opportunities to be heard and present evidence.
The record also indicates the Board held its meetings on the
first Tuesday of every month, a fact advertised by the Board and
acknowledged by petitioners in their brief. Each hearing and
meeting before the Board fell on the first Tuesday of the month.
These regularly scheduled advertised meetings provided petitioners
with general notice. As no further evidence was heard in June and
July of 2003 and general notice existed, petitioners' due process
rights were not violated.
The record and transcripts show petitioners, other
neighborhood residents, and BB&T received notice and ample
opportunity to be heard by and present evidence to the Board
concerning the issuance of the special use permit at the public
hearings. All parties presented evidence in support of or in
opposition to the application. The public hearing extended over
two months to await DOT's ruling on the access permits, which
provided all parties additional time to gather and present
evidence. The Board originally followed the guidelines of Sections
803 and 804, save 804.7, which we previously held required more
specific findings of fact. Here, the Board's Order corrects thatomission. This assignment of error is overruled.
IV. Standard of Review
 Petitioners assert the trial court abused its discretion
in applying a whole record review to find that substantial,
competent, and material evidence supports the issuance of a special
use permit. We disagree.
Our Supreme Court outlined the appropriate standard of review
of a decision by a quasi-judicial body in Concrete Co. v. Board of
Comm'rs, 299 N.C. 620, 265 S.E.2d 379, reh'g denied, 300 N.C. 562,
270 S.E.2d 106 (1980). A reviewing court is to:
(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 a petitioner are protected including the
right to offer evidence, cross-examine
witnesses, and inspect documents;
(4) Insure that decisions of town boards are
supported by competent, material and
substantial evidence in the whole record; and
(5) Insure that decisions are not arbitrary
Id. at 626, 265 S.E.2d at 383. Both the trial court and this Court
are bound by these standards of review. Id. at 627, 265 S.E.2d at
V. Substantial, Competent, and Material Evidence
We consider whether the evidence before the Board, not the
trial court, supported the issuance of the special use permit. In
re Application of Goforth Properties, 76 N.C. App. 231, 233, 332
S.E.2d 503, 504, disc. rev. denied, 315 N.C. 183, 337 S.E.2d 857
(1985). In determining the sufficiency of the evidence, we apply
the whole record test to review testimony and exhibits in supportof and in opposition to the issuance of the permit. Thompson v.
Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977).
In the prior appeal, this Court addressed guideline two and found
the Board met procedures mandated by statute and the Ordinance. We
have already held petitioners' due process rights were protected,
which satisfies guideline three. We now review guidelines one,
four, and five.
Guideline one requires a review of the trial court's decision
for errors in law. This Court previously remanded this case to
remedy an improper application of whole record review. Upon
remand, that error in law was corrected by inclusion of factual
findings within the Board's Order to enable appellate review. Our
review of the trial court's 16 September 2003 order reveals a
proper whole record review by the trial court, and that the Board's
decision is based on substantial evidence that supports its
findings of fact, which in turn support its conclusions of law.
We address guidelines four and five by reviewing evidence
before the Board. Section 803 of the Ordinance provides,
The [Board] shall hear and decide any
application for a special use permit, and
shall issue said permit where the applicant
has demonstrated by the preponderance of the
evidence that the standards of this Ordinance,
including the following shall be met:
(a) That the use will comply with the
requirements of Article 600A and 600B of
(b) That the use will not materially and
adversely affect the public health,
safety, or welfare;
(c) That the use will not substantially
injure the value of adjoining or abutting
(d) That the use will be in harmony with thearea in which it is located; or be a
matter of public need;
(e) That the use will not substantially
contribute to an overburdening of
(f) That the use will be in conformity with
the Henderson Land Use Plan and other
duly adopted plans and policies of the
The Board's Order specifically recited evidence presented at the
public hearings, and addressed each element in its findings of
The Board found under Sections A and B that the proposed use
will comply with design standards of Article 600A and will not
materially and adversely affect the public health, safety or
welfare of the neighborhood. BB&T hired a landscape architect to
ensure conformity with the Ordinance's design requirements. The
Board determined that evidence presented at the hearings showing
that expansion and modification of surrounding streets,
improvements to storm drains, relocation of a fire hydrant, removal
of undergrowth, and installation of a new traffic light, would
help, not hinder public safety. The Board also found the increase
in traffic counts estimated by DOT would not significantly impact
public safety. Substantial evidence in the record supports this
The Board addressed Sections C and D by noting the area is
zoned office - institutional, which is a transitional zone from
residential to commercial uses. It recognized the area is
becoming substantially commercial, shown by recent construction
of a drug store on the same block and few surrounding residences. The Board found that the addition of a bank would not upset the
balance between the mixed use properties or substantially injure
real estate values. To limit any impact on adjoining properties,
the Board imposed conditions on the permit's issuance. These
requirements addressed street parking, lighting, tree removal,
buffers between the bank and adjoining property, and required BB&T
to repair any damage caused by construction. Substantial evidence
in the record supports this finding.
The Board found under Section E that the expansion and
modification of the surrounding streets, sidewalks, storm drains,
and fire hydrants [would] not substantially contribute to an
overburdening of municipal services. BB&T's representatives
acknowledged financial responsibility for all improvements. In
addition, DOT determined the increase in traffic would not cause
significant overburdening of the neighborhood streets.
Substantial evidence in the record supports this finding.
The Board further found under Section F the proposed use will
be in substantial conformity with the City of Henderson's Land Use
Plan and other duly adopted plans and policies of the City. The
Board also found the construction of a bank on the property was
permitted as a matter of right in the [office - institutional]
zoning district under the Ordinance. Only the addition of drive-
thru lanes triggered the Ordinance requiring BB&T to apply for a
special use permit. The Board found the bank, expansion and
modifications to surrounding streets, the conditions placed on the
permit, and any increase in traffic conformed with both the City ofHenderson's Traffic Improvement and Capital Improvement plans.
Substantial evidence in the record supports this finding.
In consideration of petitioners' and other opponents' concerns
and the interests of the City, the Board included conditions in the
Permit. Section 803.1 of the Ordinance allows the Board to place
reasonable conditions on the issuance of the special use permit.
Here, the Board imposed several requirements to address concerns
expressed by petitioners and other neighborhood residents. In
addition to full compliance with both the plans accepted by the
Board and the Ordinance, the Order required BB&T to: (1) limit the
removal of trees to areas necessary for ingress/egress; (2) replace
sidewalks and steps damaged by construction; (3) design its
lighting plan to avoid lights shining into adjoining homes; and (4)
limit customer street side parking reserved for residents. The
Board reserved the power to revoke the permit if BB&T does not
conform to the conditions.
VI. Arbitrary and Capricious
Guideline five requires the Board's decision not to be
arbitrary and capricious. An administrative ruling is deemed
arbitrary and capricious when it is whimsical, willful[,] and
[an] unreasonable action without consideration or in disregard of
facts or law or without determining principle. Lenoir Mem. Hosp.
v. N.C. Dep't of Human Resources, 98 N.C. App. 178, 181, 309 S.E.2d
448, 450 (quoting Board of Education [of Blount County] v.
Phillips, 264 Ala. 603, 89 So.2d 96 (1956)), disc. rev. denied, 327
N.C. 430, 395 S.E.2d 682 (1990); see also Tate Terrace RealtyInvestors v. Currituck County, 127 N.C. App. 212, 222-23, 488
S.E.2d 845, 851 (quoting Black's Law Dictionary 105 (6th ed.
1990)), disc. rev. denied, 347 N.C. 409, 496 S.E.2d 394, appeal
dismissed, 347 N.C. 409, 496 S.E.2d 386 (1997). The Board
conducted a careful and thorough investigation of the evidence
supporting and opposing the special use permit. Petitioners failed
to show and the record does not indicate that the Board acted
unfairly or arbitrarily. The Board's decision was not arbitrary
and capricious and was based on substantial, competent, and
material evidence in the record. This assignment of error is
Petitioners were provided with notice of the two public
hearings, where they attended and opposed the application through
testimony, exhibits, and cross-examination. The petitioners
received general notice of the later meetings, which were held
solely to remedy the lack of factual findings and to sign the
Board's Order. No further public hearings were held and no new
evidence was received or entertained. Petitioners' due process
rights were protected during the hearings in October and November
of 2000 and during the meetings in June and July of 2003.
The record and transcripts show BB&T presented substantial,
competent, and material evidence in support of its application for
a special use permit. The order of the trial court is affirmed.
Judges HUDSON and BRYANT concur.
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