An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.


NO. COA03-1283

NORTH CAROLINA COURT OF APPEALS

Filed: 6 July 2004

ROBERT B. WILHELM and wife Ann
B. WILHELM et al.,
    Petitioners,

v .                         Rowan County
                            No. 03 CVS 637

BOARD OF COUNTY COMMISSIONERS
FOR ROWAN COUNTY, NORTH CAROLINA,    
    Respondent.

    Appeal by petitioners from order entered 28 April 2003 by Judge Kimberly S. Taylor, Superior, Rowan County. Heard in the Court of Appeals 15 June 2004.

    Carlton, Rhodes & Carlton, by Gary C. Rhodes, for petitioner- appellants.

    The Holhouser Law Firm, by John L. Holhouser, Jr., for respondent-appellees.

    WYNN, Judge.

    Petitioners appeal from the trial court's order affirming the grant of a conditional use permit contending the trial court (1) utilized improper procedures in conducting its judicial review of the Rowan County Board of Commissioner's (hereinafter “Board of Commissioners”) decision and (2) erred in finding competent evidence supported the Board's decision. We remand for additional consideration on the standard of review undertaken by the trial court.    Following a public hearing on 17 February 2003, the Board of Commissioners granted a conditional use permit to establish a quarter midget race track and associated facilities on 22-acres of county-owned land. In response, on 13 March 2003, Petitioners, 65 county residents who own property near the proposed quarter midget race track, petitioned the superior court to grant certiorari review of the Commissioners' decision. Petitioners contended the Board of Commissioners erroneously (1) interpreted the zoning ordinance; (2) considered and weighed incompetent evidence in granting the permit application; and (3) had an irreconcilable conflict of interest as it could not consider the application fairly and impartially as a quasi-judicial body because the Board of Commissioners was an interested party. The superior court granted certiorari on 25 March 2003 and ordered the Board of Commissioners to provide the complete record of proceedings within 10 days. The next day, the Board of Commissioners filed the complete record with the clerk of court; on 2 April 2003, the Board of Commissioners filed its brief with the court.
    On the morning of 21 April 2003, the Board of Commissioners' counsel appeared at the calendar call of superior court orally requesting the court to schedule this matter for hearing during the civil term beginning that day. Petitioners' counsel was in court on an unrelated matter and objected to the calendaring of this matter during this particular term of court. After hearing arguments from counsel, the trial court calendared the hearing for 24 April 2003. Petitioners filed a written brief; after a hearing,the trial court affirmed the grant of the conditional use permit. Petitioners appeal.
    _______________________________________________________
    Although Petitioners contend the trial court (1) utilized improper procedures in scheduling the judicial review of the Board's decision and (2) erroneously determined competent evidence supported the Board's decision, we do not reach these issues because we must remand for additional consideration on the standard of review undertaken by the trial court.
    When an appellate court reviews a superior court order regarding its judicial review of a county's zoning decision, “the appellate court examines the trial court's order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.” Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 14, 565 S.E.2d 9, 18 (2002).    
        The proper standard for the superior court's judicial review depends upon the particular issues presented on appeal. When the petitioner questions (1) whether the agency's decision was supported by the evidence or (2) whether the decision was arbitrary or capricious, then the reviewing court must apply the 'whole record' test. However, if a petitioner contends the board's decision was based on an error of law, 'de novo' review is proper. Moreover, the trial court, when sitting, as an appellate court, to review a [decision of a quasi-judicial body], must set forth sufficient information in its order to reveal the scope of review utilized and the application of that review.

Id.
at 13-14, 565 S.E.2d at 17-18 (citations omitted). In thiscase, the order does not set forth sufficient information from which we can determine the standard of review applied by the trial court.
    In its appeal before the superior court, Petitioners contended the Board of Commissioners erroneously (1) concluded the proposed facility would be located on a major thoroughfare, minor thoroughfare or principal artery; (2) concluded that a quarter midget race track should be allowed under a conditional use amendment permitting a go-cart track and (3) received and considered incompetent evidence. In determining whether the quarter midget race track was a permitted conditional use, the Board had to interpret the zoning ordinance because several terms were undefined. Thus, the superior court should have conducted a de novo review of the Board's ordinance interpretation and should have applied the whole record test to whether the Board granted the conditional use permit based upon incompetent evidence.
    In its order, the superior court stated:
        1)    The Court finds that the property at issue is owned by Rowan County and is zoned Commercial, Business, Industrial (CBI), and that pursuant to a text amendment adopted by Rowan County on July 9, 2001, speedways, drag strips and go- kart tracks are presently allowed within CBI zoning subject to the granting of a conditional use permit.

        2)    The Court further finds that the scope of review for the Superior Court upon Certiorari is to determine whether there were errors of law, whether procedures established in the statutes and ordinances were followed, whether the Petitioners received due process, the right to offer evidence, cross examinewitnesses and inspect documents, whether the decision of the Board is supported by competent, material and substantial evidence in the record and whether the decision was arbitrary and capricious. The Court further finds that the quarter- midget track at issue is not a speedway or drag strip, but fits the classification of a go-kart track and that Rowan County was correct in establishing a lot size for the track as being a minimum of twenty (20) acres;

        3)    The Court further finds that Rowan County did have competent evidence before it, that the location of the facility is accessed by appropriate thoroughfares as defined in the ordinance; that lighting provisions, set back provisions, fencing, buffers, hours of operation, and noise levels were all addressed at the public hearing conducted by the Rowan County Board of Commissioners on February 17, 2003, and that the Board of Commissioners received testimony and evidence from individuals regarding all of these issues and made findings that the property in question met all of the requirements as set out in the text amendment and properly found that the quarter-midget track met all of the requirements of the go-kart provisions of the text amendment.

        4)    The Court further finds that the Petitioners were allowed to be present at the hearing and to present whatever evidence they wished, that all due process requirements were met, that the procedural requirements of statutes and ordinances were followed, and that the Board of Commissioners throughly considered all of the evidence presented, made diligent inquiry and discussed the evidence at length, and that the decision of the Board of Commissioners was unanimous.

        5)    The Court further finds that there is no evidence that the decision of the Board of Commissioners was arbitrary or capricious; that the evidence which was presented to the Board of Commissionerscame from experts in their respective fields, including an individual who went to the site and tested noise levels utilizing the same quarter-midget vehicles which would be operated at the proposed facility. The Court further finds that the findings of fact and decision of the Rowan County Board of Commissioners in granting the conditional use permit was fully supported by competent, material and substantial evidence in the record filed with this Court pursuant to the Writ of Certiorari.

    “In general, the superior court's task when reviewing the grant or denial by a county board of a [conditional] use permit includes:
        (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.”

Mann Media, 356 N.C. at 13-14, 565 S.E.2d at 17-18 (citations omitted). Although these factors describe the trial court's task in conducting judicial review, “the proper standard for the superior court's judicial review depends upon the particular issues presented on appeal.” Id. Depending upon the issues presented, the trial court either utilizes “de novo” review or the “whole record test.” In this case, Petitioners presented issues regardingthe Board's ordinance interpretation and the strength of the evidence presented. Therefore, the trial court should have (1) conducted “de novo” review to address the interpretation issues and (2) applied the “whole record test” to resolve any issues regarding the evidence.
        These standards of review are distinct. Under a de novo review, the superior court consider[s] the matter anew[] and freely substitutes its own judgment for the agency's judgment. When utilizing the whole record test, however, the reviewing court must examine all competent evidence (the 'whole record') in order to determine whether the agency decision is supported by 'substantial evidence.' The 'whole record' test does not allow the reviewing court to replace the board's judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo.

Id. In this case, the trial court addressed the general factors describing its task on judicial review and the record does not show whether the trial court applied either de novo review or the whole record test in rendering its decision. Accordingly, this case is remanded for further proceedings in which the trial court should set forth the appropriate standard of review as determined by the issues presented.
    Reversed and remanded.
    Judges CALABRIA and LEVINSON concur.
    Report per Rule 30(e).

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