Zoning--billboards--special use permit denied--arbitrary and capricious
Two special use permits for billboards were wrongfully denied for failure to be
compatible with the neighborhood and failure to conform with state law where petitioner agreed
to move the one sign to comply with environmental regulations and neighborhood evidence
focusing on whether the other could be seen from certain properties was speculative and
irrelevant to compatibility. An applicant producing evidence demonstrating compliance with the
ordinance is entitled to the special use permit unless substantial competent evidence is introduced
to support denial.
Waller, Stroud, Stewart & Araneda, LLP, by Betty Strother
Waller, for petitioner appellant.
Battle, Winslow, Scott, & Wiley, P.A., by M. Greg Crumpler,
for respondent appellee.
McCULLOUGH, Judge.
Petitioner applied for two special use permits to erect
billboards for advertising. The Town's Board of Commissioners
voted to deny these applications. A court ordered the Board to
make findings of fact to support its decision. The Board held a
second public hearing and once again denied the requests for the
permits. The trial court affirmed this decision and then amended
its order rejecting petitioner's claim that the decisions were
arbitrary, capricious, and violated its due process rights. Petitioner appealed to this Court. On appeal petitioner asserts
that (1) the trial court erred in its conclusion that petitioner
was denied due process, (2) the trial court erred in concluding
that respondent's decision is supported by adequate findings of
fact, and (3) the trial court erred in concluding that respondent's
decisions were not arbitrary and capricious.
Petitioners argue that respondent Board denied its special use
permit for two off-site advertising signs (billboards) and that the
denial was arbitrary, capricious and unsupported by substantial
evidence.
The standard of review for both the trial court and this Court
was succinctly stated in Whiteco Outdoor Adver. v. Johnston County
Bd. of Adjust., 132 N.C. App. 465, 513 S.E.2d 70 (1999), where the
Court stated:
When reviewing the decision of such a board,
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 decision is not
arbitrary and capricious. Our task, in
reviewing a superior court order entered after
a review of a board decision is two-fold: (1)
to determine whether the trial court exercised
the proper scope of review, and (2) to review
whether the trial court correctly applied this
scope of review.
Id. at 468, 513 S.E.2d at 73 (citations omitted). As the Board's
denial was challenged for being arbitrary, capricious and not basedon substantial evidence, the reviewing court conducts a “whole
record test” to determine whether the Board's findings are
supported by substantial evidence. Id.
Substantial evidence has been defined as:
“'Substantial evidence is more than a mere
scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate to
support a conclusion.' It 'must do more than
create the suspicion of the existence of the
fact to be established.... [I]t must be enough
to justify, if the trial were to a jury, a
refusal to direct a verdict when the
conclusion sought to be drawn from it is one
of fact for the jury.'”
Refining Co. v. Board of Aldermen, 284 N.C. 458, 470-71, 202 S.E.2d
129, 137 (1974) (citations omitted).
When a Board action is unsupported by competent substantial
evidence, such action must be set aside for it is arbitrary. Id.
at 468, 202 S.E.2d at 135-36. The issue of whether substantial
competent evidence is contained in the record is a conclusion of
law and reviewable by this Court de novo. State ex rel. Long v.
ILA Corp., 132 N.C. App. 587, 591, 513 S.E.2d 812, 816 (1999).
Thus, when an applicant produces evidence which demonstrates
it has complied with the ordinance, the petitioner is entitled to
have the permit issued unless substantial competent evidence is
introduced to support its denial. Concrete Co. v. Board of
Commissioners, 299 N.C. 620, 625, 265 S.E.2d 379, 382, reh'g
denied, 300 N.C. 562, 270 S.E.2d 106 (1980).
The Zoning Code for the Town of Franklinton contained the
following provision at the time of petitioner's application: § 154.098 OFF-SITE ADVERTISING SIGNS.
Off-site advertising signs (billboards)
shall be permitted only as a special use in
the C-3 and IL districts. The conditions in
§§ 154.055 through 154.076 of this chapter are
not applicable to off-site advertising signs.
A special use permit shall be granted
providing the following conditions are met:
(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 all
regulations of the North Carolina Department
of Transportation and with the North Carolina
General Statutes.
(D) No two such structures shall be
place[d] 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.
(Ord. passed 12-2-88) Penalty, see § 154.999
It is uncontested that the signs in the case sub judice complied
with provisions (A), (B) and (D), and are in an area zoned to allow
billboards. The issue before the Board concerned whether the signs
violated subparagraphs (C) and (E).
In support of its decision to deny the permits, the Board,
sitting as a quasi-judicial body, Refining Co., 284 N.C. at 469,
202 S.E.2d at 136-37, made the following Findings of Fact at their
meeting on 17 September 2002:
3. The proposed billboard sign to be located at 4085
US #1 Hwy has the great potential to be a safety
issue. I have concerns that the sign would detract
the attention of drivers away from the highway in
front of a business that has a high volume of
customers and there being no turn off lane that
allows for drivers to slow down before entering the
business creates the potential for being an
extremely dangerous situation.
4. The proposed billboard sign to be located at 4085
US #1 Hwy is incompatible with the surrounding
neighborhood because it is across the street from a
church and adjacent to a Head Start DayCare Center
and directly south from the new Usher Associations
National Headquarters. There is no way of
regulating objectionable material from being placed
as advertisements on these boards. This sign would
be in an area predominantly surrounded by
residential single family dwellings and places of
learning and worship.
5. The citizens of Franklinton have participated in
the special use process and have expressed
opposition to the proposed permit.
6. The maintenance of existing Fairway Advertising
Signs along the US #1 Corridor is of an inferior
quality and is not in keeping with the standards
set by the Code of Ordinances which we strive to
enforce.
7. There are concerns regarding the sign that is
proposed on the property located at 2845 US #1
South. The major concern is that the sign will
conflict with the rules established and governed by
the Environmental Management Commission of the
State of North Carolina. That rule[] states that
if there is a stream within 50 feet on the map,
there can be no new impervious area introduced intothat area without a major variance or a minor
variance, depending on which zone, from the state.
According to the drawings submitted the pole would
be located less than 50 feet from a stream. This
is a violation of the law.
8. The proposed sign to be located at 2845 US #1 South
raises several safety concerns. The sign would
detract driver's attention from the highway and
increase the chance of a possible accident in front
[of] Steven Hayes' business. There is no turning
lane into these establishments. Also, the
intersection located directly south of the proposed
site is an area of great concern as well. The
angle in which traffic has to turn when coming from
US #1A and crossing over this intersection places
individuals in close proximity to oncoming traffic.
Any interference would certainly increase the
chance of an accident.
As can be seen from the Findings of Fact, many of the findings
have nothing to do with subparagraphs (C) and (E) of the Town
Ordinance and cannot be relied on to support the Board's decision.
For example, Finding of Fact No. 6 deals with maintenance of
other signs located elsewhere. The Town has an ordinance that
addresses this issue in a section which deals with General Sign
Regulations and requires any sign permitted within the Town of
Franklinton to be maintained in good repair. Town Ordinance
§ 154.896(E). Likewise, distracting signs are prohibited by
§ 154-097 and would not be approved by the North Carolina
Department of Transportation.
The Board denied petitioner a special use permit to erect a
billboard at 4085 US #1, finding that the sign would be
“incompatible with the surrounding neighborhood” (Findings of Fact
Nos. 1 and 4) and thus a violation of subparagraph (E). The
inclusion of a use as a conditional use in a particular zoningdistrict establishes a prima facie case that the permitted use is
in harmony with the general zoning plan. Humane Soc'y of Moore
Cty., Inc. v. Town of Southern Pines, 161 N.C. App. 625, 630, 589
S.E.2d 162, 166 (2003); Vulcan Materials Co. v. Guilford County Bd.
of Comrs., 115 N.C. App. 319, 324, 444 S.E.2d 639, 643, disc.
review denied, 337 N.C. 807, 449 S.E.2d 758 (1994). Competent
evidence is required to prove that the permitted use is not in
harmony with the surrounding area. Id.
A review of the evidence presented
(See footnote 1)
shows that the witnesses
and the Board focused on whether the proposed billboards would be
visible from certain properties. None of the witnesses testified
as to how a billboard is incompatible with the business located in
the zone and on whose property the sign would be located. The
uncontradicted testimony, which included photographic evidence,
showed several businesses in this commercially zoned area. The
photographs showed the businesses each had signs located on their
property identifying the business. An active rail line also ran
parallel to U.S. #1, which is a four-lane divided highway in the
area under consideration.
Testimony that a billboard could be seen from a particular
location is simply irrelevant as to whether or not the billboard is
incompatible with the neighborhood. Anyone who could see thebillboard could also see the commercial businesses (which had
signage) as well. The Board just assumed the billboard was
incompatible with the neighborhood when in actuality the
presumption is that the permitted use is compatible with the zoning
scheme. Humane Soc'y, 161 N.C. App. at 632, 589 S.E.2d at 167.
Thus the evidence failed to overcome the presumption and the permit
should have been issued as the record does not contain substantial
evidence that the proposed billboard is incompatible with the
surrounding areas. The evidence was merely an unsubstantiated
opinion which is incompetent.
(See footnote 2)
Sun Suites Holdings, LLC v. Board
of Aldermen of Town of Garner, 139 N.C. App. 269, 533 S.E.2d 525
(speculative assertions or expressions of opinion are insufficient
to support the findings of a quasi-judicial body), disc. review
denied, cert. denied, 353 N.C. 280, 546 S.E.2d 397 (2000). The
Board then denied a permit for a billboard proposed for 2845 U.S.
#1 on the basis that the billboard as situated would be too close
to a stream in violation of N.C. Environmental Management
Commission rules. (Finding of Fact No. 7).
Pursuant to Town Ordinance § 154.098(C), billboards must
comply with all state laws. During the hearing, petitioner agreed
to re-site the billboard a distance of some 7 feet in order to
comply with the EMC regulation at issue. Instead of denying the permit, the Town should have issued the
permit subject to a condition that the billboard comply with EMC
rules and its location be approved by that agency.
This Court has regularly upheld conditions attached to the
issuance of special use permits such as in the case at bar. See
Clark v. City of Asheboro, 136 N.C. App. 114, 524 S.E.2d 46 (1999).
To summarize, the Town Board, when acting in a quasi-judicial
mode, must accord a petitioner due process which includes making
decisions which are not arbitrary and capricious but which are
supported by substantial competent evidence. Speculative assertions
and mere opinion evidence do not constitute competent evidence.
In the case sub judice the petitioner produced evidence of its
prima facie entitlement to the issuance of a special use permit for
both billboards. Neither petition was properly denied as the
record does not contain competent evidence that the billboard at
4085 US #1 is incompatible with the surrounding neighborhood. The
second petition was improperly denied when the petitioner agreed to
relocate the billboard to comply with EMC rules regarding stream
protection which could have been attached as a condition.
Accordingly, the Town of Franklinton is directed to issue the
permits and the ruling of the trial court is
Reversed.
Chief Judge MARTIN and Judge ELMORE concur.
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