Appeal by petitioners from judgment and order entered 13
January 2004 by Judge Mark Klass in Superior Court in Davie County.
Heard in the Court of Appeals 12 January 2005.
Henry P. Van Hoy, II, for petitioner-appellants.
Price Law Office, by Robert E. Price, Jr., for respondent-
appellee.
Bell, Davis & Pitt, P.A., by James R. Fox and Donald M.
Nielsen, for intervenor-appellee.
HUDSON, Judge.
On 13 January 2003, High Performance Holdings, LLC, (HPH)
filed an application for a special use permit with the Davie County
Board of Adjustment (the Board), seeking to build and operate a go-
cart track. On 5 May 2003, after four nights of public hearings,the Board approved the permit, over the opposition of petitioners,
all of whom live near the proposed site. The petitioners filed a
writ of certiorari in Superior Court in Davie County on 8 September
2003, which the court granted. HPH filed a motion to intervene on
22 September 2003, which the court also granted. After a hearing
on 15 December 2003, the court affirmed the Board's decision and
entered judgment accordingly on 13 January 2004. Petitioners
appeal. For the reasons discussed below, we affirm.
The evidence tends to show that HPH owns a 134-acre tract of
land in rural Davie County. HPH intends to build and operate a go-
cart track on approximately 35 acres of its property as part of its
operation called “Farmington Motorsports Park.” This 35-acre tract
is zoned Residential-Agricultural (R-A), and a go-cart track is a
permitted use in Davie County R-A zoning districts, subject to the
granting of a special use permit by the Board. The proposed go-
cart track site is adjacent to an already existing dragstrip. The
property where the dragstrip is located is zoned Highway-Business
(H-B). The dragstrip has been there since at least 1961, and
predates Davie County zoning ordinances, and is thus a non-
conforming use within the meaning of the zoning code. The
petitioners all live near the proposed go-cart track site and
allege that they have been damaged by the Board's decision to allow
the go-cart track.
[1] Petitioners contend first that the Board of Adjustment
erred by placing the burden of proof on them to prove that the
health and safety requirements of the special use permit statutehad not been met, and that the superior court erred in affirming.
We disagree.
Davie County Ordinance § 155.236 (C) states, in pertinent
part, that a special use permit shall not be granted unless:
The Board of Adjustment finds that in the
particular case in question, the use for which
the special use permit is sought will not
adversely affect the health or safety of
persons residing or working the neighborhood
of the proposed use and will not be
detrimental to the public welfare . . .
Petitioners argue that our Courts have distinguished between
ordinances with specific and general requirements. They assert
that the burden of proof of specific requirements rests with the
applicant,
Mann Media Inc. v. Randolph County Planning Bd., 356
N.C. 1, 565 S.E.2d 9
(2002), but that the burden of proof of
general requirements is on the opponent.
Woodhouse v.
Bd. of
Comm'rs of Nags Head, 299 N.C. 211, 261 S.E.2d 882 (1980).
Petitioners contend that the ordinance here includes a specific
requirement, and thus, the burden of proof should have fallen on
the applicant to show that there would be no adverse affect on
health or safety and no detriment to the public welfare.
Here, the Board's decision does not specify what burden of
proof it applied, and the petitioners base their argument that the
Board placed the burden on them on the Superior court's citation to
Woodhouse in its order.
The Superior court's order does cite
Woodhouse, stating in one of its conclusions of law that:
The burden of proving or disproving general
considerations, involving an assessment of the
use's impact on 'health, safety and welfare of
the community falls upon those who oppose theissuance of a [special use permit].'
However, the court goes on to state that,
[i]n any event, the Court finds, upon a review
of the whole record that HPH met any arguably
applicable burdens of production and
persuasion and that its evidence satisfied the
specific and general requirements of the Davie
County Zoning Code.
Also, in another conclusion of law, the court states that for an
applicant to make out a
prima facie case, he or she must “produce[]
competent, material and substantial evidence tending to establish
the existence of facts and conditions which the ordinance requires
for the issuance of a special use permit” (quoting
Refining Co. v.
Bd. of Alderman, 284 N.C. 458, 468, 202 S.E.2d 129, 136 (1974)).
Thus, we conclude that in spite of the Superior court's mention of
Woodhouse, the rest of the record shows that the Board did in fact
place the burden on the applicant. Accordingly, we overrule this
assignment of error.
[2] In their second argument, petitioners contend that the
Board's and superior court's findings of fact and conclusions of
law are not supported by competent, material, and substantial
evidence in the record as a whole. The superior court in this case
reviewed the Board's decision pursuant to N.C. Gen Stat. § 153A-345
(e) (2003). On appeal from a superior court's review of a
municipal zoning board of adjustment, this Court's standard of
review is limited to “(1) determining whether the trial court
exercised the appropriate scope of review and, if appropriate, (2)
deciding whether the court did so properly.”
Fantasy World, Inc.
v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 609, 592 S.E.2d205, 209 (2004)(internal citations and question marks omitted);
but
see, Capital Outdoor, Inc. v. Guilford County Bd. of Adjustment,
355 N.C. 269, 559 S.E.2d 547 (2002) (Superior court's failure to
set forth standard of review does not necessitate reversal).
In
our review of a Superior court's order regarding a zoning board of
adjustment's decision, “[t]he scope of our review is the same as
that of the trial court.”
Fantasy World, 162 N.C. App. at 609, 592
S.E.2d at 209
(citing
Coastal Ready-Mix Concrete Co. v. Bd. of
Comm'rs, 299 N.C. 620, 627, 265 S.E.2d 379, 383 (1980)).
The reviewing court applies the “whole record” test when the
petitioner alleges that the decision was not supported by
substantial evidence or was arbitrary and capricious.
Tate Terrace
Realty Investors, Inc. v. Currituck County, 127 N.C. App. 212, 218,
488 S.E.2d 845, 849 (1997)(internal citation omitted). Here, as
the superior court applied the correct standard of review -_ the
whole record test _- we review whether it did so properly. In
reviewing a superior court's order we must determine “'not whether
the evidence before the superior court supported that court's
order[,] but whether the evidence before the Town Council supported
the Council's action.'”
William Brewster Co., Inc. v. Town of
Huntersville, 161 N.C. App. 132, 134, 588 S.E.2d 16, 19 (2003)
(internal citation omitted). “The court must examine all competent
evidence to determine if the record supports the board's findings
and conclusions.”
Id. We must determine whether the Board's
decision is supported by “substantial evidence.'”
ACT-UP Triangle
v. Comm'n for Health Servs., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (internal citation omitted). “'Substantial evidence is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'”
Id. at 707, 483 S.E.2d at 393
(internal citation omitted).
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.”
Thompson v. Wake County Bd. of Educ., 292 N.C.
406, 410, 233 S.E.2d 538, 541 (1977). Under the whole record test,
the Board's decision must stand unless it is arbitrary and
capricious.
Mann, 356 N.C. at 14, 565 S.E.2d at 19.
Petitioners contend that there was not substantial evidence to
support the Board's findings regarding noise. Specifically, they
object to the following findings:
3) The go-cart track . . . will not adversely
affect the health or safety of persons
residing or working in the neighborhood of the
go-cart track. This is based upon sworn
testimony and evidence submitted during the
hearing which shows the following:
* * *
(c) A landscaped berm will be installed adjoining
the Harding property . . . to reduce the sound
and provide a screen from activities on the
site.
* * *
(g) Sound levels from the co-cart track will not
exceed those already existing in the
neighborhood, primarily generated by the drag
racing course. Evidence provided by the
petitioner's sound expert, S&ME, far out
weighed the evidence offered by the opponents.
It is the Board's opinion that if the proposed
go-cart track stood alone, that the noisegenerated by the go-cart track would not be
of any material significance so as to be
detrimental to the neighborhood.
After careful review of the record, we conclude that these findings
are supported by substantial evidence. Dwayne Rakestraw, a civil
engineer, testified that because dragsters typically run at 110
decibels (dB), they would “completely drown out everything else.”
Rakestraw also testified that the level of noise at Petitioner
Harding's house would be similar to that generated by a passing
car. Likewise, test results of the engineering firm S&ME
indicated that “noise levels generated by the carts would be
expected to add 1 to 2dB to the overall noise levels generated by
the operation of the dragster measured at the eastern property
line.”
Furthermore, in a presentation made to the Board by HPH, the
Board heard evidence that the go-carts would be subject to strict
equipment regulations to reduce noise and that the proposed
landscaped berm and natural barriers would achieve a 5-10dB
reduction, while proposed plants and trees would achieve another 1-
2dB reduction. This presentation also suggested that at normal
distances the carts produce noise in the range of conversation or
passenger cars and that as distance increases, so does the
perceived sound level. The calculations were prepared by Rakestraw
and were based on the average noise produced by 30 running carts.
According to these calculations, the nearest neighbor, residing 300
feet from the track, would be expected to have a noise level of
approximately 74dB with the barriers in place _- a noise levelfalling in between that of a passenger car and a dishwasher. The
next closest neighbor, 700 feet from the track, would be expected
to have a level of 69dB, which is about the same as a passenger
car. Neighbors living 1500 feet and farther from the track would
experience 63dB and less, only somewhat above the level of normal
conversation, which is about 60dB.
Petitioners assert that the SM&E test results and HPH's
presentation to the Board are incompetent evidence because they are
hearsay and too general and speculative. Similarly, petitioners
contend that Rakestraw's testimony was not competent because he was
not properly qualified as a sound expert. However, Board
proceedings are quasi-judicial in nature and the Board is not bound
by the rules of evidence, but may consider all of the evidence
offered. Humble Oil & Refining Co. v. Bd. of Aldermen, 284 N.C.
458, 470, 202 S.E.2d 129, 137 (1974).
Local boards, such as municipal boards of
adjustment, are not strictly bound by formal
rules of evidence, as long as the party whose
rights are being determined has the
opportunity to cross-examine adverse witnesses
and to offer evidence in support of his
position and in rebuttal of his opponent's.
Burton v. New Hanover County Zoning Bd. of Adjustment, 49 N.C. App.
439, 442, 271 S.E.2d 550, 552 (1980). Here, petitioners do not
assert that they never had the opportunity to cross-examine
witnesses or offer evidence in support of their position in
rebuttal. Furthermore, during the hearings, they neither
challenged Mr. Rakestraw's qualifications to testify on noise and
sound, nor offered any contradictory expert evidence. Although petitioners presented evidence about the adverse
effects of sound, we conclude that there was substantial evidence
on which the Board could base its findings of fact and conclusions
of law regarding the effect of the noise generated by the proposed
go-cart track on the surrounding community. Even if the evidence
in the record would have supported contrary findings and
conclusions, this Court will not substitute its judgment for that
of the Board where there is substantial evidence to support the
Board's decision.
[3] In their final argument, petitioners contend that the
findings of fact and conclusions of law made by the Board, and
affirmed by the court, are arbitrary and capricious. We disagree.
The arbitrary or capricious standard is a difficult one
to meet. Administrative agency decisions may be reversed
as arbitrary or capricious if they are patently in bad
faith or whimsical in the sense that they indicate a lack
of fair and careful consideration or fail to indicate []
any course of reasoning and the exercise of judgment.
Mann, 356 N.C. at 16, 565 S.E.2d at 19 (internal citations and
quotation marks omitted). Petitioners assert that the Board's
decision was whimsical and lacked fair and careful consideration.
We use the whole record test to determine whether a Board's
decision is arbitrary or capricious. CG&T Corp. v. Bd. of
Adjustment of Wilmington, 105 N.C. App. 32, 411 S.E.2d 655 (1992).
Our review of the whole record here does not indicate that the
Board's decision was whimsical or lacked fair and careful
consideration. As such, we overrule this assignment of error.
Affirmed.
Judges WYNN and STEELMAN concur.
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