ELLIS Y. COLEMAN, d/b/a EYC COMPANIES and H. TATE MCKEE TRUST,
Plaintiffs/Petitioners, v. TOWN OF HILLSBOROUGH, and TOWN OF
HILLSBOROUGH BOARD OF COMMISSIONERS, Defendants/Respondents
1. Zoning_special use permit_protest petitions_not timely_supermajority vote not
needed
The trial court did not err by granting summary judgment for petitioners, who were denied
a special use permit for a retirement community. The Planning Board mistakenly thought a
supermajority was necessary for the permit because the Planning Director applied a mistaken
deadline for protest petitions (which must be filed two working days before the zoning hearing),
and did not adequately determine and document that the required threshold of protest petitions
had been met.
2. Zoning_special use permit_retirement community--mistakenly denied
The trial court did not err by ordering a Town Board to issue a special use permit where
the permit had been denied based on a mistaken deadline for protest petitions which resulted in
the mistaken belief that a supermajority was required.
3. Zoning_special use permit_invalid denial_issuance ordered
It was appropriate for the trial court to order the issuance of a special use permit without
remanding the issue to the Town Board for further findings where the sole basis set forth for the
Board's denial was determined to be invalid.
4. Appeal and Error_preservation of issues_lack of cited authority
The lack of cited authority meant abandonment of an argument that the court abused its
discretion in denying the Town's motion for relief under Rules 59 and 60 of the Rules of Civil
Procedure. Moreover, the evidence upon which the motion was based was readily available
through due diligence.
JACKSON, Judge.
Appellant, Town of Hillsborough appeals from an order granting
summary judgment to appellees, Ellis Coleman, d/b/a EYC Companies
and H. Tate McKee Trust (collectively “EYC”) entered 25 June 2004
in Orange County Superior Court.
Appellants, Town of Hillsborough and Town of Hillsborough
Board of Commissioners, (“the Town Board”), both appeal from an
Order Granting Special Use Permit to appellees, Ellis Coleman,
d/b/a EYC Companies and H. Tate McKee Trust (collectively “EYC”)
entered 25 June 2004 in Orange County Superior Court.
Collectively, appellants Town of Hillsborough and Town of
Hillsborough Board of Commissioners are denominated as “The Town”.
EYC submitted a re-zoning application, a special use permit
(“SUP”) application and a major subdivision preliminary plan
application to the Town. EYC sought to have an approximately forty
(40) acre parcel of land outside the Hillsborough town limits, but
within its extraterritorial zoning jurisdiction, re-zoned from R-20
to mixed residential special use (“MRSU”) in order to develop it
into a retirement community. EYC's applications were placed on the
agenda for the 22 October 2002 joint Town Board and Town Planning
Board public hearing. The required notice of the public hearing
was published and written notice was mailed to the owners - asdetermined by the County tax records - of property within 500 feet
of the property in question on 8 October 2002.
The written notice sent to adjacent property owners was a
standard notice used by the Town Planning Director for all re-
zoning applications. The notice provided no deadline for filing a
valid statutory protest petition nor any other information
regarding protest petitions other than to contact the Planning
Department for information. EYC's applications proposed that the
development would consist of seventy (70) detached, single-family
homes; thirty-five (35) town homes; 144 apartments, and seventy-two
(72) assisted care units. The notice contained a summary of the
proposed development consistent with these numbers. Various
protest petitions were received on or before Friday, 18 October
2002.
The Town Planning Director, Margaret Hauth (“Hauth”), reviewed
the petitions and determined that they were signed by owners of
more than twenty percent (20%) of the property within 100 feet of
the subject property. Hauth did not, however, document how she
calculated the percentage of the surrounding land represented by
the petitions, how she determined the validity of the protest
petitions, nor did she record the date or time of their filing.
(See footnote 1)
At the 22 October meeting, EYC presented its proposal and
several of the landowners in the area of the proposed development,including some who had signed petitions, spoke in opposition to the
proposed changes. Areas of concern raised at the meeting included
the size of the buffer, density of the development, traffic and the
height of the proposed buildings. The meeting closed without a
decision from the board. Discussions between EYC, the Town and the
concerned neighbors took place in the months following the meeting.
EYC redesigned the project in an effort to address the concerns
regarding the project expressed by the Town and the neighbors.
When the redesign was completed, EYC filed a revised
application for re-zoning reflecting the changes made to the first
proposal. The second proposal had fewer units, reduced density,
and an altered buffer. All of these changes were intended to
address the concerns expressed by both the Town and the neighbors
regarding the first proposal. These changes included reducing the
number of units to seventy (70) detached homes and duplexes
combined, 102 apartments, and forty (40) assisted living units;
reducing the density by thirty-five percent (35%) (which would
result in reduced traffic); doubling the buffer; and eliminating
all three story buildings. Because of the changes, the new
proposal was scheduled to be addressed at a public hearing on 15
April 2003.
Hauth published a new notice of hearing and sent letters to
the required landowners. The notice provided information about the
changes contained in the new proposal. The notice also stated:
“There is an active protest petition on this project. If you
previously signed and are still opposed, no further action isrequired. If you want to add or remove your name, please contact
the Planning Department.” No new protest petitions were filed,
none of the previous petitions were withdrawn, and no one who
previously had filed a protest petition spoke against the project
at the second hearing. After the meeting, the Town Planning Board
voted to recommend approval of the second proposal and it was then
submitted to the Town Board.
The Town Board did not vote on the proposal until 13 October
2003. The Town Board then voted 3-2 in favor of approving the
revised proposal. The SUP also received a 3-2 vote in favor of
approval. Due to the protest petitions that had been filed
regarding the original proposal, the Board members believed that a
super-majority vote was required to approve the re-zoning request
and therefore determined that the request had not been approved.
After being advised by the county attorney that the property first
must have been re-zoned before the SUP could be allowed, the board
re-voted on the SUP and voted 4-1 against it. This re-vote was
based solely on the belief that the re-zoning request had not been
granted.
EYC appealed the denial of the re-zoning request and SUP
application to the Superior Court of Orange County on the basis
that the protest petitions requiring the re-zoning to be approved
by a super-majority vote were invalid. Both EYC and the Town filed
motions for summary judgment. EYC's motion was granted and the
Town's denied. The court then reversed the denial of the SUP anddirected the Town to issue the SUP. The Town timely filed notice
of appeal.
The Town argues on appeal that the trial court erred in
granting EYC's motion for summary judgment on the grounds that
valid protest petitions had been filed and, therefore, a simple
majority vote of the Town Board was insufficient for approval of
the re-zoning request; erred in ordering the Town Board to issue
the SUP rather than remanding the SUP issue to the Town Board for
consideration in light of the trial court's holding on the re-
zoning petition; and the trial court abused its discretion by
denying its Rule 59 and 60 motions.
[1] The Town first argues that the trial court erred in
granting EYC's motion for summary judgment. It is well established
that “[t]he standard of review on appeal from the granting of a
motion for summary judgment is whether there is any genuine issue
of material fact and whether the moving party is entitled to
judgment as a matter of law.” Draughon v. Harnett County Bd. of
Educ., 158 N.C. App. 705, 707, 582 S.E.2d 343, 345 (2003) aff'd,
358 N.C. 137, 591 S.E.2d 520, reh'g denied, 358 N.C. 381, 597
S.E.2d 129 (2004). The burden of showing that there exists no
genuine issue of material fact falls on the moving party. Id. at
708, 582 S.E.2d at 345.
In the case sub judice, the determinative issue to be resolved
was whether the documents upon which Hauth based her determination
that the owners of over twenty percent (20%) of the adjacent land
had signed protest petitions were valid. In support of its motionfor summary judgment EYC submitted the depositions of Hauth, Ellis
Y. Coleman, and Mary Beerman. The Town filed a cross-motion for
summary judgment supported by the pleadings, the record of a
companion certiorari case, the affidavit of Hauth, and the same
supporting documents submitted by EYC in support of its motion.
In re-zoning proceedings, the municipality has “an affirmative
duty to determine the sufficiency, timeliness, and percentage of
the protests” to impose the super-majority vote provided for by
North Carolina General Statutes section 160A-385(a) (2003). Unruh
v. Asheville, 97 N.C. App. 287, 290, 388 S.E.2d 235, 237 (1990).
Without an adequate determination of those factors it cannot be
presumed that the municipality complied with the requirements for
a valid action on the subject re-zoning proceeding. Id.; see
Morris Communications v. City of Asheville, 356 N.C. 103, 111-12,
565 S.E.2d 70, 75-76 (2002) (holding that “any and all portions” of
a city ordinance were “invalid” where the record demonstrated that
the City “conducted both an incomplete and inaccurate review of the
submitted petitions protesting the ordinance at issue[.]”). Zoning
regulation is in derogation of common law property rights and
therefore must be strictly construed to limit such derogation to
that intended by the regulation. Westminster Homes, Inc. v. Town
of Cary Zoning Bd. Of Adjustment, 354 N.C. 298, 304, 554 S.E.2d
634, 638 (2001) (citing Yancey v. Heafner, 268 N.C. 263, 266, 150
S.E.2d 440, 443 (1966)).
North Carolina General Statutes section 160A-386 provides that
no protest petition is valid “unless it shall have been received bythe city clerk in sufficient time to allow the city at least two
normal work days, excluding Saturdays, Sundays and legal holidays,
before the date established for a public hearing on the proposed
change or amendment to determine the sufficiency and accuracy of
the petition.” N.C. Gen. Stat. . 160A-386 (2003)(emphasis added).
Here, the initial hearing was scheduled for Tuesday, 22 October
2001 and therefore protest petitions must have been received two
working days before, not including, that date in order to be valid,
i.e., the petitions should have been received by the close of
business on Thursday, 17 October. Hauth's testimony is
unequivocal, however, that she believed the deadline to be 5:00
p.m. on Friday, the 18th, and that she considered valid any petition
filed prior to that time. Such an interpretation would allow only
one working day (Monday, October 21st) prior to the date of the
hearing, clearly in contravention of the statutory requirements.
Hauth's testimony also is clear that she failed to log in or record
the petitions as they were received and therefore was unable to
determine definitively which, if any, petitions were received prior
to the statutorily required deadline of close of business on
Thursday, 17 October 2002.
The Town argues that the purpose of the two working day
requirement is to ensure that the governing body has adequate time
to make the required determinations of sufficiency prior to the
hearing, and since Hauth claims that she was able to do so, the
potential untimeliness of the petitions should not be used to
invalidate them. As discussed infra, Hauth, in fact, did notadequately determine the sufficiency of the petitions prior to the
hearing. Further, to allow a governing body the discretion to
waive the two working day requirement could create a situation in
which there is unequal treatment under the law. This cannot be
allowed and therefore the Town lacked the authority to consider any
petitions that were not timely filed within the mandatory
parameters of North Carolina General Statutes section 160A-386.
The evidence before the trial court on the motion for summary
judgment also showed that, at the time of the first hearing, Hauth
lacked any documentation of the calculations she made to determine
whether the protest petitions met the twenty percent (20%)
threshold and that she failed to investigate the validity of
petitions signed by only one owner of co-owned properties.
Accordingly, the Town did not show that it had satisfied its
affirmative duty to determine the sufficiency of the protest
petitions that it received. Without a showing that the Town made
an adequate determination that the protest petitions were valid,
the legitimacy of the Town's actions regarding the re-zoning issue
cannot be presumed. Unruh, 97 N.C. App. at 290, 388 S.E.2d at 237.
Hauth's affidavit submitted by the Town in support of its
motion for summary judgment indicates that the petitions that were
filed were valid and represented more than twenty percent (20%) of
the adjacent property. This affidavit is irrelevant, however, as
those determinations were made subsequent to the hearing in
anticipation of the summary judgment proceedings and had not been
made in advance of the zoning hearing as required. The requirementthat petitions must be filed in such time as to allow the
municipality at least two normal work days prior to the date of the
hearing to allow the municipality to determine the sufficiency and
accuracy of the petitions clearly indicates that such
determinations must be made prior to such a hearing. Therefore,
this assignment of error is overruled.
[2] The Town next argues that the trial court erred in
ordering the Town Board to issue the special use permit. In
reviewing a town board's decision, the superior court must decide
whether the reasons for the denial were supported by competent,
material, and substantial evidence. Guilford Fin. Servs. v. City
of Brevard, 356 N.C. 655, 576 S.E.2d 325 (2003) (adopting dissent
of Tyson, Judge, 150 N.C. App. 1, 563 S.E.2d 27 (2002)). In the
case sub judice, the parties both agree that the sole reason given
by the Town Board for the denial of the SUP was that the re-zoning
application had been denied due to the lack of a super-majority
vote, and that, consequently, the proposed use was not a permitted
use under the R-20 zoning classification that remained in place.
As we have held already, the trial court was correct in its
determination that the protest petitions were invalid and
therefore, a super-majority vote of the Town Board was not required
for approval of the zoning change. Accordingly, because a simple
majority of the Town Board voted in favor of the zoning change, the
property in question had been re-zoned successfully from R-20 to
MRSU, a classification in which the proposed use was allowed. As
the property had been re-zoned from R-20 to MRSU, the use proposedby the SUP was permitted in the property's zoning classification
and the original vote in favor of approval was valid.
Consequently, the Town Board's denial of the SUP was not supported
by competent, material, and substantial evidence.
[3] The Town argues alternatively that the SUP properly should
be sent back for a new hearing because the Town Board failed to
consider the factors required for approval of a SUP under the
Town's zoning ordinance. The Town fails to consider the fact,
however, that the Board voted initially to approve the SUP by a
simple majority and only voted to deny it in the mistaken belief
that the re-zoning had not been approved and, therefore, the SUP
could not be approved.
The Town of Hillsborough Zoning Ordinance section 4.39,
contained in the Town Code, governs issuance of SUP's. Section
4.39 provides in relevant part:
4.39.1 Subject to 4.39.2, the Board of Commissioners
shall issue the requested permit unless it
concludes, based upon the information
submitted at the hearing that:
a) The requested permit is not within
its jurisdiction according to the
Table of Permissible Uses, or
b) The application is incomplete, or
c) If complete as proposed in the
application the development will not
comply with one or more requirements
of this chapter (not including those
the applicant is not required to
comply with under the circumstances
specified in Non-Conformities)
4.39.2 Even if the permit-issuing boards finds that
the application complies with all other
provisions of this chapter, it may still deny
the permit if it concludes, based upon theinformation submitted at the hearing, that if
completed as proposed, the development, more
probably that not:
a) Will materially endanger the public
health or safety, or
b) Will substantially injure the value
of adjoining or abutting property,
or
c) Will not be in harmony with the area
in which it is to be located, or
d) Will not be in general conformity
with the land-use plan, thoroughfare
plan, or other plan officially
adopted by the council.
(Emphasis added.)
This ordinance clearly provides that a SUP shall be issued unless
the Town Board finds at least one of the enumerated reasons
provided in the ordinance for denying the SUP. Here, the sole
basis for the Town Board's denial of the SUP was that the proposed
use was not permitted in an R-20 Zoning District and, consequently,
did not meet the requirements of Zoning Ordinance Section 4.3(c)
and (d). Sections 4.3(c) and (d) require, respectively, that the
requested use not “substantially injure the value of contiguous
property . . .” and be “in compliance with the general plans for
the physical development of the Town . . ..” As we already have
determined, EYC's re-zoning request was granted and, accordingly,
the use proposed in the SUP was authorized in the new zoning
classification - MRSU. Consequently, the basis for the Town
Board's denial of the SUP was not valid.
As the Hillsborough Town Code requires issuance of a requested
SUP in the absence of findings by the Town Board of the existence
of any of the specifically enumerated bases for denial of such
permit, and the sole basis set forth for the Town Board's denial ofthe SUP has been determined to be invalid, it was appropriate for
the trial court to order the issuance of the SUP without remanding
the issue to the Town Board for further findings. Therefore this
assignment of error is overruled.
[4] The Town's final argument is that the trial court abused
its discretion in denying the Town's motion filed pursuant to Rules
59 and 60 of the North Carolina Rules of Civil Procedure. The Town
fails to provide any authority in support of this argument,
however. The Town simply makes the bare assertion that “it was an
abuse of the lower court's discretion to disregard Mr. Jones'
affidavit - which contained new information - and to deny the
motion.” Rule 28 of the North Carolina Rules of Appellate
Procedure requires that an appellant's brief contain an argument
which includes citations of the authorities upon which the
appellant relied. N.C.R. App. P. Rule 28(b)(6)(2005). Assignments
of error which are not supported by legal authority are deemed
abandoned. Pharmaresearch Corp. v. Mash, 163 N.C. App. 419, 428,
594 S.E.2d 148, 154, disc. review denied, 358 N.C. 733, 601 S.E.2d
858 (2004). Consequently, this assignment of error is deemed
abandoned.
Further, this assignment of error could not have succeeded
even if considered on the merits. Rules 59 and 60 provide for the
possibility of relief under limited circumstances, including when
there is newly discovered evidence that could not have been
discovered and produced at trial through the reasonable diligence
of the party seeking relief under one of these rules. N.C. Gen.Stat. . 1A-1, Rules 59 (a)(4) and 60(b)(2). In the instant case
the evidence upon which the requested relief is based was readily
available to the Town at trial through the exercise of reasonable
diligence. Consequently, the Town's motions pursuant to Rules 59
and 60 were properly denied.
Affirmed.
Judges TIMMONS-GOODSON and BRYANT concur.
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