An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-305

NORTH CAROLINA COURT OF APPEALS

Filed: 19 April 2005

TRINITY PRESBYTERIAN CHURCH,
INC. and MIDWEST VENTURE
PARTNERS, LLC,
    Petitioners

v .                         New Hanover County
                            No. 03 CVS 2156
CITY OF WILMINGTON, NORTH
CAROLINA, ACTING THROUGH ITS
CITY COUNCIL,
    Respondent

    Appeal by respondent from judgment entered 13 October 2003 by Judge Jay D. Hockenbury in New Hanover County Superior Court. Heard in the Court of Appeals 13 October 2004.

    Wessell & Raney, L.L.P., by John C. Wessell, III, for petitioner-appellees.

    City Attorney Thomas C. Pollard and Assistant City Attorney Delores M. Williams, for respondent-appellant.

    CALABRIA, Judge.

    The City of Wilmington, North Carolina, (“respondent”) appeals a trial court judgment ordering the City Council of Wilmington (the “city council”) to rezone a tract of land from an R-15 Residential District (“R-15”) to an Office and Institutional Special Use District (“O&I(SD)”) and to issue a special use permit for development of the tract as a Walgreen's pharmacy. We reverse.
    Trinity Presbyterian Church, Inc., (“Trinity”) owns a 2.88 acre tract of land located within the city limits of respondent. On 6 June 2002, Trinity and Midwest Venture Partners, LLC,(“Midwest”) (collectively “petitioners”) petitioned for the rezoning of a 1.68 acre portion of Trinity's 2.88 acre tract (the “proposed site”). The proposed site was under contract for sale to Midwest, and petitioners' application requested rezoning the proposed site from R-15 to O&I(SD). In addition, petitioners' application included a request for a special use permit to construct a Walgreen's pharmacy (the “Walgreen's”) on the proposed site.
    The proposed site is located on the southeast corner of the intersection of North Carolina Highway 132 (“Hwy. 132”), a four- lane, divided, major thoroughfare running north to south, and Waltmoor Road, a two-lane, residential road, which broadens to four through-lanes and turn-lanes at its intersection with the east side of Hwy. 132. Waltmoor Road acts as a “collector roadway” for several residential neighborhoods east of Hwy. 132. The Walgreen's development plan includes: (1) adding a fifth lane to Waltmoor Road so that eastbound traffic can decelerate and turn right into the Walgreen's parking lot and (2) the extension of the westbound left turn-lane eastward for left turns into the Walgreen's parking lot. Evidence in the record indicates development of the Walgreen's would not significantly impact traffic flow at the intersection of Waltmoor Road and Hwy. 132. On the west side of Hwy. 132 across from Waltmoor Road, South 17th Street, a four-lane highway, intersects with the west side of Hwy. 132.
    Trinity's remaining 1.2 acre tract (the “Trinity tract”) is south of the proposed site and would remain zoned R-15. The tractsouth of the Trinity tract is zoned Office and Institutional (“O&I”) and is the site of a private school. All tracts to the east of the proposed site are zoned R-15. A CVS pharmacy is located on the tract to the north, the northeast corner of Hwy. 132 and Waltmoor Road (the “CVS tract”) and is zoned O&I. All tracts east of the CVS tract are zoned R-15. Shopping centers and other commercial developments are located on the tracts to the west of the proposed site, across Hwy. 132 and to the north and south of South 17th Street, and are zoned either Community Business District (“CB”) or O&I(SD).
    On 4 June and again on 18 June 2002, the city council voted five to two to deny petitioners' rezoning application. After granting petitioners' writ of certiorari, the trial court remanded the case to the city council for a rehearing. Although the City of Wilmington Planning Commission recommended conditional approval, the city council again voted five to two to deny petitioners' application. Finally, on 20 May 2003, the city council issued an ordinance denying petitioners' rezoning application. The trial court granted petitioners' second writ of certiorari. In a judgment entered 13 October 2003, the trial court concluded the city council's decision was not supported by competent, material and substantial evidence in the whole record and was arbitrary and capricious. The trial court ordered the city council to rezone the proposed site from R-15 to O&I(SD) and issue petitioners a special use permit consistent with petitioners' application. Respondent appeals.    The zoning terms pertinent to this appeal are defined in respondent's zoning ordinance, Chapter 19 of the Wilmington City Code. Wilmington City Code § 19-18(a) defines R-15 as follows:
        This district is established for low density residential development and other compatible uses. Recognition of the existing residential development pattern located within the city and on its fringes creates a need for this district to preserve the character of these established neighborhoods and protect their associated property values. Land uses considered harmful to the health, safety and welfare of district residents shall be prohibited from infringing upon the livability of the residential areas within the district.

Under Wilmington City Code § 19-28(a), O&I is defined as follows:
        This district is established to provide sufficient land area for the business, office, governmental and institutional needs of the community. It functions as a transitional land use between intensive commercial and industrial uses, and residential development. The district is also designed to reduce the intensity of development along thoroughfares between commercial clusters.

Wilmington City Code § 19-120(a) states, “The purpose of the special use district is to provide an alternative zoning procedure for a specified use or uses as opposed to a general zoning district designation, which permits a broad range of uses.” Wilmington City Code § 19-95 states the purpose of special use permits as follows:
        Special use permits add flexibility to the zoning ordinance. Subject to high standards of planning and design, certain property uses may be allowed in several districts where these uses would not otherwise be acceptable. By means of controls exercised through the special use permit procedures, property uses which would otherwise be undesirable in certain districts can be developed to minimize any adverse effects they might have on surrounding properties.
    This Court determined in Gossett v. City of Wilmington, 124 N.C. App. 777, 779, 478 S.E.2d 648, 649 (1996), under the Wilmington City Charter, proceedings for special use district zoning are quasi-judicial and subject to judicial review by writ of certiorari, with the trial court sitting as an appellate court.   (See footnote 1)  Accordingly, the trial court's scope and standard of review involves:
        1) Reviewing the record for errors in law,
        2) Insuring that procedures specified by law by 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.

Abernethy v. Town of Boone Bd. of Adjustment, 109 N.C. App. 459, 462, 427 S.E.2d 875, 876-77 (1993). “If a petitioner contends the Board's decision was based on an error of law, 'de novo' review is proper. However, if the petitioner contends the Board's decision was not supported by the evidence or was arbitrary and capricious, then the reviewing court must apply the 'whole record' test.” JWL Invs., Inc. v. Guilford County Bd. of Adjust., 133 N.C. App. 426, 429, 515 S.E.2d 715, 717 (1999) (citation omitted). As with any civil case, the role of this Court “is to review the trial court'sorder for errors of law . . . .” Coffey v. Town of Waynesville, 143 N.C. App. 624, 630, 547 S.E.2d 132, 136 (2001). This Court's review “has been described as a two-fold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.” Id.
    
Initially, we note the trial court appropriately applied the “whole record” test. However, the city council asserts and we agree that the trial court erred by failing to apply the “whole record” test properly to the city council's decision to deny petitioners' rezoning application. “[U]nder the 'whole record' test, . . . [a court is required] to examine all competent evidence in the record . . . to determine if the [city council's] decision was supported by [competent, material and] substantial evidence.” Brooks v. Ansco & Associates, 114 N.C. App. 711, 716, 443 S.E.2d 89, 92 (1994) (citations omitted). The “whole record test does not allow [a court] to replace the city council's judgment as between two reasonably conflicting views, but [requires the court to] take into account both the evidence which justifies the city council's result and the contradictory evidence in determining whether the city council's decision was supported by competent, material and substantial evidence.” Jennewein v. City Council of Wilmington, 62 N.C. App. 89, 93, 302 S.E.2d 7, 9 (1983). Competent evidence is generally defined as evidence that is “admissible (i.e. relevant and material) as opposed to 'incompetent' or 'inadmissible' evidence.” Black's Law Dictionary 284 (6th ed. 1990). Materialevidence is defined as “[t]hat quality of evidence which tends to influence the trier of fact because of its logical connection with the issue.” Black's Law Dictionary 976 (6th ed. 1990). “Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” SBA, Inc. v. City of Asheville City Council, 141 N.C. App. 19, 26, 539 S.E.2d 18, 22 (2000) (citation omitted).
    Before reviewing the application of the “whole record” test in the instant case, we deem it necessary to determine the factors the city council is required to consider when reclassifying a tract from a general use district to a special use district. Regarding review and approval of a special use district application, Wilmington City Code § 19-124 states in pertinent part:
        (b) A properly submitted application for a special use district incorporates a petition for rezoning and an application for a special use permit into one proceeding and thus constitutes special use district proceedings.
        (c) No rezoning to a special use district shall be approved unless a special use permit is also approved for use or uses specified.

Therefore, regardless of other factors the city council may consider, the city council must consider the factors necessary for granting a special use permit when considering whether to grant a special use district rezoning application. Under Wilmington City Code § 19-100(b)(6), the city council must find the existence of four factors before granting a special use permit:
        a.    That the use will not materially endanger the public health or safety if located where proposed and developed according to the plan submitted . . . ;        b.    That the use meets all required conditions and specifications;
        c.    That the use will not substantially injure the value of adjoining or abutting property, or that the use is a public necessity; and
        d.    That the location and character of the use if developed according to the plan as submitted and approved will be in harmony with the area in which it is to be located and in general conformity with the land use plan and its policies for growth and development as applicable to the City of Wilmington.

When applying the “whole record” test, if competent, material and substantial evidence in the record supports the city council's conclusion that any one of these four factors is lacking, the city council's decision must be affirmed. Jennewein, 62 N.C. App. at 93, 302 S.E.2d at 9.
    The trial court concluded, and we agree, that the city council's conclusions “e” and “f” were not supported by competent, material and substantial evidence. Conclusion “e” states, “The rezoning of the property will create conflicting vehicular movements . . . and increase congestion” on Waltmoor Road. Conclusion “f” states, “The rezoning of the property . . . [is] not in the interest of public health, safety and welfare.” The traffic flow studies in the record indicate rezoning the tract would not significantly impact traffic flow at the intersection of Waltmoor Road and Hwy. 132. The only conflicting evidence consisted of anecdotal testimony from adjoining property owners concerning the negative impact on traffic flow of rezoning and did not constitute competent, material and substantial evidence. Refining Co. v. Board of Aldermen, 284 N.C. 458, 469, 202 S.E.2d 129, 136 (1974). Therefore, with respect to the traffic issue, petitioners made a prima facie showing that the proposed use would not endanger the public health, safety, or welfare. Accordingly, the trial court properly concluded that this portion of the city council's decision was arbitrary and capricious.
    However, we disagree with the trial court's conclusion that the city council's finding of fact twenty-five and conclusion “i” were not supported by competent, material and substantial evidence in the record. Finding of fact twenty-five states, “The east side of [Hwy. 132] is predominantly residential in character. The west side of [Hwy. 132] at its intersection with South 17th Street was planned and developed for commercial purposes.” In pertinent part, conclusion “i” states:
        Based on the evidence presented, the rezoning is not appropriate because a special use permit cannot be issued because the proposed use does not meet all the requirements of Article IX, Section 19-100(b)(6) of the City Zoning Ordinance. [Specifically,] . . . the location and character of the use if developed according to the plan as submitted will not be in harmony with the area in which it is to be located.

    Evidence in the record shows that a church is located on the proposed site now zoned R-15, and a church is a type of use that is characteristic of and is allowed in residentially zoned areas by special use permit under Wilmington City Code § 19-38(c), respondent's zoning ordinance “Table of uses.” A private school is located on the tract south of the church. Although the school is zoned O&I, this use is also one which is characteristic of and allowed in residentially zoned areas by special use permit underWilmington City Code § 19-38(c). All tracts east of the proposed site and south of the private school are zoned R-15. A CVS pharmacy is located across Waltmoor Road on the tract north of the proposed site and is zoned O&I. All tracts east of the CVS pharmacy are zoned R-15. Across Hwy. 132, the zoning plan for all tracts west of the proposed site can be classified as CB or O&I(SD). Although, two tracts east of Hwy. 132 are zoned O&I rather than R-15, only the CVS tract is not developed with a use characteristic for a residential district. Therefore, the record contains competent, material and substantial evidence that the east side of Hwy. 132, particularly the southeast quadrant of the intersection of Hwy. 132 and Waltmoor Road, is predominantly residential in character, and the west side of Hwy. 132 is developed for commercial purposes.
    Additionally, evidence in the record shows that the development of the proposed site for use as a Walgreen's pharmacy would include: (1) widening Waltmoor Road for the addition of a fifth lane for eastbound traffic to decelerate and turn right into the Walgreen's parking lot and (2) the extension eastward of the westbound left turn-lane partially into the residential neighborhood for left turns into the Walgreen's parking lot. Although evidence in the record indicates the changes needed to develop the Walgreen's pharmacy would not significantly impact traffic flow at the intersection of Waltmoor Road and Hwy. 132, these changes would create a five lane entrance and exit at the endof a two-lane residential “collector roadway” and extend the westbound turn-lane eastward into the residential neighborhood.
    Although other evidence might reasonably support a conflicting view, given the evidence of the predominantly residential character of the eastern side of Hwy. 132 at the Waltmoor Road intersection, especially the intersection's southeast quadrant, and the road widening and extension accompanying the proposed development, a reasonable person might conclude based on the pertinent evidence, as did the city council, that the “location and character of the use if developed according to the plan as submitted will not be in harmony with the area in which it is to be located.” Therefore, the city council's decision to deny petitioners' rezoning application -- because the proposed development did not meet the fourth requirement for issuance of a special use permit -- was based on competent, material and substantial evidence and was neither arbitrary nor capricious. Having so held, we need not address respondent's remaining assignments of error.
    Reversed.
    Judges STEELMAN and GEER concur.
    Report per Rule 30(e).


Footnote: 1
     We note that effective May 2004 conditional district zoning, a legislative process, replaced Wilmington's special use district zoning. Act of Jun. 9, 2003, ch. 162, 2003 N.C. Sess. Laws 223-25; City of Wilmington, N.C., Ordinance AZOT-5-304 (18 May 2004). This change has no bearing on the instant case         .

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