An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1004


Filed: 5 July 2005

    v.                    Moore County
                            No.03 CVS 0495

    Appeal by petitioner from judgment filed 13 May 2004 by Judge Clarence E. Horton, Jr., in Moore County Superior Court. Heard in the Court of Appeals 23 March 2005.

    Gill & Tobias, LLP, by Douglas R. Gill, for petitioner- appellant.

    The Brough Law Firm, by William C. Morgan, Jr., for respondent-appellees.

    BRYANT, Judge.

    James Kirkpatrick (petitioner) appeals from a judgment filed 13 May 2004 affirming the Town of Aberdeen Board of Commissioners' (respondents') denial of his request for a conditional use permit to build a mini-storage facility in the Aberdeen Business Park (business park).
    Petitioner owns property located along N.C. Highway 5 inAberdeen, North Carolina. The property is zoned Highway Commercial (HC) and is within the Town of Aberdeen's Highway Corridor Overlay District (HCOD). On 25 November 2002, on behalf of petitioner, Mr. C. Brad Brodie (Brodie), the project developer, submitted an application to the Town of Aberdeen planning department for a conditional use permit. The application requested a permit to construct a mini-storage warehouse facility on the property, located within the HCOD's business park. In addition to the written application, petitioner submitted a general site plan depicting the layout of the project and the plan for the basic appearance of the proposed mini-storage buildings. On 19 December 2002, the Town of Aberdeen Planning Board reviewed petitioner's application and recommended approval to the Board of Commissioners.
    On 13 January 2003, the Board of Commissioners conducted a public hearing during a regularly scheduled meeting and heard testimony from several witnesses regarding the project. At the 13 January 2003 hearing, Brodie testified on behalf of petitioner. Brodie, showing a drawing of the project, stated he planned to build a high-end storage facility with alarms, video surveillance, and climate control. He stated he routinely had to get special permits to build mini-storage facilities and had built three similar facilities in South Carolina and offered to submit further information once he returned to his office. Brodie estimated thecost of this project to be $2.3 million. A property owner adjacent to the project stated he had intended to build a mini-storage facility in that location, but decided to purchase property elsewhere. A professional planner, Robert Hayter, testified that petitioner failed to address how the mini-storage facility would impact setbacks, landscaping, fences, buffers, signage, lighting, storm water controls and drainage and that petitioner's proposed driveways were 60 feet wide rather than 36 feet as regulated by the HCOD. Pat Corso, president of Pinehurst, Inc., testified he had already invested $4 million in a resort community he planned to build which he would discontinue if mini-storage units would be across the road from his development. Finally, Andy and Juanita Auman testified. The Auman's had owned property adjacent to the proposed site of the mini-storage facility for fifty-four years and claimed such development would decrease the value of their property.
    On 20 March 2003, the Board of Commissioners held a special meeting to discuss petitioner's application which included concerns about: property values, the use and enjoyment of surrounding properties, the lack of appropriate setbacks when Highway 5 is widened, and the effect the project would have on the orderly development of the Highway 5 corridor. Brodie, on behalf of petitioner, was present at this meeting. After deliberations, theBoard of Commissioners voted unanimously to deny petitioner's conditional use permit.
    On 11 April 2003, petitioner filed a writ of certiorari in Moore County Civil Superior Court. At the hearing on 10 November 2003, Judge Clarence E. Horton, Jr. was presented with the following: petitioner's application, minutes from December 2002 to April 2003 of the Town of Aberdeen Planning Board and the Board of Commissioners' meetings, notice of the special meeting on 20 March 2003, and the 14 April 2003 Board of Commissioners' written findings and denial of petitioner's request for conditional use permit. In an order filed 13 May 2004, the trial court affirmed the Town of Aberdeen's denial of petitioner's request for a conditional use permit. Petitioner appeals.

    On appeal, the dispositive issue is whether the trial court erred in affirming the respondents' denial of petitioner's request for a conditional use permit based on insufficient evidence presented by petitioner pursuant to § 155.085 of the Town of Aberdeen Ordinance (Ordinance).
    North Carolina law authorizes the Town of Aberdeen to establish ordinances: “[f]or the purpose of promoting health, safety, morals, or the general welfare of the community, any city may regulate and . . . may issue special use permits or conditionaluse permits in the classes of cases or situations and in accordance with the principles, conditions, safeguards, and procedures specified therein . . . .” N.C. Gen. Stat. § 160A-381(a) (2003). The Town of Aberdeen Ordinance (§§ 155.080 - 155.086) requires approval ultimately by the Board of Commissioners prior to the issuance of a conditional use permit. The Ordinance allows the Planning Board to make recommendations regarding conditional use permits pursuant to § 155.085 “Standard Required for Recommendation of Conditional Use”:
        No conditional use shall be recommended by the Planning Board unless such Board shall find: (A) That the establishment, maintenance, or operation of the conditional use will not be detrimental to or endanger the public health, safety, morals, comfort, or general welfare; (B) That the conditional use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted or substantially diminish and impair property values within the neighborhood; (C) That the establishment of the conditional use will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district; (D) That the exterior architectural appeal and functional plan of any proposed structure will not be so at variance with either the exterior architectural appeal and functional plan of the structures already constructed or in the course of construction in the immediate neighborhood or the character of theapplicable district as to cause a substantial depreciation in the property values within the neighborhood; (E) That adequate utilities, access roads, drainage and/or necessary facilities have been or are being provided; (F) That adequate measures have been or will be taken to provide ingress and egress so designed as to minimize traffic congestion in the public streets; and (G) That the conditional use shall, in all other respects, conform to the applicable regulations of the district in which it is located except as such regulations may in each instance be modified by the Board of Commissioners pursuant to the recommendation of the Planning Board.

Town of Aberdeen Ordinance § 155.085. Under this Ordinance, the Planning Board makes a non-binding recommendation to the Board of Commissioners who then hold a quasi-judicial hearing to determine whether a conditional use permit may be issued.
Standard of Review
    Our appellate review of a decision for application of a conditional use permit made by a town board sitting as a quasi-judicial body 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-examinewitnesses, 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.

Coastal Ready-Mix Concrete Co. v. Bd. of Comm'rs, 299 N.C. 620, 626, 265 S.E.2d 379, 383 (1980).
    The standard of review depends on the nature of the error of which the petitioner complains. If the petitioner complains that the board's decision was based on an error of law, the superior court should conduct a de novo review. C.C. & J. Enters., Inc. v. City of Asheville, 132 N.C. App. 550, 552, 512 S.E.2d 766, 769 (1999). If the petitioner complains that the decision was not supported by the evidence or was arbitrary and capricious, the superior court should apply the whole record test. Id. The whole record test requires that the trial court examine all competent evidence to determine whether the decision was supported by substantial evidence. N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 672, 599 S.E.2d 888, 902 (2004) (citations omitted). The board's decision must be affirmed even if one of the reasons articulated for the denial is supported by competent, material and substantial evidence. Jennewein v. City Council of Wilmington, 62 N.C. App. 89, 93-94, 302 S.E.2d 7, 10 (1983). Thewhole record test does not allow us to replace respondent's judgment as between two reasonably conflicting views, but we must take into account both the evidence which justifies the respondent's result and the contradictory evidence in determining whether the respondent's decision was supported by competent, material and substantial evidence. Thompson v. Wake County Bd. of Educ., 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977).
    In sum, petitioner's writ of certiorari alleges the Board of Commissioners lacked the evidentiary basis to make the findings necessary to grant the permit, and such denial was arbitrary and capricious. Because we find the trial court properly used the whole record test to review respondents' decision, we now review whether the application of the whole record test in examining the denial of petitioner's application was proper.
    Petitioner, without citing to legal authority, contends he is entitled to a conditional use permit based on having received an initial recommendation by the Town of Aberdeen Planning Board to grant petitioner's application. As noted by the trial court's findings of fact, the Board of Commissioners “is the permit issuing authority responsible for determining whether a requested conditional use permit should be issued” and “Section 155.085 of the Ordinance requires that [seven] criteria be shown in order fora conditional use permit to be issued.”
    It is well settled that an applicant has the initial burden of showing compliance with the standards and conditions required by the ordinance for the issuance of a conditional use permit. SBA, Inc. v. City of Asheville City Council, 141 N.C. App. 19, 539 S.E.2d 18 (2000) (affirmed denial of conditional use permit because respondent's findings were supported by sufficient evidence that a reasonable person could find adequate to support the conclusion that petitioners failed to meet all requirements necessary for a conditional use permit); Hopkins v. Nash County, 149 N.C. App. 446, 560 S.E.2d 592 (2002)(affirmed denial of permit where trial court properly concluded the board presented competent evidence to sustain its burden of showing the proposed use would not have been in harmony with the surrounding area).
    Petitioner argues he satisfied his burden because the Planning Board recommended approving his application to the Board of Commissioners. However, the trial court concluded, and we agree, that “[o]btaining a favorable recommendation from the Planning Board does not establish a prima facie case for issuance of a conditional use permit. An applicant still has the burden of producing competent, material, and substantial evidence to support his application at the Public Hearing.” Because petitioner failed to make the necessary evidentiary showing to the Board ofCommissioners, he is not entitled to a conditional use permit from respondents. This assignment of error is overruled.
Arbitrary and Capricious
    Petitioner argues the respondents' decision was arbitrary and capricious because it failed to state the basis for its conclusion in denying the petitioner's request for a conditional use permit. We disagree.
    “Denial of a conditional use permit must be based upon findings which are supported by competent, material, and substantial evidence appearing in the record.” Howard v. City of Kinston, 148 N.C. App. 238, 246, 558 S.E.2d 221, 227 (2002). Such denial is arbitrary and capricious if “it clearly evinces a lack of fair and careful consideration or want of impartial, reasoned decision making.” Vulcan Materials Co. v. Guilford County Bd. of County Comm'rs, 115 N.C. App. 319, 324, 444 S.E.2d 639, 643 (1994) (quotation omitted). Here, the Board of Commissioners reviewed petitioner's application, conducted public hearings, and discussed the impact petitioner's proposed land use would have on the Town of Aberdeen collectively, including the property owners adjacent to petitioner's land and the various developers. Respondents issued findings supported by competent evidence and stated the several ways petitioner's application failed to meet the criteria for issuance of a conditional use permit. Respondents concluded theproject would adversely impact three areas of concern as set out in the Town of Aberdeen Ordinance: the value of the adjoining property; the normal and orderly development of the surrounding property for uses already permitted; and access by necessary facilities. After careful consideration and review of the record, we find respondents' denial of petitioner's application for a conditional use permit was supported by reason and not arbitrary or capricious. See JWL Invs., Inc. v. Guilford County Bd. of Adjustment, 133 N.C. App. 426, 432, 515 S.E.2d 715, 719 (1999) (trial court properly concluded board decision was not arbitrary or capricious where board's decision was based on substantial evidence). This assignment of error is overruled.
    Judges MCGEE and STEELMAN concur.
    Report per Rule 30(e).

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