B. WILSON TAYLOR and
JOAN KOZAK NOEL,
Petitioners,
v
.
Craven County
No. 04 CVS 2193
TOWN OF RIVER BEND,
Respondent.
Jordan, Price, Wall, Gray, Jones & Carlton, by R. Frank Gray,
for petitioners-appellants.
Sumrell, Sugg, Carmichael, Hicks & Hart, P.A., by Jimmie B.
Hicks, Jr. for respondent-appellee.
ELMORE, Judge.
According to the Town of River Bend (the Town), a home with a
chassis, whether it be manufactured or modular, will be prohibited
from areas outside the Town's Manufactured Home Overlay District.
This appeal arises from the Town's decision that the home purchased
by petitioners is not a modular home, as they thought, but rather
a manufactured home, which is not permitted on the lot they
purchased.
On 21 June 2004 petitioners applied for a zoning permit to
place a residential building in the Norberry Estates subdivision ofthe Town. After reviewing the application, plans, and necessary
materials, the Town's Zoning Administrator issued the necessary
zoning permit on 28 June 2004. Petitioners then sought and
obtained a building permit from Craven County. Once these permits
were issued, petitioners purchased lot 49 in Norberry Estates.
They also purchased a modular home from Horton Homes.
(See footnote 1)
According
to the Zoning Administrator, modular homes are permitted in
Norberry Estates, an area of the Town zoned R-15.
However, on 23 August 2004, when petitioners' home was
delivered to lot 49, the neighbors complained to the zoning office
that a mobile home, or manufactured home, was being delivered. The
Zoning Administrator went out that day and visually inspected the
home being delivered. He declared it to be a manufactured home,
and accordingly issued a stop work order that day. The next day he
revoked petitioners' zoning permit.
Petitioners appealed to the Town's Board of Adjustments (the
Board), and a hearing was conducted on 28 October 2004. The Board
determined the home was a manufactured home and was not permittedin Norberry Estates, since Norberry Estates is not part of the
Town's Manufactured Home Overlay District.
Petitioners then filed a writ of certiorari with the superior
court. That writ was granted, and a hearing was held on 10
February 2005. The superior court, in an appellate capacity,
concluded the Board made no errors of law in revoking petitioners'
permit and there was substantial evidence to support its decision.
Petitioners now appeal to this Court arguing that since the
Board's order is not supported by sufficient findings of fact and
its conclusions are erroneous, the superior court erred in
affirming the Board's decision.
The decision of the Town's Board must be based on competent,
material, and substantial evidence. Mann Media, Inc. v. Randolph
Cty. Planning Bd., 356 N.C. 1, 12, 565 S.E.2d 9, 17 (2002). If so,
the Board's “findings of fact and decisions based thereon are
final, subject to the right of the courts to review the record for
errors in law and to give relief against its orders which are
arbitrary, oppressive or attended with manifest abuse of
authority.” Id. (quoting Humble Oil & Ref. Co. v. Board of
Aldermen of Chapel Hill, 284 N.C. 458, 469, 202 S.E.2d 129, 137
(1974)). Accordingly then, “a reviewing superior court 'sits in
the posture of an appellate court' and 'does not review the
sufficiency of evidence presented to it but reviews that evidence
presented to the town board.'” Id. (quoting Coastal Ready-Mix
Concrete Co. v. Board of Comm'rs of Nags Head, 299 N.C. 620,626-27, 265 S.E.2d 379, 383 (1980)). In so doing, the superior
court must:
(1) Review[] the record for errors in law,
(2) Insur[e] that procedures specified by law
in both statute and ordinance are followed,
(3) Insur[e] that appropriate due process
rights of a petitioner are protected including
the right to offer evidence, cross-examine
witnesses, and inspect documents,
(4) Insur[e] that decisions of town boards are
supported by competent, material and
substantial evidence in the whole record, and
(5) Insur[e] that decisions are not arbitrary
and capricious.
Mann Media, 356 N.C. at 12-13, 565 S.E.2d at 17. The first three
inquiries involve questions of law to which the superior court
applies a de novo standard, while the fourth and fifth inquiries
are questions of fact requiring review under the whole record test.
See Ward v. Inscoe, 166 N.C. App. 586, 593, 603 S.E.2d 393, 398
(2004).
When this Court reviews a superior court's appellate review
order our scope 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.'” In
re Appeal of Willis, 129 N.C. App. 499, 501-02, 500 S.E.2d 723, 726
(1998) (applying review of agency decisions to that of municipal
bodies) (quoting ACT-UP Triangle v. Comm'n for Health Servs., 345
N.C. 699, 706, 483 S.E.2d 388, 392 (1997)).
As to the first step in our review, the petition for
certiorari alleged errors of law and the fact that the Board's
decision was arbitrary and capricious. Therefore, the superior
court was required to conduct both a de novo review and a wholerecord test. It's order affirming the Board's decision is
congruent with applying these principles. Consequently, we will
determine whether the court's application was proper. In so doing,
we apply the same principles of review the superior court did: de
novo for issues of law, procedure, and due process, and application
of the whole record test for issues of evidence and arbitrariness.
See Fantasy World, Inc. v. Greensboro Bd. of Adjust., 162 N.C. App.
603, 609, 592 S.E.2d 205, 209-10 (2004) (citing Coastal Ready-Mix
Concrete Co. v. Bd. of Comm'rs, 299 N.C. 620, 627, 265 S.E.2d 379,
383 (1980)). Equally similar to the superior court's review, we
must settle whether the evidence before the Town's Board supported
its order, not whether there was sufficient evidence before the
superior court. Ward, 166 N.C. App. at 593, 603 S.E.2d at 398.
For a reviewing court, the “whole record test” consists of
examining all competent evidence to assess whether the Board's
decision is supported by substantial evidence. Mann Media, 356
N.C. at 14 565 S.E.2d at 17-18 (internal quotations omitted).
“Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” ACT-UP
Triangle, 345 N.C. 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.' . . . Under the
whole record test, the Board's decision must
stand unless it is arbitrary and capricious.
Harding v. Board of Adjust. of Davie Cty., 170 N.C. App. 392, 396,
612 S.E.2d 431, 435 (2005) (internal citations omitted). But,
where errors of law are alleged, a de novo review allows the court
to consider those issues anew. Whiteco Outdoor Adver. v. Johnston
County Bd. of Adjust., 132 N.C. App. 465, 470, 513 S.E.2d 70, 74
(1999).
However, 'one of the functions of a Board of
Adjustment is to interpret local zoning
ordinances,' and respondent's interpretation
of its own ordinance is given deference. . . .
Therefore, 'our task on appeal is not to
decide whether another interpretation of the
ordinance might reasonably have been reached
by the board,' but to decide if the board
'acted arbitrarily, oppressively, manifestly
abused its authority, or committed an error of
law' in interpreting the ordinance. . . .
Id.
Here, petitioners and the Town entered into numerous
stipulations, including:
9. The zoning application and permit is for a
modular home.
10. The zoning application and permit does not
reference a manufactured home.
11. The real property is not in the Town's
Manufactured Home Overlay District.
12. The Zoning Ordinance does not prohibit the
construction of a modular home in the zoning
class R-15.
13. The structure contains the Department of
Insurance seal reflecting a modular home.
While these stipulations are obviously not in dispute, the
conclusions arising from them and the evidence presented are
contested. An important nuance here is the fact the Board does notdispute that pursuant to the state building codes petitioners' home
is a modular home. Petitioners argue that the home they purchased
is a modular home pursuant to the town's zoning ordinances;
however, the Board disagreed, adopting the Town's position that
petitioners' home is a manufactured one in light of zoning
requirements.
Section 143-145 of our General Statutes defines a manufactured
home as:
A structure, transportable in one or more
sections, which in the traveling mode is eight
body feet or more in width, or 40 body feet or
more in length, or, when erected on site, is
320 or more square feet; and which is built on
a permanent chassis and designed to be used as
a dwelling, with or without permanent
foundation when connected to the required
utilities, including the plumbing, heating,
air conditioning and electrical systems
contained therein.
N.C. Gen. Stat. § 143-145(7) (2005). The Town's definition of a
manufactured home references section 143-145, but also goes
considerably further in scope. The ordinance picks up at section
143-145's “therein” and adds:
and that satisfies all of the following
additional criteria:
(a) the manufactured home is a
multi-section home which has a
length not exceeding four times its
width . . .
(b) Contains a minimum of 1450
square feet of enclosed and heated
living area,
(c) the pitch of the roof has a
minimum vertical rise of three feet
for each twelve feet of horizontal
run . . .
(d) . . .
(e) the exterior siding consists of
materials comparable in composition,appearance and durability to the
exterior siding commonly used in
standard residential construction,
(f) the manufactured home . . . [is
installed with] a continuous masonry
foundation or masonry curtain wall .
. .
(g) . . . and
(h) the moving hitch, wheels and
axles and transporting lights have
been removed.
It is the intent of these criteria to insure
that a manufactured home, when installed,
shall have substantially the appearance of an
on-site conventionally built, single family
dwelling.
Homes, buildings, or structures that meet this definition are
limited to a manufactured home overlay district. There is no
dispute that this district does not encompass the lot petitioners
purchased. On the other hand, the Town's zoning ordinance defines
a “modular unit” as “[a] factory-fabricated, transportable building
designed to be used by itself or to be incorporated with similar
units at a building site into a modular structure.” Modular homes
may be built in any R-15 district, including petitioners' lot in
Norberry Estates.
Evidence before the Board consisted mainly of testimony by the
Town's Zoning Administrator Randy Beaman, who granted petitioners'
zoning application and then revoked it upon inspection of the home
as delivered to the lot. Mr. Beaman testified that the home was a
manufactured home; his opinion was based on the fact that the home
had a “fixed chassis.”
BEAMAN: I'm relying on the fact that upon
inspection of it, there were a fixed chassis .
. . . It is a multi-sectional home, but it
also is on a fixed chassis . . . . It arrivedon a fixed frame with chassis with wheels;
yes, sir, it did arrive.
BOARD MEMBER: (inaudible question)
BEAMAN: A fixed frame would be interpreted - -
my interpretation of a fixed frame would be
something that is permanently affixed to a
structure that cannot be removed or if it were
to be removed, then it very likely could
create difficulties for the structure.
Since the Town's definition of manufactured home is so
comprehensive, Mr. Beaman's testimony that petitioners' home
arrived on a fixed chassis provides competent and substantial
evidence that the home meets the definition of being a manufactured
home for zoning purposes. As conceded by the Town, petitioners'
home meets the fungible, unrestrictive zoning requirements as a
modular home as well, but due to its “fixed chassis” it is a
manufactured one. We can discern no arbitrary or capricious
reasoning in that decision.
Petitioners next argue that the Board erred in concluding they
must comply with the manufactured home zoning requirements since
their home is also modular. Their position is that if a structure
is both manufactured and modular, for zoning purposes, it should be
allowed in either district; however, the Town's position is it must
comply with the more restrictive zoning requirements of the two.
We see no error in this determination.
First, although section 143-139.1 allows the state to certify
by seal or label that a particular factory-built home meets all
necessary building codes without further inspection, it does not
foreclose inspection for zoning purposes. See N.C. Gen. Stat. §143-139.1(a) (2005) (“All building units, structures or components
bearing such labels or seals shall be deemed to meet the
requirements of the State Building Code and this Article without
further inspection or payment of fees, except as may be required
for the enforcement . . . of local ordinances governing
zoning[.]”). This is indeed the purpose of the seal on
petitioners' home, and the reason that it is a modular home and not
a manufactured home according to the building codes.
And, second, the Town's authority to regulate placement of
“manufactured” homes according to the most restrictive means is
permitted. The Town's general zoning authority arises from section
160A-381, and specifically from section 160A-383.1, which deals
with zoning for structures that are “manufactured homes.” Section
160A-383.1 restricts a local body from excluding manufactured
housing in its zoning jurisdiction. N.C. Gen. Stat. § 160A-
383.1(c) (2005). But it does permit that body to establish an
overlay district and adopt further “appearance and dimensional
criteria.” See N.C. Gen. Stat. § 160A-383.1(e) (2005) (“In
accordance with the city's comprehensive plan and based on local
housing needs, a city may designate a manufactured home overlay
district within a residential district.”); N.C. Gen. Stat. § 160A-
383.1(d) (2005) (“A city may adopt and enforce appearance and
dimensional criteria for manufactured homes.”). Further, section
160A-390 states that if a local ordinance creates more restrictive
standards than a statute in Chapter 160A, Article 19, Part III,
then the local ordinance controls. See N.C. Gen. Stat. § 160A-390(2005) (“When the provisions of any . . . local ordinance . . .
impose other higher standards than are required by the regulations
made under authority of this Part, the provisions of that . . .
local ordinance . . . shall govern.”).
As such, we see no error of law in the Board's determination
that since petitioners' home meets the Town's definition of a
manufactured home, notwithstanding also meeting other less
restrictive definitions, petitioners could be stopped from affixing
it to lot 49 in Norberry Estates. And since both state statute and
the Town's Zoning Ordinances allow the zoning administrator to
inspect work and ensure compliance with permits and zoning
regulations, we see no error in the Board's decision that the
revocation of petitioners' zoning permit was valid. See N.C. Gen.
Stat. §§ 160A-420_160A-422 (2005).
After reviewing petitioners' alleged legal and factual errors
arising from the Board's order under the appropriate standards of
review and determining that review was consistent with the superior
court's, we affirm the superior court's order affirming the Board's
order.
Affirmed.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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