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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
HABITAT FOR HUMANITY OF MOORE COUNTY, INC. v. BOARD OF
COMMISSIONERS OF THE TOWN OF PINEBLUFF
Filed: 18 December 2007
1. Zoning--conditional use permit--standing to contest
Habitat had a substantial interest affected by the Board of Commissioner's decision in a
conditional use permit case where there was testimony that Habitat had a contract to purchase the
property and the Commission found the application for the permit to be complete.
2. Zoning--conditional use permit--requirements of unified development ordinance--
prima facie harmony with area
The trial court did not err by reversing the Board of Commissioner's denial of a
conditional use permit where the Commissioners found that Habitat's plans met the requirements
of the unified development ordinance, which established a prima facie case of harmony with the
area. The fact that the proposed development has not already taken place is not sufficient to
rebut a prima facie showing of harmony.
3. Judges--orders--printed on law firm stationary
Lawyers are discouraged from submitting and judges from signing orders printed on
attorneys' ruled stationary bearing the name of the law firm, as this could call the impartiality of
the court into question.
Appeal by respondents from judgment entered 4 January 2007 by
Judge James M. Webb in Moore County Superior Court. Heard in the
Court of Appeals 30 October 2007.
Gill & Tobias, LLP, by Douglas R. Gill, for petitioner-
The Brough Law Firm, by William C. Morgan, Jr., for
Habitat of Moore County, Inc. (Habitat)'s conditional use
permit application was determined by the Board of Commissioners of
the Town of Pinebluff (Commissioners) to be complete, and it had
standing to appeal Commissioners' denial of the permit. Habitat'sproposed subdivision was in compliance with the zoning requirements
of Commissioners' Unified Development Ordinance, and there was
insufficient evidence to rebut the presumption of harmony with the
area. Thus, the trial court did not err in reversing
I. Factual Background
On 26 June 2006, petitioner Habitat submitted an application
for a conditional use permit (CUP) to develop a 75-lot
subdivision. The Planning Board for the Town of Pinebluff met on
27 July 2006 and recommended approval of the permit. A public
hearing was held on 17 August 2006 before respondents
Commissioners. At this hearing, Habitat's executive director
Elizabeth Cox (Cox) testified and was subjected to cross-
examination. Numerous adjacent and neighboring property owners
also testified. At its 21 September 2006 meeting, Commissioners
found Habitat's application to be complete. Commissioners further
found that the proposed development would meet the requirements of
the R-30 zoning under the Pinebluff Unified Development Ordinance
(the Pinebluff UDO). Commissioners then voted to deny the
Habitat filed a petition for writ of certiorari in Moore
County Superior Court on 16 October 2006. On that date, the trial
court entered an order granting the petition and directing that the
record of the proceedings be brought before the court. On 4
January 2007 Judge Webb entered an order reversing the decision ofCommissioners and remanding the matter back to Commissioners for
issuance of the CUP. Commissioners appeal.
 In their first argument, Commissioners contend that the
trial court erred by concluding that it had jurisdiction over the
parties and subject matter involved in this case. We disagree.
Standing is a necessary prerequisite to a court's proper
exercise of subject matter jurisdiction. Aubin v. Susi, 149 N.C.
App. 320, 324, 560 S.E.2d 875, 878 (2002) (citation omitted). As
the party invoking jurisdiction, plaintiffs have the burden of
establishing standing. Neuse River Found. v. Smithfield Foods, 155
N.C. App. 110, 113, 574 S.E.2d 48, 51 (2002) (citation omitted).
This Court in Street v. Smart Corp. defined standing as follows:
Standing refers to whether a party has a
sufficient stake in an otherwise justiciable
controversy such that he or she may properly
seek adjudication of the matter. . . . The
gist of standing is whether there is a
justiciable controversy being litigated among
adverse parties with substantial interest
affected so as to bring forth a clear
articulation of the issues before the court.
Street v. Smart Corp., 157 N.C. App. 303, 305-306, 578 S.E.2d 695,
698 (2003) (internal citations and quotations omitted).
Section 48 of Pinebluff's UDO governs who may submit zoning
permit applications, and states that:
Applications for zoning, special-use,
conditional-use, or sign permits or minor
subdivision plat approval will be accepted
only from persons having the legal authority
to take action in accordance with the permit
or the minor subdivision plat approval. By
way of illustration, in general this means
that applications should be made by the ownersor lessees of the property, or their agents,
or persons who have contracted to purchase
property contingent upon their ability to
acquire the necessary permits under this
ordinance, or the agents of such persons. . .
The section further states:
The administrator may require an applicant to
submit evidence of his authority to submit the
application in accordance with the Subsection
(a) whenever there appears to be a reasonable
basis for questioning this authority.
Commissioners argue that, since Habitat was not the owner of
the property, and since it did not present a contract showing a
purchase agreement contingent upon the approval of the CUP, Habitat
had no stake in the matter and therefore did not have standing.
This is not correct. Section 48 clearly indicates that a party
need not be the owner of the property in order to submit an
application. Moreover, an affirmative showing of a contract to
purchase the land is unnecessary unless required by the
Cox testified at the 17 August 2006 public hearing that
Habitat had a contract to purchase the property. The Commissioners
did not request additional evidence of Habitat's authority to
submit the application, and instead found the application to be
complete. The application indicated that the purpose for applying
for the CUP was [t]o develop . . . 75 R-30 Habitat for Humanity
Although Commissioners correctly note that the property owner
did not sign the application, this is irrelevant in light of theirfinding that Habitat's application was complete. Further, the
record contains evidence that Habitat had an option to purchase the
property at the time it submitted the application.
Habitat had a substantial interest affected by
Commissioners' decision and it complied with the provisions of the
UDO in applying for a CUP. We hold that Habitat had standing in
this matter, and that the trial court correctly concluded that it
had jurisdiction over the parties and the subject matter. This
argument is without merit.
III. Trial Court's Conclusions of Law
 In their second argument, Commissioners contend that the
trial court erred in reversing their denial of the CUP.
Commissioners argue that their decision was supported by competent,
substantial, and material evidence, and was not arbitrary and
capricious. We disagree.
Article IV of Pinebluff's UDO governs Permits and Final Plat
Approvals. Section 54 of this article states that the permit
shall be issued unless (1) the requested permit is not within [the
town board's] jurisdiction according to the table of permissible
uses, (2) the application is incomplete, or (3) the proposed
development will not comply with one or more requirements of [the
UDO]. Further, subsection (d) states that:
Even if the permit-issuing board finds that
the application complies with all other
provisions of this chapter, it may still deny
the permit if it concludes . . . that if
completed as proposed, the development, more
probably than not:
(1) Will materially endanger the public
health or safety, or
(2) Will substantially injure the value of
adjoining or abutting property, or
(3) Will not be in harmony with the area in
which it is to be located, or
(4) Will not be in general conformity with
the land-use plan, thoroughfare plan, or
other plan officially adopted by the
Board of Commissioners.
Under North Carolina case law, where a use is included as a
conditional use in a particular zoning district, a prima facie case
of harmony with the area is established. Vulcan Materials Co. v.
Guilford County Bd. of County Comm'rs, 115 N.C. App. 319, 324, 444
S.E.2d 639, 643 (1994). Once this prima facie case is established,
Commissioners may still find that the use will not be in harmony
with the area only if there is competent, material, and substantial
evidence to support such a finding. Id.
At the 21 September 2006 meeting, Commissioners found that
Habitat's plans for its proposed development met the requirements
of the R-30 zoning in the UDO. Nevertheless, a motion was made and
passed by a 3-2 vote to deny the CUP on the grounds that:
[I]t will endanger the public health for the
following reasons. There has not been enough
of a traffic study. We do not know - there's
a question on whether or not the safety of the
citizens can be protected down there. . . I
also think that it will not be in harmony with
On appeal, Commissioners do not contend that Habitat's
proposed development would endanger public health or safety.
Instead, Commissioners only argue that there was competent,material, and substantial evidence in the record to support their
finding that the subdivision would not be in harmony with the area.
In support of their contention, Commissioners reference four
pieces of testimony from the 17 August 2006 public hearing which
they claim show clearly that the project would not be in harmony
with the area[.]
The first was from a woman expressing apprehension that her
property will be destroyed by trash dumping and riding four-
wheelers and things like that. The second was a speaker who
stated his concern about children in the proposed Habitat
development spooking his horses. The third was a speaker who
stated that we do not want a subdivision built in there.
Finally, the last piece of testimony cited by Commissioners is from
a neighboring landowner, whose land does not abut the proposed
Habitat development, stating [I]t would be a lot nicer obviously
if it went into five, ten-acre tracts or something like that.
After Habitat made its prima facie showing of harmony by
demonstrating the proposed development's conformity with the R-30
zoning requirements of the Pinebluff UDO, the burden was on the
opponents of the permit to show that the proposed development was
not in harmony with the area. The gist of the opponents' objection
is that they did not want the rural nature of their property to be
compromised by a subdivision. However, under North Carolina
jurisprudence, the fact that the proposed development in a CUP
application has not already taken place on land is insufficient to
rebut a prima facie showing of harmony. See Vulcan, 115 N.C. App.319, 444 S.E.2d 639. Thus, to the extent that the objections to
the proposed development centered on the fact that the land had not
already been developed, these objections were insufficient to rebut
Habitat's prima facie showing of harmony. No objections on any
other basis were made, and we agree with the trial court's
conclusion of law that there was insufficient evidence of a
competent, material and substantial nature to rebut Habitat's
showing of harmony with the area.
Because we affirm the trial court's order on the basis that
the Commissioners' decision was not supported by competent,
material, and substantial evidence, we need not address whether the
decision was arbitrary and capricious.
 We note that Judge Webb's order was printed, signed and
filed on the ruled stationery of Habitat's trial attorney. Without
deciding whether this practice violates either the Code of Judicial
Conduct or the Revised Rules of Professional Conduct, we strongly
discourage lawyers from submitting or judges from signing orders
printed on attorneys' ruled stationery bearing the name of the law
firm. Such orders could call into question the impartiality of the
trial court. In re T.M.H.
, 186 N.C. App. 451, ___ S.E.2d ___
Judges WYNN and GEER concur.
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