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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-1013


Filed: 19 June 2007


v .                         Harnett County
                            No. 05 CVS 02036

    Appeal by Petitioners from order dated 4 May 2006, nunc pro tunc 24 April 2006, by Judge Franklin F. Lanier in Superior Court, Harnett County. Heard in the Court of Appeals 8 March 2007.

    Law Offices of James M. Johnson, by James M. Johnson, for Petitioners-Appellants.

    Harnett County Department of Legal Services, by Jennifer J. Slusser, for Respondent Harnett County Board of Adjustment and Bain, Buzzard & McRae, L.L.P., by David F. McRae, for Respondent Forest Ridge Subdivision, Inc.

    McGEE, Judge.

    The Harnett County Board of Adjustment (the Board) approved an application of Forest Ridge Subdivision, Inc. (Forest Ridge) for a conditional use permit on 10 October 2005. Petitioners sought review of the Board's decision in superior court. The trial court affirmed the Board's decision to grant Forest Ridge a conditionaluse permit on 4 May 2006, nunc pro tunc 24 April 2006. Petitioners appeal.
    Forest Ridge applied to the Board for a conditional use permit to develop a planned unit development (the development) on 120.4 acres of land (the tract). The tract is in a residential and agricultural zoning district, RA-20R, located off N.C. Highway 87. Previously, several phases of single family homes situated on one- acre lots had been developed on land adjoining the tract. Forest Ridge sought to develop the tract into 176 apartment units, 117 single family homes, twenty-one patio homes, and two condominium buildings with 200 units. Three open space areas totaling 17.2 acres were also included in the development.
    A public hearing was held on Forest Ridge's application on 10 October 2005. Kenneth Smith (Smith), a developer and one of the owners of Forest Ridge, testified in support of the application. Smith testified that his father began developing one-acre lots in Forest Ridge but stopped when he encountered issues with the installation of septic tanks. Smith testified that he intended to complete a joint venture with Harnett County to install a sewer line through the tract. Smith testified that the development would provide affordable and needed multi-family and single family units. He also testified that the development would "enhance the integrity of the area and the characteristics of the area and add value to the growing community."
    Smith stated that Forest Ridge had been in contact with the North Carolina Department of Transportation (DOT) regarding theentrance to the development. DOT indicated that the entrance would likely have to be expanded to include two lanes to exit the development and one lane to enter it. Smith noted that when the original lots were developed, N.C. Highway 87 was a two-lane road, but had recently been widened to a four-lane road by DOT. The entrance to the existing lots, Melody Lane, would be the only entrance into the development because the tract was surrounded by the Fort Bragg Military Reservation. Smith also testified that while the original plans had included apartments, Forest Ridge subsequently decided to develop that area into additional condominiums, instead. Smith also testified that Forest Ridge intended to bring Melody Lane up to DOT standards.
    Suzanne Pennink (Pennink), a realtor from Fayetteville, testified that she had been selling real estate for thirty years. She testified that, in her experience, the addition of a multi- family development into an existing neighborhood did not hurt the value of existing homes. Pennink believed the addition of a mixed use development improved the area by providing more "comparables" on which to base real estate prices. She knew of no similar development in Harnett County but was aware of several in Cumberland County.
    Steve Ward (Ward), of the Harnett County Public Utilities Department, testified that the tract was ideal for a pump station needed for a proposed sewer line. The proposed sewer line would serve Forest Ridge's new development, as well as the adjacent military housing unit on Fort Bragg. Ward testified that thefederal government had finalized plans to expand the military housing unit because of the limited land on Fort Bragg proper. From Ward's knowledge of the federal government's plans, the military housing would not be accessible to the general public; therefore, Forest Ridge's development would not be able to connect with the military housing unit to create an additional entrance or exit.
    Robert R. Williams, Sr. (Williams) spoke on behalf of Petitioners in opposition to Forest Ridge's application. Williams stated that the original standard for properties in the subdivision was single family homes with a minimum heated area of 1,800 square feet and a maximum of two-and-a-half stories. Williams testified that he believed the addition of condominiums, patio homes, and apartments would "jeopardize the integrity of the community by establishing three different and distinct type[s] of housing areas." He stated the development would change the rural character of the existing homes. Williams testified that Forest Ridge did not take into account the negative impacts the development would have on the ecology of the area. Williams also testified that the development would be detrimental to public health, morals, and welfare by straining emergency services, law enforcement, public schools, and landfill capacity. Additionally, he stated that the single entrance and exit on Melody Lane was insufficient to accommodate the increased population. Williams stated that Petitioners' opposition was not to the proposed single family residences, but to the apartments, patio homes, and condominiums onthe ground that "[t]hey bring in a certain element."
    In rebuttal, Smith testified that any permitting required by environmental regulations was not part of the preliminary plan submitted, and all actions taken would be filed with the North Carolina Department of Environment and Natural Resources. He also noted that Forest Ridge was not seeking the maximum density allowed in the zoning district.
    The Board made the following findings: (1) that the development would not impair the integrity of the surrounding area because it was "well designed [and] well laid out" and "fit[] in the overall category of the zoning . . . designed for this area[;]" (2) that the development requested by Forest Ridge would not be detrimental to the public health, morals, or welfare because the development was "quite comparable to the area[;]" (3) that adequate utilities, access roads, drainage, sanitation and necessary facilities have been made or would be provided because Forest Ridge was working with DOT and Harnett County agencies to provide adequate sanitation, road access, and other utilities needed to support the development; (4) that adequate measures would be taken to provide ingress and egress designed to minimize traffic congestion of public streets because DOT would be performing an impact study before any permits would be issued, and Forest Ridge agreed to bring Melody Lane up to DOT standards; and (5) that the use conformed to the regulations of the zoning district. The Board then unanimously approved Forest Ridge's conditional use application with the following conditions: (1) that Melody Lane bebrought up to DOT standards; (2) that the proposed public sewer line be installed; and (3) that Forest Ridge look at other possible means of egress.
    Petitioners filed a petition for writ of certiorari with the trial court on 8 November 2005. In an order filed 21 November 2005, the trial court granted the petition. Petitioners filed an amended petition for writ of certiorari on 8 February 2006, alleging, inter alia, (1) that the Board's findings were not supported by competent, substantial, and material evidence; (2) that the Board's decision to grant Forest Ridge's application was not consistent with the law; and (3) that the Board's findings did not support its conclusions that Forest Ridge was entitled to a conditional use permit.
    The trial court heard arguments on 21 April 2006. In an order dated 4 May 2006, nunc pro tunc 24 April 2006, the trial court affirmed the decision of the Board to grant Forest Ridge a conditional use permit. The trial court concluded that the Board's decision was supported by competent, substantial, and material evidence, and that the decision was not arbitrary and capricious. Petitioners appeal.

I. Standard of Review

    A superior court reviewing a county board's decision on a conditional use permit "sits in the posture of an appellate court." Concrete Co. v. Board of Commissioners, 299 N.C. 620, 626, 265 S.E.2d 379, 383, reh'g denied, 300 N.C. 562, 270 S.E.2d 106 (1980). The standard of review which the superior court must employ dependsupon the issues presented. ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997). "When the petitioner 'questions (1) whether the agency's decision was supported by the evidence or (2) whether the decision was arbitrary or capricious, then the reviewing court must apply the "whole record" test.'" Id. (quoting In re Appeal By McCreary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993)). "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 [reviewing] court could justifiably have reached a different result had the matter been before it de novo[.]" Thompson v. Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977). When an appellate court reviews
        a superior court order regarding an agency decision, "the appellate court examines the trial court's order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly."

ACT-UP, 345 N.C. at 706, 483 S.E.2d at 392 (quoting Amanini v. N.C. Dep't of Human Res., 114 N.C. App. 668, 675, 443 S.E.2d 114, 118-19 (1994)). In the present case, the trial court's order reflects that it appropriately applied the whole record test in its review of the Board's decision. Therefore, we review whether the trial court applied the whole record test properly.
II. Conditional Use Permits

    Section 7.0 of Article VI of Harnett County's zoning ordinance (the ordinance) establishes the RA-20R district in which the tractis located. The ordinance states that RA-20R "is established primarily to support high density development [including] single family dwellings, multi-family dwellings, and duplexes." Section 7.2 provides that planned unit developments are conditional uses in the RA-20R district. Article VII of the ordinance provides that conditional uses are not allowed in a zoning district as a matter of right, but must be reviewed and approved for a conditional use permit. Section 3.0 of Article VII states that in order to grant a conditional use permit, the Board of Adjustment must make written findings that the following provisions are fulfilled:
        3.1    The requested use will not impair the integrity or character of the surrounding area.

        3.2    The requested use will not be detrimental to the public health, morals, or welfare.

        3.3    Adequate utilities, access roads, drainage, sanitation and/or other necessary facilities have been made or are being provided.

        3.4    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.

        3.5    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 Adjustment.

The ordinance required that when considering these requirements, the Board give "due regard to the nature and state of all adjacent structures and uses, the district within which it is located, and official plans for future development[.]"    Additionally, our Supreme Court has held that:
        When an applicant has produced competent, material, and substantial evidence tending to establish the existence of the facts and conditions which the ordinance requires for the issuance of a special use permit, prima facie he is entitled to it. A denial of the permit should be based upon findings contra which are supported by competent, material, and substantial evidence appearing in the record.

Refining Co. v. Board of Alderman, 284 N.C. 458, 468, 202 S.E.2d 129, 136 (1974). Further, while boards acting in a quasi-judicial capacity are not permitted to "dispense with [any] essential element of a fair trial[,]" they are also not "held to the standards required of judicial bodies." Id. at 470, 202 S.E.2d at 137.
III. Challenged Findings

    Petitioners first challenge the trial court's finding of fact 3, which corresponds to subsection 3.1 of the ordinance. Specifically, the Board found that the development would not impair the integrity or character of the surrounding area. Petitioners argue that Forest Ridge presented no competent evidence to support this finding. Petitioners primarily argue that Forest Ridge offered no expert witness testimony to support the assertion that the development would not impair the integrity or character of the surrounding area.
    In Harding v. Board of Adjust. of Davie Cty., 170 N.C. App. 392, 612 S.E.2d 431 (2005), this Court was presented with a similar issue. In Harding, the petitioners argued that certain testimony regarding sound levels to be produced by a proposed go-cart trackwas hearsay, too general and speculative, and incompetent because the witness was not properly qualified as a sound expert. Id. at 397, 612 S.E.2d at 436. We upheld the findings which were based upon the testimony, noting:
        "Local boards, such as municipal boards of adjustment, are not strictly bound by formal rules of evidence, as long as the party whose rights are being determined has the opportunity to cross-examine adverse witnesses and to offer evidence in support of his position and in rebuttal of his opponent's."

Id. at 398, 612 S.E.2d at 436 (quoting Burton v. New Hanover County Zoning Board of Adjustment, 49 N.C. App. 439, 442, 271 S.E.2d 550, 552 (1980)). We also noted in Harding that the petitioners did not challenge the qualifications of the witness or offer contradictory evidence at the hearing. Id. Nor did the petitioners assert that they were unable to cross-examine witnesses or offer evidence in support of their position, in rebuttal. Id.
    We find the same to be true in the present case. Forest Ridge offered the testimony of Pennink, a real estate agent who had experience with several planned unit developments in a neighboring county. Pennink testified that in her experience multi-family developments had been successful and had not impaired the value of existing homes, even when the developments were added to existing homes already in place. Further, "[t]he inclusion of a use as a conditional use in a particular zoning district establishes a prima facie case that the permitted use is in harmony with the general zoning plan." Vulcan Materials Co. v. Guilford County Bd. Of Comrs., 115 N.C. App. 319, 324, 444 S.E.2d 639, 643, disc. reviewdenied, 337 N.C. 807, 449 S.E.2d 758 (1994). We affirm this finding of fact.
    Petitioners next challenge the trial court's finding of fact 5, which corresponds to subsection 3.3 of the ordinance. The Board found that adequate utilities, access roads, drainage, sanitation, and/or other necessary facilities had been made or would be provided. The Board based this finding on the fact that Forest Ridge was working with DOT and Harnett County to provide adequate utilities. Petitioners also challenge the trial court's finding of fact 6, which corresponds to subsection 3.4 of the ordinance, that adequate measures had been or would be taken to provide ingress and egress designed to minimize traffic congestion in the public streets. The Board found that subsection 3.4 of the ordinance had been met because DOT would be doing an impact study before any permits would be issued and Melody Lane would be improved to DOT standards by Forest Ridge.
    Petitioners argue that Melody Lane does not now, and will never, provide adequate access for the increased number of residents. Petitioners rely on the testimony which established that Melody Lane would be the only means of access to the development because the tract was surrounded by land owned by the federal government.
    We conclude that Forest Ridge offered sufficient evidence to support these findings. First, Forest Ridge included in its evidence formal comments by DOT regarding this development. The comments provided (1) that turn lanes might be required; (2) thata 125-foot by 125-foot sight distance easement might be required at the intersection of Melody Lane and N.C. Highway 87; (3) that a 25- foot right-of-way radius would be required at all intersections; and (4) that a separate submittal to DOT would be required for subdivision approval before Melody Lane would be added to the DOT system. Additionally, we note that the Board required that Forest Ridge bring Melody Lane up to DOT standards and that it consider other means of egress, as further conditions of Forest Ridge's conditional use permit. As the Board notes in its brief, our Supreme Court has held that "[a]n increase in traffic does not necessarily mean an intensification of traffic congestion or a traffic hazard." Refining Co., 284 N.C. at 469, 202 S.E.2d at 136.
We conclude the trial court did not err by affirming the challenged findings.
    Petitioners also contend that because the challenged findings were not supported, the Board erroneously granted a conditional use permit to Forest Ridge. However, because we conclude that the Board's findings were properly supported by the evidence, and that the Board made all the findings required by the ordinance, we also conclude that the Board properly granted the permit and the trial court properly affirmed the Board's decision.
IV. Whether the Board's Decision was Arbitrary and Capricious

    In their last argument, Petitioners contend that the decision of the Board was arbitrary and capricious. We disagree.
    Our Supreme Court has stated that:
        The "arbitrary and capricious" standard is a difficult one to meet. Administrative agencydecisions may be reversed as arbitrary and capricious if they are "patently in bad faith" or "whimsical" in the sense that "they indicate a lack of fair and careful consideration" or "fail to indicate any course of reasoning and the exercise of judgment."

ACT-UP Triangle, 345 N.C. at 707, 483 S.E.2d at 393 (quoting Comm'r of Ins. v. Rate Bureau, 300 N.C. 381, 420, 269 S.E.2d 547, 573 (1980)). Our review of the whole record reveals that the Board gave careful consideration to Forest Ridge's application, and to the concerns of Petitioners. We cannot conclude that the Board's action was patently in bad faith or whimsical. Therefore, we conclude the trial court properly applied the whole record test and did not err by affirming the Board's decision.
    Judges TYSON and STEPHENS concur.
    Report per Rule 30(e).

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