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
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.
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
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
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
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.
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
, 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
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."
, 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
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
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
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
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
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.
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."
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
case that the permitted use is in harmony with the general
zoning plan." Vulcan Materials Co. v. Guilford County Bd. Of
, 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
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
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."
, 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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