Butler v. City Council of Clinton

584 S.E.2d 103, 160 N.C. App. 68, 2003 N.C. App. LEXIS 1672
CourtCourt of Appeals of North Carolina
DecidedAugust 19, 2003
DocketNo. COA02-1268
StatusPublished
Cited by2 cases

This text of 584 S.E.2d 103 (Butler v. City Council of Clinton) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Butler v. City Council of Clinton, 584 S.E.2d 103, 160 N.C. App. 68, 2003 N.C. App. LEXIS 1672 (N.C. Ct. App. 2003).

Opinion

TIMMONS-GOODSON, Judge.

Tim and Francis Butler (“petitioners”) appeal from an order of the trial court affirming a denial by the City Council of the City of Clinton (“respondents”) of petitioners’ application for a conditional use permit (“CUP”) to operate a crematory in Clinton, North Carolina.

The facts pertinent to the instant appeal are as follows: On 8 January 2002, the City Council conducted a hearing on petitioners’ application. After reviewing the evidence, respondents determined that petitioners failed to present uncontroverted evidence that the proposed crematory would comply with all of the standards of the applicable zoning ordinance (“the ordinance”), and unanimously voted to deny the CUP.

Petitioners thereafter filed an ex parte petition for writ of certio-rari to the Sampson County Superior Court seeking judicial review of respondents’ denial of the CUP application. On 19 June 2002, the trial [69]*69court entered an order containing the following pertinent findings of fact:

1. THIS MATTER arises out of a conditional use permit request by the Petitioners to operate a crematorium on the comer of North Boulevard and Lloyd Street in an office and institutional district in Clinton, North Carolina. This matter was heard by the City of Clinton Planning and Zoning Board on December 17, 2001. The City of Clinton Planning and Zoning Board unanimously denied the conditional use request upon the grounds that the Petitioners failed to prove Standards 1, 2 and 4 of the Standards of the Clinton Zoning Ordinance, Section 10.7, as set out in the record.
2. That all eight standards must be approved in order to justify a conditional use permit. That Section 10.1.8 of the Clinton Zoning Ordinance indicates that the City must consider each case and its impact on those uses upon neighboring land and of the public need for the particular use and particular location.
6. That the City Council of the City of Clinton found and submitted the following certified findings of fact:
(a) That the proposed site was within one mile radius of two residential neighborhoods, six medical facilities, one elementary school, three day cares, one restaurant and grocery stores.
(b) That the crematorium site has residences, across the street in front of the site, and to the side of the site, all within one hundred yards. There are eight houses directly facing the property.
(c) That there are scientific, environmental and health concerns about the identification and qualification of emissions from crematoriums, as to heavy metals, such as mercury and dioxins. The crematoriums are listed as the third biggest source of dioxins. That children are of particular risk to dioxins. That Sampson Regional Medical Center in Clinton, NC, closed its human tissue incinerator because of scientific and environmental concerns. (Dr. Paul Viser, Board Certified in Internal Medicine)
(d) That by the nature of the crematorium, which incinerates human bodies, there are legitimate concerns about the psychological impact of such, in an area with residences nearby, on children and residents of that area.
[70]*70(e) That a crematorium would substantially decrease and impair the value of residences and properties, in the area, due to the adverse psychological impact in the unresolved, unanswered health and safety issues.
(f) That a thirty-six-inch diameter, seventeen foot, eight inches high emissions stack would be inconsistent with architectural appeal of the existing office and institutional adjacent property, and the character of the applicable district.
(g) That there is a lack of necessity of a crematorium at this site, with residences close by, when there are other alternative sites available.
(h) That the new regulations for solid waste incinerators, which include crematoriums, will not be issued by the Environmental Protection Agency until November 15, 2005.
(i) That there is currently litigation concerning issues involving the current regulations on crematorium incinerators.

Based on these findings, the trial court concluded that respondents had acted lawfully and that its decision was supported by competent, material, and substantial evidence. The trial court therefore affirmed respondents’ denial of the CUP. From this order of the trial court, petitioners appeal.

Petitioners argue that the trial court erred in affirming respondents’ decision to deny the issuance of a CUP because the decision was unsupported by competent, material, and substantial evidence, based on the whole record. For the reasons herein, we affirm the order of the trial court.

“A legislative body such as [a city council], when granting or denying a conditional use permit, sits as a quasi-judicial body...” Sun Suites Holdings, LLC v. Board of Alderman of Town of Garner, 139 N.C. App. 269, 271, 533 S.E.2d 525, 527 (2000). As such, denial of a CUP is subject to review in the nature of certiorari by the superior court. See N.C. Gen. Stat. § 160A-381(c) (2001). The trial court’s review is limited to determining whether the conduct of the city council was in accordance with the law and whether the decision was supported by competent, material, and substantial evidence based on the “whole record.” See Pisgah Oil Co. v. Western N.C. Reg’l Air Pollution Control Agency, 139 N.C. App 402, 405, 533 S.E.2d 290, 293 (2000); Baker v. Town of Rose Hill, 126 N.C. App. 338, 341, 485 S.E.2d [71]*7178, 80 (1997). Our task on review of the trial court’s order is “ ‘twofold: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.’ ” Pisgah at 405, 533 S.E.2d at 293 (quoting Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118-19 (1994)). In the case at bar, petitioners do not contend that the trial court applied an improper standard of review. Thus, this Court must determine whether the trial court properly applied the “whole record” test to the instant facts.

Section 10.7 of the ordinance sets out eight standards that must be satisfied before a CUP may be issued. Failure to meet any one standard is grounds for denial of the entire application. Respondents determined that petitioners failed to present substantial evidence to support CUP standards one, two, and four under the applicable ordinance.1 Standards one, two, and four of the ordinance, read as follows:

(1) That the establishment, maintenance, or operation of the conditional use will not be detrimental to or endanger the public health, safety, morals, or general welfare.
(2) That the conditional use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already.

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584 S.E.2d 103, 160 N.C. App. 68, 2003 N.C. App. LEXIS 1672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-v-city-council-of-clinton-ncctapp-2003.