Cook v. Union Zoning Bd. of Adjustment

649 S.E.2d 458, 185 N.C. App. 582, 2007 N.C. App. LEXIS 1949, 2007 WL 2471365
Court of Appeals of North Carolina·Decided September 4, 2007·No. No. COA06-1153.·Published·Cited by 15 cases

Opinion

STROUD, Judge.

The dispositive issues in this case are whether petitioners had standing to appeal to superior court the grant of a special use permit to respondent-intervenor, and whether petitioners were denied due process in the proceedings by which respondent-intervernors' application for a special use permit was granted. We hold that petitioners had standing to appeal, and that they were denied due process in the proceedings. Accordingly, we affirm the trial court order vacating the issuance of the special use permit to Wal-Mart.

I. Background

Wal-Mart submitted an application for a special use permit (original application) to the BOA on 1 March 2004, seeking to construct a 206,242 square foot retail sales establishment (store) at the corner of Rea Road extension and Tom Short Road on an approximately 31 acre tract of land (tract) in Union County. This tract is located within the Somerset Planned Unit Development (PUD). Individual petitioners Cook, Frank, Hendry, Nesbit, and Rubottom (Somerset citizens)1 are all landowners whose land adjoins or abuts the store tract. The BOA held a hearing regarding the application, starting on 20 July 2004, with additional sessions on 21 and 22 July, 30 August, 1 September, 4 October, 18 October, and 8 November 2004.2 Presentation of formal testimony by all parties was completed at the 1 September 2004 hearing. The BOA voted on 1 September 2004 to approve the application, subject to many changes which were discussed during the hearing, and required that Wal-Mart present a revised site plan, at which time the BOA would give its final decision on the issuance of the special use permit.

On 4 October and again with further amendments on 8 November 2004, Wal-Mart submitted a revised site plan (revised application) containing in excess of twenty changes to the project as set forth on the original application. The changes included moving and reorienting the store building to the other side of the tract, reconfiguration of the traffic patterns of the store entrance, addition of a drive-through for the store pharmacy, change of the location of the retention pond, changes to the parking lots, a new lighting plan, new elevations, and a new landscaping plan. On 5 January 2005, the BOA filed its findings of fact, conclusions, and decision regarding the revised application. The Special Use Permit (SUP), issued on 6 January 2005, noted that the revised application was approved on 8 November 2004. Petitioners filed a verified petition for writ of certiorari on 3 February 2005 with the superior court. On 15 March 2005, the superior court granted Wal-Mart's motion to intervene. On 26 April 2005, the superior court denied Wal-Mart's motions to dismiss the petition for certiorari and granted petitioners' motion to amend the petition. The amended petition, filed 28 June 2005, alleged that the BOA erred by issuing the special use permit based upon the revised application including exhibits which were created after the evidentiary hearing ended on 1 September 2004. Specifically, petitioners asserted that the BOA: (1) committed an error of law in that no evidence was heard on the revised application; (2) failed to follow the statutes, common law, and land use ordinance; (3) violated the due process rights of petitioners *463to offer evidence, cross-examine witnesses, and inspect documents regarding the revised application; (4) did not have competent, material, and substantial evidence in the record to support approval of the revised application; and (5) arbitrarily and capriciously granted the special use permit.

The superior court held a hearing on the petition on 3 March 2006. On 25 April 2006, the superior court vacated the special use permit because: (1) after reviewing the whole record, it concluded that the decision of the BOA was arbitrary, not being supported by competent, material, and substantial evidence; and (2) on de novo review, it concluded that the BOA violated the due process rights of petitioners. Wal-Mart and the BOA appeal.

II. Issues

Respondents Wal-mart and the BOA argue that the superior court erred in vacating the special use permit. Specifically, they argue that: (1) petitioners lacked standing to appeal the decision of the BOA; (2) petitioners waived all objections to the BOA's "post-decision consideration" (i.e., after 1 September 2004) of permit conditions and therefore did not preserve any right to appellate review; (3) petitioners received due process sufficient to fairly present their petition to the BOA; (4) the BOA's decision was based on sufficient, material, and substantial evidence; and (5) petitioners failed to preserve for appellate review the issues addressed in their cross-assignments of error.

III. Standards of Review

Each of the three levels - the board of adjustment, the superior court, and this Court - has a particular standard of review. First, the board of adjustment sits as the finder of fact in its consideration of the application for a special use permit. Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 12, 565 S.E.2d 9, 17 (2002). As finder of fact, a board of adjustment is required to

follow a two-step decision-making process in granting or denying an application for a special use permit. If 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. If a prima facie case is established, a denial of the permit then should be based upon findings contra which are supported by competent, material, and substantial evidence appearing in the record.

The board of adjustment planning board sits in a quasi-judicial capacity when determining whether to grant or deny a special use permit and must insure that an applicant is afforded a right to cross-examine witnesses, is given a right to present evidence, is provided a right to inspect documentary evidence presented against him and is afforded all the procedural steps set out in the pertinent ordinance or statute. Any decision of the town board has to be based on competent, material, and substantial evidence that is introduced at a public hearing.

Id., 565 S.E.2d at 16-17 (internal citations and quotations omitted). A board of adjustment'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., 565 S.E.2d at 17 (citation and quotations omitted).

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Cook v. Union Zoning Bd. of Adjustment, 649 S.E.2d 458, 185 N.C. App. 582, 2007 N.C. App. LEXIS 1949, 2007 WL 2471365 (N.C. Ct. App. 2007).

649 S.E.2d 458 (Cook v. Union Zoning Bd. of Adjustment) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Cook v. UNION ZONING BD. OF ADJUSTMENT
649 S.E.2d 458 (Court of Appeals of North Carolina, 2007)