Opinion
No. COA11–1521.
2012-07-17
Michael LIVINGSTON, Petitioner, v. ROBESON COUNTY, North Carolina and Noah Woods, Tom Taylor, Raymond Cummings, Jr., Roger Oxendine, Jerry Stephens, Lennis Watts, Tommy Wellington And Hubert Sealy, in their official capacities as members of the Robeson County Board of County Commissioners, Respondents.
The Kuhn Law Firm, PLLC, by Benjamin R. Kuhn and Lemuel D. Whitsett, V, for petitioner-appellant. J. Hal Kinlaw, Jr., for respondent-appellee.
Appeal by petitioner from order entered 7 June 2011 by Judge Robert F. Floyd, Jr. in Robeson County Superior Court. Heard in the Court of Appeals 23 April 2012. The Kuhn Law Firm, PLLC, by Benjamin R. Kuhn and Lemuel D. Whitsett, V, for petitioner-appellant. J. Hal Kinlaw, Jr., for respondent-appellee.
MARTIN, Chief Judge.
Michael Livingston, petitioner, appeals from the superior court's order affirming the decision of the Robeson County Board of County Commissioners (the Board) denying his request for a conditional use permit to construct and operate a “Level IV Group Home” on property located at Old Stage Road in Robeson County. For the following reasons, we reverse the order of the superior court affirming the Board's denial of the permit.
The following facts are relevant to this appeal. N.C.G.S. § 122C–23.1, titled “Licensure of residential treatment facilities,” provides that “the Department of Health and Human Services may license new residential treatment facilities if the applicant for licensure submits with the application a letter of support obtained from the local management entity in whose catchment area the facility will be located.” N.C. Gen.Stat. § 122C–23.1 (2011). Southeastern Regional Mental Health Developmental Disabilities and Substance Abuse Services (Southeastern) is the local management entity in whose catchment area petitioner's facility will be located. In a letter dated 5 July 2007, petitioner requested support from Southeastern to establish a Level IV residential facility. Petitioner's request stated “[t]he facility will be designed to serve a consumer base for the ‘female’ mentally ill and mentally retarded population” and “will provide intensive residential programs such as on-site educational curricula, job training, counseling, and a substance abuse program.” In a letter dated 26 July 2007, Sharen Prevatte, Area Director of Southeastern, issued a letter of support.
In November 2007, petitioner submitted an application for a conditional use permit to the Board. On 14 January 2008, the Robeson County Planning Board (Planning Board) recommended denial of the application. On 28 June 2008, Southeastern rescinded its letter of support for petitioner's proposed facility. In June 2008, the Planning Board called a special meeting to consider petitioner's application. Following the meeting, the Planning Board issued two conflicting resolutions, one recommending grant of the conditional use permit with conditions and one recommending denial. On 6 October 2008, the Board held a hearing on petitioner's application. The Board voted to deny the application and served its decision in February 2009.
At the hearing before the Board, Michelle Frizzell, Zoning Administrator, testified that the Planning Board had denied petitioner's application and stated, “the only way [she] c[ould] explain [the presence of two conflicting resolutions] is that the clerk attached the wrong resolution.”
In March 2009, petitioner filed a “Petition for Writ of Certiorari and Judicial Review” in Robeson County Superior Court, seeking review of the Board's decision on several grounds. The petition was granted. In October, petitioner filed a “Memorandum of Law in Support of Petition for Writ of Certiorari and Judicial Review.” The trial court held a hearing in November 2010 and entered an order affirming the Board's decision on 7 June 2011. Petitioner appeals.
_________________________
“In reviewing the decision of a board of adjustment, ‘the superior court sits as an appellate court, and not as a trier of facts.’ “ Bailey & Assocs. v. Wilmington Bd. of Adjust., 202 N.C.App. 177, 189, 689 S.E.2d 576, 585 (2010) (quoting Overton v. Camden Cty., 155 N.C.App. 391, 393, 574 S.E.2d 157, 159 (2002)). “The superior court's review of a board of adjustment's decision is limited to determining whether:”
“1) the [b] oard committed any errors in law; 2) the [b] oard followed lawful procedure; 3) the petitioner was afforded appropriate due process; 4) the [b]oard's decision was supported by competent evidence in the whole record; and 5) [whether] the [b]oard's decision was arbitrary and capricious.”
Id. at 189, 689 S.E.2d at 585–86 (alterations in original) (quoting Capital Outdoor, Inc. v. Guilford Cty. Bd. of Adjust., 152 N.C.App. 474, 475, 567 S.E.2d 440, 441, disc. review denied, 356 N.C. 611, 574 S.E.2d 676 (2002)). “ ‘Upon further appeal to this Court, we must examine the trial court's order for error of law just as with any other civil case.’ “ Sun Suites Holdings, LLC v. Bd. of Aldermen of Garner, 139 N.C.App. 269, 272, 533 S.E.2d 525, 528 (quoting Tate Terrace Realty Investors, Inc. v. Currituck Cty., 127 N.C.App. 212, 219, 488 S.E.2d 845, 849, disc. review denied, 347 N.C. 409, 496 S.E.2d 394 (1997)), supersedeas and disc. review denied, 353 N.C. 280, 546 S.E.2d 397 (2000). “ ‘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.’ “ Id. at 273, 533 S.E.2d at 528 (quoting Amanini v. N.C. Dep't of Human Res., 114 N.C.App. 668, 675, 443 S.E.2d 114, 118–19 (1994)). Therefore, depending on the issues raised before the Board, this Court “must determine whether: '1) the [b]oard committed any errors in law; 2) the [b]oard followed lawful procedure; 3) the petitioner was afforded appropriate due process; 4) the [b]oard's decision was supported by competent evidence in the whole record; and 5) ... the [b]oard's decision was arbitrary and capricious.' “ Capital Outdoor, 152 N.C.App. at 475, 567 S .E.2d at 441 (alterations and omission in original) (quoting Capital Outdoor, Inc. v. Guilford Cty. Bd. of Adjust., 146 N.C.App. 388, 390, 552 S.E.2d 265, 267 (2001), rev'd per curiam for reasons stated in dissenting opinion,355 N.C. 269, 559 S.E.2d 547 (2002)).
On appeal to this Court, petitioner contends his proposed use of the property for a Level IV residential facility is permitted by right under Section 5.1 of the Robeson County Zoning Ordinance (the ordinance) because it is a permitted use under Section 17.2. Section 5.1 provides
All uses listed as permitted uses are permitted by right according to the terms of this Ordinance. Conditional use are [sic] permitted subject to compliance with standard [sic] for, conditional uses and with any additional conditions specified. If similar, but unlisted, uses are proposed as uses by right or as conditional uses, the Zoning Administrator shall decide if they are similar enough to be within the spirit of the Ordinance for the district under consideration.
Robeson County, N.C., Robeson County Zoning Ordinance § 5.1 (1988) (emphasis added). Petitioner's property is zoned residential-agricultural. Section 17.2 lists permitted uses of land in a residential-agricultural district. Section 17.2(G) allows “Family Care homes and hope houses not used primarily for the treatment of contagious diseases, alcoholics, drug addicts, or psychotics.” Id. § 17.2(G). Section 17.2(P) allows a “Family Care Home as defined in Section 7.7, provided the location of the proposed family care home is not located within a one-half mile radius of an existing family care home as required by N.C.G.S. 168–22” and provided that “a six (6) foot chain link fence is to be erected around the perimeter of the property to protect the residents from exposure to hazards.” Id. § 17.2(P). Section 7 contains definitions. Section 7.7 “GROUP HOME” provides “Family care home means a home with support and supervisory personnel that provides room and board, personal care and habilitation services in a family environment for not more than six (6) resident handicapped persons.” Id. § 7.7. Petitioner argues there is a “difference and distinction between a Family Care Home ... permitted under 17.2(G), and the limited conditions where a more narrowly defined subcategory of Family Care Home may also be permitted as a matter of right under 17.2(P).” Petitioner contends his facility is “not primarily for the treatment of contagious diseases, alcoholics, drug addicts, or psychotics,” but to serve “girls with emotional and mental disabilities” and is to contain twelve beds. Thus, he contends his facility is permitted under 17.2(G), which he contends is not defined by Section 7.7 and therefore contains no restriction on the number of beds permitted. Petitioner therefore argues that the Board erred as a matter of law by denying the permit.
However, petitioner failed to make this argument before the Board. Petitioner's application was for a conditional use permit. Our thorough review of the transcript from the Board hearing and the Board's written decision reveals that petitioner never made any of the arguments described above before the Board; petitioner's arguments before the Board were confined to the issue of whether the standards under Section 30 of the ordinance for issuance of a conditional use permit had been satisfied. “The superior court's scope of review on certiorari is limited to errors alleged to have occurred before the local board.” Bailey, 202 N.C.App. at 191, 689 S.E.2d at 587 (citing Godfrey v. Zoning Bd. of Adjust. of Union Cty., 317 N.C. 51, 62–63, 344 S.E.2d 272, 279 (holding that the North Carolina Court of Appeals erred by determining the question of the constitutionality of the zoning ordinance when the issue was never raised or considered by the board of adjustment or considered by the superior court and the zoning board of adjustment only decided whether to grant a variance under the zoning ordinance)). Because the Board did not make any legal conclusions regarding the meaning of a “family care home” under Sections 17.2(P) and (G) or findings or conclusions related to whether the proposed facility would fit within the definition of either of those sections, we are unable to determine on appeal whether, on this issue, the Board committed error of law, whether it made an arbitrary or capricious decision, or whether its findings were supported by sufficient record evidence. See id. at 191–92,689 S.E.2d at 587 (holding that, because “[t]he superior court's scope of review on certiorari is limited to errors alleged to have occurred before the local board,” the superior court did not err by denying a motion to dismiss an appeal to a board of adjustment as untimely when that argument was not advanced before the board of adjustment).
Petitioner next argues its proposed use of the property as a Level IV residential facility is not a conditional use under Section 17.3. However, again, this issue was not before the Board. Neither the transcript from the Board's hearing nor the Board's written decision addressed whether petitioner's use of the property was a conditional use under Section 17.3. Because “[t]he superior court's scope of review on certiorari is limited to errors alleged to have occurred before the local board,” id. at 191, 689 S.E.2d at 587, and this issue was not raised before the Board, we are unable to address it here.
In the alternative, petitioner argues that the denial of his application for a conditional use permit under the standards in Section 30 of the ordinance was not based on substantial, material, and competent evidence in the record and was therefore arbitrary and capricious. For the following reasons, we agree.
Section 30 of the ordinance, “Standards,” provides that “[n]o conditional use permit shall be recommended by the Planning and Zoning Board unless such Board shall find,” and contains Standards A through G. Robeson County Zoning Ordinance § 30. The Board's written order denied petitioner's application for a conditional use permit based on its conclusions that standards in A, B, C, and G were not satisfied. Those standards provide the following:
A. That the establishment, maintenance, or operation of the conditional use will not be detrimental to or endanger the public health, safety, morals, comfort, or general welfare;
B. That the conditional use will no [sic] be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted nor substantially diminish and impair property values within the neighborhood;
C. That the establishment or [sic] the conditional use will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district;
....
G. 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 County Commissioners pursuant to the recommendations of the Planning and Zoning Board.
Id.
With respect to Standard A, the Board concluded “the establishment, maintenance, or operation of the conditional use will be detrimental to or endanger the public health, safety, morals, comfort, or general welfare.” With respect to Standard B, the Board concluded “there was sufficient evidence introduced to conclude that the conditional use will be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted.” With respect to Standard C, the Board concluded “sufficient evidence was introduced to conclude that the establishment of the conditional use will impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district.” With respect to Standard G, the Board concluded “sufficient evidence was introduced to conclude that the conditional use shall not, in all other respects, conform to the applicable regulations of the district in which it is located....”
“ ‘A review of whether the [quasi-judicial body's] decision is supported by sufficient evidence ... requires the court to employ the whole record test.’ “ Sun Suites, 139 N.C.App. at 273, 533 S.E.2d at 528 (alteration and omission in original) (quoting Ellis v. N.C. Crime Victims Compensation Comm'n, 111 N.C.App. 157, 162, 432 S.E.2d 160, 163 (1993)). “ ‘The whole record test requires the reviewing court to examine all the competent evidence ... which comprise[s] the whole record to determine if there is substantial evidence in the record to support the [quasi-judicial body's] findings and conclusions.’ “ Id. (omission and alterations in original) (quoting Ellis, 111 N.C.App. at 162, 432 S.E.2d at 164).
“A county planning board must follow a two-step decision-making process in granting or denying an application for a special use permit.” Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 12, 565 S.E.2d 9, 16 (2002). “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.’ “ Id. (quoting Humble Oil & Ref. Co. v. Bd. of Aldermen of Chapel Hill, 284 N.C. 458, 468, 202 S.E.2d 129, 136 (1974)). “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.” ’ Id. (alterations in original) (quoting Humble Oil, 284 N.C. at 468, 202 S.E.2d at 136). Our standard of review of the Board's denial is whether, based on the whole record, there is competent, material, and substantial evidence to support its decision.
We have reviewed the “whole record” in this case, and the evidence supporting denial of the permit on the bases cited by the Board consists entirely of the generalized fears of neighbors. Specifically, Sandra Cox, a neighbor, expressed concern about the possibility of a child escaping from the facility, concluding with the statement that petitioner could not “ensure [her] that he's not gonna have a problem child that's gonna get out.” Jimmy Lee, another neighbor, also expressed concern about children escaping the facility, noting “we've got twenty-nine widows in our area.” Joyce Freeman, another neighbor, testified that she was one of the widows, that “we all have fear,” and that “we have enough fear living alone besides any added fear that will beôôcontribute to that,” and noted that “it hadn't been too many months ago when we had a 16–year–old that he should have been in jail or somewhere and he killed a man at a dumpster.” She opined “[m]aybe they can control them or maybe they can't” and noted “[t]hey could overpower the person that's working with them.” Finally, a local citizen noted that, at a prison where he had worked, an officer was killed by a ten-year-old boy “because [the boy] wanted out.” He noted that, although the prison had a 20–foot high fence surrounded by barbed-wire, the boy had escaped.
“[S]peculative assertions or mere expression of opinion about the possible effects of granting a permit are insufficient to support the findings of a quasi-judicial body” and “the expression of ‘generalized fears' does not constitute a competent basis for denial of a permit.” Sun Suites, 139 N.C.App. at 276, 533 S.E.2d at 530 (citing C.C. & J. Enters., Inc. v. City of Asheville, 132 N.C.App. 550, 553, 512 S.E.2d 766, 769,disc. review improvidently allowed,351 N.C. 97, 521 S.E.2d 117 (1999), and Clark v. City of Asheboro, 136 N.C.App. 114, 121–24, 524 S.E.2d 46, 51–52 (1999)). We hold that the speculative assertions and expression of generalized fears recited above do not qualify as substantial evidence supporting denial of the permit based on Standards A, B, C, or G.
For the following reasons, the superior court's order affirming the Board's denial of the permit is reversed “and this matter remanded to that court for subsequent remand to the Board with direction to issue the requested conditional use permit to petitioner[ ].” See id. at 280, 533 S.E.2d at 532.
Reversed and remanded with instructions. Judges BRYANT and McCULLOUGH concur.
Report per Rule 30(e).