Opinion
No. COA10-1029
Filed 15 March 2011 This case not for publication
Appeal by respondent from order entered 26 April 2010 by Judge Gregory A. Weeks in Bladen County Superior Court. Heard in the Court of Appeals 24 January 2011.
H. Goldston Womble, Jr. for petitioner-appellee. The Law Firm of Hutchens, Senter Britton, P.A., by Hilton T. Hutchens, Jr., for respondent-appellant.
Bladen County No. 09 CVS 271.
In November 2007, Petitioner Stephen Scott Edwards purchased an 11 acre parcel of land in Bladen County. In 2008, Petitioner filed two separate applications with the Bladen County Planning Board ("Planning Board") for a special use permit to construct a manufactured home park. The Planning Board denied both of Petitioner's applications because the manufactured home park "would substantially injure the value of adjoining or abutting property, and . . . the location and character of the use would not be in harmony with the area." Petitioner then appealed to the superior court, which concluded Petitioner was entitled to the issuance of a special use permit. The superior court therefore vacated the denial of Petitioner's special use permit and directed the Planning Board to issue a special use permit. We must decide whether the Planning Board made sufficient findings of fact and whether the trial court exercised the appropriate scope of review when it made findings of fact.
"It is not the function of the reviewing court to find the facts but to determine whether the findings of fact made by the Board are supported by the evidence before the Board and whether the Board made sufficient findings of fact." Shoney's v. Board of Adjustment, 119 N.C. App. 420, 421, 458 S.E.2d 510, 511 (1995) (citing Rentals Inc. v. City of Burlington, 27 N.C. App. 361, 364, 219 S.E.2d 223, 226 (1975)). Because the Planning Board failed to make findings of fact, and the trial court did not exercise the appropriate scope of review when it made its own findings of fact, we reverse and remand.
Petitioner purchased an 11.34 acre parcel of land located at 764 Highway 20 East, St. Pauls, NC 28384 (the "Property") in November 2007. Although Petitioner's deed did not include a restrictive covenant, the Property was subject to a restrictive covenant from a previous deed, which prohibited the Property from being subdivided into tracts of less than one acre. On 11 August 2008, Petitioner filed his First Application for a Special Use Permit with the Planning Board, seeking to build a manufactured home park on the Property. In addition to the First Application, Petitioner filed a proposed manufactured home park plan. The land is currently zoned as a Residential Agricultural District, thus a special use permit is required to build a manufactured home park. See Bladen County, N.C., Zoning Ordinance, § 3.3.1(B), (C) (2003).
On 16 September 2008, Petitioner's First Application was heard by the Planning Board. In attendance at the public hearing were Petitioner and several members of the community and adjoining land owners. Petitioner presented pictures of the proposed manufactured home park. Jason Cook, a member of the community, handed out information from a community meeting expressing the concerns of the adjoining property owners. Mr. Cook also presented examples of depreciated real estate values in communities where manufactured home parks were located, and he questioned the effect of the restrictive covenant. Other community members also voiced their concerns, which included increased traffic and crime, decreased value of adjoining property, and overcrowding in schools. The Planning Board voted to continue the First Application until the next board meeting to allow time to consult with the county attorney about the restrictive covenant.
At the next meeting on 21 October 2008, Planning Director Greg Elkins explained that Petitioner's plan was not in violation of the restrictive covenant because the Property was not going to be subdivided and the lot was to remain an 11 acre parcel. No new evidence was presented at the meeting. In reviewing the criteria to grant a special use permit, the Planning Board unanimously voted that the manufactured home park would not materially endanger the public health or safety in its proposed location and met all required conditions, specifications, and development standards of this ordinance. The Planning Board voted by majority (2 opposed) that the manufactured home park "would substantially injure the value of the adjoining or abutting property[,]" and the location and character "would not be in harmony with the area in which it is to be located." Therefore, the Planning Board denied Petitioner's request for special use permit.
On 14 November 2008, Petitioner filed a Second Application for Special Use Permit for the same manufactured home park on the Property. On 20 November 2008, Petitioner filed an appeal of the Planning Board's denial of his First Application in the Superior Court of Bladen County. While the appeal was pending, the Planning Board held a public hearing on 17 February 2009 regarding Petitioner's Second Application. Planning Director Elkins handed out a packet of information to the Planning Board from Petitioner's attorney, Greg Maynard. Mr. Maynard presented the following evidence to the Board: (1) Petitioner's vision for the Park — a good neighborhood with a clean environment; (2) a letter from Roger Davis, the owner and manager of Pines Mobile Home Park in Bladen County, stating that in 30 years of operation, no crime had been reported and the fire department came only twice; (3) a comparison of tax values of Bladen Mobile Home Park, located at 5340 NC Highway 20, and its surrounding areas showing the values increased over time; and (4) a letter from North Carolina real estate agent Johnny Tatum stating the proposed park "would not have an adverse effect on adjoining property."
Following Mr. Maynard's evidence, Mr. Cook, a member of the community, submitted an aerial photo of the Property into evidence and stated his concerns about increases in population, crime, and traffic. Other community members voiced similar concerns and additional concerns about decreased property value, failing septic systems, and overcrowding in schools.
At the end of the meeting, the Planning Board reviewed the criteria to grant a special use permit. Again, the Planning Board unanimously voted the manufactured home park would not materially endanger the public health or safety in its proposed location and met all required conditions, specifications, and development standards of this ordinance. The Planning Board voted by majority (3 opposed) that the manufactured home park "would substantially injure the value of the adjoining or abutting property[,]" and the location and character "would not be in harmony with the area in which it is to be located." Without making any findings of fact, the Planning Board subsequently denied Petitioner's Second Application for Special Use Permit.
On 10 March 2009, during the pendency of the first appeal, Petitioner filed an appeal of the Planning Board's denial of his Second Application. Petitioner sought a remand to the Planning Board with instructions that the Board approve the special use permit. On 11 January 2010, Petitioner dismissed his first appeal, leaving the second appeal for review by the Bladen County Superior Court
On 19 January 2010, the trial court heard the appeal of the denial of Petitioner's Second Application. The trial court opened the hearing by stating the court twice met with attorneys for the Petitioner and the Planning Board and reviewed materials from the attorneys and the file in an effort to determine "whether or not this was an appropriate case for remand based on what appeared to the Court to be lack of material subject to review in the court file." Petitioner argued there was sufficient information in the files, specifically the minutes from the Planning Board meetings, for the court to make a determination. The Planning Board disagreed, contending the trial court should remand the matter to the Planning Board because there was a factual dispute regarding whether Exhibit B, presented to the Planning Board by Mr. Cook, showed depreciation of property values in properties adjacent to mobile home parks.
Because Exhibit B was not in the record, the trial court reviewed the reference to Exhibit B in the 16 September 2008 minutes. The minutes stated: "Cook presented examples of depreciated real estate values (Exhibit B) in communities where Manufactured Home Parks were located." Thus, the trial court determined "the minutes do not refer to diminishing value or decrease in value of adjacent property. It refers to diminishing value or decrease in value of property with mobile homes on it."
The trial court entered an order on 26 April 2010, concluding Petitioner was entitled to the issuance of a special use permit because Petitioner "presented competent, material, and substantial evidence" sufficient to support issuance of a special use permit, and "there were no findings contra which were supported by competent, material and substantial evidence." The court also noted that "the Board failed to make any findings of fact as to the basis for their decision. The Board simply made a conclusory statement that a particular standard had or had not been met." The trial court vacated the denial of Petitioner's special use permit and directed the Planning Board to issue a special use permit to Petitioner.
The Planning Board now appeals from the 26 April 2010 order, arguing (I) the trial court lacked jurisdiction over the second appeal because the Planning Board lacked authority to hear or decide Petitioner's Second Application and (II) the trial court committed reversible error and exceeded its scope of authority by examining evidence outside the record, making findings of fact, and failing to remand to the Planning Board for a rehearing to examine competent evidence and make findings of fact.
I.
The Planning Board first contends that because the Planning Board "lacked the authority to hear or decide the petitioner's second application, the superior court lacked jurisdiction over the second appeal[.]" We disagree.
We find jurisdiction was proper in the superior court based on N.C. Gen. Stat. § 153A-345(e2), which provides in relevant part that "[e]ach decision of the board is subject to review by the superior court by proceedings in the nature of certiorari." See also Bladen County, N.C. Zoning Ordinance § 7.4 (2003) ("No appeal may be taken from the action of the Planning Board in granting or denying a Special Use Permit except through the Bladen County Superior Court within thirty (30) days or forever be barred.").
The Planning Board cites N.C. Gen. Stat. § 153A-345(b) in support of its argument that because an appeal taken from the Planning Board's decision "stays all proceedings in furtherance of the action appealed from," the Planning Board lacked jurisdiction to hear the Second Application, and therefore the superior court also lacked jurisdiction. Section 153A-345(b), however, applies to appeals to the board of adjustment from "any order, requirement, decision, or determination made by an administrative official[.]" This case involves an appeal from the Planning Board's decision to the superior court, not an appeal from an administrative official's decision to the board of adjustment. Therefore, section 153A-345(b) does not apply. Unlike N.C. Gen. Stat. § 153A-345(b), § 153A-345(e2) does not provide for a stay upon appeal to the superior court.
II.
The Planning Board next contends that because the Planning Board failed to make findings of fact, "the proper remedy was not for the Superior Court to make its own findings of fact, but rather for the case to be remanded back to the planning board[.]" We agree.
When an appellate court reviews a superior court order regarding the grant or denial of a special use permit, "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." Mann Media, Inc. v. Randolph County Planning Bd., 356 N.C. 1, 14, 565 S.E.2d 9, 18 (2002) (quotation marks and citation omitted). "The trial court, reviewing the decision of a town board on a conditional use permit application, sits in the posture of an appellate court. The trial court does not review the sufficiency of evidence presented to it but reviews that evidence presented to the town board." Coastal Ready-Mix Concrete Co. v. Board of Comm'rs, 299 N.C. 620, 626-27, 265 S.E.2d 379, 383, rehearing denied, 300 N.C. 562, 270 S.E.2d 106 (1980). "It is not the function of the reviewing court to find the facts but to determine whether the findings of fact made by the Board are supported by the evidence before the Board and whether the Board made sufficient findings of fact." Shoney's, 119 N.C. App. at 421, 458 S.E.2d at 511.
"The proper standard for the superior court's judicial review depends upon the particular issues presented on appeal. 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." Mann Media, Inc., 356 N.C. at 13, 565 S.E.2d at 17 (citations and quotation marks omitted). "The `whole record' test requires the reviewing court to examine all competent evidence (the `whole record') in order to determine whether the agency decision is supported by substantial evidence." ACT-UP Triangle v. Commission for Health Servs., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quotation marks and citation omitted).
A county may establish planning boards to issue special or conditional use permits. N.C. Gen. Stat. § 153A-340(c1) (2009). Bladen County has adopted a zoning ordinance giving the Bladen County Planning Board the power to grant special use permits. Bladen County, N.C. Zoning Ordinance § 7.2 (2003). If a special use permit is granted, the Planning Board must find four requirements:
A. That the use will not materially endanger the public health or safety, if located according to the plan submitted and approved;
B. That the use meets all required conditions and specifications;
C. That the use will not substantially injure the value of adjoining or abutting property, or that the use is a public necessity; and
D. That the location and character of the use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is to be located and in general conformity with the Bladen County Land Use Plan.
Id. § 7.3. If the Planning Board denies a special use permit, "it shall enter the reason for its action in the minutes of the meeting at which the action is taken." Id. § 7.4.
"Actions by zoning boards in allowing or denying the application of use permits require the board to state the basic facts on which it relied with sufficient specificity to inform the parties, as well as the court, what induced its decision." Shoney's, 119 N.C. App. at 421, 458 S.E.2d at 511 (quotation marks and citation omitted). A board may not rely on "findings of fact which are merely conclusory in form[,]" id. at 421-22, 458 S.E.2d at 511, or findings that are a "mere restatement of the terms of the applicable statute or ordinance." Id. at 423, 458 S.E.2d at 512 (citation omitted). Furthermore, "the requirement that a board . . . make findings may be imposed by statute, by ordinance, or by judicial decision." Id. The failure to make findings of fact is not fatal, however, "if the record sufficiently informs [the court] of the basis of decision of the material issues or if the facts are undisputed and different inferences are not permissible." Dockside Discotheque v. Board of Adjustment, 115 N.C. App. 303, 308, 444 S.E.2d 451, 454 (citation omitted), disc. rev. denied, 338 N.C. 309, 451 S.E.2d 634 (1994).
In this case, we conclude the Planning Board failed to make findings of fact sufficient for a reviewing court to determine the basis of the Planning Board's decision. The Planning Board's written decision states that Petitioner's second request for a special use permit was denied for the following reasons:
Based on the information received at the public hearing on February 17, 2009, it was the opinion of the board that the development of a manufactured home park at the above location would substantially injure the value of adjoining or abutting property, and that the location and character of the use would not be in harmony with the area in which [it] is to be located.
We note that the Planning Board's conclusory reasons for denial are taken directly from two of the four requirements the Planning Board must consider to issue a special use permit in Bladen County. Bladen County, N.C. Zoning Ordinance § 7.3; see also Shoney's, 119 N.C. App. at 423, 458 S.E.2d at 512 (holding the Board of Adjustment's findings were insufficient when the Board's conclusions were merely a "preprinted form couched in the language of the relevant section of the City's zoning ordinance" and the "only written finding was the conclusion that `petitioner did not satisfy requirements set forth in opening statement'"). Furthermore, the minutes from the Planning Board's 17 February 2009 hearing show the Planning Board voted on each requirement, but did not make any findings of fact to support its decision. Accordingly, we cannot determine from the record the basis of the Planning Board's decision. See Crist v. City of Jacksonville, 131 N.C. App. 404, 406, 507 S.E.2d 899, 900 (1998) (remanding the case to the trial court for further remand to the Board of Adjustment to make findings of fact where "[t]here is no showing of how the Board of Adjustment arrived at its decision and therefore nothing to protect plaintiff from an arbitrary decision"); Deffet Rentals, Inc. v. Burlington, 27 N.C. App. 361, 365, 219 S.E.2d 223, 227 (1975) ("In this case the findings of fact by the Board of Adjustment are insufficient to enable the reviewing court to determine whether the Board had acted arbitrarily or had committed errors of law in affirming the Building Inspector and denying the permit.").
Although the Planning Board failed to make adequate findings of fact, it is not the function of the trial court to find the facts, "but to determine whether the findings of fact made by the Board are supported by the evidence before the Board and whether the Board made sufficient findings of fact." Shoney's, 119 N.C. App. at 421, 458 S.E.2d at 511. Here, the trial court made numerous findings of fact in its order, including the finding "[t]hat the Board failed to make any findings of fact as to the basis for their decision. The Board simply made a conclusory statement that a particular standard had or had not been meet." We conclude the trial court did not exercise the appropriate scope of review when it made findings of fact. See Deffet Rentals, 27 N.C. App. at 364, 219 S.E.2d at 226 ("It is not the function of the reviewing court, in such a proceeding, to find the facts. . . . It follows that in the instant case the trial court was without authority to make findings of fact and conclusions of law thereon. In so doing, it committed error.").
Additionally, we find the trial court improperly applied the "whole record" test because it did not review all competent evidence presented to the Planning Board. The trial court was required to use the "whole record" test because Petitioner complained that the Planning Board's denial of his application was not supported by the evidence and was arbitrary and capricious. See Mann Media, Inc., 356 N.C. at 13, 565 S.E.2d at 17. "The `whole record' test requires the reviewing court to examine all competent evidence (the `whole record') in order to determine whether the agency decision is supported by substantial evidence." ACT-UP Triangle, 345 N.C. at 706, 483 S.E.2d at 392 (quotation marks and citation omitted). "The trial court does not review the sufficiency of evidence presented to it but reviews that evidence presented to the town board." Coastal Ready-Mix, 299 N.C. at 626-27, 265 S.E.2d at 383.
Here, the trial court did not examine the "whole record" presented to the Planning Board because none of the exhibits presented at the 16 September 2008 hearing and the 17 February 2009 hearing were included in the record. See District Bd. of Metropolitan Sewerage Dist. of Buncombe County v. Blue Ridge Plating Co., Inc., 110 N.C. App. 386, 391, 430 S.E.2d 282, 287 (1993) (noting that "conducting a `whole record' test is impossible without the `whole record'"). Specifically, the parties dispute whether Exhibit B, presented by Mr. Scott at the 16 September 2008 hearing, shows examples of depreciation of property values for properties adjacent to mobile home parks or properties in mobile home parks. Although the trial court reviewed the minutes concerning Exhibit B from the 16 September 2008 hearing, Exhibit B goes to the material issue of whether the proposed mobile home park would substantially injure the value of the adjoining or abutting property. Accordingly, we remand to the superior court for further remand to the Bladen County Planning Board to compile a full record, including all exhibits, for the court to review.
In sum, we find the Planning Board failed to make findings of fact sufficient for a reviewing court to determine the basis of the Planning Board's decision. We further find the trial court did not exercise the appropriate standard of review when it made findings of fact, and the trial court improperly applied the "whole record" test because it did not review all competent evidence presented to the Planning Board. Therefore, we reverse the order of the trial court vacating the Planning Board's decision, and remand the cause to the trial court for further remand to the Bladen County Planning Board to (1) make findings of fact to support their decision based on the evidence presented at the 16 September 2008 and 17 February 2009 hearings and (2) compile a full record for the court to review, including all exhibits presented to the Planning Board at the 16 September 2008 and 17 February 2009 hearings.
Reversed and Remanded.
Chief Judge MARTIN and Judge ROBERT C. HUNTER concur.
Report per Rule 30(e).