Bryan v. Raynor

ARNOLD, Judge. Petitioners contend that all interested persons are entitled to a fair opportunity to be heard in quasi-judicial proceedings, and their right to be heard was denied when Dr. Raynor attended the meeting of the Aldermen without notice to petitioners. Pursuant to N.C.G.S. § 160A-381 any city may regulate the areas within its jurisdiction through zoning ordinances. The [zoning] regulations may . . . provide that the board of adjustment or the city council may issue special use permits or conditional use permits in the classes of cases or situations and in accordance with the principles, conditions, safeguards, and procedures specified therein .... When issuing or denying special use permits or conditional use permits, the city council shall follow the procedures for boards of adjustment . . ., and every such decision of the city council shall be subject to review by the superior court by proceedings in the nature of certiorari. N.C.G.S. § 160A-381. “ ‘[I]n passing upon an application for a special permit, a [Board of Aldermen] may not violate at will the regulations it has established for its own procedure; it must comply with all provisions of the applicable ordinance.’ ” Piney Mt. Neigborhood Assoc. v. Town of Chapel Hill, 63 N.C. App. 244, 253, 304 S.E. 2d 251, 256 (1983) (quoting Refining Co. v. Board of Aldermen, 284 N.C. 458, 202 S.E. 2d 129, 135 (1974)). [176] Hearing procedures for appeals and applications to the Board of Aldermen established by the Town of Garner read in pertinent part: Section 101. Hearing Required on Appeals and Applications. (b) While a public hearing is not routinely required to obtain a CUP [conditional use permit], a public hearing may be called for by the Administrator to consider a CUP application if he determines that it involves: * * * * (3) A development of land, regardless of its size, if it has the potential to pose peculiar traffic or other public safety, health or welfare impacts to surrounding properties, or if it is likely to have other impacts that differ substantially from those presented by other uses that are permissible in the zoning district in question. * * * * Section 104. Modification of Application at Hearing. (a) The applicant may agree to modify his application, including the plans and specifications submitted, in response to questions or comments by persons appearing at the hearing or to suggestions or recommendations by the Board of Aldermen or Board of Adjustment. (b) Unless such modifications are so substantial that the Board cannot reasonably be expected to perceive the nature and impact of the proposed changes without revised plans before it, the Board may approve the application with the stipulation that the permit will not be issued until plans reflecting the agreed upon changes are submitted to the Planning Office. Concerning the process of review of an application for a special use permit, this Court has stated: When a town council conducts a quasi-judicial hearing to determine facts prerequisite to issuance of a permit, it can dispense with no essential element of a fair trial. The applicant must have the opportunity to give evidence, cross-examine witnesses, and inspect documents; and unsworn statements may not be used to support findings absent waiver or stipulation. [177] Neighborhood Assoc., 63 N.C. App. at 254, 304 S.E. 2d at 257 (quotations and citations omitted). Petitioners argue that Dr. Raynor’s appearance before the Aldermen without notice to petitioners, and without their presence, was an improper presentation of evidence to the Board. Further, they contend that their right to cross-examine witnesses and present evidence at every stage of the review proceedings was denied by Dr. Raynor’s actions. We disagree. First, the procedural requirements established by the Town of Garner specifically allow an applicant for a conditional use permit to amend his application based upon events at the required public hearing. Dr. Raynor was simply attempting to address several concerns voiced at the hearing by his two conditions which are as follows: (a) Applicant will comply with any transportation facility fee ordinance in effect at the time building permits are issued. If no transportation facility fee ordinance is in effect at the time building permits are issued, then the applicant will pay $10 per unit to the Town of Garner, which sums shall be used for improvements to the intersection of Ackerman Road and Hebron Church Road. (b) The exact number of units will be adjusted, either up or down, to ensure that no units are located in the floodway and that all units are located above the 100-year flood level. Second, the conditions proposed by Dr. Raynor were beneficial to petitioners. Petitioners cannot claim with merit that they were harmed by the voluntary addition of the two conditions by Dr. Raynor. Finally, we conclude that the offer of two additional conditions to be placed upon an application for a conditional use permit is not an introduction of evidence. Municipal boards are not strictly bound by the formal rules of evidence, which is in accordance with their quasi-judicial nature. See Burton v. New Hanover City Zoning Bd., 49 N.C. App. 439, 271 S.E. 2d 550 (1980), cert. denied, 302 N.C. 217, 276 S.E. 2d 914 (1981). All that is required is that 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 opponents’ contentions. Id. Evidence, as a conceptual element of proof, is “any matter of fact, the effect, tendency, or design of which is to produce in the mind [178] a persuasion of the existence or nonexistence of some matter of fact.” Black’s Law Dictionary, 4th Ed. Dr. Raynor was not trying to prove any fact or show that his proposed mobile home park would be anything other than what petitioners claimed it would be. His voluntary amendment of his application was only an alteration of his planned park to make the development more acceptable to petitioners. In responding to petitioners’ arguments on appeal, defendants argue that petitioners have no standing in superior court, and thus no standing on appeal. Only aggrieved parties may appeal the denial or grant of a conditional use permit. Pigford v. Bd. of Adjustment, 49 N.C. App. 181, 270 S.E. 2d 535 (1980), disc. rev. denied, 301 N.C. 722, 274 S.E. 2d 230 (1981). In Neighborhood Assoc, this Court held that a property association had standing to seek judicial review of a municipality approval of a special use permit. 63 N.C. App. 244, 304 S.E. 2d 251. Justice Whichard (then Judge) stated that “[I]f the individual members [of the Association] were the petitioners here, they would clearly have an interest in the property affected by the housing project as residents of the neighborhood where the project is to be located, and they would be potentially aggrieved by any decline in the use or value of their property that resulted from the housing project.” Id. at 247, 304 S.E. 2d at 253; compare, Pigford, 49 N.C. App. 181, 270 S.E. 2d 535. We conclude, therefore, that as individual landowners whose property would be potentially harmed in value by Dr. Raynor’s mobile home court, petitioners had standing to bring this matter before the superior court and thus have standing on appeal. No error. Judges Greene and Lewis concur.