Wash. Park, Etc. v. Winston-Salem, Etc.

241 S.E.2d 872 (1978)

WASHINGTON PARK NEIGHBORHOOD ASSOCIATION and Ella Johnson v. WINSTON-SALEM ZONING BOARD OF ADJUSTMENT, George W. Crone, Fred D. Hauser, Norman Swaim, James R. Lancaster, and Daisy Reed.

No. 7721SC241.

Court of Appeals of North Carolina.

March 7, 1978.

*875 Jim D. Cooley and William G. Pfefferkorn, Winston-Salem, for petitioners-appellants.

Womble, Carlyle, Sandridge & Rice by Roddey M. Ligon, Jr., and City Atty. Ronald G. Seeber, Winston-Salem, for respondents-appellees.

CLARK, Judge.

Petitioners raise much the same errors on appeal that they raised in their writ to the Superior Court. First they allege that the Board violated the procedures required by the City Code as well as those of the North Carolina Administrative Procedure Act, and both the Federal and State Constitutions, and that the court therefore erred in affirming the Board's decision. This assignment of error has several collateral parts, the first of which involves the issue of whether the record was adequate enough to permit review because there were errors and omissions in the record printed up from the handwritten minutes. Petitioners claim that the Administrative Procedure Act's requirement demands that sound recording be used where possible to produce a reviewable official record.

It is true that the hearings were held in a room equipped for sound recording, but it is not true that the Administrative Procedure Act requires that a Board of Adjustment sound record its hearings. So to demand would put a great burden on the Board, and for that reason municipal corporations were specifically excluded from the requirements of G.S. 150A-29 and G.S. 150A-37, that trial rules of evidence and production of evidence be followed in proceeding before State agencies. Handwritten records are adequate. The errors and omissions the petitioners allege are minimal and do not call the adequacy of this record into question.

*876 The petitioners raise a more important issue when they attack the Board's action as violative of Winston-Salem's own code as well as acknowledged fair trial standards. Humble Oil and Refining Co. v. Board of Aldermen, 284 N.C. 458, 202 S.E.2d 129 (1974), is the leading case on Code requirements in special use permit grants or denials, although it should be noted that Humble Oil's narrow holding involves requirements which must be met only before a special use may be denied:

"Safeguards against arbitrary action by zoning boards in granting or denying special use permits are not only to be found in specific guidelines for their action. Equally important is the requirement that in each instance the board (1) follow the procedures specified in the ordinance; (2) conduct its hearings in accordance with fair-trial standards; (3) base its findings of fact only upon competent, material, and substantial evidence; and (4) in allowing or denying the application, it state the basic facts on which it relied with sufficient specificity to inform the parties, as well as the court, what induced its decision." 284 N.C. at 471, 202 S.E.2d at 138.

The findings the Winston-Salem Code required were substantially the same as those found reasonably specific in Humble Oil. Petitioners do not attack the ordinance requirements per se but claim that the Board gave only lip service to them, by having them read pro forma at the beginning of both meetings and paying no further attention to them. There is, however, nothing in the Humble Oil case that demands anything more, provided there is "competent, material, and substantial evidence" to hold the requirements met. Humble Oil specifically refuses to attempt a test for "substantial evidence" but quotes with approval Professor Hanft's quotation, from Chief Justice Hughes, in 49 N.C.L. Rev. 635, 667: "`"Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." It "must do more than create the suspicion of the existence of the fact to be established . . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury."'" 284 N.C. at 470, 471, 202 S.E.2d at 137. It clearly need not be uncontradicted. Although petitioners did present contrary evidence there was adequate evidence to support the five affirmative findings that the ordinance required the Board make before issuing the special use permit. It is preferable that a Board not read a finding in the alternative as this Board did with No. 3 and then adopt it without clarification as to which alternative was supported by the evidence. But in the case sub judice there was some evidence to support both alternatives so the Board's action was not confounding.

Fair-trial standards were not violated by the Board's limiting of the second meeting's issues to those raised in the first. The petitioners had ample opportunity to be heard at both meetings and to cross-examine the applicants at the second. It is not sufficient to allege that the Board held the second meeting only because it became clear that the applicants had not made their case at the first. Humble Oil states that "[w]hen 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." 284 N.C. at 468, 202 S.E.2d at 136. Petitioners do not attack any of the five elements that go to make up a fair "Board" trial:

"Notwithstanding the latitude allowed municipal boards, as Justice Bobbitt (now Chief Justice) pointed out in Jarrell [Jarrell v. Board of Adjustment, 258 N.C. 476, 128 S.E.2d 879], a zoning board of adjustment, or a board of aldermen conducting a quasi-judicial hearing, can dispense with no essential element of a fair trial: (1) The party whose rights are being determined must be given the opportunity to offer evidence, cross-examine adverse witnesses, inspect documents, and offer evidence in explanation and rebuttal; (2) *877 absent stipulations or waiver such a board may not base findings as to the existence or nonexistence of crucial facts upon unsworn statements . . . and (3) crucial findings of fact which are `unsupported by competent, material and substantial evidence in view of the entire record as submitted' cannot stand." Humble Oil, 284 N.C. at 470, 202 S.E.2d at 137.

Petitioners finally allege that § 25-19(A)(2)(c)1 of the Winston-Salem Code is unconstitutional. The section provides that "[i]f the Board of Adjustment denies the application for the issuance of a special use permit, it shall enter the reasons for denial in the minutes of the meeting at which the action was taken . . . ." [Emphasis added.] It does not so require such extra reasons, over and above the regular findings, when the Board approves an application. Petitioners maintain that this distinction discriminates against persons aggrieved by the grant of another's application in violation of equal protection and due process guarantees. They point to language, previously cited, from Humble Oil to support them: "in allowing or denying the application, it [the Board] state the basic facts on which it relied with sufficient specificity to inform the parties, as well as the court, what induced its decision." [Emphasis added] 284 N.C. 471, 202 S.E.2d at 138. If such additional statement is essential to support a grant as well as a denial of a special use permit, then the Winston-Salem ordinance is fatally defective. However, such statement must be deemed essential only to the denial of a special use permit. Humble Oil makes clear, in another passage previously cited, that a prima facie case for a special use permit is made upon the applicant's evidence that the findings laid out by the ordinance may be affirmatively found. The findings, found in the affirmative, are clearly adequate "basic facts." In other words, what a reviewing court, and the parties involved, are assured under Humble Oil is information sufficient to understand the Board's action. In the case sub judice, where the special use permit was approved, the parties involved and the reviewing courts can be quite clear as to why the Board approved the grant. All of the required findings were affirmative, otherwise the permit would not have issued. If the permit had been denied, the Board would have had to have specified which of the findings was negative. Nothing more is required by Humble Oil than that the parties have sufficient information to understand the Board's actions. It does not require that parties aggrieved by a grant be treated as are parties aggrieved by a denial. Petitioners make no allegation that any other procedure mandated by Humble Oil or by the Winston-Salem ordinance was violated in any way, nor do they make serious allegation that the Board otherwise abused its discretion except insofar as it held against them.

The order appealed from is

Affirmed.

MORRIS and WEBB, JJ., concur.