{ "id": 11434646, "name": "M. JAY DEVANEY and MATTHEW W. DEVANEY, Plaintiffs v. CITY OF BURLINGTON, Defendant", "name_abbreviation": "Devaney v. City of Burlington", "decision_date": "2001-05-01", "docket_number": "No. COA00-240", "first_page": "334", "last_page": "339", "citations": [ { "type": "official", "cite": "143 N.C. App. 334" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "136 N.C. App. 272", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239345 ], "opinion_index": -1, "case_paths": [ "/nc-app/136/0272-01" ] }, { "cite": "434 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "612" }, { "page": "612" } ], "opinion_index": 0 }, { "cite": "334 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529794 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "507-08" }, { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0496-01" ] }, { "cite": "202 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "136", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "284 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562793 ], "year": 1974, "pin_cites": [ { "page": "468", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0458-01" ] }, { "cite": "535 S.E.2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684890 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0671-01" ] }, { "cite": "523 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2000, "pin_cites": [ { "page": "750" }, { "page": "749" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 272", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239345 ], "weight": 3, "pin_cites": [ { "page": "282" }, { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0272-01" ] } ], "analysis": { "cardinality": 520, "char_count": 11041, "ocr_confidence": 0.766, "pagerank": { "raw": 2.4142839728089415e-07, "percentile": 0.8002970443450564 }, "sha256": "25106bb7f956e016012b5d60d472a58979b6d992082aa519ae04fa40317f8689", "simhash": "1:3247c352578bd962", "word_count": 1736 }, "last_updated": "2023-07-14T21:26:47.079244+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and McCULLOUGH concur." ], "parties": [ "M. JAY DEVANEY and MATTHEW W. DEVANEY, Plaintiffs v. CITY OF BURLINGTON, Defendant" ], "opinions": [ { "text": "HUDSON, Judge.\nPlaintiffs appeal an \u201cOrder and Judgment\u201d of the Alamance County. Superior Court affirming the Burlington City Council\u2019s denial of their application for a Manufactured Housing Overlay District. Plaintiffs filed a complaint alleging the following: in November 1997, they contracted to purchase approximately 30 acres of property located in Burlington\u2019s extra-territorial zoning jurisdiction. On 18 December 1997, plaintiffs submitted an application to the City of Burlington (the City) for approval of their property as a Manufactured Housing Overlay District [MHOD]. N.C.G.S. \u00a7 160A-383.1 (1999) permits cities to designate MHODs within their residential districts in order to facilitate the public\u2019s access to affordable housing.\nMHODs are authorized by Section 32.2R of the Burlington City Code, which provides that MHODs may \u201coverlay R-6, R-9 and R-12 Residential Districts.\u201d Section 32.2R includes a list of requirements that a manufactured housing district and the homes within it must meet. A table contained in Section 32.9 of the City Code indicates that MHODs are \u201cpermitted by right\u201d within its R-6, R-9, and R-12 zoning districts. Plaintiffs\u2019 property is located in an R-9 district. Section 32.2R(3)(C) of the Code further provides: \u201cThe Burlington City Council shall have the authority to designate, amend or repeal [MHODs] and/or subdivisions. Requests regarding [MHODs] shall be processed in accordance with the provisions of the Burlington Zoning Ordinance.\u201d\nOn 23 February 1998, the City\u2019s Planning Commission denied plaintiff\u2019s application for an MHOD. On appeal, a public hearing was held before the City Council, which voted to deny the application as well.\nPlaintiffs filed the present suit in Alamance County Superior Court requesting that the City be ordered to approve their application, as the Burlington City Code provides that MHODs are \u201cpermitted by right\u201d in R-9 districts. Plaintiffs also alleged the City \u201chas violated the terms and spirit of its own Ordinance and N.C.G.S. \u00a7 160A-383.1 by consistently denying applications for [MHODs].\u201d N.C.G.S. \u00a7 160A-383.1(c) mandates that a \u201ccity may not adopt or enforce zoning regulations or other provisions which have the effect of excluding manufactured homes from the entire zoning jurisdiction.\u201d Finally, plaintiffs alleged that the denial of their application was arbitrary and capricious and violated their equal protection rights in violation of Article 1, Section 19, of the North Carolina Constitution.\nAfter an evidentiary hearing, the trial court rendered an \u201cOrder and Judgment\u201d concluding that there is no entitlement to the grant of an MHOD permit as a matter of right under the Burlington City Code, and that plaintiffs had not demonstrated the City had excluded manufactured housing from its zoning jurisdiction in violation of G.S. \u00a7 160A-383.1(c). It furthermore concluded:\n3. The grant or denial of such MHOD is in the nature of a zoning classification and as such is legislative in character.\n4. The determination respecting the grant or denial of an application for a MHOD being a legislative, rather than a quasi-judicial function, the Court is not free to substitute its judgment for that of the legislative body so long as there is some plausible basis for the conclusion reached by that body (the Burlington City Council).\n6. Whether the City Council\u2019s determination to deny the plaintiffs\u2019 application for the MHOD was arbitrary or capricious is at least fairly debatable and the Court cannot say that the Council\u2019s determination was not rationally related to a legitimate governmental objective respecting the interests of the public health, safety, morals or general welfare.\nThus, the trial court ruled for the City on all claims brought by plaintiffs. Plaintiffs thereafter filed notice of appeal to this Court.\nPlaintiffs contend the trial court erred in deciding that the actions of the City Council in denying their application for an MHOD were not arbitrary and capricious. This Court has previously addressed a situation in which the Burlington City Council considered and denied an appellant\u2019s application for an MHOD. See Northfield Dev. Co. v. City of Burlington, 136 N.C. App. 272, 523 S.E.2d 743, aff\u2019d in part and review dismissed in part, 352 N.C. 671, 535 S.E.2d 32 (2000). (The hearing before the City Council and the entry of the Superior Court\u2019s judgment in this case both predated the Northfield decision.) In Northfield, we determined that the City Council\u2019s action in deciding whether to approve an MHOD is quasi-judicial, in that it involves the application of set policies to an individual situation. See 136 N.C. App. at 282, 523 S.E.2d at 750. In this way, decisions on MHODs are analogous to decisions to grant or deny variances or special use permits. See id.\nWhen 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. A denial of the permit should be based upon findings contra which are supported by competent, material, and substantial evidence appearing in the record. In no other way can the reviewing court determine whether the application has been decided upon the evidence and the law or upon arbitrary or extra legal considerations.\nRefining Co. v. Board of Aldermen, 284 N.C. 458, 468, 202 S.E.2d 129, 136 (1974) (citations omitted). Furthermore,\ndue process requirements for quasi-judicial zoning decisions mandate that all fair trial standards be observed when these decisions axe made. This includes an evidentiary hearing with the right of the parties to offer evidence; cross-examine adverse witnesses; inspect documents; have sworn testimony; and have written findings of fact supported by competent, substantial, and material evidence.\nCounty of Lancaster v. Mecklenburg County, 334 N.C. 496, 507-08, 434 S.E.2d 604, 612 (1993).\nIn the present case, a public hearing was held before the City Council on 5 May 1998 to determine whether to grant plaintiffs\u2019 application for an MHOD. The two plaintiffs made arguments in favor of granting their application, and a number of people living near the property proposed for the MHOD expressed their views against it. At one point, the mayor asked for a show of hands of people present who were opposed to the MHOD. The City Council ultimately voted to deny the application. It did not make any findings of fact to support its decision.\nBefore making a quasi-judicial decision, the citizen board involved must conduct a fair evidentiary hearing to gather the necessary evidence on which to base a decision. The purpose of this hearing is to gather evidence in order to establish sufficient facts to apply the ordinance. The purpose is not to gather public opinion about the desirability of the project involved.\nDavid W. Owens, Introduction to Zoning 50 (Institute of Government, University of North Carolina at Chapel Hill 1995) (emphasis in original).\nNot having the benefit of the Northfield decision, the City Council in this instance clearly believed, and the Superior Court reviewing its actions explicitly found as fact, that the Council was involved in a legislative decision. Rather than attempt to apply the criteria of the City\u2019s zoning ordinance to the situation at hand in a quasi-judicial proceeding, the City Council used the hearing as an opportunity to solicit the opinion of neighboring property owners on the propriety of approving the MHOD. Furthermore, the City Council made no findings of fact for the Superior Court to review. As such, this procedure was clearly inconsistent with Northfield, and the Superior Court\u2019s \u201cOrder and Judgment\u201d affirming the City Council\u2019s decision must be vacated.\nPlaintiffs additionally argue they were entitled to approval of their application for an MHOD permit as a matter of right. Burlington City Code Section 32.9 provides that MHODs are \u201cpermitted by right\u201d in R-9 districts. This Court has previously held that Section 32.9 does not obligate the Burlington City Council to approve MHODs; rather, under Section 32.2R(3)(C), which provides that the \u201cCity Council shall have the authority to designate\u201d MHODs, it \u201cretains the discretion to make the designation.\u201d Northfield Dev. Co., 136 N.C. App. at 281, 523 S.E.2d at 749. Indeed, the making of quasi-judicial decisions involves \u201cthe exercise of some discretion in applying the standards of the ordinance.\u201d County of Lancaster, 334 N.C. at 507, 434 S.E.2d at 612.\nGiven that we have decided the City Council used the incorrect standard in making a decision on plaintiffs\u2019 application for an MHOD, we decline to address plaintiffs\u2019 argument that the City has enforced its zoning regulations in such a manner as to violate N.C.G.S. \u00a7 160A-383.1(c). Furthermore, we need not address the trial court\u2019s refusal to allow plaintiffs to elicit certain testimony from the City\u2019s planning director in their effort to establish that the City Council acted in an arbitrary and capricious manner.\nIn conclusion, we vacate the trial court\u2019s \u201cOrder and Judgment\u201d and remand to the Superior Court to remand to the City for the determination in a quasi-judicial hearing of the propriety of granting plaintiffs\u2019 application.\nVacated and remanded.\nJudges GREENE and McCULLOUGH concur.", "type": "majority", "author": "HUDSON, Judge." } ], "attorneys": [ "Adams, Kleemeier, Hagan, Hannah & Fonts, by David S. Pokela, for plaintiff-appellants.", "Robert M. Ward, Burlington City Attorney, and Thomas, Ferguson & Chams, L.L.P., by Jay H. Ferguson, for defendant-appellee." ], "corrections": "", "head_matter": "M. JAY DEVANEY and MATTHEW W. DEVANEY, Plaintiffs v. CITY OF BURLINGTON, Defendant\nNo. COA00-240\n(Filed 1 May 2001)\n1. Zoning\u2014 city council decision \u2014 quasi-judicial rather than legislative\nThe trial court erred by affirming the Burlington City Council\u2019s decision to deny an application for a Manufactured Housing Overlay District (MHOD) where the City Council clearly believed (and the trial court explicitly found) that the Council was involved in a legislative decision. Rather than applying the criteria of the zoning ordinance in a quasi-judicial proceeding, the Council used the hearing as an opportunity to solicit the opinion of neighboring property owners and made no findings for the Superior Court to review. This procedure is inconsistent with Northfield Dev. Co. v. City of Burlington, 136 N.C. App. 272.\n2. Zoning\u2014 authority of City Council \u2014 Manufactured Housing Overlay District\nPlaintiffs seeking a Manufactured Housing Overlay District (MHOD) from the Burlington City Council were not entitled to approval of their application as a matter of right, despite a provision in the Burlington City Code providing that MHODs are permitted by right in certain districts, because it has been held previously that the City Council retains the discretion to make the designation.\nAppeal by plaintiffs from order and judgment entered 16 August 1999 by Judge James C. Spencer, Jr., in Alamance County Superior Court. Heard in the Court of Appeals 13 March 2001.\nAdams, Kleemeier, Hagan, Hannah & Fonts, by David S. Pokela, for plaintiff-appellants.\nRobert M. Ward, Burlington City Attorney, and Thomas, Ferguson & Chams, L.L.P., by Jay H. Ferguson, for defendant-appellee." }, "file_name": "0334-01", "first_page_order": 364, "last_page_order": 369 }