{ "id": 9251535, "name": "IN THE MATTER OF THE APPEAL OF THE SOCIETY FOR THE PRESERVATION OF HISTORIC OAKWOOD AND MOZELLE JONES Property Pin # 1713084727 & 1713081714 and RALEIGH RESCUE MISSION, INC., and COGGINS CONSTRUCTION COMPANY, Petitioners v. BOARD OF ADJUSTMENT OF THE CITY OF RALEIGH, THE SOCIETY FOR THE PRESERVATION OF HISTORIC OAKWOOD and MOZELLE JONES, Respondents", "name_abbreviation": "Raleigh Rescue Mission, Inc. v. Board of Adjustment", "decision_date": "2002-11-05", "docket_number": "No. COA01-1274", "first_page": "737", "last_page": "743", "citations": [ { "type": "official", "cite": "153 N.C. App. 737" } ], "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": "380 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "575", "parenthetical": "under section 160A-388(b), \"Once the municipal official has acted, for example by granting or refusing a permit, 'any person aggrieved' may appeal to the board of adjustment.\"" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527459 ], "year": 1989, "pin_cites": [ { "page": "502-03", "parenthetical": "under section 160A-388(b), \"Once the municipal official has acted, for example by granting or refusing a permit, 'any person aggrieved' may appeal to the board of adjustment.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0498-01" ] }, { "cite": "177 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "280", "parenthetical": "quoting 7 Strong's N.C. Index 2d, Statutes \u00a7 5" } ], "opinion_index": 0 }, { "cite": "277 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563328 ], "year": 1970, "pin_cites": [ { "page": "131", "parenthetical": "quoting 7 Strong's N.C. Index 2d, Statutes \u00a7 5" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0119-01" ] }, { "cite": "553 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "93", "parenthetical": "where statute does not define a word, courts must accord the word plain meaning and refrain from judicial construction" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11357693 ], "year": 2001, "pin_cites": [ { "page": "376", "parenthetical": "where statute does not define a word, courts must accord the word plain meaning and refrain from judicial construction" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0370-01" ] }, { "cite": "566 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "parenthetical": "if petitioner argues the board's decision was based on error of law the trial court applies de novo review" }, { "parenthetical": "after determining the actual nature of the contended error the appellate court then proceeds with the proper standard of review" } ], "opinion_index": 0 }, { "cite": "355 N.C. 758", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220129, 220138, 220077, 220083, 219964 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0758-04", "/nc/355/0758-03", "/nc/355/0758-02", "/nc/355/0758-01", "/nc/355/0758-05" ] }, { "cite": "557 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "634" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9363630 ], "year": 2001, "pin_cites": [ { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0052-01" ] } ], "analysis": { "cardinality": 680, "char_count": 15446, "ocr_confidence": 0.769, "pagerank": { "raw": 3.1175260892716905e-07, "percentile": 0.8604032513092462 }, "sha256": "e1513a076313c9006ac3dd8dc5c848c9e326deb8059049d5b0d007bb5605367a", "simhash": "1:d7ede02e53282b3c", "word_count": 2427 }, "last_updated": "2023-07-14T15:17:05.865609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and TYSON concur." ], "parties": [ "IN THE MATTER OF THE APPEAL OF THE SOCIETY FOR THE PRESERVATION OF HISTORIC OAKWOOD AND MOZELLE JONES Property Pin # 1713084727 & 1713081714 and RALEIGH RESCUE MISSION, INC., and COGGINS CONSTRUCTION COMPANY, Petitioners v. BOARD OF ADJUSTMENT OF THE CITY OF RALEIGH, THE SOCIETY FOR THE PRESERVATION OF HISTORIC OAKWOOD and MOZELLE JONES, Respondents" ], "opinions": [ { "text": "THOMAS, Judge.\nRaleigh Rescue Mission, Inc. and Coggins Construction Company, petitioners, appeal the trial court\u2019s order affirming a decision of respondent Board of Adjustment of the City of Raleigh (Board).\nThe Board determined that the facility which petitioners plan to construct fails to meet multi-family housing requirements because of its proposed use. In actuality, according to the Board, the facility is a form of \u201ctransitional housing.\u201d Transitional housing is not permitted in a district zoned Shopping Center, and Office and Institution-II under the Raleigh City Code. Multi-family housing, however, is permitted.\nPetitioners\u2019 primary contention is that the Board lacked jurisdiction to even hear the matter. For the reasons herein, we agree and reverse the order of the trial court.\nThe Rescue Mission is a charitable organization providing food and shelter to the homeless and others in need. It proposes here to build a residential facility for women and children on a 7.72 acre site at the comer of New Bern Avenue and Swain Street in Raleigh, North Carolina. The area is locally known as \u201cHistoric Oakwood.\u201d\nRespondents Mozelle Jones, a neighboring property owner, and the Society for the Preservation of Historic Oakwood (Oakwood) oppose the development. When the Rescue Mission initially sought site plan approval for the facility as a \u201chotel,\u201d Jones and Oakwood appealed to the Board for an interpretation of that term based on the Raleigh City Code. Following a hearing on 14 December 1998, the Board concluded that the Rescue Mission\u2019s proposal did not meet the definition of a hotel. The decision was not appealed. Instead, the Rescue Mission revised its site plan and re-characterized the facility as a \u201cmulti-family dwelling.\u201d In July of 1999, the revision was submitted to the Comprehensive Planning Committee of the Raleigh City Council.\nLater, in response to an inquiry from Deputy City Attorney Ira Botvinick, Zoning Inspector Supervisor Larry Strickland issued a memorandum of his opinion of the contentions in the parties\u2019 briefs. Strickland stated that while the multi-family building proposed by petitioners is permitted by the zoning code, the proposed use \u201cmay not be.\u201d\nOn 14 September 1999, the Comprehensive Planning Committee, a subcommittee of the Raleigh City Council, reviewed the plan and determined that the facility was a permissible multi-family dwelling. It referred the matter to the City Council with a recommendation for approval. Oakwood and Jones, however, again appealed to the Board for an interpretation, citing Strickland\u2019s memorandum and the Comprehensive Planning Committee\u2019s recommendation as. bases for the appeal. On 21 September 1999, the City Council approved the revised site plan while noting the pending appeal.\nThe hearing on the appeal came before the Board on 13 December 1999. The Rescue Mission did not participate in the hearing other than for the limited purpose of contesting the Board\u2019s authority and jurisdiction to proceed.\nThe Board ruled that the proposed facility can not be properly classified \u201cmulti-family housing,\u201d which is permitted in the zoning district. Rather, it would be a type of \u201ctransitional housing/emergency shelter,\u201d which is not allowed. In reaching its decision, the Board concluded, \u201cAlthough the zoning classifications applicable to the subject property would pennit the development of multi-family housing on the site, it is the nature of the use that determines whether it can be located in the zoning district, and not the nature of the zoning classification that determines what the proposed use is called.\u201d\nPetitioners appealed to Wake County Superior Court. The trial court concluded that the Board \u201chad jurisdiction to review the order, decision, or determination of Zoning Inspections Supervisor, Larry Strickland,\u201d and affirmed the decision of the Board. Petitioners appeal.\nOn review of a trial court\u2019s order regarding a board\u2019s decision, we examine for error of law by determining whether the trial court: (1) exercised the proper scope of review; and (2) correctly applied this scope of review. Tucker v. Mecklenburg County Zoning Bd. of Adjustment, 148 N.C. App. 52, 55, 557 S.E.2d 631, 634 (2001), disc. review allowed, 355 N.C. 758, 566 S.E.2d 483 (2002). Here, petitioners had contended in their petition for writ of certiorari to Wake County Superior Court that the Board lacked jurisdiction to hear the matter. The trial court stated that it applied a whole record review and ruled the Board had jurisdiction and the Board\u2019s decision contained no errors of law. Because the issue of whether the Board had jurisdiction is a question of law, the trial court applied the incorrect standard of review. The appropriate review is de novo. See id. (if petitioner argues the board\u2019s decision was based on error of law the trial court applies de novo review). For the same reason, this Court applies de novo review. Id. (after determining the actual nature of the contended error the appellate court then proceeds with the proper standard of review). De novo review requires us to consider the question anew, as if not previously considered or decided. Id.\nBy their first assignment of error, petitioners claim the trial court erred in concluding that the Board had jurisdiction to review Strickland\u2019s memorandum, because it did not constitute an \u201corder . . . decision, or determination,\u201d as required by N.C. Gen. Stat. \u00a7 160A-388(b) and the Code.\nSection 160A-388(b) of the North Carolina General Statutes provides:\nThe board of adjustment shall hear and decide appeals from and review any order, requirement, decision, or determination made by an administrative official charged with the enforcement of any ordinance adopted pursuant to this Part. An appeal may be taken by any person aggrieved or by an officer, department, board, or bureau of the city.\nN.C. Gen. Stat. \u00a7 160A-388(b) (2001) (emphasis added).\nUnder the Raleigh Zoning Code, the Board \u201cmay exercise any and all powers prescribed by general law.\u201d Raleigh Zoning Code \u00a7 10-1061. It likewise provides that among the Board\u2019s duties is hearing \u201c[a]ppeals from alleged errors in orders, decisions, or determinations of administrative officials charged with the enforcement or requests by such officials for interpretations of Chapter 2 of this Part.\u201d Raleigh Zoning Code \u00a7 10-1061(c)(1) (emphasis added).\nAdditionally, section 10-2142(a) of the Code states:\nAny person aggrieved or any agency or officer, department, board, including the governing board of the City of Raleigh affected by any decision, order, requirement, or determination relating to the interpretation, compliance, or application of chapters 1 and 2 of this Part and made by an administrative official charged with the enforcement of these chapters may file an appeal to the Board of Adjustment.\nRaleigh City Code \u00a7 10-2142(a) (emphasis in original). Since the Board had no authority to hear requests by Jones and Oakwood for interpretations of the Code, see Raleigh Zoning Code \u00a7 10-1061(c)(l), we must determine whether Jones and Oakwood appealed from an \u201corder . . . decision, or determination\u201d of an administrative official. N.C. Gen. Stat. \u00a7 160A-388(b); see also Raleigh City Code \u00a7 10-2142(a).\nBoth parties agree that Zoning Inspector Strickland is an \u201cadministrative official.\u201d Petitioner, however, disputes Oakwood and Jones\u2019s contention that Strickland issued an \u201corder . . . decision, or determination\u201d upon which they could base an appeal. We agree with petitioners that Strickland issued no appealable decision.\nIn response to questions by Botvinick regarding whether the proposed facility was permitted under the Code, Strickland reviewed the written arguments submitted by both parties to the Comprehensive Planning Committee. He then issued the following memorandum to Botvinick and Planning Director George Chapman:\nAs we briefly discussed yesterday, I have read through the two \u201cbriefs\u201d submitted to the [Comprehensive Planning] [Cjommittee by Mr. Worth and Ms. Morris. Without question, the new building proposed meets the code definition of multi-family found in 10-2002.\nMr. Worth states on page 2 that signed leases will be required which will provide for monthly payment by cash based on means to pay, services performed for the mission, grants and scholarships. This appears to be vague. What means to pay? Is there a minimum amount? As I recall Reverend Foster\u2019s testimony, everyone that stays at the mission, must perform services for the mission so is this really payment? Most apartments have a minimum lease period of 3, 6, or 12 months. It appears that the mission does not.\nThe facts presented by Ms. Morris with respect to the Board of Adjustment case should not be over looked. Much of the testimony at the meeting where the Board ruled that the proposed facility as represented by the testimony provided, including the approved site plan does not meet the qualifications as a hotel/motel as intended by the code, was based on the missions over all purpose. Has that changed to the point that the Board\u2019s decision is not relevant now?\nClearly the existing code does not specifically permit or necessarily prohibit a facility like the Rescue Mission. The proposed multi-family building proposed by the mission is permitted. The overall operation of the mission on this site, based on the implication of the Board of Adjustment case, may not be.\n(Emphasis added).\nThe legislature has not defined the words \u201corder, decision ... or determination.\u201d N.C. Gen. Stat. \u00a7 160A-388(b). We therefore accord the words their plain meaning. See Grant Const. Co. v. McRae, 146 N.C. App. 370, 376, 553 S.E.2d 89, 93 (2001) (where statute does not define a word, courts must accord the word plain meaning and refrain from judicial construction).\nMoreover, section 10-2002 of the Code, \u201cDefinitions,\u201d states that all words \u201chave their commonly accepted and ordinary meaning\u201d unless specifically defined in the Code. Raleigh City Code \u00a7 10-2002. The section lists \u201can ordinary dictionary\u201d as the primary source for interpreting non-legal terms. Id. Finally, \u201c[w]ords and phrases of a statute \u2018must be construed as a part of the composite whole and accorded only that meaning which other modifying provisions and the clear intent and purpose of the act will permit.\u2019 \u201d Vogel v. Reed Supply Co., 277 N.C. 119, 131, 177 S.E.2d 273, 280 (1970) (quoting 7 Strong\u2019s N.C. Index 2d, Statutes \u00a7 5).\nThe Oxford American Dictionary defines \u201cdecision,\u201d as \u201c1. the act or process of deciding. 2. a conclusion or resolution reached, esp. as to future action, after consideration, (have made my decision) 3. (often foil, by of) a. the settlement of a question, b. a formal judgment.\u201d The Oxford American Dictionary 245 (1999). \u201cDetermination\u201d is \u201cthe process of deciding, determining, or calculating.\u201d It is further defined as \u201cthe conclusion of a dispute by the decision of an arbitrator\u201d and \u201cthe decision reached.\u201d Id. at 258. \u201cOrder\u201d is defined as \u201can authoritative command, direction, instruction, etc.\u201d Id. at 697.\nBased on the above definitions, and construing the words as a part of the composite whole, the order, decision, or determination of the administrative official must have some binding force or effect for there to be a right of appeal under section 160A-388(b). Where the decision has no binding effect, or is not \u201cauthoritative\u201d or \u201ca conclusion as to future action,\u201d it is merely the view, opinion, or belief of the administrative official. See Midgette v. Pate, 94 N.C. App. 498, 502-03, 380 S.E.2d 572, 575 (1989) (under section 160A-388(b), \u201cOnce the municipal official has acted, for example by granting or refusing a permit, \u2018any person aggrieved\u2019 may appeal to the board of adjustment.\u201d) (emphasis added). We do not believe section 160A-388(b) sets forth an appellate process where no legal rights have been affected by the \u201corder, decision ... or determination\u201d of the administrative official.\nStrickland had no decision-making power at the time he issued his memorandum. It was merely advisory in response to a request by Botnovick. The memorandum itself affects no rights.\nStrickland\u2019s determination that \u201cwithout question, the new building proposed meets the code definition of multi-family found in 10-2002,\u201d while unequivocal, was without binding force. Likewise, Strickland\u2019s equivocal statements regarding the proposed use neither constitute decisions or determinations, nor adversely affect Oakwood and Jones. He wrote: \u201cThe proposed multi-family building proposed by the mission is permitted. The overall operation of the mission on this site, based on the implication of the [14 December 1998] board of adjustment case, may not be.\u201d Strickland issued no order, decision, or determination. Therefore, Oakwood and Jones cannot claim to be \u201cperson[s] aggrieved\u201d who have a right of appeal under N.C. Gen. Stat. \u00a7 160A-388(b).\nBecause we hold the trial court erred in determining that the Board had jurisdiction, we need not reach petitioners\u2019 remaining jurisdictional arguments.\nREVERSED.\nJudges MARTIN and TYSON concur.", "type": "majority", "author": "THOMAS, Judge." } ], "attorneys": [ "Thomas C. Worth and George B. Currin for petitioners-appellants.", "Satisky & Silverstein, by John Silverstein for respondent-appellee Raleigh Board of Adjustment; Poyner & Spruill L.L.P, by Robin Tatum Morris and Kacey Coley Sewell for respondents-appellees Society for the Preservation of Historic Oakwood and Mozelle Jones." ], "corrections": "", "head_matter": "IN THE MATTER OF THE APPEAL OF THE SOCIETY FOR THE PRESERVATION OF HISTORIC OAKWOOD AND MOZELLE JONES Property Pin # 1713084727 & 1713081714 and RALEIGH RESCUE MISSION, INC., and COGGINS CONSTRUCTION COMPANY, Petitioners v. BOARD OF ADJUSTMENT OF THE CITY OF RALEIGH, THE SOCIETY FOR THE PRESERVATION OF HISTORIC OAKWOOD and MOZELLE JONES, Respondents\nNo. COA01-1274\n(Filed 5 November 2002)\n1. Administrative Law\u2014 standard of judicial review \u2014 jurisdiction issue\nThe trial court incorrectly applied the whole record standard of review where petitioners Raleigh Rescue and Coggins Construction had contended in their petition for certiorari to the superior court that the Board of Adjustment lacked jurisdiction. Jurisdiction is a question of law, and the correct standard is de novo review.\n2. Zoning\u2014 appeal from official decision to board of adjustment \u2014 persons aggrieved\nThe trial court erred by determining that a board of adjustment had jurisdiction where a revised site plan was submitted to the planning committee; a deputy city attorney asked the zoning supervisor for his opinion, which was that the proposed plan met the code definition but that the use might not be permitted by the code; the planning committee recommended approval; respondents Oakwood and Jones (who opposed the plan) appealed to the board for an interpretation, citing the zoning supervisor\u2019s memo; the city council approved the revised site plan; the board ruled that the nature of the use is determinative rather than the classification and that the plan should not be allowed; and petitioners Raleigh Rescue and Coggins Construction appealed to the superior court, which affirmed the board. The zoning supervisor issued no order, decision, or determination and respondents cannot claim to be persons aggrieved who have the right of appeal to the board under N.C.G.S. \u00a7 160A-388(b).\nAppeal by petitioners from an order entered 22 May 2001 by Judge David Q. LaBarre in Wake County Superior Court. Heard in the Court of Appeals 15 August 2002.\nThomas C. Worth and George B. Currin for petitioners-appellants.\nSatisky & Silverstein, by John Silverstein for respondent-appellee Raleigh Board of Adjustment; Poyner & Spruill L.L.P, by Robin Tatum Morris and Kacey Coley Sewell for respondents-appellees Society for the Preservation of Historic Oakwood and Mozelle Jones." }, "file_name": "0737-01", "first_page_order": 767, "last_page_order": 773 }