{ "id": 8376193, "name": "HABITAT FOR HUMANITY OF MOORE COUNTY, INC. v. BOARD OF COMMISSIONERS OF THE TOWN OF PINEBLUFF", "name_abbreviation": "Habitat for Humanity of Moore County, Inc. v. Board of Commissioners", "decision_date": "2007-12-18", "docket_number": "No. COA07-406", "first_page": "764", "last_page": "770", "citations": [ { "type": "official", "cite": "187 N.C. App. 764" } ], "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": "186 N.C. App. 451", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8157809 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc-app/186/0451-01" ] }, { "cite": "444 S.E.2d 639", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "643" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 319", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127556 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0319-01" ] }, { "cite": "578 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "698", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 303", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186327 ], "year": 2003, "pin_cites": [ { "page": "305-06", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0303-01" ] }, { "cite": "574 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "51", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249087 ], "year": 2002, "pin_cites": [ { "page": "113", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0110-01" ] }, { "cite": "560 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "878", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 320", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9127650 ], "year": 2002, "pin_cites": [ { "page": "324", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0320-01" ] } ], "analysis": { "cardinality": 577, "char_count": 12389, "ocr_confidence": 0.753, "pagerank": { "raw": 8.819163160070027e-08, "percentile": 0.4971162411399275 }, "sha256": "74f0caf515f2f96d177125a1c6f3b227b8978c90d3348c0af98af1f76e936944", "simhash": "1:a3a052a6dd0449b7", "word_count": 1976 }, "last_updated": "2023-07-14T22:19:56.575920+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and GEER concur." ], "parties": [ "HABITAT FOR HUMANITY OF MOORE COUNTY, INC. v. BOARD OF COMMISSIONERS OF THE TOWN OF PINEBLUFF" ], "opinions": [ { "text": "STEELMAN, Judge.\nHabitat of Moore County, Inc. (Habitat)\u2019s conditional use permit application was determined by the Board of Commissioners of the Town of Pinebluff (Commissioners) to be complete, and it had standing to appeal Commissioners\u2019 denial of the permit. Habitat\u2019s proposed subdivision was in compliance with the zoning requirements of Commissioners\u2019 Unified Development Ordinance, and there was insufficient evidence to rebut the presumption of harmony with the area. Thus, the trial court did not err in reversing Commissioners\u2019 decision.\nI. Factual Background\nOn 26 June 2006, petitioner Habitat submitted an application for a conditional use permit (\u201cCUP\u201d) to develop a 75-lot subdivision. The Planning Board for the Town of Pinebluff met on 27 July 2006 and recommended approval of the permit. A public hearing was held on 17 August 2006 before respondents Commissioners. At this hearing, Habitat\u2019s executive director Elizabeth Cox (Cox) testified and was subjected to cross-examination. Numerous adjacent and neighboring property owners also testified. At its 21 September 2006 meeting, Commissioners found Habitat\u2019s application to be complete. Commissioners further found that the proposed development would meet the requirements of the R-30 zoning under the Pinebluff Unified Development Ordinance (the \u201cPinebluff UDO\u201d). Commissioners then voted to deny the permit.\nHabitat filed a petition for writ of certiorari in Moore County Superior Court on 16 October 2006. On that date, the trial court entered an order granting the petition and directing that the record of the proceedings be brought before the court. On 4 January 2007 Judge Webb entered an order reversing the decision of Commissioners and remanding the matter back to Commissioners for issuance of the CUP. Commissioners appeal.\nII. Standing\nIn their first argument, Commissioners contend that the trial court erred by concluding that it had jurisdiction over the parties and subject matter involved in this case. We disagree.\n\u201cStanding is a necessary prerequisite to a court\u2019s proper exercise of subject matter jurisdiction.\u201d Aubin v. Susi, 149 N.C. App. 320, 324, 560 S.E.2d 875, 878 (2002) (citation omitted). As the party invoking jurisdiction, plaintiffs have the burden of establishing standing. Neuse River Found. v. Smithfield Foods, 155 N.C. App. 110, 113, 574 S.E.2d 48, 51 (2002) (citation omitted). This Court in Street v. Smart Corp. defined standing as follows:\nStanding refers to whether a party has a sufficient stake in an otherwise justiciable controversy such that he or she may properly seek adjudication of the matter. . . . The gist of standing is whether there is a justiciable controversy being litigated among adverse parties with substantial interest affected so as to bring forth a clear articulation of the issues before the court.\nStreet v. Smart Corp., 157 N.C. App. 303, 305-06, 578 S.E.2d 695, 698 (2003) (internal citations and quotations omitted).\nSection 48 of Pinebluff\u2019s UDO governs who may submit zoning permit applications, and states that:\nApplications for zoning, special-use, conditional-use, or sign permits or minor subdivision plat approval will be accepted only from persons having the legal authority to take action in accordance with the permit or the minor subdivision plat approval. By way of illustration, in general this means that applications should be made by the owners or lessees of the property, or their agents, or persons who have contracted to purchase property contingent upon their ability to acquire the necessary permits under this ordinance, or the agents of such persons . . .\nThe section further states:\nThe administrator may require an applicant to submit evidence of his authority to submit the application in accordance with the Subsection (a) whenever there appears to be a reasonable basis for questioning this authority.\n(emphasis added).\nCommissioners argue that, since Habitat was not the owner of the property, and since it did not present a contract showing a purchase agreement contingent upon the approval of the CUP, Habitat had no stake in the matter and therefore did not have standing. This is not correct. Section 48 clearly indicates that a party need not be the owner of the property in order to submit an application. Moreover, an affirmative showing of a contract to purchase the land is unnecessary unless required by the administrator.\nCox testified at the 17 August 2006 public hearing that Habitat had a contract to purchase the property. The Commissioners did not .request additional evidence of Habitat\u2019s authority to submit the application, and instead found the application to be complete. The application indicated that the purpose for applying for the CUP was \u201c[t]o develop ... 75 R-30 Habitat for Humanity homes.\u201d\nAlthough Commissioners correctly note that the property owner did not sign the application, this is irrelevant in light of their finding that Habitat\u2019s application was complete. Further, the record contains evidence that Habitat had an option to purchase the property at the time it submitted the application.\nHabitat had a \u201csubstantial interest affected\u201d by Commissioners\u2019 decision and it complied with the provisions of the UDO in applying for a CUP. We hold that Habitat had standing in this matter, and that the trial court correctly concluded that it had jurisdiction over the parties and the subject matter. This argument is without merit.\nIII. Trial Court\u2019s Conclusions of Law\nIn their second argument, Commissioners contend that the trial court erred in reversing their denial of the CUP. Commissioners argue that their decision was supported by competent, substantial, and material evidence, and was not arbitrary and capricious. We disagree.\nArticle IV of Pinebluff\u2019s UDO governs \u201cPermits and Final Plat Approvals.\u201d Section 54 of this article states that the permit shall be issued unless (1) the requested permit is not within [the town board\u2019s] jurisdiction according to the table of permissible uses, (2) the application is incomplete, or (3) the proposed development will not comply with one or more requirements of [the UDO], Further, subsection (d) states that:\nEven if the permit-issuing board finds that the application complies with all other provisions of this chapter, it may still deny the permit if it concludes ... that if completed as proposed, the development, more probably than not:\n(1) Will materially endanger the public health or safety, or\n(2) Will substantially injure the value of adjoining or abutting property, or\n(3) Will not be in harmony with the area in which it is to be located, or\n(4) Will not be in general conformity with the land-use plan, thoroughfare plan, or other plan officially adopted by the Board \u2022 of Commissioners.\nUnder North Carolina case law, where a use is included as a conditional use in a particular zoning district, a prima facie case of harmony with the area is established. Vulcan Materials Co. v. Guilford County Bd. of County Comm\u2019rs, 115 N.C. App. 319, 324, 444 S.E.2d 639, 643 (1994). Once this prima facie case is established, Commissioners may still find that the use will not be in harmony with the area only if there is competent, material, and substantial evidence to support such a finding. Id.\nAt the 21 September 2006 meeting, Commissioners found that Habitat\u2019s plans for its proposed development met the requirements of the R-30 zoning in the UDO. Nevertheless, a motion was made and passed by a 3-2 vote to deny the CUP on the grounds that:\n[I]t will endanger the public health for the following reasons. There has not been enough of a traffic study. We do not know\u2014 there\u2019s a question on whether or not the safety of the citizens can be protected down there ... I also think that it will not be in harmony with the area.\nOn appeal, Commissioners do not contend that Habitat\u2019s proposed development would endanger public health or safety. Instead, Commissioners only argue that there was competent, material, and substantial evidence in the record to support their finding that the subdivision would not be in harmony with the area.\nIn support of their contention, Commissioners reference four pieces of testimony from the 17 August 2006 public hearing which they claim \u201cshow[] clearly that the project would not be in harmony with the area[.]\u201d\nThe first was from a woman expressing apprehension that her property \u201cwill be destroyed by trash dumping and riding four-wheelers and things like that.\u201d The second was a speaker who stated his concern about children in the proposed Habitat development spooking his horses. The third was a speaker who stated that \u201cwe do not want a subdivision built in there.\u201d Finally, the last piece of testimony cited by Commissioners is from a neighboring landowner, whose land does not abut the proposed Habitat development, stating \u201c[I]t would be a lot nicer obviously if it went into five, ten-acre tracts or something like that.\u201d\nAfter Habitat made its prima facie showing of harmony by demonstrating the proposed development\u2019s conformity with the R-30 zoning requirements of the Pinebluff UDO, the burden was on the opponents of the permit to show that the proposed development was not in harmony with the area. The gist of the opponents\u2019 objection is that they did not want the rural nature of their property to be compromised by a subdivision. However, under North Carolina jurisprudence, the fact that the proposed development in a CUP application has not already taken place on land is insufficient to rebut a prima facie showing of harmony. See Vulcan, 115 N.C. App. 319, 444 S.E.2d 639. Thus, to the extent that the objections to the proposed development centered on the fact that the land had not already been developed, these objections were insufficient to rebut Habitat\u2019s prima facie showing of harmony. No objections on any other basis were made, and we agree with the trial court\u2019s conclusion of law that there was insufficient evidence of a competent, material and substantial nature to rebut Habitat\u2019s showing of harmony with the area.\nBecause we affirm the trial court\u2019s order on the basis that the Commissioners\u2019 decision was not supported by competent, material, and substantial evidence, we need not address whether the decision was arbitrary and capricious.\nIII. Order\nWe note that Judge Webb\u2019s order was printed, signed and filed on the ruled stationery of Habitat\u2019s trial attorney. Without deciding whether this practice violates either the Code of Judicial Conduct or the Revised Rules of Professional Conduct, we strongly discourage lawyers from submitting or judges from signing orders printed on attorneys\u2019 ruled stationery bearing the name of the law firm. Such orders could call into question the impartiality of the trial court. In re T.M.H., 186 N.C. App. 451,-S.E.2d -(2007).\nAFFIRMED.\nJudges WYNN and GEER concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Gill & Tobias, LLP, by Douglas R. Gill, for 'petitioner-appellee.", "The Brough Law Firm, by William C. Morgan, Jr., for respondent-appellant." ], "corrections": "", "head_matter": "HABITAT FOR HUMANITY OF MOORE COUNTY, INC. v. BOARD OF COMMISSIONERS OF THE TOWN OF PINEBLUFF\nNo. COA07-406\n(Filed 18 December 2007)\n1. Zoning\u2014 conditional use permit \u2014 standing to contest\nHabitat had a substantial interest affected by the Board of Commissioner\u2019s decision in a conditional use permit case where there was testimony that Habitat had a contract to purchase the property and the Commission found the application for the permit to be complete.\n2. Zoning\u2014 conditional use permit \u2014 requirements of unified development ordinance \u2014 prima facie harmony with area\nThe trial court did not err by reversing the Board of Commissioner\u2019s denial of a conditional use permit where the Commissioners found that Habitat\u2019s plans met the requirements of the unified development ordinance, which established a prima facie case of harmony with the area. The fact that the proposed development has not already taken place is not sufficient to rebut a prima facie showing of harmony.\n3. Judges\u2014 orders \u2014 printed on law firm stationery\nLawyers are discouraged from submitting and judges from signing orders printed on attorneys\u2019 ruled stationery bearing the name of the law firm, as this could call the impartiality of the court into question.\nAppeal by respondents from judgment entered 4 January 2007 by Judge James M. Webb in Moore County Superior Court. Heard in the Court of Appeals 30 October 2007.\nGill & Tobias, LLP, by Douglas R. Gill, for 'petitioner-appellee.\nThe Brough Law Firm, by William C. Morgan, Jr., for respondent-appellant." }, "file_name": "0764-01", "first_page_order": 794, "last_page_order": 800 }