{ "id": 4156198, "name": "PAM and DAN McDONALD; ALEX PORTER, JR., PATRICIA ANN HYDE; H. EDWARD EUBANKS; Jr. RICHARD THOMASON; FORREST and TRACY BALLARD; PATRICK C. QUINN; and KIP and FAITH LYON, Petitioners v. CITY OF CONCORD, Respondent", "name_abbreviation": "McDonald v. City of Concord", "decision_date": "2008-01-15", "docket_number": "No. COA07-113", "first_page": "278", "last_page": "286", "citations": [ { "type": "official", "cite": "188 N.C. App. 278" } ], "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": "610 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2005, "pin_cites": [ { "page": "796" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 809", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8473946 ], "year": 2005, "pin_cites": [ { "page": "811" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0809-01" ] }, { "cite": "565 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 2002, "pin_cites": [ { "page": "17-18", "parenthetical": "citation omitted" }, { "page": "14" }, { "page": "18", "parenthetical": "citations omitted" }, { "page": "17-18", "parenthetical": "citation omitted" }, { "page": "17-18" }, { "page": "16" }, { "page": "19", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "356 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511222 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "14", "parenthetical": "citation omitted" }, { "page": "14" }, { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0001-01" ] }, { "cite": "533 S.E.2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2000, "pin_cites": [ { "page": "527" }, { "page": "527" }, { "page": "527-28" }, { "page": "528" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 269", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9496549 ], "year": 2000, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0269-01" ] } ], "analysis": { "cardinality": 758, "char_count": 18300, "ocr_confidence": 0.756, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13534843151087186 }, "sha256": "415ad88a7fa33b83faef6a31aa8688426f89104b56945a9f4aba8ae76700f742", "simhash": "1:204dc5db95bb7d42", "word_count": 2913 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and JACKSON concur." ], "parties": [ "PAM and DAN McDONALD; ALEX PORTER, JR., PATRICIA ANN HYDE; H. EDWARD EUBANKS; Jr. RICHARD THOMASON; FORREST and TRACY BALLARD; PATRICK C. QUINN; and KIP and FAITH LYON, Petitioners v. CITY OF CONCORD, Respondent" ], "opinions": [ { "text": "HUNTER, Judge,\nPam and Dan McDonald, Alex Porter, Jr., Patricia Ann Hyde, H. Edward Eubanks, Jr., Richard Thomason, Forrest and Tracey Ballard, Patrick C. Quinn, and Kip and Faith Lyon (\u201cpetitioners\u201d) appeal the superior court\u2019s decision affirming the City of Concord\u2019s (\u201cthe City\u201d) grant of a conditional use permit (\u201cCUP\u201d) to Cabarrus County (\u201cthe County\u201d) for the construction of a correctional facility adjacent to downtown Concord. After careful consideration, we affirm.\nOn 25 October 2005, the County submitted to the City\u2019s Development Service Department an application for a CUP and site plan approval authorizing the County to construct a Sheriff\u2019s Department and Detention Facility on slightly more than ten (10) acres in the City. The facility is referred to as a \u201cLaw Enforcement Center\u201d (\u201cLEC\u201d), and we refer to it as such in this opinion as well. The LEC would include three buildings: A sheriff\u2019s Operations/ Administration Building, an Annex, and a Jail House and Support Building. The LEC would go in across from the existing jail and would be located within the portion of the site zoned central city. The remainder of the site, which is not being developed, is zoned residential compact.\nUnder the City\u2019s Unified Development Ordinance (\u201cthe ordinance\u201d), the request to issue the CUP was first sent to the Planning and Zoning Commission. That commission approved the CUP on 22 February 2006. The decision was appealed to the City Council (\u201cthe Council\u201d). Under the ordinance, the Council heard the matter de novo to determine if six criteria set forth in \u00a7 6.2.7 of the ordinance were satisfied. In this appeal, however, only one criterion, set out below, is challenged: \u201cThe proposed conditional use conforms to the character of the neighborhood, considering the location, type, and height of buildings or structures and the type and extent of landscaping and screening on the site.\u201d\nThe Council held a public hearing on the application on 9 May 2006. The hearing was conducted as a quasi-judicial procedure. The Council concluded that each of the six criteria had been met and granted the permit, subject to certain conditions. The Council\u2019s written order was entered on 12 May 2006. Petitioners appealed the Council\u2019s order by certiorari to the superior court. That court affirmed the Council\u2019s decision, and petitioners appeal from that order.\nPetitioners present the following issues for this Court\u2019s review: (1) whether the superior court erred in affirming the Council\u2019s decision; and (2) whether the superior court erred in determining that the Council\u2019s decision was not arbitrary and capricious.\nI.\nPetitioners first argue that the superior court erred in concluding that the City had competent, material, and substantial evidence that the LEC met the City\u2019s ordinance standard relating to its conformity with the surrounding residential homes. We disagree.\nWhen a city council issues a CUP, its action constitutes a quasi-judicial decision that is subject to review by a superior court via certiorari. Sun Suites Holdings, LLC v. Board of Alderman of Town of Garner, 139 N.C. App. 269, 271, 533 S.E.2d 525, 527 (2000). The superior court then sits as an appellate court and not a trier of fact. Id. The task of the superior court includes: (1) reviewing the record for errors of law, (2) ensuring that procedures specified by law in both the statute and ordinance are followed, (3) ensuring that appropriate due process rights of a petitioner are protected, including the right to offer evidence, cross-examine witnesses, and inspect documents, (4) ensuring that decisions of town boards are supported by competent, material, and substantial evidence in the whole record, and (5) ensuring that decisions are not arbitrary and capricious. Id. at 272, 533 S.E.2d at 527.\nThe applicable standard of review for the superior court depends upon the type of error assigned. Id. at 272, 533 S.E.2d at 527-28. In the instant case, petitioners asserted that the Council\u2019s decision was not supported by the evidence or was arbitrary and capricious. Under such circumstances, the superior court must apply the \u201c \u2018whole record\u2019 test.\u201d Id. Under this test, the superior court examines the entire record to determine whether it contains substantial evidence to support the locality\u2019s decision. Id. at 273, 533 S.E.2d at 528. \u201c \u2018The \u201cwhole record\u201d test does not allow the reviewing court to replace the [b]oard\u2019s judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo.\u2019 \u201d Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 14, 565 S.E.2d 9, 17-18 (2002) (citation omitted).\nIn turn, this Court reviews the superior court\u2019s order to: \u201c \u2018(1) determine] whether the [superior] court exercised the appropriate scope of review and, if appropriate, (2) decid[e] whether the court did so properly.\u2019 \u201d Id. at 14, 565 S.E.2d at 18 (citations omitted). In this case, there is no dispute that the superior court utilized the appropriate standard of review. Thus, this Court must determine whether the superior court erred in finding substantial evidence in the record to support. the Council\u2019s decision. MCC Outdoor, LLC v. Town of Franklinton Bd. of Comm\u2019rs, 169 N.C. App. 809, 811, 610 S.E.2d 794, 796 (2005). We review the superior court\u2019s finding of substantial evidence de novo. Id.\n\u201c \u2018 \u201cSubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d [I]t \u201cmust 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.\u201d \u2019 \u201d\nId. (citations omitted).\nPetitioners only challenge the Council\u2019s finding that the LEC meets the following standard: \u201cThe proposed conditional use conforms to the character of the neighborhood, considering the location, type, and height of buildings or structures and the type and extent of landscaping and screening on the site.\u201d\nIn determining whether this standard was met, if we find that the Council had before it \u201c \u2018two reasonably conflicting views, even though the [superior] court could justifiably have reached a different result had the matter been before it de novo[,\\ \u201d the order of the superior court will be affirmed. Mann Media, Inc., 356 N.C. at 14, 565 S.E.2d at 17-18 (citation omitted).\nThe central dispute between the parties is over whether the LEC will \u201cconform\u201d with the surrounding \u201cneighborhood.\u201d Under the ordinance, the Council is required to use Webster\u2019s Third New International Dictionary (unabridged) (1993) (hereafter \u201cWebster\u2019s\u201d) to define those terms. Therefore, we do the same.\nThere are several definitions given for .the. term \u201cneighborhood\u201d within Webster\u2019s. We find the second and fourth definitions to appropriately define \u201cneighborhood\u201d in the context of this case. In relevant part, the fourth definition describes the features associated with a neighborhood. Webster\u2019s Third New International Dictionary (unabridged) (1993). Specifically, a neighborhood is \u201ca number of people forming a loosely cohesive community within a larger unit (as a city, town)[.]\u201d Id. The definition goes on to state that a neighborhood is a \u201cparticular section or districtf,]\u201d which includes similar homes and public establishments. The second definition, which defines the term as \u201cthe quality or state of being immediately adjacent or relatively near to something[,]\u201d describes the geographical boundaries of a neighborhood. Id. As the second and fourth definitions combine to describe both features and geography of a neighborhood, we utilize them in conjunction to define the term.\nAs stated above, the Council was required to find that the LEC would \u201cconform\u201d with the \u201cneighborhood.\u201d Webster\u2019s defines \u201cconform\u201d as something having \u201cthe same shape, outline, or contour\u201d as something else or \u201cin agreement or harmony\u201d with something else. Id. The ordinance itself provides that consideration should be given to \u201cthe location, type, and height of buildings or structures and the type and extent of landscaping and screening on the site.\u201d With these definitions in mind, we now address whether the Council was presented with substantial evidence that the LEC would conform to the surrounding neighborhood.\nThe City argues that they have produced substantial evidence that the LEC conforms with the surrounding neighborhood. We agree.\nThe LEC would be located on the southeastern tip of the zone that includes City Hall, the old courthouse, the new courthouse, the current jail, the Sheriff\u2019s office, the Board of Elections building, the county office building, and the main post office. Accordingly, the LEC will conform in use inasmuch as many of the buildings in the neighborhood involve governmental activities. Additionally, the Council heard testimony from Jonathan Marshall, Cabarrus County Commerce Director, that \u201c[t]he jail and the sheriffs office is and has historically been located in downtown Concord adjacent to the courthouse and has always been a member of the neighborhood.\u201d Judge William Hamby made a similar point when he testified that \u201ca jail. . . has been on a downtown Concord site for nearly two centuries, almost the entire time that Concord has been here.\u201d Finally, the portion of the LEC that is zoned as residential compact, immediately adjacent to some of petitioners\u2019 homes, will not be developed.\nAs to the architecture of the proposed LEC, the original design called for precast concrete. However, the plans were altered to use \u201cred brick, basically about the same color brick as you find on the Hotel Concord.\u201d Moreover, an architect explained that the hotel \u201cwas one of the buildings that we looked at locally to try to match materials and colors.\u201d The building would be designed with large windows, decorative brick panels, and other features such that \u201cyou can compare it to the old Concord High School, something like that, a civic building along that character.\u201d\nAs to the size, or \u201cfootprint,\u201d of the LEC, the annex building would be between 23,000 and 24,000 square feet, the Sheriffs Office and Administration Building would be between 73,000 and 75,000 square feet, and the main Jail House and Support Building would be approximately 188,000 square feet. By comparison, the existing courthouse is an estimated 75,000 square feet. In summation, the architect on the project testified that the size of the LEC would be \u201cconsistent with the relative sizes of these buildings, some bigger, some smaller but consistent[.]\u201d\nWith respect to the height of the buildings, they are approximately the same height as the existing buildings in the city center zoning district. The Sheriffs Office and Administration building would be only seven or eight feet taller than the existing courthouse. The Annex would be shorter than the Tribune Building which stands between the Annex and Union Street. Finally, the Jail House, although it would be the tallest building in the area, is situated on a downhill slope so that the top of the building will actually be sixteen feet lower than the existing courthouse.\nAs to screening, the Council added a condition on the CUP that a \u201cbuffer yard at or near the perimeter of the property wherever the County\u2019s property abuts contiguous residential property\u201d must be implemented. The buffer \u201cwould be a minimum starting at 50 feet in width and would have a requirement of different shade trees and ornamental trees with a complete visual separation... within a three-year period.\u201d Additionally, the entire portion of the property that adjoins residentially used properties will remain subject to a conservation easement that will prohibit it from being developed.\nThe petitioners, however, do not focus on the center city zoning district but instead focus on the adjacent residential areas. The footprint of the LEC would be twenty-eight times the size of the average home within 500 feet of it. Additionally, the LEC would be surrounded on three sides by residential areas. Obviously, the use of the jail is inconsistent with residential use. That said, there was testimony before the Council that the area surrounding the LEC has maintained a jail for nearly two centuries, and that both the jail and the sheriffs office have historically been located in downtown Concord \u201cand ha[ve] always been a member of the neighborhood.\u201d Moreover, as stated above, the area adjoining the residential areas will remain undeveloped.\nIn summation, the City has presented substantial evidence that the LEC would conform to the surrounding neighborhood. We find especially relevant that the historical use, size, and style of the buildings proposed match the historical use, size, and style of the existing buildings in the city center zoning district, which has always abutted residential areas. The fact that petitioners have presented contrary evidence does not alter our analysis. As we stated above, \u201c \u2018[t]he \u201cwhole record\u201d test does not allow the reviewing court to replace the [b]oard\u2019s judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo.\u2019 \u201d Mann Media, Inc., 356 N.C. at 14, 565 S.E.2d at 17-18. Petitioners\u2019 assignment of error as to this issue is therefore rejected.\nII.\nPetitioners\u2019 final argument is that the Council\u2019s decision granting the conditional use permit was arbitrary and capricious. We disagree.\nDecisions will \u201c \u2018 \u201cbe reversed as arbitrary or capricious if they are \u2018patently in bad faith,\u2019 or \u2018whimsical\u2019 in the sense that \u2018they indicate a lack of fair and careful consideration\u2019 or \u2018fail to indicate []any course of reasoning and the exercise of judgment. []\u2019 \u201d \u2019 \u201d Id. at 16, 565 S.E.2d at 19 (citations omitted). In the instant case, there is simply no evidence that the Council\u2019s decision was whimsical or taken in bad faith. Instead, the Council held a hearing on the issue, where it received sworn testimony and evidence. The fact that evidence could have supported a different outcome does not lend support to petitioners\u2019 argument that the Council acted in an arbitrary and capricious manner. Accordingly, petitioners\u2019 assignment of error as to this issue is rejected.\nIII.\nIn summary, this Court affirms the ruling of the superior court as there was substantial evidence that the planned LEC would conform to the surrounding neighborhood. Additionally, petitioners have not shown that the Council acted in an arbitrary or capricious manner in granting the CUP.\nAffirmed.\nJudges WYNN and JACKSON concur.\n. Because we are required to use Webster\u2019s Dictionary to define the term \u201cneighborhood,\u201d we note that this case is of limited precedential value in defining that term.\n. In our view, the first definition of \u201cneighborhood\u201d contained in Webster\u2019s is not useful in determining the outcome of this case. It states that a neighborhood is a \u201cfriendly association with another that is a neighbor].]\u201d Webster\u2019s Third New International Dictionary (unabridged) (1993). Because this definition does not pertain to geographical areas, we do not find it applicable in the case at bar. We also reject the third definition, which defines a neighborhood as \u201cthe approximate area or point of the location or position of something\u201d or as an approximate amount, as it is too vague. Id.", "type": "majority", "author": "HUNTER, Judge," } ], "attorneys": [ "Smith Moore, L.L.P., by Thomas E. Terrell Jr. and Travis W. Martin, for petitioner-appellants.", "The Brough Law Firm, by Michael B. Brough; Concord City Attorney Albert Benshoff for respondent-appellee." ], "corrections": "", "head_matter": "PAM and DAN McDONALD; ALEX PORTER, JR., PATRICIA ANN HYDE; H. EDWARD EUBANKS; Jr. RICHARD THOMASON; FORREST and TRACY BALLARD; PATRICK C. QUINN; and KIP and FAITH LYON, Petitioners v. CITY OF CONCORD, Respondent\nNo. COA07-113\n(Filed 15 January 2008)\n1. Cities and Towns\u2014 conditional use permit \u2014 construction of correctional facility \u2014 whole record test\nThe trial court did not err by affirming the City of Concord\u2019s grant of a conditional use permit (CUP) to Cabarrus County for the construction of a Law Enforcement Center (LEC), including a jail, adjacent to downtown Concord based on its determination that the City had presented competent, material, and substantial evidence that the planned LEC met the City\u2019s ordinance standard relating to its conforming with the surrounding residential homes, because: (1) the LEC will conform in use inasmuch as many of the buildings in the neighborhood involve governmental activities; (2) witnesses testified that the jail and the sheriff\u2019s office is and has historically been located in downtown Concord adjacent to the courthouse and has always been a member of the neighborhood; (3) the portion of the LEC that is zoned as residential compact, immediately adjacent to some of petitioners\u2019 homes, will not be developed; (4) testimony was presented that the historical use, size, and style of the proposed buildings match the existing buildings in the city center zoning district; and (5) the whole record test does not allow the reviewing court to replace the board\u2019s judgment as between two reasonably conflicting views even though the court could justifiably have reached a different result had the matter been before it de novo.\n2. Cities and Towns\u2014 conditional use permit \u2014 construction of correctional facility \u2014 arbitrary and capricious standard\nThe City Council\u2019s decision granting a conditional use permit to Cabarrus County for the construction of a Law Enforcement Center, including a correctional facility, adjacent to downtown Concord was not arbitrary or capricious because: (1) there was no evidence the Council\u2019s decision was whimsical or taken in bad faith; (2) the Council held a hearing on the issue where it received sworn testimony and- evidence; and (3) the fact that the evidence could have supported a different outcome does not lend support to petitioners\u2019 argument that the Council acted in an arbitrary and capricious manner.\nAppeal by petitioners from an order entered 30 October 2006 by Judge Robert C. Ervin in Cabarrus County Superior Court. Heard in the Court of Appeals 9 October 2007.\nSmith Moore, L.L.P., by Thomas E. Terrell Jr. and Travis W. Martin, for petitioner-appellants.\nThe Brough Law Firm, by Michael B. Brough; Concord City Attorney Albert Benshoff for respondent-appellee." }, "file_name": "0278-01", "first_page_order": 308, "last_page_order": 316 }