{ "id": 4157690, "name": "FRIENDS OF MT. VERNON SPRINGS, INC., ALAN A. ROSENBLOOM, ELIZABETH A. DIXON, VONNELL PALMER, and MISTY BATTEN, Petitioners v. TOWN OF SILER CITY, CHARLES L. TURNER, in his capacity as Mayor, and TONY SILER, JAMES LARRY CHEEK, PATRICIA PERRY, JOHN F. GRIMES, III, SAM P. ADAMS, JR., HELEN BUCKNER, and GUY D. SMITH, in their capacity as members of the Town Board of Commissioners, Respondents, and ISP MINERALS, INC., Respondent-Intervenor", "name_abbreviation": "Friends of Mt. Vernon Springs, Inc. v. Town of Siler City", "decision_date": "2008-05-20", "docket_number": "No. COA07-1484", "first_page": "633", "last_page": "639", "citations": [ { "type": "official", "cite": "190 N.C. App. 633" } ], "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": "160 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "333" } ], "opinion_index": 0 }, { "cite": "273 N.C. 430", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575506 ], "year": 1968, "pin_cites": [ { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0430-01" ] }, { "cite": "370 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "589" }, { "page": "589" } ], "opinion_index": 0 }, { "cite": "322 N.C. 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517410 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "627" }, { "page": "627" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0611-01" ] }, { "cite": "187 S.E.2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "45" }, { "page": "45" } ], "opinion_index": 0 }, { "cite": "280 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572863 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "549" }, { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0531-01" ] }, { "cite": "589 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2003, "pin_cites": [ { "page": "165", "parenthetical": "internal citations and quotations omitted" }, { "page": "165", "parenthetical": "citations omitted" }, { "page": "165" }, { "page": "165" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 625", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8959579 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "628-29", "parenthetical": "internal citations and quotations omitted" }, { "page": "629" }, { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0625-01" ] }, { "cite": "61 L. Ed. 2d 297", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "442 U.S. 929", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531938, 1532133, 1531912, 1532170, 1532010, 1532202, 1532021, 1531990, 1532122, 1532092, 1531806 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/442/0929-02", "/us/442/0929-01", "/us/442/0929-10", "/us/442/0929-08", "/us/442/0929-11", "/us/442/0929-03", "/us/442/0929-04", "/us/442/0929-09", "/us/442/0929-05", "/us/442/0929-06", "/us/442/0929-07" ] }, { "cite": "250 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "912" } ], "opinion_index": 0 }, { "cite": "296 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565310 ], "year": 1978, "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0109-01" ] }, { "cite": "338 S.E.2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "141" }, { "page": "141" }, { "page": "141" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 637", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523388 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "640" }, { "page": "640" }, { "page": "640" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0637-01" ] } ], "analysis": { "cardinality": 586, "char_count": 13672, "ocr_confidence": 0.749, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.36594295651985886 }, "sha256": "ca740ce8005a79eeaf04cd65b4794e3aed4f948471dcfd8bd6befa9dc0fc29da", "simhash": "1:0f9dc19b12131fca", "word_count": 2205 }, "last_updated": "2023-07-14T19:40:45.332452+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCCULLOUGH and STROUD concur." ], "parties": [ "FRIENDS OF MT. VERNON SPRINGS, INC., ALAN A. ROSENBLOOM, ELIZABETH A. DIXON, VONNELL PALMER, and MISTY BATTEN, Petitioners v. TOWN OF SILER CITY, CHARLES L. TURNER, in his capacity as Mayor, and TONY SILER, JAMES LARRY CHEEK, PATRICIA PERRY, JOHN F. GRIMES, III, SAM P. ADAMS, JR., HELEN BUCKNER, and GUY D. SMITH, in their capacity as members of the Town Board of Commissioners, Respondents, and ISP MINERALS, INC., Respondent-Intervenor" ], "opinions": [ { "text": "TYSON, Judge.\nFriends of Mt. Vernon Springs, Inc., Alan A. Rosenbloom, Elizabeth A. Dixon, Vonnell Palmer, and Misty Batten (collectively, \u201cpetitioners\u201d) appeal from order entered, which: (1) denied petitioners\u2019 motion for summary judgment; (2) granted the Town of Siler City\u2019s (\u201cthe Town\u201d) and the Town of Siler City Board of Commissioners\u2019s (\u201cthe Board\u201d) (collectively, \u201crespondents\u201d) motion for summary judgment; and (3) affirmed the decision of the Board. We affirm.\nI. Background\nOn 30 March 2006, ISP Minerals, Inc. (\u201cISP\u201d) submitted a \u201cConditional Use Rezoning and Permit Application\u201d to the Town and sought: (1) to have approximately 1,076 acres rezoned from Agriculture-Residential to Heavy Industrial Conditional Use and (2) a conditional use permit to construct and operate a quarry and granule processing facility (\u201cthe facility\u201d). On 3 July 2006, the Board approved ISP\u2019s application to rezone the property and granted ISP\u2019s conditional use permit.\nOn 1 August 2006, petitioners filed a Petition for Writ of Certiorari and Declaratory Judgment and petitioned the superior court to find and rule that the Board\u2019s approval of ISP\u2019s application to rezone the property and the grant of ISP\u2019s conditional use permit was improper and void. In addition to the action at bar, three other petitions were also filed, which challenged the Board\u2019s actions. On 22 September 2006, ISP filed a motion to intervene in each of the actions in which it had not been named as a party.\nOn 13 March, 16 April, and 14 May 2007, the superior court held hearings on all cases simultaneously. On 27 June 2007, the superior court filed its order, which: (1) allowed respondents\u2019 motions for summary judgment; (2) denied petitioners\u2019 motions for summary judgment; and (3) affirmed the Board\u2019s decision to rezone the property and to issue a conditional use permit to ISP. Petitioners appeal.\nII. Issues\nPetitioners argue the superior court erred when it: (1) ruled on the parties\u2019 motions for summary judgment and (2) affirmed the Board\u2019s decision to rezone the property and to issue a conditional use permit.\nIII. Motions for Summary Judgment\nPetitioners argue the superior court erred when it granted respondents\u2019 motion for summary judgment after ISP notified the superior court that it had withdrawn from the project. We disagree.\nOn 14 May 2007, ISP\u2019s counsel told the superior court, \u201cISP Minerals, as the sole applicant for the conditional use permit and rezoning[,] is no longer pursuing the permit for which that would have been useful and therefore we have no objection to . . . however the Court chooses to dispose of this matter with respect to [respondents\u2019 11 May 2007] motion [to dismiss].\u201d Petitioners argue, \u201c[t]he withdrawal by ISP ... at the last moment biased the outcome of the hearing in that the [superior] [c]ourt could determine in a Solomon-like ruling that the issuance of the permit was reasonable, knowing that the projected [sic] would not occur regardless of what [sic] the [superior] [c]ourt ruled.\u201d We disagree.\nMootness arises where the original question in controversy is no longer at issue. In re Denial of Request by Humana Hospital Corp., 78 N.C. App. 637, 640, 338 S.E.2d 139, 141 (1986).\nWhenever, during the course of litigation it develops that the relief sought has been granted or that questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law.\nIn re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 297 (1979).\nISP\u2019s statement to the superior court that it was no longer pursuing the permit did not dispose of \u201cthe original question in controversy . . ..\u201d Humana Hospital, 78 N.C. App. at 640, 338 S.E.2d at 141. The relief sought by petitioners was a declaration that the Board\u2019s rezoning and grant of a conditional use permit were improper and void. The sole question in controversy raised by petitioners\u2019 petition was the validity of the Board\u2019s rezoning and issuance of the conditional use permit. ISP\u2019s withdrawal did not render moot petitioners\u2019 petition, which sought a declaration that the Board\u2019s rezoning and grant of a conditional use permit were improper and void. The validity of the Board\u2019s actions, the only question in controversy, remained at issue after ISP\u2019s withdrawal. ISP\u2019s withdrawal was not a \u201cdevelop [ment] that [caused] the relief sought [to be] granted [n]or th[e] question[] originally in controversy between the parties [to be] no longer at issue . ...\u201d Id. The superior court did not err when it ruled on the parties\u2019 motions for summary judgment. This assignment of error is overruled.\nIV. Superior Court\u2019s Review of the Board\u2019s Actions\nPetitioners argue the superior court erred when it affirmed the Board\u2019s decision to rezone the property and to issue a conditional use permit. We disagree.\nA. Standard of Review\nWhen the superior court reviews the decision of a town council or administrative body, it should:\n(1) review the record for errors of law, (2) ensure that procedures specified by law in both statute and ordinance are followed, (3) ensure that appropriate due process rights of the petitioner are protected, including the right to offer evidence, cross-examine witnesses, and inspect documents; (4) ensure that the decision is supported by competent, material, and substantial evidence in the whole record; and (5) ensure that the decision is not arbitrary and capricious.\nThe task of this Court in reviewing a superior court order is (1) to determine whether the [superior] court exercised the proper scope of review, and (2) to review whether the [superior] court correctly applied this scope of review.\nHumane Soc\u2019y of Moore Cty., Inc. v. Town of Southern Pines, 161 N.C. App. 625, 628-29, 589 S.E.2d 162, 165 (2003) (internal citations and quotations omitted).\nB. Analysis\n\u201cWhen a party alleges an error of law in the Council\u2019s decision, the reviewing court examines the record de novo, considering the matter anew. However, when the party alleges that the decision is arbitrary and capricious or unsupported by substantial competent evidence, the court reviews the whole record.\u201d Id. at 629, 589 S.E.2d at 165 (citations omitted). On appeal to the superior court, petitioners argued the Board\u2019s actions were \u201carbitrary and capricious, contrary to law and in a manner that was an abuse of discretion, and made with disregard for the due process and equal protection rights of the [p]etitioners.\u201d The superior court did not err when it \u201cutiliz[ed] both the \u2018de novo\u2019 and \u2018whole record\u2019 tests . . . .\u201d in its review of the Board\u2019s actions. Id. We now turn to whether the superior court correctly applied \u201cboth the \u2018de novo\u2019 and \u2018whole record\u2019 tests . . . .\u201d Id.\nThe superior court\u2019s order, filed 27 June 2007, stated:\n[T]he court has reviewed the decision of the . . . Board . . . utilizing both the \u201cde novo\u201d and \u201cwhole record\u201d tests and concludes as follows with regards to the granting of the conditional use permit: (1) The decision of the . . . Board ... to grant the conditional use permit to ISP . . . was based on and supported by competent, material, and substantial evidence in the whole record; (2) the Board . . . did not act arbitrarily nor capriciously in issuing the conditional use permit; (3) the Board . . . conducted the public hearings on this matter in a manner that did not violate [p]etitioners\u2019 rights to due process; (4) all procedures provided for in the Townfs] . . . Unified Development Ordinance and all other applicable law were followed; and, (5) the Board ... did not commit any errors of law in its consideration of this matter.\nAs for the rezoning component of this matter, the [c]ourt has reviewed the pleadings, cross-motions for summary judgment, briefs, the Record of Proceedings and arguments of counsel and has determined that the . . . Board . . . : (1) acted appropriately in making the legislative decision to rezone the . . . property from AR (Agricultural-Residential) to HI-CU (Heavy Industrial-Conditional Use); (2) the Board[\u2019s] . . . decision does not constitute \u201cspot zoning;\u201d (3) [petitioners\u2019 rights to due process were afforded them; and (4) that the rezoning decision was consistent with the Town[\u2019s] . . . Land Development Plan; and (5) the rezoning decision was not arbitrary and capricious.\nIn stating its factual conclusions, the superior court neither reweighed the evidence nor substituted its judgment for the Board\u2019s. The superior court properly reviewed the quantum and not the quality or credibility of the evidence and found it to be sufficient to affirm the Board\u2019s decisions. The superior court properly applied its whole record review when it examined all the evidence to determine if substantial evidence supported the Board\u2019s findings and conclusions. Id.\nOur Supreme Court has stated:\nA zoning ordinance, or amendment, which singles out and reclassifies a relatively small tract owned by a single person and surrounded by a much larger area uniformly zoned, ... so as to relieve the small tract from restrictions to which the rest of the area is subjected, is called \u201cspot zoning.\u201d\nBlades v. City of Raleigh, 280 N.C. 531, 549, 187 S.E.2d 35, 45 (1972). \u201c[I]n any spot zoning case . . . two questions must be addressed by the finder of fact: (1) did the zoning activity . . . constitute spot zoning as our courts have defined that term; and (2) if so, did the zoning authority make a clear showing of a reasonable basis for the zoning.\u201d Chrismon v. Guilford County, 322 N.C. 611, 627, 370 S.E.2d 579, 589 (1988).\nHere, the tract in question is approximately 1,076 acres. This tract is not. \u201ca relatively small tract\u201d as contemplated in Blades and the zoning activity did not \u201cconstitute spot zoning as our courts have defined that term[.]\u201d 280 N.C. at 549, 187 S.E.2d at 45; Chrismon, 322 N.C. at 627, 370 S.E.2d at 589. The superior court did not err when it concluded \u201cthe Board[\u2019s] . . . decision d[id] not constitute \u2018spot zoning[.]\u2019 \u201d\nIn reaching its remaining legal conclusions, the superior court considered the matter anew and held the evidence and findings of fact supported the Board\u2019s conclusions of law. There is ample support in the record for the conclusion that the rezoning of the tract was not arbitrary or discriminatory, may reasonably be deemed related to the public welfare and is not inconsistent with the purpose for which the Town is authorized to enact zoning regulations. The superior court\u2019s conclusion that the Board did not act arbitrarily or capriciously, is supported by the superior court\u2019s findings of fact, which, in turn, are supported by competent evidence in the record. Zopfi v. City of Wilmington, 273 N.C. 430, 438, 160 S.E.2d 325, 333 (1968). The superior court correctly applied the de novo standard of review. Humane Soc\u2019y of Moore Cty., 161 N.C. App. at 629, 589 S.E.2d at 165. This assignment of error is overruled.\nV. Conclusion\nISP\u2019s withdrawal did not grant the relief sought by petitioners nor dispose of the original question in controversy: the validity of the Board\u2019s actions. Humana Hospital, 78 N.C. App. at 640, 338 S.E.2d at 141. The superior court did not err when it ruled on the parties\u2019 motions for summary judgment, notwithstanding ISP\u2019s withdrawal.\nThe superior court exercised the proper scopes of review and correctly applied those scopes of review. Humane Soc\u2019y of Moore Cty., 161 N.C. App. at 629, 589 S.E.2d at 165. The superior court\u2019s order is affirmed.\nAffirmed.\nJudges MCCULLOUGH and STROUD concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "John D. Runkle, for petitoner-appellants.", "The Brough Law Firm, by William C. Morgan, Jr., for respondent-appellees.", "No brief filed for respondent-intervenor." ], "corrections": "", "head_matter": "FRIENDS OF MT. VERNON SPRINGS, INC., ALAN A. ROSENBLOOM, ELIZABETH A. DIXON, VONNELL PALMER, and MISTY BATTEN, Petitioners v. TOWN OF SILER CITY, CHARLES L. TURNER, in his capacity as Mayor, and TONY SILER, JAMES LARRY CHEEK, PATRICIA PERRY, JOHN F. GRIMES, III, SAM P. ADAMS, JR., HELEN BUCKNER, and GUY D. SMITH, in their capacity as members of the Town Board of Commissioners, Respondents, and ISP MINERALS, INC., Respondent-Intervenor\nNo. COA07-1484\n(Filed 20 May 2008)\n1. Zoning\u2014 petition to superior court \u2014 withdrawal of company behind project \u2014 consideration of board\u2019s action \u2014 not moot\nThe superior court did not err by granting a motion for summary judgment concerning a board of adjustment zoning decision after the company which had sought the rezoning to operate a quarry had withdrawn from the project. The petitioners in superior court sought a declaration that the board\u2019s action was improper and void; the validity of the board\u2019s actions remained in question after the company\u2019s withdrawal.\n2. Zoning\u2014 whole record review by superior court \u2014 properly applied\nThe superior court properly applied whole record review in reviewing a board of adjustment zoning decision where it examined the quantum rather than the quality or credibility of the evidence.\n3. Zoning\u2014 spot zoning \u2014 large tract\nA tract of 1,076 acres was not \u201ca relatively small tract\u201d and its rezoning did not constitute spot zoning.\n4. Zoning\u2014 de novo review by superior court \u2014 properly applied\nThe superior court correctly applied the de novo standard of review when considering a board of adjustment decision. The conclusion that the board did not act arbitrarily or capriciously is supported by the findings, which are supported by competent evidence.\nAppeal by petitioners from order entered 27 June 2007 by Judge Kenneth C. Titus in Chatham County Superior Court. Heard in the Court of Appeals 1 May 2008.\nJohn D. Runkle, for petitoner-appellants.\nThe Brough Law Firm, by William C. Morgan, Jr., for respondent-appellees.\nNo brief filed for respondent-intervenor." }, "file_name": "0633-01", "first_page_order": 665, "last_page_order": 671 }