{ "id": 8525489, "name": "R. L. COLEMAN & COMPANY, Plaintiff v. CITY OF ASHEVILLE, Defendant", "name_abbreviation": "R. L. Coleman & Co. v. City of Asheville", "decision_date": "1990-06-05", "docket_number": "No. 8928SC1209", "first_page": "648", "last_page": "653", "citations": [ { "type": "official", "cite": "98 N.C. App. 648" } ], "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": "196 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558723 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0299-01" ] }, { "cite": "231 S.E.2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "32 N.C. App. 154", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549118 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/32/0154-01" ] }, { "cite": "325 S.E.2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "72 N.C. App. 449", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526913 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/72/0449-01" ] } ], "analysis": { "cardinality": 503, "char_count": 13104, "ocr_confidence": 0.738, "pagerank": { "raw": 2.8974438211479955e-07, "percentile": 0.8448058168642264 }, "sha256": "ea9f9b1a737eda20f0a2db9c25b55c34f30c513c79a52a93ca75b1b7dfdd5e46", "simhash": "1:1f7dc161757adc6b", "word_count": 2067 }, "last_updated": "2023-07-14T19:26:07.401162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Parker and Duncan concur." ], "parties": [ "R. L. COLEMAN & COMPANY, Plaintiff v. CITY OF ASHEVILLE, Defendant" ], "opinions": [ { "text": "WELLS, Judge.\nBy its first argument, the City challenges the trial court\u2019s finding that the minutes of the 22 December 1987 proceedings in the city council were ambiguous regarding the requirement that plaintiff construct a \u201cT\u201d intersection as part of the mall expansion and the trial court\u2019s concluding and declaring plaintiff to be entitled to construct and maintain the intersection of Brackettown Road and White Pine Drive at a driveway angle of sixty degrees. In addressing this issue, we note that the question of whether the City is authorized to regulate the manner of constructing driveway connections between private and public roads is not before us. We are here concerned only with the question of whether the City, in requiring plaintiff to construct a \u201cT\u201d intersection at the junction of Brackettown Road and White Pine Drive as a condition for its approval of plaintiff\u2019s mall expansion, unambiguously indicated that such intersection be constructed at a driveway angle of ninety degrees. We hold that it did.\nIt is well settled that when the trial judge sits as factfinder, his findings of fact are binding if they are supported by any competent evidence in the record, but his conclusions of law are reviewable. Wright v. Auto Sales, Inc., 72 N.C. App. 449, 325 S.E.2d 493 (1985). \u201cA \u2018conclusion of law\u2019 is the court\u2019s statement of the law which is determinative of the matter at issue between the parties [and] . . . must be based on the facts found by the court[.]\u201d Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E.2d 26 (1977).\nThe trial court\u2019s finding of fact number nine provides, in pertinent part:\nThe Minutes of December 22, 1987, of Defendant\u2019s City Council . . . are ambiguous in their requirement that the Mall construct a \u201cT\u201d intersection from Brackettown Road onto White Pine Drive according to \u201ccity standards.\u201d\nThis is plainly not a finding of fact but a conclusion of law. Hence, it is reviewable by this Court.\nIn support of the trial court\u2019s determination, plaintiff contends that the minutes of the 22 December 1987 city council meeting make no provision for a \u201cninety-degree angle\u201d and that there was no discussion or mention in the meeting referring to a \u201cT\u201d intersection or the angle in which Brackettown Road would meet White Pine Drive. We disagree.\nIt is uncontroverted that at the time plaintiff\u2019s proposed mall expansion project was under consideration by the City Brackettown Road had been in existence since 1973, had been used throughout that time by the motoring public to enter and exit the mall, and intersected White Pine Drive at a driveway angle of approximately sixty-five to seventy degrees. Moreover, the minutes for 22 December 1987, contrary to plaintiff\u2019s assertion, plainly reflect that the question of changing the driveway angle of this intersection was before the city council, that the City\u2019s director of planning and zoning recommended that the driveway angle of the intersection be modified to create a \u201cT\u201d in order to give a greater sight distance and allow more time for motorists to decide which traffic lane to enter, and that public comment was received on this recommendation. The minutes are devoid of any hint that the \u201cT\u201d intersection under consideration was other than perpendicular, i.e., ninety degrees.\nPlaintiff, however, asserts that the additional language in the minutes, \u201caccording to city standards,\u201d creates an ambiguity in that city standards, as set forth in section 30-3-15 of the Asheville Zoning Ordinance, permit construction of intersections with a driveway angle of between sixty and ninety degrees. We reject this argument as well.\n\u201cOrdinances must receive a reasonable construction and application, and the primary rule for their interpretation and construction is that the intention of the municipal legislative body is to be ascertained and given effect.\u201d MacPherson v. City of Asheville, 283 N.C. 299, 196 S.E.2d 200 (1973). It is true that section 30-3-15D.4 of the Asheville Zoning Ordinance allows a minimum driveway angle of sixty degrees. This, however, is but one of many design specifications \u2014 including grade, setback, curbing, and the like\u2014 that are detailed in section 30-3-15 governing driveway entrance construction generally. Additionally, we note by way of analogy that section 30-2-1 of the ordinance provides that \u201c[ejxcept where specifically defined below, all words in this ordinance shall carry the standard dictionary meanings.\u201d Webster\u2019s Third New International Dictionary (1976) defines \u201cT,\u201d in pertinent part, as \u201csomething having the shape of the letter T.\u201d\nWe are persuaded that the City\u2019s requirement that plaintiff construct a \u201cT\u201d intersection unambiguously indicated the City\u2019s intent that the previously existing, acute driveway angle of sixty-five to seventy degrees be changed to a perpendicular, \u201cT\u201d intersection, having a driveway angle of ninety degrees. This requirement thus disposed of that specification in the ordinance pertaining to driveway angle. The additional language in the minutes \u201caccording to city standards\u201d plainly refers, not to driveway angle, but to the remainder of the specifications governing such driveway entrance construction. In the context of this case, the City\u2019s approval of plaintiff\u2019s mall expansion project contingent upon plaintiff\u2019s constructing a \u201cT\u201d intersection from Brackettown Road to White Pine Drive can have but one meaning: that plaintiff was required to change the driveway angle of this intersection to ninety degrees. Plaintiff, however, did not satisfy this requirement but instead constructed the intersection with a driveway angle that, at sixty degrees, is even more acute than the previously existing driveway angle. The trial court therefore erred in concluding that the 22 December 1987 minutes were ambiguous and that plaintiff was entitled to construct the intersection of Brackettown Road and White Pine Drive with a driveway angle of sixty degrees.\nBy its second argument, defendant contends that the trial court erred in finding and concluding that parking spaces constructed in the west parking area of the mall reasonably met the requirements of the site plan approval. The evidence, however, tends to show that the actual construction of the parking area deviated from the plans approved by the city council only in its realignment of the directional orientation of the individual parking spaces. There was no change in the total area set aside for parking in the west parking area, and the effect of the realignment was to cause a mere nine parking spaces in that area to be redistributed among the approximately four thousand total parking spaces available at the mall. Accordingly, the trial court did not err in finding and concluding that the parking area as actually constructed reasonably met the requirements established by the City.\nIn summary, we reverse the portions of the judgment ordering that plaintiff is lawfully entitled to construct the Brackettown Road-White Pine Drive intersection at an angle of sixty degrees and that the City may not withhold a certificate of occupancy, driveway permit, or curb cut permit because of such construction. In all other respects the trial court\u2019s judgment is affirmed.\nAffirmed in part, reversed in part.\nJudges Parker and Duncan concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Riddle, Kelly & Cagle, P.A., by E. Glenn Kelly, for plaintiff-appellee.", "Nesbitt & Slawter, by William F. Slawter; and Sarah Patterson Brison, Assistant City Attorney, for defendant-appellant." ], "corrections": "", "head_matter": "R. L. COLEMAN & COMPANY, Plaintiff v. CITY OF ASHEVILLE, Defendant\nNo. 8928SC1209\n(Filed 5 June 1990)\n1. Municipal Corporations \u00a7 33.4 (NCX3d) \u2014 expansion of mall \u2014 driveway intersection \u2014city council minutes not ambiguous\nThe trial court erred in a declaratory judgment action seeking a judgment that plaintiff was entitled to construct an intersection with the driveway angle less than ninety degrees as part of a mall expansion by concluding that city council minutes requiring the ninety degree angle were ambiguous. It is uncontroverted that at the time plaintiffs proposed mall expansion project was under consideration, the private road within the mall had been in existence since 1973, had been used throughout that time by the public to enter and exit the mall, and intersected a public road at a driveway angle of approximately sixty-five to seventy degrees; the city council minutes plainly reflect that the question of changing the driveway angle was before the city council, the city\u2019s director of planning and zoning recommended that the driveway angle of the intersection be modified to create a T, public comment was received on the recommendation, and the minutes are devoid of any hint that the T intersection under consideration was other than perpendicular. Additional language in the minutes referring to city standards does not create an ambiguity even though there is a section of the Asheville Zoning Ordinance allowing a minimum driveway angle of sixty degrees because that is but one of many design specifications governing driveway entrance construction. The additional language in the minutes plainly refers not to driveway angle but to the remainder of the specifications governing such driveway entrance construction.\nAm Jur 2d, Zoning and Planning \u00a7\u00a7 143, 294.\n2. Municipal Corporations \u00a7 34 (NCI3d|\u2014 mall expansion \u2014parking area \u2014 city requirements reasonably met\nThe trial court did not err in an action arising from a mall expansion by finding and concluding that the parking area as actually constructed reasonably met the requirements established by the city where the evidence shows that the actual construction of the parking area deviated from the plans approved by the city council only in its realignment of the directional orientation of the individual parking spaces, there was no change in the total area set aside for parking in the west parking area, and the effect of the realignment was to cause a mere nine parking spaces in that area to be redistributed among the approximately four thousand total parking spaces available at the mall.\nAm Jur 2d, Zoning and Planning \u00a7\u00a7 143, 294.\nAPPEAL by defendant from judgment entered 30 August 1989 in BUNCOMBE County Superior Court by Judge Forrest A. Ferrell. Heard in the Court of Appeals 8 May 1990.\nOn 13 December 1988, plaintiff-developer filed its complaint seeking a declaratory judgment that it was entitled to construct, as part of its expansion of the Asheville Mall Shopping Center, an intersection connecting Brackettown Road, a private road within the mall, to White Pine Drive, a public road adjacent to the mall, by a driveway angle of less than ninety degrees. Plaintiff also sought injunctive relief instructing the City not to withhold a certificate of occupancy, or driveway and curb cut permits, upon completion of the intersection to incorporate a driveway angle of less than ninety degrees.\nThe City answered and counterclaimed, alleging that plaintiff was required, as a condition for the City\u2019s approval of the expansion project, to construct the intersection at a driveway angle of ninety degrees. The City further alleged that plaintiff had redesigned the west parking area of the mall in violation of the intent of the site plan approval.\nThe evidence at the trial before Judge Ferrell, sitting without a jury, tended to establish that on 22 December 1987, the Asheville City Council held a public meeting for the purpose, inter alia, of considering whether to approve plaintiffs plans for the expansion project. After hearing recommendations from its director of planning and zoning, as well as public comment on the expansion project, the city council approved the plan contingent upon the following pertinent requirement stated in the minutes: \u201c[T]hat the Mall construct a T\u2019 intersection from Bracket[t]own Road onto White Pine Drive according to city standards and approved by city staff.\u201d\nFollowing further conversations with city staff, plaintiff constructed the intersection at a driveway angle of sixty degrees. The City thereafter advised plaintiff that it would not issue a certificate of occupancy for the mall expansion project or issue driveway and curb cut permits, on the grounds that the city council, in providing that plaintiff construct a \u201cT\u201d intersection, required that such intersection be constructed at a driveway angle of ninety degrees.\nJudge Ferrell found that the minutes of 22 December 1987 were ambiguous in the requirement that plaintiff construct a \u201cT\u201d intersection according to city standards, and concluded and declared that plaintiff was entitled to construct the intersection at sixty degrees, subject to conditions not pertinent to this appeal. Judge Ferrell also found and concluded that plaintiff\u2019s construction of the west parking area reasonably met the requirements of the City and declared that plaintiff was entitled to construct and maintain this parking area as constructed. The City was ordered not to withhold a certificate of occupancy or driveway and curb cut permits.\nFrom the judgment entered granting the relief sought by plaintiff, the City appeals.\nRiddle, Kelly & Cagle, P.A., by E. Glenn Kelly, for plaintiff-appellee.\nNesbitt & Slawter, by William F. Slawter; and Sarah Patterson Brison, Assistant City Attorney, for defendant-appellant." }, "file_name": "0648-01", "first_page_order": 676, "last_page_order": 681 }