{ "id": 8574205, "name": "O. LARRY WOODHOUSE and GERALD F. FRIEDMAN v. BOARD OF COMMISSIONERS OF THE TOWN OF NAGS HEAD", "name_abbreviation": "Woodhouse v. Board of Commissioners", "decision_date": "1980-02-01", "docket_number": "No. 112", "first_page": "211", "last_page": "229", "citations": [ { "type": "official", "cite": "299 N.C. 211" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "255 S.E. 2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": -1 }, { "cite": "41 N.C. App. 473", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549917 ], "year": 1979, "opinion_index": -1, "case_paths": [ "/nc-app/41/0473-01" ] }, { "cite": "291 Minn. 196", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 330909 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/minn/291/0196-01" ] }, { "cite": "309 A. 2d 450", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 1973, "pin_cites": [ { "page": "457" } ], "opinion_index": 0 }, { "cite": "114 U. Pa. L. Rev. 15", "category": "journals:journal", "reporter": "U. Pa. L. Rev.", "year": 1965, "opinion_index": 0 }, { "cite": "312 N.E. 2d 337", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "19 Ill. App. 3d 648", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2694652 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/19/0648-01" ] }, { "cite": "114 U. Pa. L. Rev. 3", "category": "journals:journal", "reporter": "U. Pa. L. Rev.", "year": 1965, "pin_cites": [ { "page": "4" } ], "opinion_index": 0 }, { "cite": "188 S.E. 2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 300", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574896 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0300-01" ] }, { "cite": "113 S.E. 2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "252 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619957 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/252/0181-01" ] }, { "cite": "184 S.E. 2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "280 N.C. 163", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570276 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/280/0163-01" ] }, { "cite": "142 S.E. 2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "264 N.C. 424", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573796 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/264/0424-01" ] }, { "cite": "136 S.E. 2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "262 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566319 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/262/0193-01" ] }, { "cite": "102 S.E. 2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "248 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621070 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/nc/248/0153-01" ] }, { "cite": "176 N.Y.S. 2d 183", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1958, "opinion_index": 0 }, { "cite": "6 App. Div. 2d 200", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 5414313 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/ad2d/6/0200-01" ] }, { "cite": "170 A. 2d 768", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1961, "opinion_index": 0 }, { "cite": "225 Md. 379", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1968169 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/md/225/0379-01" ] }, { "cite": "281 N.Y.S. 2d 260", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 2, "year": 1967, "opinion_index": 0 }, { "cite": "28 App. Div. 2d 791", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3186235 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ad2d/28/0791-01" ] }, { "cite": "303 N.Y.S. 2d 290", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1969, "pin_cites": [ { "page": "296" } ], "opinion_index": 0 }, { "cite": "60 Misc. 2d 349", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1206738 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/misc2d/60/0349-01" ] }, { "cite": "168 A. 2d 864", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 1961, "pin_cites": [ { "page": "868" } ], "opinion_index": 0 }, { "cite": "66 N.J. Super. 292", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 506718 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nj-super/66/0292-01" ] }, { "cite": "254 A. 2d 641", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1969, "opinion_index": 0 }, { "cite": "435 Pa. 264", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1924336 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/pa/435/0264-01" ] }, { "cite": "314 A. 2d 43", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1974, "pin_cites": [ { "page": "46" } ], "opinion_index": 0 }, { "cite": "296 Minn. 1", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 8887187 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "5" }, { "page": "22" } ], "opinion_index": 0, "case_paths": [ "/minn/296/0001-01" ] }, { "cite": "164 N.Y.S. 2d 890", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 2, "year": 1956, "opinion_index": 0 }, { "cite": "4 A.D. 2d 766", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 2954579, 2963036 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/ad2d/4/0766-02", "/ad2d/4/0766-01" ] }, { "cite": "159 N.Y.S. 2d 88", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1956, "pin_cites": [ { "page": "89" } ], "opinion_index": 0 }, { "cite": "178 S.E. 2d 616", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 17", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559574 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0017-01" ] }, { "cite": "178 S.E. 2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565670 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0419-01" ] }, { "cite": "202 S.E. 2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "135" }, { "page": "136" } ], "opinion_index": 0 }, { "cite": "284 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562793 ], "year": 1974, "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0458-01" ] } ], "analysis": { "cardinality": 1313, "char_count": 39679, "ocr_confidence": 0.832, "pagerank": { "raw": 8.31976773957727e-07, "percentile": 0.9754047436742451 }, "sha256": "38d41fb3cbbf2040052b8e9244176e7e47f969826c60e3e030640a2146452d72", "simhash": "1:b8a7f6089dbdac71", "word_count": 6286 }, "last_updated": "2023-07-14T21:53:45.777487+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "O. LARRY WOODHOUSE and GERALD F. FRIEDMAN v. BOARD OF COMMISSIONERS OF THE TOWN OF NAGS HEAD" ], "opinions": [ { "text": "BRANCH, Chief Justice.\nThe central issue before us is whether the Board of Commissioners of the Town of Nags Head correctly denied petitioners\u2019 application for a special use permit to construct a plann\u00e9d unit development.\nOn 20 July 1977, the Town of Nags Head adopted its current zoning ordinance. Article VII, \u201cSchedule of District Regulations,\u201d provides for several basic zoning areas ranging from R-l (low density residential) to C-2 (general commercial). The parties in this action have stipulated that the proposed development site is located in a district zoned R-2, or medium density residential district. Section 7.02 of Article VII lists the applicable provisions for this particular zone and reads in pertinent part as follows:\nA. Intent\nThe R-2 District is intended to encourage the development of moderate density residential neighborhoods with a mix of permanent and short-term seasonal residents, and to serve as a transition zone between the low-density area and more intensely developed areas. The maximum density shall not exceed six (6) dwelling units per acre for Planned Unit Development.\nB. Permitted Uses\nThe following uses shall be permitted by right:\n(1) Detached single-family dwellings (not to include trailers or mobile homes).\n(2) Duplexes with each unit subject to the dimensional requirements for single-family dwellings in the district except for the side yards required at any common walls.\n(3) Customary accessory buildings including private swimming pools, private docks and bulkheads.\nC. Conditional Uses Permitted\nThe. following uses are permitted subject to the requirements of this district and additional regulations and requirements imposed by the Board of Commissioners as provided in Article X:\n(1) Churches and cemeteries\n(2) Cottage courts\n(3) Fire stations, schools and other public buildings\n(4) Fishing piers\n(5) Home occupations as defined in Section 4.02 of this ordinance\n(6) Private parks and playgrounds\n(7) Public utility facilities\n(8) Planned Unit Development under the provision of Article IX\nD. Dimensional Requirements\nAll permitted and conditional uses within the R-2 Residential District, unless otherwise specified, shall comply with the dimensional requirements shown in tabular form in Section 7.07.\nSpecifically included as a conditional use in this zone is a \u201cPlanned Unit Development under the provisions of Article IX.\u201d Petitioners proceeded to follow the procedures outlined in Article IX in order to qualify for a conditional use permit.\nA conditional use permit \u201cis one issued for a use which the ordinance expressly permits in a designated zone upon proof that certain facts and conditions detailed in the ordinance exist.\u201d Refining Co. v. Board of Aldermen, 284 N.C. 458, 467, 202 S.E. 2d 129, 135 (1974); In re Application of Ellis, 277 N.C. 419, 178 S.E. 2d 77 (1970). Where an applicant for a conditional use permit produces \u201ccompetent, material, and substantial evidence tending to establish the existence of the facts and conditions which the ordinance requires for the issuance of a special use permit, prima facie he is entitled to it.\u201d Refining Co. v. Board of Aldermen, supra at 468, 202 S.E. 2d at 136.\nThe Board gave as its first reason for denial of the application that the PUD did \u2022 not \u201cmeet the test of suitability as specified in Section 9.01 B of the ordinance.\u201d That section sets forth the intent of Article IX to permit PUDs \u201cin areas which are suitable with respect to location, size, and physical character for development as units.\u201d The section then lists several factors for consideration of \u201csuitability,\u201d including the goals and objectives of the Land Development Plan, physical characteristics of the site and the nature of the surrounding development.\nIn support of the Board\u2019s first reason, Commissioner Bryan noted that \u201cthe proposed development contravenes several of the goals and objectives of the land use plan . ...\u201d A PUD, however, is listed in the ordinance as a \u201cconditional use\u201d and a \u201cconditional use,\u201d as defined in the Nags Head Ordinance, is \u201ca use that would not be appropriate generally or without restriction throughout a particular Zoning District but which, if controlled . . . would preserve the intent of this ordinance . . . .\u201d (Emphasis added.) A PUD, as a specified \u201cconditional use,\u201d then, is by definition in accord with the purpose and intent of the ordinance. Keiger v. Winston-Salem Board of Adjustment, 278 N.C. 17, 178 S.E. 2d 616 (1971).\nThe inclusion of the particular use in the ordinance as one which is permitted under certain conditions, is equivalent to a legislative finding that the prescribed use is one which is in harmony with the other uses permitted in the district.\nA. Rathkopf, 3 Law of Zoning and Planning, 54-5 (1979).\nFurthermore, the denial of an application on grounds that the proposed plan \u201cdoes not meet the tests of suitability\u201d as outlined in the intent section of a particular ordinance is no different from refusing a permit because the proposed use would \u201cadversely af-feet the public interest.\u201d A board of commissioners \u201ccannot deny applicants a permit in their unguided discretion or, stated differently, refuse it solely because, in their view, [it] would \u2018adversely affect the public interest.\u2019 \u201d In re Application of Ellis, supra at 425, 178 S.E. 2d at 81; Keiger v. Winston-Salem Board of Adjustment, supra.\nThe denial of the permit on the ground that the planned development potentially outstrips community fire-fighting facilities is equally untenable. Petitioners maintain that the reason stated by the Board as ground for denial of the application was not supported by competent, material and substantial evidence in the record. They further contend that they showed the \u201cexistence of facts and conditions\u201d required by Article IX for the issuance of a special use permit, and therefore the permit should have been issued.\nRespondent contends that petitioners failed to prove the adequacy of the public fire-fighting facilities to protect the development and the surrounding areas in general. Respondent bases this contention on the following langauge of the Article dealing exclusively with PUDs and found in section 9.01 D:\nPUDs shall be appropriately located with respect to intended functions, to the pattern and timing of development existing . . . and to public and private facilities, existing or clearly to be available by the time development reaches the stage where they will be needed.\nIt is well settled that an applicant has the initial burden of showing compliance with the standards and conditions required by the ordinance for the issuance of a conditional use permit. See Refining Co. v. Board of Aldermen, supra. The parties here have stipulated that Section 9.03, \u201cPlanned Unit Development Standards and Requirements,\u201d has been complied with insofar as it is applicable. Nevertheless, respondents further contend that petitioners failed to meet their burden of showing the adequacy of public and private facilities. On the other hand, petitioners take the position that no such additional burden was placed upon them in order to obtain the permit.\nThe Court of Appeals agreed with petitioners that no competent evidence appeared in the record to support the Board\u2019s finding that the PUD \u201cpotentially outstrips community fire-fighting facilities.\u201d However, the Court of Appeals held that petitioners had the burden of establishing the adequacy of fire-fighting facilities as a standard or condition required by the ordinance. In so holding, the court found that the lack of evidence in the record was a direct result of petitioners\u2019 failure to meet their burden to put on evidence of compliance with this condition.\nThe resolution of this question turns on a construction of Article IX of the Nags Head Zoning Ordinance. That Article is entitled \u201cPlanned Unit Development as a Conditional Use\u201d and deals exclusively with practices and procedures for the establishment of PUDs. The first section of the Article, 9.01, is entitled \u201cPlanned Unit Development Concept\u201d and contains the definition of a PUD, the intent of the Article, certain specific procedural requirements and the section upon which respondents rely here. Section 9.02 lists additional procedural steps for review of development plans. Section 9.03 is entitled \u201cPlanned United Development Standards and Requirements\u201d (emphasis supplied) and outlines certain specific conditions including minimum size, maximum density and minimum lot area permitted in a PUD. This particular section is the only section found in Article IX which states the specific standards for PUDs. Petitioners and respondent stipulated that all provisions of this section have been met with the exception of 9.03C which is inapplicable to this case.\n\u201cThe granting of a special exception is apparently not too generally understood. It does not entail making an exception to the ordinance but rather permitting certain uses which the ordinance authorizes under stated conditions. In short, a special exception is one allowable when the facts and conditions specified in the ordinance as those upon which the exception is permitted are found to exist.\u201d Syosset Holding Corp. v. Schlimm, 159 N.Y.S. 2d 88, 89, modified on other grounds, 4 A.D. 2d 766, 164 N.Y.S. 2d 890 (1956). (Emphasis deleted.) A board of commissioners \u201cmay grant or deny a special permit solely on the basis of the specific authority delegated by the regulations, and subject to the limitations imposed thereby.\u201d R. Anderson, 3 American Law of Zoning 2d \u00a7 19.19 (1977). The board is \u201cwithout power to deny a permit on grounds not expressly stated in the ordinance\u201d and it must employ specific statutory criteria which are relevant. Id. \u201c[W]here a zoning ordinance specifies standards to apply in determining whether to grant a special use permit and the applicant fully complies with the specified standards, a denial of the permit is arbitrary as a matter of law.\u201d Hay v. Township of Grow, 296 Minn. 1, 5, 206 N.W. 2d 19, 22 (1973).\nIn the instant case, petitioners have fully complied with the applicable specific conditions set forth in Article IX\u2019s section on \u201cStandards and Requirements\u201d and the parties have so stipulated. There are numerous sections in Article IX which list general considerations for determining the appropriateness of a particular PUD, including the section upon which respondent relies here. To hold that an applicant must first anticipate and then prove or disprove each and every general consideration would impose an intolerable, if not impossible, burden on an applicant for a conditional use permit. An applicant \u201cneed not negate every possible objection to the proposed use.\u201d Anderson, supra \u00a7 19.19. Furthermore, \u201conce an applicant . . . shows that the proposed use is permitted under the ordinance and presents testimony and evidence which shows that the application meets the requirements for a special exception, the burden of establishing that such use would violate the health, safety and welfare of the community falls upon those who oppose the issuance of a special exception.\u201d West Whiteland Township v. Exton Materials Inc., 11 Pa. Cmwlth. 474, 479, 314 A. 2d 43, 46 (1974); Appeal of College of Delaware County, 435 Pa. 264, 254 A. 2d 641 (1969).\nIn this case, there is no competent evidence appearing in the record to support the finding by the Board that \u201cthe planned development potentially outstrips community fire-fighting facilities.\u201d Crucial findings of fact which are unsupported by competent, material and substantial evidence in view of the entire record as submitted cannot stand. Refining Co. v. Board of Aldermen, supra. Since no competent evidence supports the Board\u2019s finding, and since petitioners met their burden of showing compliance with the specific requirements of the ordinance, we hold that the finding cannot stand.\nMoreover, we note that Commissioner Bryan conceded that the concern over fire-fighting facilities would exist regardless of the type of use or development of the property involved here. In Nalitt v. Millburn, 66 N.J. Super. 292, 168 A. 2d 864 (1961), a conditional use permit for a bowling alley was denied because of the \u201cdifficulty in furnishing relatively prompt police and fire protection\u201d to the particular location. In holding this finding invalid, the court there stated:\n... if this thesis be true as it applies here, it would be equally true in its application to any structure which might be erected on the site, the logical result then being that the lands would remain in an unimproved condition and the owners thereof would be deprived of the right to put the premises to the uses authorized by the ordinance itself.\nId. at 299, 168 A. 2d at 868.\nThe third finding by the Board in this case was that \u201cthe installation of a wastewater treatment facility in the midst of a residential complex would be the equivalent of taking a nuisance to the property owners in the area.\u201d This finding was apparently based on abundant testimony from neighboring landowners concerning odors emanating from sewage facilities located at nearby motel establishments. Since the sewage plant proposed here is similar to those at the motels, the landowners expressed fears of experiencing similar problems with the proposed plant.\nPetitioners, however, tendered experts who testified regarding the differences between existing facilities and the proposed facility. Furthermore, Mr. Ed Fleace, a registered engineer with an engineering firm representing the Town of Nags Head, testified: \u201c[A]s I commented in my letter back on January the 26th, we concur that the type of treatment facilities proposed here should be \u2014 is the type of treatment facility that would provide excelent [sic] treatment for these type [sic] of waste in this situation.\u201d\nThe evidence relied upon by the respondent Board to support its finding is incompetent as opinion testimony and is highly speculative in nature. \u201cThe denial of a special exception permit may not be founded upon conclusions which are speculative, sentimental, personal, vague or merely an excuse to prohibit the use requested.\u201d Baxter v. Gillispie, 60 Misc. 2d 349, \u2014, 303 N.Y.S. 2d 290, 296 (1969). See Refining Co. v. Board of Aldermen, supra. Such a permit may not be denied on the ground that the use may be so conducted as to become a nuisance. Baxter v. Gillispie, supra. Evidence that similar sewage plants gave off offensive odors is insufficient standing alone to show that petitioners\u2019 plant will do likewise. Zautner v. Magony, 28 App. Div. 2d 791, 281 N.Y.S. 2d 260 (1967). Such evidence is hypothetical as to the operation of the proposed plant. Id.\nFurthermore, we note that the submission to the Board of Commissioners of the plans for a proposed PUD is a preliminary stage in the process of establishing such a development. During the course of the hearings involved here, all parties constantly noted that it was too soon to determine some issues with finality and that certain potential problems could be worked out as the project progressed. The ordinance itself provides that upon approval by the Board of Commissioners, \u201cthe developer is required to submit final detailed plans of the proposed PUD to the Planning Board.\u201d (Emphasis added.) Applicants are then subjected to further compliance with provisions regarding subdivision regulations and building permits. The ordinance also provides:\nIn granting any Conditional Use Permit, the Board of Commissioners may prescribe appropriate conditions and safeguards in conformity with this ordinance. Violation of those conditions and safeguards, when made a part of the terms under which the conditional use permit is granted, shall be considered a violation of this ordinance and will be punishable under Article XVIII of this ordinance.\nPetitioners here acknowledged their willingness to cooperate and to comply with recommendations for changes in the sewage plant. In Appeal of College of Delaware County, supra, the municipal governing board denied a conditional use permit on the basis of a \u201cpotential sewerage problem.\u201d In holding that this was not a valid reason for denial of the permit, the court noted that once the permit is granted, the applicant would be required to make arrangements to comply with the state and local regulations. See also Crowther, Inc. v. Johnson, 225 Md. 379, 170 A. 2d 768 (1961); Holmes & Murphy, Inc. v. Bush, 6 App. Div. 2d 200, 176 N.Y.S. 2d 183 (1958).\nThe hypothetical nature of the concerns over the sewage plant, together with the fact that the Board of Commissioners was empowered under the ordinance to impose conditions and restrictions upon the proposed sewage facilities in this case, and the fact that petitioners were at all times willing to comply with those conditions, dictate the conclusion that this third reason for denial of the permit cannot stand. We so hold.\nThe Board of Commissioners gave as its fourth ground for denial that it could not find that it was empowered to grant the conditional use permit requested because multi-family dwellings are not permitted as a matter of right in an R-2 zone and to permit them as part of a PUD would alter the basic character of the R-2 zone. Respondent relies primarily on this reason to support its denial of petitioners\u2019 request.\nRespondent contends that, while PUDs are permitted as conditional uses in an R-2 zone, only those PUDs are permitted which conform to the uses as of right in an R-2 zone. An R-2 zone only provides for single-family residences or duplexes as a matter of right. Since petitioners\u2019 proposed PUD includes mutli-family dwellings, respondent argues that the proposed development cannot be approved in this particular zone.\nRespondent relies on the following underlined language in Article IX to buttress its contention:\nSection 9.04 \u2014 Uses Permitted\nA. Additional uses permitted to be established in a special Planned Unit Development shall only be those uses permitted in the Low Density Residential (R-lj zoning district, except that:\n(1) In developments comprising one hundred (100) or more dwelling units, \u201cconvenience\u201d commercial establishments may be permitted to be established to provide the following services and facilities for residents of the development and their guests.\na. food stores\nb. drug stores\nc. barber or beauty shops\nd. restaurants\ne. professional offices\n(2) Total maximum floor area of all convenience commercial uses established as part of any project shall not exceed five (5) percent of the total floor area of the project, or twenty-five thousand (25,000) square feet, whichever is less.\n(3) Off-street parking areas shall be provided for each use as required by Section 6.01 of this Ordinance.\n(4) Uses established shall be designed and scaled to meet only the needs of residents of the development and their guests.\n(5) One non-illuminated sign shall be permitted per use established. Maximum sign area shall be ten (10) square feet.\n(6) No commercial use, or sign established therewith, shall be visible from any adjacent street.\nB. Building permits shall be issued for \u201cconvenience\u201d shopping facilities only after permits have been obtained by the developer for the minimum number of dwelling units required as a prerequisite for those facilities.\nC. Business licenses shall be issued for \u201cconvenience\u201d shopping operations only after at least fifty percent (50%) construction has been completed on all the minimum required dwelling units.\nWe note, initially, that the ordinance before us is hardly a model of clarity. While expressly setting out density and lot size requirements, the Article governing PUDs nowhere mentions the uses contemplated; yet, Section 9.04, entitled \u201cUses Permitted,\u201d authorizes certain \u201cadditional uses.\u201d\nRespondent maintains that the word \u201cadditional\u201d means \u201cin addition to uses already permitted in a particular zone.\u201d In short, the uses permitted in a PUD would be confined to those already permitted under the traditional zoning regulations of a district, plus those permitted in an R-l zone.\nThe section of the ordinance governing the R-l district reads in pertinent part as follows:\nSection 7.01-R-l Low Density residential district\nA. Intent\nThe R-l district is intended to encourage the development of permanent low-density residential neighborhoods. The maximum density shall not exceed 3.5 dwelling units per acre for Planned Unit Development.\nB. Permitted Uses\nThe following uses shall be permitted by right:\n(1) Detached single-family dwellings (not to include trailers or mobile homes).\n(2) Customary accessory buildings including private swimming pools, private docks and bulkheads.\nC. Conditional Uses Permitted\nThe following uses are permitted subject to the requirements of this district and additional regulations and requirements imposed by the Board of Commissioners as provided in Article X:\n(1) Churches and cemeteries\n(2) Fire stations, schools and other public buildings\n(3) Home occupations as defined in Section 4.02 of this ordinance\n(4) Private parks and playgrounds\n(5) Public utility facilities\n(6) Planned Unit Development under the provisions of Article IX\nPetitioners contend that an R-2 district permits as a conditional use a \u201cPlanned Unit Development under the provisions of Article IX.\u201d Article IX specifically enumerates the density requirements for each zoning district, as well as lot size and number of buildings permitted. The Article, however, nowhere mentions the type of dwellings permitted in particular districts. Petitioners argue that the purpose of a planned unit development, as set out in the ordinance, is to \u201cachieve flexibility of design, the integration of mutually compatible uses and optimum land planning . . . They maintain that the very essence of the PUD concept presupposes a variety of dwelling types.\nFinally, petitioners note that if there is a conflict between Article IX provisions and the provisions of the section on R-2 zoning, the ordinance by its own terms provides that the PUD provisions control.\nThe rules applicable to statutes apply equally to the construction and interpretation of municipal ordinances. Perrell v. Beaty Service Co., 248 N.C. 153, 102 S.E. 2d 785 (1958). Ordinances, like statutes, must be construed as a whole. State v. Fox, 262 N.C. 193, 136 S.E. 2d 761 (1964). An ordinance will be given a reasonable interpretation and, if possible, its provisions will be reconciled and harmonized. Cogdell v. Taylor, 264 N.C. 424, 142 S.E. 2d 36 (1965).\nIn terms of the accepted rules of statutory construction alone, respondent\u2019s interpretation of the ordinance here is untenable. Section 9.04 states that additional uses \u201cshall only be those uses permitted in\u201d the R-l district. The R-l district, however, permits the absolute minimum in terms of allowable uses, and by its own terms is to encourage \u201clow-density residential neighborhoods.\u201d Moving up the scale of residential districts, we note that the R-2 zone permits a slightly greater variety of permitted and conditional uses, and the R-3 zone still more. The R-2 zone, for example, permits single-family dwellings and duplexes as of right, and permits as conditional uses all of the conditional uses permitted in the R-l zone, plus fishing piers and cottage courts. According to respondent\u2019s interpretation of Section 9.04, a proposed PUD in an R-2 zone could include the uses permitted there, and in addition, those uses permitted in an R-l zone. This position is unsound, since, as we have shown, the R-2 zone already permits more than is permitted in an R-l zone. There is nothing additional in permitting fewer uses than already exist in a district.\nStatutes should be construed so as to avoid absurd results. Person v. Garrett, 280 N.C. 163, 184 S.E. 2d 873 (1971). The intent and spirit of an act are controlling in its construction. Queen City Coach Co. v. Currie, 252 N.C. 181, 113 S.E. 2d 260 (1960). In ascer-taming this intent, the courts should consider the terms of the enactment, the spirit of the act and what it sought to accomplish, and the changes to be made and how these should be effected. Stevenson v. Durham, 281 N.C. 300, 188 S.E. 2d 281 (1972).\nThe obvious intent of Article IX of the ordinance before us is to provide a means for implementing a planned unit development. A planned unit development, or PUD, is the development of a tract of land as a single entity which may include dwellings of various types, commercial uses, and sometimes industrial uses. 2 Anderson, supra, \u00a7 11.13. Such a planned unit \u201cenables the builder to create, within the confines of a single development, a variety of housing types which . . . will [enhance] the possibilities of attractive environmental design and [provide] the public with open spaces and other common facilities.\u201d G. Lloyd, A Developer Looks at Planned Unit Development, 114 U. Pa. L. Rev. 3, 4 (1965). The concept of a PUD is frequently limited in practice to residential developments of various sizes having a variety of housing in addition to recreation areas and perhaps some retail establishments. 82 Am. Jur. 2d, Zoning and Planning, \u00a7 106 (1976).\nThe PUD \u201cis a legislative response to changing patterns of land development and the demonstrated shortcomings of orthodox zoning regulations .... Currently, the improvement of land is in the control of developers who assemble large tracts and improve the land for resale or rental. Given this modern pattern of land development, planners and legislators conceived a technique of land-use control which was better adapted to the realities of the marketplace.\u201d 2 Anderson, supra, \u00a7 11.12. Planned unit developments make it possible \u201cto insure against conflicts in the use of land while permitting a mix of uses in a single district.\u201d Id. The PUD concept \u201chas freed the developer from the inherent limitations of the lot-by-lot approach and thereby promoted the creation of well-planned communities.\u201d 82 Am. Jur. 2d, supra.\nThe most prominent feature of a PUD, and perhaps its most frequently-cited virtue, is flexibility. Lake Barrington Citizens Committee, Inc. v. Village of Lake Barrington, 19 Ill. App. 3d 648, 312 N.E. 2d 337 (1974); 2 Anderson, supra, \u00a7 11.14; B. Hanke, Planned Unit Development and Land Use Intensity, 114 U. Pa. L. Rev. 15 (1965); 82 Am. Jur. 2d, supra. The very heart of a planned unit development is the notion that it may diverge from zoning regulations established in any one or more districts. Doran Investments v. Muhlenberg Township, 10 Pa. Cmwlth. 143, 309 A. 2d 450 (1973). Furthermore, where a PUD is established by means of a conditional use permit, the specifications for the PUD are those found in the exception clauses of the ordinance. Doran Investments v. Muhlenberg Township, supra; Freilich & Quinn, Effectiveness of Flexible and Conditional Zoning Techniques \u2014 What They Can and What They Can Not Do for Our Cities, Inst, on Planning, Zoning, and Eminent Domain, 167 (Southwestern Legal Foundation, Dallas, Texas, 1979).\nWith this background in mind, we turn now to the Zoning Ordinance before us. The regulations governing the R-2 district involved here expressly permit the establishment of a PUD \u201cunder the provisions of Article IX.\u201d Article IX expressly provides that where conflicts occur between the PUD provisions and other provisions, the PUD provisions control. Therefore, we hold that the provisions of Article IX control the establishment of this planned unit development. Doran Investments v. Muhlenberg Township, supra.\nArticle IX defines a planned unit development \u201cas the complete development of land which is under central control, or for which central control mechanisms have been established.\u201d The Article is intended to \u201cprovide a means of regulating development which can achieve flexibility of design, the integration of mutually compatible uses, and optimum land planning with greater efficiency, convenience, and amenity than the procedures and regulations under which it is permitted as of right under conventional zoning requirements.\u201d\nArticle IX nowhere mentions the types of residential dwellings permitted in a PUD. The Article does set forth the maximum density allowable in each residential district. The Article then provides for certain \u201cadditional uses,\u201d limited to the uses permitted in an R-l zone.\nNumerous authorities note that a PUD consists mainly of residential uses. 2 Anderson, supra \u00a7 11.22; Lloyd, supra; 82 Am. Jur. 2d, supra. The ordinance here permits PUDs in each of the residential districts, but does not permit a PUD in any strictly commercial district. Moreover, the section of Article IX just preceding the \u201cadditional uses\u201d section deals specifically with the requirements for \u201cdwelling units.\u201d\nIn our view then, it is obvious that the drafters of Article IX contemplated that a PUD would consist primarily of residential buildings. We therefore conclude that the term \u201cadditional uses\u201d as used in Section 9.04 refers to \u201cuses in addition to residential uses.\u201d In other words, as we construe Section 9.04, a PUD may include residential uses and in addition, any non-residential uses permitted in an R-l zone, including churches, cemeteries, fire stations, schools and parks. Section 9.04 then goes on to permit a PUD, in certain cases not applicable here, to expand further by establishing a limited variety of retail facilities.\nWe turn now to the question of whether the types of residential dwellings permitted in a PUD may diverge from those permitted in the particular district under traditional zoning regulations. Since we have concluded that the provisions of Article IX control the establishment of a PUD, the intent and spirit of those provisions must control. As we have noted, based on abundant authority, the primary virtue inherent in PUD legislation is flexibility. 2 Anderson, supra, \u00a7 11.14; Hanke, supra; 82 Am. Jur. 2d, supra. Moreover, authorities concur that the planned unit development concept contemplates \u201cdwellings of various types.\u201d 2 Anderson, supra, \u00a7 11.13 (emphasis added); Lloyd, supra; 82 Am. Jur. 2d, supra.\nIn light of what we perceive to be the intent and purpose of planned unit developments in general, and this planned unit development in particular, we hold that under this ordinance, there is no restriction on the types of residential dwellings permitted in a PUD, regardless of the particular zoning restrictions in the district in which the PUD is located.\nOur holding is entirely consistent with decisions of other courts which have considered this issue. See, e.g., Lake Barrington Citizens Committee, Inc. v. Village of Lake Barrington, supra; Chandler v. Kroiss, 291 Minn. 196, 190 N.W. 2d 472 (1971); Doran Investments v. Muhlenberg Township, supra. In all of the cited cases, PUDs consisting of multi-family dwellings were proposed for areas zoned as single-family districts. In each case, opponents of the PUD contended that the PUD would alter the basic character of the single-family district. The court in each case, noting the nature and purpose of a PUD, upheld the establishment of the multi-family dwellings, despite the single family limitation found in the regular zoning ordinance. As the court in Doran Investments v. Muhlenberg Township stated, \u201cIt is the very essence of a planned residential development that it may diverge from zoning requirements.\u201d\nId. at 155, 309 A. 2d at 457.\nThe decision of the Court of Appeals is reversed, and this cause is returned to the Court of Appeals with direction that it be remanded to the Superior Court of Dare County for reinstatement of that court\u2019s judgment.\nReversed.\n. Respondent has conceded in its brief that Finding Number 5 is invalid under the rule of In re Application of Ellis, supra.", "type": "majority", "author": "BRANCH, Chief Justice." } ], "attorneys": [ "Leroy, Wells, Shaw, Hornthal, Riley & Shearin, P.A., by Norman W. Shearin, Jr., and Dewey W. Wells, for petitioners.", "Kellogg, White & Evans, by Thomas L. White, Jr., and Thomas N. Barefoot, for respondent." ], "corrections": "", "head_matter": "O. LARRY WOODHOUSE and GERALD F. FRIEDMAN v. BOARD OF COMMISSIONERS OF THE TOWN OF NAGS HEAD\nNo. 112\n(Filed 1 February 1980)\n1. Municipal Corporations \u00a7 30.6\u2014 conditional use permit \u2014 prima facie showing\nAn applicant for a conditional use permit is prima facie entitled to the permit where he produces competent, material and substantial evidence tending to establish the existence of the facts and conditions which the ordinance requires for the issuance of such a permit.\n2. Municipal Corporations \u00a7 30.6\u2014 conditional use permit \u2014planned unit development \u2014 denial on ground of \u201cunsuitability\u201d\nA town\u2019s board of commissioners improperly denied an application for a conditional use permit for a planned unit development on the ground that the planned unit development did not meet the test of suitability as outlined in the intent section of the zoning ordinance since a planned unit development, as a specified \u201cconditional use,\u201d was by definition in accord with the purpose and intent of the ordinance, and since the commissioners could not deny such a permit in their unguided discretion on the ground of \u201cunsuitability.\u201d\n3. Municipal Corporations \u00a7 30.6\u2014 conditional use permit \u2014planned unit development \u2014 compliance with specific ordinance requirements \u2014 no burden to show adequacy of public fire-fighting facilities\nWhere the applicants for a conditional use permit met their burden of showing compliance with the specific standards and requirements of the ordinance for such a permit, the applicants had no burden to establish the adequacy of public facilities, including fire-fighting facilities, for the planned development, and the denial of the permit on the basis of a finding that the planned unit development potentially outstrips community fire-fighting equipment was erroneous in the absence of evidence to support such a finding.\n4. Municipal Corporations \u00a7 30.6\u2014 conditional use permit \u2014planned unit development \u2014 denial on ground sewage plant would be nuisance\nA town\u2019s board of commissioners erred in denying a conditional use permit for a planned unit development on the ground that \u201cthe installation of a wastewater treatment facility in the midst of a residential complex would be the equivalent of taking a nuisance to the property owners in the area\u201d since the board relied on incompetent testimony by neighboring landowners concerning odors emanating from sewage facilities at nearby motels and their fears of experiencing similar problems with the proposed plant, the board of commissioners was empowered under the ordinance to impose conditions and restrictions on the proposed sewage facilities, and the applicants were at all times willing to comply with those conditions.\n5. Municipal Corporations \u00a7 30.6\u2014 conditional use permit \u2014planned unit development \u2014 no restriction on types of dwellings\nA town\u2019s board of commissioners erred in denying a conditional use permit for a planned unit development in an R-2 zone on the ground that the planned development included multi-family dwellings which were not permitted in an R-2 zone since (1) a provision of the zoning ordinance stating that \u201cadditional uses permitted to be established in a special Planned Unit Development shall only be those uses permitted in the Low Density Residential (R-l) zoning district\u201d referred to uses in addition to residential uses, and a planned unit development could thus include residential uses and any nonresidential uses permitted in an R-l zone, including churches, cemeteries, schools and parks, and (2) there was no restriction on the types of residential dwellings permitted in a planned unit development regardless of the particular zoning restrictions in the district in which the development was located.\nON discretionary review to review the decision of the North Carolina Court of Appeals, reported in 41 N.C. App. 473, 255 S.E. 2d 249 (1979), which reversed the judgment of Fountain, J., entered 17 April 1978 Session of DARE Superior Court, reversing the Nags Head Board of Commissioners\u2019 denial of petitioners\u2019 application for a conditional use permit.\nDuring the fall of 1977, petitioners 0. Larry Woodhouse and Gerald F. Friedman applied to the Board of Commissioners of the Town of Nags Head for a conditional use permit in order to use certain property as a planned unit development (hereinafter referred to as \u201cPUD\u201d). The proposed 5.548 acre site was located in an area zoned R-2, or medium density residential. The proposed PUD would consist of thirty-two dwelling units, a sewage treatment plant, two tennis courts, a handball court and parking facilities.\nPetitioners\u2019 application was initially considered and substantially approved by the Planning Board of the Town of Nags Head. The application, along with certain recommendations submitted by the Planning Board, was then considered during an open meeting of respondent Board of Commissioners (hereinafter referred to as \u201cBoard\u201d) on 6 January 1978. The Board heard from petitioners and other interested parties and discussed petitioners\u2019 application. The Board then tabled the matter pending its referral of the application to the Board\u2019s engineering firm and other appropriate parties to permit further review of the impact of the proposed use on the Town of Nags Head.\nThe Board again considered petitioners\u2019 application during an open meeting on 6 March 1978. After hearing from petitioners and interested persons, the members of the Board discussed the matter in the meeting and denied the application by a vote of three to two.\nThe Board of Commissioners gave the following reasons in support of its denial of the application:\n(1) The planned development does not meet the test of suitability as specified in Section 9.01(b) of the ordinance;\n(2) The planned development potentially outstrips community fire-fighting facilities or services;\n(3) The installation of a waste water treatment facility in the midst of a residential complex would be the equivalent of taking a nuisance to the property owners in the area.\n(4) The Board of Commissioners cannot find that it is empowered to grant the conditional use permit because multi-family dwellings are not permitted as a matter of right in an R-2 zone and to permit them as part of a planned unit development would alter the basic character of the R-2 zone.\n(5) The Board of Commissioners cannot find that the granting of the conditional use permit will not adversely affect the public interest.\nPetitioners in apt time petitioned the trial court for a writ of certiorari pursuant to G.S. 160A-388 seeking judicial review of the decision of respondent Board. The trial court, Fountain, J., issued the writ on 29 March 1978. After a hearing on the matter, Judge Fountain concluded that the Board\u2019s denial of the application was not supported by competent, material and substantial evidence in the record. The trial court accordingly reversed and remanded the proceeding to the Board of Commissioners directing that approval be granted for the conditional use and that processing of the application be continued in accord with the applicable provisions of the zoning ordinance.\nRespondent Board appealed to the Court of Appeals. In an opinion by Judge Mitchell, Judges Parker and Martin (Harry C.) concurring, the Court of Appeals held that, while no competent evidence supported the Board\u2019s finding number two regarding fire-fighting facilities, the burden of proving the existence of such facilities was on petitioners. As a result of this conclusion, the Court of Appeals reversed the trial court.\nWe allowed petitioners\u2019 petition for discretionary review pursuant to G.S. 7A-31 on 11 September 1979.\nOther facts which are pertinent to our review of this case will be discussed in the opinion.\nLeroy, Wells, Shaw, Hornthal, Riley & Shearin, P.A., by Norman W. Shearin, Jr., and Dewey W. Wells, for petitioners.\nKellogg, White & Evans, by Thomas L. White, Jr., and Thomas N. Barefoot, for respondent." }, "file_name": "0211-01", "first_page_order": 235, "last_page_order": 253 }