Cary Creek Ltd. P'ship v. Town Of Cary

700 S.E.2d 80

CARY CREEK LIMITED PARTNERSHIP, Petitioner,

v.TOWN OF CARY, North Carolina, Respondent.

No. COA10-38.

Court of Appeals of North Carolina.

Oct. 5, 2010.

Appeal by petitioner from judgment entered 10 August 2009 by Judge Howard E. Manning, Jr. in Wake County Superior Court. Heard in the Court of Appeals 17 August 2010.

Robertson, Medlin & Bloss, PLLC, by John F. Bloss, Greensboro, and Smith Moore Leatherwood LLP, by Marc C. Tucker, Raleigh, for petitioner-appellant.

Town of Cary, by Lisa C. Glover, Assistant Town Attorney, and Womble Carlyle Sandridge & Rice, by Michael T. Henry, Raleigh, for respondent-appellee.

MARTIN, Chief Judge.

Petitioner appeals from the superior court's order affirming the decision of the Town of Cary, North Carolina, which denied petitioner's request for a variance. We affirm the superior court's order.

Petitioner Cary Creek Limited Partnership owns an approximate 108-acre tract of land in Cary, North Carolina. This case arises from petitioner's attempt to obtain a variance from an ordinance enacted by respondent Town of Cary establishing riparian buffers within which no development may occur. We previously issued an opinion in a related dispute, Cary Creek Ltd. Partnership v. Town of Cary, --- N.C.App. ----, 690 S.E.2d 549 (2010), where we affirmed the trial court's grant of summary judgment to the Town on the issue of whether the ordinance was preempted by State law, and reversed on the issue of petitioner's inverse condemnation claim because it was not yet ripe.

Petitioner's tract is located near the intersection of Highway 55 and Alston Avenue in the Town of Cary. The tract is located within the Alston Activity Center Concept Plan (“AACCP”), a comprehensive development plan adopted by the Town of Cary in 2006. The northern portion of petitioner's tract is bordered by a perennial stream known as the Nancy Branch, which is located within the Cape Fear River Basin. Also on petitioner's tract, perpendicular to the Nancy Branch, are two intermittent streams-drainage areas that flow only during wet seasons-that are at the heart of this dispute.

The Town of Cary has a series of ordinances known collectively as its Land Development Ordinance (“LDO”). On 17 November 2006, the LDO included § 7.3, entitled “Stormwater Management.” ¹ Stormwater Management § 7.3.2 required 100-foot-wide riparian buffers on either side of all perennial and intermittent streams and 50-foot-wide riparian buffers adjacent to other surface waters.

On 17 November 2006, petitioner submitted an application requesting a variance from riparian buffer requirements pursuant to § 7.3.7. Petitioner sought to fill in two riparian areas and “develop [its] Site into a commercial retail center with a residential component.” Petitioner contended that the variance was necessary “to meet the desired higher-density development called for in the AACCP, and to make development of the site commercially feasible.” Petitioner's sketch plan indicated that parts of two buildings and a parking area, as well as half of a street, would be located within the protected riparian buffer areas. At the time it submitted its application, petitioner had already received approval from the U.S. Army Corps of Engineers and the North Carolina Department of Environmental and Natural Resources, Division of Water Quality, which regulate the water in those areas, to fill in the two intermittent streams.

On 26 April 2007, the matter came before the Town Council. After hearing the evidence, council member Portman proposed several findings of fact and moved to deny petitioner's request for a variance. The council briefly discussed the motion and voted four to one to adopt it and deny petitioner's request. On 29 May 2007, petitioner filed a verified petition for a writ of certiorari in the Superior Court of Wake County requesting, among other things, that the superior court enter an order reversing the denial of petitioner's application for a variance and directing the Town of Cary to issue the variance. On 10 August 2009 the superior court entered judgment affirming the council's decision.

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I.

Petitioner first contends the superior court erred by making findings of fact, and contends those findings are not binding on this Court. Petitioner then challenges two such findings, arguing that they are unsupported by the evidence.

Judicial review of the decisions of a municipal board of adjustment in the superior court is authorized by N.C.G.S. § 160A-388. N.C. Gen.Stat. § 160A-388(e2) (2009) (“Every decision of the board shall be subject to review by the superior court by proceedings in the nature of certiorari.”). In reviewing a decision of a board of adjustment, the superior court should

(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.

Wright v. Town of Matthews, 177 N.C.App. 1, 8, 627 S.E.2d 650, 656 (2006) (internal quotation marks omitted).

We agree with petitioner that while sitting as an appellate court, the superior court was without authority to “make additional findings.” Batch v. Town of Chapel Hill, 326 N.C. 1, 11, 387 S.E.2d 655, 662, cert. denied, 496 U.S. 931, 110 S.Ct. 2631, 110 L.Ed.2d 651 (1990); see also Deffet Rentals, Inc. v. City of Burlington, 27 N.C.App. 361, 364, 219 S.E.2d 223, 226 (1975) (“It is not the function of the reviewing court ... to find the facts but to determine whether the findings of fact made by the Board are supported by the evidence before the Board and whether the Board made sufficient findings of fact.”). But we have also recognized that “a recitation of largely uncontroverted evidence” by a superior court in reviewing a local decision is not prejudicial error. Cannon v. Zoning Bd. of Adjust. of Wilmington, 65 N.C.App. 44, 47, 308 S.E.2d 735, 737 (1983). Although the superior court's order contains 38 findings, those findings recite the council's findings of fact and synthesize the evidence before the council. Therefore, the superior court's inclusion of such findings within its order was not prejudicial error. See id.

In urging our review of two such findings, petitioner misapprehends the scope of our review. Our review is limited to determining “whether the trial court correctly applied the proper standard of review.” Wright, 177 N.C.App. at 8, 627 S.E.2d at 657. “[T]he question is not whether the evidence before the superior court supported that court's order but whether the evidence before the town board was supportive of its action.” Coastal Ready-Mix Concrete Co. v. Bd. of Comm'rs of Nags Head, 299 N.C. 620, 626, 265 S.E.2d 379, 383, reh'g denied, 300 N.C. 562, 270 S.E.2d 106 (1980). Thus, we decline to consider whether the superior court's findings are supported by competent evidence.

We further note that after careful examination of petitioner's arguments on this issue, it appears petitioner's challenge to what is labeled as the superior court's Finding of Fact 34 is in substance a challenge to the council's procedure. In Finding 34, the superior court listed the findings contained in the proposed motion the council voted to adopt. Petitioner's argument is that “[n]o such motion was before the Council.” Thus, petitioner appears to challenge the council's procedure, which requires de novo review. Turik v. Town of Surf City, 182 N.C.App. 427, 430, 642 S.E.2d 251, 253 (2007). However, even if we were to consider the substance of petitioner's argument, we note that we would nevertheless be precluded from reviewing it because petitioner failed to raise that issue in its petition for a writ of certiorari in the superior court, and we may only consider “those grounds for reversal or modification argued by the petitioner before the superior court.” Amanini v. N.C. Dep't of Human Res., 114 N.C.App. 668, 675, 443 S.E.2d 114, 118 (1994) (internal quotation marks omitted). Accordingly, we do not address this argument on appeal.

II.

Petitioner's next argument is that the “Town's denial of the variance from the riparian buffer requirement was not supported on the record by competent, material, and substantial evidence.” However, under this argument heading, the body of petitioner's brief mainly discusses how petitioner “demonstrated that its proposed development would satisfy all of the factors” of § 7.3.7. Petitioner again misapprehends the scope of this Court's review.

In examining either the sufficiency of the evidence or whether the board's decision was arbitrary and capricious, the trial court applies the whole record test. The whole record test requires the reviewing court to examine all the competent evidence ... which comprises the whole record to determine if there is substantial evidence in the record to support the [quasi-judicial body's] findings and conclusions. The whole record test does not allow the reviewing court to replace the Board's 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.

Nw. Prop. Group, LLC v. Town of Carrboro, --- N.C.App. ----, ----, 687 S.E.2d 1, 6 (2009) (internal citations and quotation marks omitted).

On several pages of its brief, petitioner urges this Court to review the record for evidence that its request for a variance should have been granted. ² We decline to do so. See id. (“The whole record test does not allow the reviewing court to replace the Board's judgment as between two reasonably conflicting views[.]”). Although petitioner also states that “[n]o evidence was presented to support any...