Jennewein v. CITY COUNCIL OF CITY OF WILMINGTON

302 S.E.2d 7 (1983)

Paul R. JENNEWEIN and wife, Virginia N. Jennewein v. The CITY COUNCIL OF the CITY OF WILMINGTON, North Carolina, Ben B. Halterman, Mayor, Joseph Dunn, Margaret Fonvielle, Ralph W. Roper, William Schwartz, Luther Jordan and Tony Pate.

No. 825SC236.

Court of Appeals of North Carolina.

May 3, 1983.

*9 Stephen E. Culbreth, Wilmington, for petitioners-appellants.

City Atty. R. Michael Jones and Asst. City Atty. Laura E. Crumpler, Wilmington, for respondents-appellees.

VAUGHN, Chief Judge.

Petitioners' only exception is to the entry of judgment. The court made no findings of fact. It is, however, our duty to review the sufficiency of the evidence presented to the council. The appropriate standard of review before this Court is in the nature of the standard of review required by the North Carolina Administrative Procedure Act. Coastal Ready-Mix Concrete Co. v. Board of Commissioners of the Town of Nags Head, 299 N.C. 620, 265 S.E.2d 379, rehearing denied, 300 N.C. 562, 270 S.E.2d 106 (1980). According to Concrete Co., although the North Carolina Administrative Procedure Act provides judicial review only for agency decisions, G.S. 150A-50, and exempting cities and other local municipalities, G.S. 150A-2(1), a similar standard of review is appropriate to review city council special zoning request decisions. The Supreme Court set out the following guidelines for review:

(1) Reviewing the record for errors in law, (2) Insuring that procedures specified by law in both statute and ordinance are followed, (3) Insuring that appropriate due process rights of a petitioner are protected including the right to offer evidence, cross-examine witnesses, and inspect documents, (4) Insuring that decisions of town boards are supported by competent, material and substantial evidence in the whole record, and (5) Insuring that decisions are not arbitrary and capricious.

299 N.C. at 626, 265 S.E.2d at 383. In this case, there is no question that the above guidelines numbers one, two, three, and five were met. The only issue before us is whether the decision of the city council was supported by "competent, material and substantial evidence in the whole record." This whole record test does not allow us to replace the city council's judgment as between two reasonably conflicting views, but we must take into account both the evidence which justifies the city council's result and the contradictory evidence in determining whether the city council's decision was supported by competent, material and substantial evidence. Thompson v. Wake County Board of Education, 292 N.C. 406, 233 S.E.2d 538 (1977).

Petitioners contend that they have introduced competent, material, and substantial evidence supporting all the conditions required for a special use permit. Since all four conditions must be met, to affirm the trial court's decision we need only find that the city council's conclusion that one condition was not met was supported by competent, material, and substantial evidence. The first condition was "That the use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved." Petitioners contend they offered evidence that the shop averaged only four to seven customers per day which refutes the council's finding that there would be increased traffic. Petitioner, however, did not have a sign in front of her shop and was operating her shop illegally without the special use permit. It is more than likely that if she was granted *10 the special use permit she would put up a sign, advertise, and thus acquire more customers. The traffic problem, however, may not be as serious as the potential fire hazard caused by her use of inflammable solvents used in refinishing the antiques. In her brief, petitioner denied that she would be refinishing furniture. The record, however, reveals that petitioner admitted she was refinishing furniture with inflammable solvents:

Attorney Culbreth asked Mrs. Jennewein if she refinished furniture and she stated she has done some but does not do it now. Antiques need a lot of washing and scrubbing and steel wooling and things of that sort. She does not use many flammable solvents, no more than most kitchen things would be.

Although petitioner denied refinishing furniture, the last two sentences indicate that she does refinish furniture on the premises. There was uncontradicted evidence that the surrounding houses were old, very close together, and of wood frame construction. Petitioner had only one fire extinguisher and no fire alarms. There was other evidence tending to show that the proposed use would endanger the public health and safety. The finding that the use of the property as an antique shop would materially endanger the public health and safety was, therefore, supported by competent, material, and substantial evidence as required by Concrete Co., supra.

We do not hesitate to say that the record also supports the council's negative findings on conditions (3) and (4). It is, however, not necessary to discuss the evidence as to those conditions since all four must be met before the council may grant the special use permit.

Affirmed.

WELLS and BRASWELL, JJ., concur.