Humble Oil & Refining Co. v. Board of Aldermen

209 S.E.2d 447 (1974)

286 N.C. 170

HUMBLE OIL & REFINING COMPANY and Flagler System, Inc., Petitioners, v. BOARD OF ALDERMEN OF the TOWN OF CHAPEL HILL et al.

No. 3.

Supreme Court of North Carolina.

November 26, 1974.

*448 F. Gordon Battle, Bryant, Lipton, Bryant & Battle, P.A., Chapel Hill, K. Byron McCoy, Newsom, Graham, Strayhorn, Hedrick, Murray & Bryson, Durham, for petitioner-appellant, Humble Oil & Refining Co.

John T. Manning, Chapel Hill, for petitioner-appellant Flagler System, Inc.

Haywood, Denny & Miller by Emery B. Denny, Jr., Chapel Hill, for respondents-appellees.

HIGGINS, Justice.

The factual background of this proceeding indicates that in the early stages, decisions were favorable to the petitioners. In the concluding stages, however, the Board of Aldermen disregarded the findings of the *449 Planning Board and concluded "that the use would materially endanger the public health and safety if located where proposed and developed according to the plans as submitted." These findings are tainted by evidence that the Board improperly considered a letter from the Highway Commission opposing the permit. This letter was dated nine days after the public hearing. The Board also considered and apparently was impressed by the model zoning regulations, parts of which were read into the record by a member of the Board, also after the public hearing date. The consideration of these documents was challenged by proper exceptive assignments.

By considering the Highway Commission's letter dated after the last hearing and by considering the model zoning regulations prepared by MAGDA, the Board of Aldermen committed error which the superior court, on review, failed to correct.

The recent decision of this Court between the same parties, involving a different location in Chapel Hill, was decided on January 25, 1974 (Refining Co. v. Board of Aldermen, 284 N.C. 458, 202 S.E.2d 129) and hence was not available to the Chapel Hill authorities during the consideration of this proceeding. The Court, citing abundant authority, held:

"When a board of aldermen, a city council, or zoning board hears evidence to determine the existence of facts and conditions upon which the ordinance expressly authorizes it to issue a special use permit, it acts in a quasi-judicial capacity. Its findings of fact and decisions based thereon are final, subject to the right of the courts to review the record for errors in law and to give relief against its orders which are arbitrary, oppressive or attended with manifest abuse of authority. (Citing cases.)" "When an applicant has produced competent, 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. A denial of the permit should be based upon findings contra which are supported by competent, material, and substantial evidence appearing in the record. . . . In no other way can the reviewing court determine whether the application has been decided upon the evidence and the law or upon arbitrary or extra legal considerations. "If there be facts within the special knowledge of the members of the Board of Aldermen or acquired by their personal inspection of the premises, they are properly considered. However, they must be revealed at the public hearing and made a part of the record so that the applicant will have an opportunity to meet them by evidence or argument and the reviewing court may judge their competency and materiality. (Citing many authorities.)"

The petitioners attended a public hearing and presented evidence in support of the application for the permit. The Board of Aldermen referred the application to the Planning Board which gave its unqualified approval. Though notices of the meetings were published, no one appeared in opposition to the permit.

The opposition to the permit appears to have developed in a subsequent session of the Board of Aldermen in which Humble was not allowed to participate. The minutes of the Board indicate the denial of the permit was based on the consideration of one or more of these factors: (1) The letter from the North Carolina Highway Commission which was highly critical of the application; (2) the MAGDA model zoning ordinance which a member of the Board called to the Board's attention; (3) the special knowledge of the individual members of the Board which was not disclosed at any public hearing and was unknown to the petitioners. The use of any of these factors before the Board under the circumstances disclosed was in direct violation of our decision in Refining Co. v. Board of Aldermen, supra. Jackson v. Board of Adjustment, 275 N.C. *450 155, 166 S.E.2d 78; Craver v. Board of Adjustment, 267 N.C. 40, 147 S.E.2d 599; Jarrell v. Board of Adjustment, 258 N.C. 476, 128 S.E.2d 879.

The record indicates that the Board of Aldermen, in a subsequent meeting, considered and were influenced by evidence of which the petitioners had neither knowledge nor opportunity to refute, and which had not been presented at the public hearing. Based in part at least on the foregoing, the Board denied the application. The superior court and the Court of Appeals committed prejudicial error by affirming the findings, conclusions and order of the Board denying the permit.

As this Court stated in Refining Co. v. Board of Aldermen, supra:

"(1) The party whose rights are being determined must be given the opportunity to offer evidence, cross-examine adverse witnesses, inspect documents, and offer evidence in explanation and rebuttal; (2) absent stipulations or waiver such a board may not base findings as to the existence or nonexistence of crucial facts upon unsworn statements (Citations omitted); and (3) crucial findings of fact which are `unsupported by competent, material and substantial evidence in view of the entire record as submitted' cannot stand."

The decision of the Court of Appeals is reversed. That Court will remand to the Superior Court of Orange County for entry of judgment vacating the findings and order of the Board of Aldermen of Chapel Hill and directing the Board of Aldermen to proceed de novo to reconsider the petitioners' application in conformity with this opinion.

Reversed and remanded.

BOBBITT, C. J., not sitting.