Appeal by respondent from judgment entered 30 April 1997 by Judge Lester P. Martin, Jr. in Randolph County Superior Court. Heard in the Court of Appeals 17 February 1998.
The opinion of the court was delivered by: Walker, Judge.
On 8 March 1996, the petitioners and adjoining owners both owned tracts of land located in a Residential Agricultural Zoning District (RA District) under the Randolph County Zoning Ordinance. The adjoining owners were granted a permit allowing the remediation of petroleum contaminated soil. Petitioners requested a determination from the Randolph County Director of Planning and Zoning (Director) that this activity should not be allowed as it is not listed as a permitted use in an RA District under the zoning ordinance. By letter dated 10 May 1996, the Director responded that because petroleum soil remediation, also known as "land farming," is regulated by the State, the Randolph County Zoning Ordinance does not currently regulate the location of soil remediation sites.
Petitioners appealed the Director's decision to the Randolph County Board of Adjustment (Board) and a hearing was held on 8 October 1996. At the hearing, the Director advised the Board that this activity was regulated by a comprehensive permitting scheme by the State; the majority of North Carolina counties do not regulate this activity because of comprehensive regulations; and that soil remediation involves the agricultural practice of soil tilling and requires open land encompassed in areas designated as RA Districts.
The adjoining owners, in support of their argument to the Board that their property be permitted for soil remediation purposes, stated that they lived on the site in question, that horses were pastured on this site, and that the site was agrarian in use. On the other hand, the petitioners argued that soil remediation is not included in the table of permitted uses for RA Districts, that if a particular use is not enumerated in the table of uses then the zoning classification should be narrowly construed to exclude such use, and that soil remediation is not an agrarian process, but rather is industrial in nature as it is a waste treatment process.
The Board denied the petitioners' appeal, upholding the Director's decision, and issued an order finding the following: (1) the State of North Carolina, through the Division of Environmental Management, had developed regulations and permitting procedures for the treatment process known as soil remediation; (2) RA zoning is "a common district description used to define generally open agrarian land that is primarily rural and low density open land;" and (3) that "Remedial Petroleum Soil Sites, by their very nature, involve the use of open land and soil tilling." The Board then concluded that "the decision of the Randolph County Director of Planning & Zoning that the current Randolph County Zoning Ordinance does not regulate the location of remedial petroleum soil storage sites is hereby affirmed."
On 19 November 1996, the petitioners filed a writ of certiorari seeking a de novo review of the Board's order. The writ was issued and on 28 April 1997 a hearing was held before the Randolph County Superior Court after which the trial court entered a judgment overruling the order of the Board.
The respondent Board first argues that the trial court erred because it did not review the verbatim transcript of the Board's proceedings in determining whether the Board's order was affected by an error of law.
In reviewing zoning decisions, the trial court sits in the posture of an appellate court and is responsible for the following:
(1) [R]eviewing 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 the decisions of zoning boards are supported by competent, material and substantial evidence in the whole record; and (5) insuring that decisions are not arbitrary and capricious.
Mize v. County of Mecklenburg, 80 N.C. App. 279, 284, 341 S.E.2d 767, 770 (1986)(citing Coastal Ready-Mix Concrete Co. v. Board of Comm'rs, 299 N.C. 620, 626, 265 S.E.2d 379, 383, reh'g denied, 300 N.C. 562, 270 S.E.2d 106 (1980)). See also, N.C. Gen. Stat. § 153A-345(e)(Cum. Supp. 1997).
A trial court must use the "whole record test" when a petitioner has alleged that a Board of Adjustment has acted arbitrarily and capriciously or contrary to the evidence presented. See CG&T Corp. v. Bd. of Adjustment of Wilmington, 105 N.C. App. 32, 411 S.E.2d 655 (1992). However, the question of whether a certain use is permitted within a zoning district is a matter of interpretation and therefore is a question of law subject to a de novo review. Moore v. Bd. of Adjustment for City of Kinston, 113 N.C. App. 181, 437 S.E.2d 536 (1993).
Here, the trial court in its judgment found:
[A]fter conducting a de novo review of the record as certified to the court, reviewing the issues of law and the whole record as certified to this court, and considering the arguments of counsel and legal authorities submitted by counsel, that the decision of the Randolph County Board of Adjustment at its October 8, 1996 meeting regarding Petitioners' appeal of the Randolph County Zoning Administrator's decision regarding land farms in RA Districts was in error as a matter of law and that Petitioners' relief should be granted.
The Board concedes in its brief that "the trial court in its appellate function could determine from other parts of the record, such as the minutes of the Board's meeting and the Board's order, that the Board's findings were an error of law...." Thus, we are not inclined to go behind the trial court's recital that it considered the "whole record" in making its determination that the ...