Court Clarifies Meaning of ‘Neighborhood’

What’s a neighborhood? That seemingly simply question was at the core of a recent ruling by the state’s second highest court.

In a ruling Jan. 15, the N.C. Court of Appeals held that Concord had properly issued a permit for a new county jail over objections from nearby residents who contended the facility would not conform with the surrounding neighborhood.

In 2005, Cabarrus County proposed building a new jail, or “law enforcement center,” across the street from the existing jail in downtown Concord. Concord’s zoning ordinances were applicable, so the county submitted a site plan along with its application for a conditional use permit.

A number of nearby residents opposed the proposed facility, contending that the building would be too large compared to the surrounding area. After the city approved the permit, 11 opponents of the proposed law enforcement center sued the city, arguing that the permit was improperly issued. After a Superior Court judge ruled against them, they brought the case before the N.C. Court of Appeals, again arguing that the permit should not have been approved.

While there are six criteria that must be satisfied in order to qualify for a conditional use permit in Concord, only one was at issue: “The proposed conditional use conforms to the character of the neighborhood, considering the location, type, and height of buildings or structures and the type and extent of landscaping and screening on the site.”

Opponents of the jail contended that the jail did not fit in with the surrounding neighborhoods of older, smaller houses. The county disagreed.

“The City argues that they have produced substantial evidence that the LEC conforms with the surrounding neighborhood,” Judge Robert Hunter wrote for the appeals court. “We agree.”

The appeals court first defined “neighborhood.” Relying upon Webster’s Third New International Dictionary, it held that in the context of this case, a neighborhood is both “a number of people forming a loosely cohesive community within a larger unit (as a city, town)” and “the quality or state of being immediately adjacent or relatively near to something.”

The county had noted that other governmental buildings such as city hall, the old and new courthouses, the current jail, the sheriff’s office, the Board of Elections building, the county office building, and the main post office were all nearby, in the neighborhood of the proposed jail’s site. In addition, Concord City Council had heard evidence that a jail and sheriff’s office had historically been near the courthouse.

In addition, the design of the law enforcement center had been altered from the precast concrete originally proposed to red brick so that it would better match other nearby buildings.

Opponents of the jail painted a different picture of the neighborhood surrounding the proposed jail. They noted that the law enforcement center would have 28 times the footprint of the average home within 500 feet and would be surrounded on three sides by houses. As the appeals court noted, “obviously, the use of the jail is inconsistent with residential use.”

Despite this, the Court of Appeals ruled in favor of the county, basing their decision on “whole record test,” whether upon review of the entire record of proceedings it contains substantial evidence to support the locality’s decision.

“…The City has presented substantial evidence that the LEC would conform to the surrounding neighborhood,” Hunter wrote. “The fact that petitioners have presented contrary evidence does not alter our analysis. … ‘[T]he ‘whole record’ test does not allow the reviewing court to replace the [b]oard’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.’ Petitioners’ assignment of error as to this issue is therefore rejected.”

Court of Appeals rulings are controlling interpretations of state law that are binding upon lower courts unless overruled by the N.C. Supreme Court. Because the ruling by the three-judge panel of the appeals court was unanimous, the high court is not required to hear the case should the opponents appeal further.

The case is McDonald v. City of Concord, (07-113).

Michael Lowrey is an associate editor of Carolina Journal.