North Carolina Zoning Laws: What is 'Arbitrary and Capricious?'

When a Zoning Board or other governmental decision making body makes a decision with respect to a zoning request, one basis for legally challenging the decision is to argue that it was "arbitrary and capricious." This is because, here in North Carolina, it has been held that the "zoning power," which includes enacting zoning laws AND the power to issue use permits, is subject to the limitation that laws and decisions must be reasonable and must be neither arbitrary nor capricious. According to North Carolina courts, this is a constitutional requirement having roots in both the concepts of due process and equal protection.

One North Carolina court has defined "arbitrary or capricious" as decisions that are

"... patently in bad faith, . . . or whimsical in the sense that they indicate a lack of fair and careful consideration or fail to indicate any course of reasoning and the exercise of judgment."

See Lewis v. N.C. Dep't of Human Resources, 375 S.E.2d 712 (North Carolina Court of Appeals 1989) (citations omitted). From this, we can see that there are substantive and procedural aspects to evaluating whether a decision related to zoning or land use is arbitrary or capricious. The substantive parts are "bad faith" or "whimsical" and the procedural aspects are:

• Fair and careful consideration of evidence
• Course of reasoning and
• Exercise of judgment based on the evidence

The substantive and procedural aspects are interconnected. Showing procedural correctness will often eliminate most concerns for mild substantive problems. For a hypothetical, imagine a Board member indicates his or her strong distaste for the design of a building that is proposed. However, when voting "no" on the permit application, the Board member identifies his or her reasoning, proper understanding of the zoning requirements and cites from the substantial, competent and material evidence that has been presented in the permit application record to support his or her "no" vote. Very likely, a North Carolina court would NOT find the decision was made arbitrarily or capriciously even though the Board member stated a "whimsical" opinion about the design of the building.

But a sufficiently proven case of bad faith or whimsy might overcome evidence of proper procedure which could lead a court to determine that a decision was arbitrary and capricious. Imagine a different hypothetical. A Board member votes "no" on a use permit application and states: "After careful consideration of the evidence and requirements, I vote ‘no.’ In addition, it is raining today and I always vote ‘no’ on rainy days." Very likely, a North Carolina court would find the Board member's decision to be arbitrary and capricious even though the member indicated that there was a careful consideration of the evidence and requirements.

Note also that the three parts of the procedural aspect are interconnected. This might be called the "proper application of the evidence" aspect. A good example of how this argument can be made comes from the dissenting judge in the case of Coucoulas/Knight Properties, Inc. v. Hillsborough, 683 SE 2d 228 (NC Court of Appeals 2009).

In that case, on a 3-2 vote, the Town’s Board of Commissioners denied a request for rezoning and an application for a use permit. The rezoning and use permit applications were for a mixed-use development that would have included condominiums. On appeal, the majority of the North Carolina Court of Appeals held -- 2 to 1 -- that the Board's decision was not arbitrary or capricious. The dissenting judge, on the other hand, argued that one of the Board members who voted "no" had misapplied the zoning requirements. The Board member in question made it clear from the record that she believed that no condominiums were allowed in the relevant zoning district. However, the dissenting judge noted that the Town's Zoning Ordinance specifically lists "Residential" as a permissible use in the district zoning as long as the residential use was "part of a planned/mixed use development."

For the dissenting judge, this demonstrated that the Board member's vote was arbitrary and capricious. The Board member may have considered the evidence, but she did not apply the evidence correctly to the requirements of the Ordinance.

For more information, and to schedule a confidential consultation with experienced and dedicated zoning and land use attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning and condemnation legal matters in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.