dissenting.
I disagree with the majority’s decision to reverse the trial court. The majority holds that the trial court erred in concluding that the denial of plaintiff’s conditional use rezoning request unintentionally treated plaintiff in a manner different than other similarly situated applicants and was unduly discriminatory. Because I conclude that substantial evidence exists that the Board of Commissioners’ (“the Board”) denial of plaintiff’s request was unduly discriminatory, and, alternatively, that those Board members voting against the request acted in an arbitrary and capricious manner, I would affirm the trial court. Thus, I respectfully dissent.
“[I]n order to be legal and proper, conditional use zoning. . . must be reasonable, neither arbitrary nor unduly discriminatory. . .” Chrismon v. Guilford Cty., 322 N.C. 611, 622, 370 S.E.2d 579, 586 (1988) (emphasis added). The zoning power is subject to “the constitutional limitation forbidding arbitrary and unduly discriminatory interferences with the right of property owners.” In re Ellis, 277 N.C. 419, 424, 178 S.E.2d 77, 80 (1970).
The majority holds that the Board’s denial of plaintiff’s rezoning request was not unduly discriminatory because no evidence exists to *464support the conclusion that plaintiffs property was treated differently than other similarly situated properties. I disagree.
“[A] trial court’s findings of fact in a bench trial have the force of a jury verdict and are conclusive on appeal if there is competent evidence to support them, even though there may be evidence that would support findings to the contrary.” County of Moore v. Humane Soc’y of Moore County, Inc., 157 N.C. App. 293, 295, 578 S.E.2d 682, 684 (2003).
The majority contends that the trial court erred in finding as fact that the denial of plaintiff’s request was inconsistent with “prior actions of the Board such as a recently approved project on Churton Street, in the Historic District that included condominiums” because “the parties stipulated that none of the prior rezoning requests concerned property in the historic district, as is the property here.”
In the instant case, the trial court’s finding that is considered error by the majority is adequately supported by substantial evidence in the record, including Commissioner Dancy’s statements in the record that denial of plaintiff’s request was inconsistent with previous actions of the Board in which it has “done a lot of different things to accommodate” other projects which were not in strict compliance with zoning regulations. Commissioner Dancy specifically noted that “the same type of issues” in the present case had also come up when the Board reviewed approval of the condominiums at Weaver Street. Commissioner Dancy was referring to the Gateway Center project, which was approved in the Historic District even though the plans for the top floors of that building were made up of residential condominiums when the project was approved. This evidence is sufficient to support the trial court’s finding.
The majority, in order to discredit the trial court’s finding, makes reference to a stipulation of the parties that refers to an entirely different issue. The stipulation referenced by the majority states:
Hillsborough has rezoned twenty-five parcels as part of five separate applications for conditional use rezoning to Entranceway Special Use. They are different sizes and in different locations throughout Town. These properties contain different uses. Three of the five conditional use rezonings include substantial residential components. Only two of the five are large scale. The smallest project is 4.5 acres in area. None of the parcels is located in Hillsborough’s Historic District. In none of these *465approvals has the Board stated that the definition of “entrance-way” was a factor to consider or that residential use was not allowed in the ESU district.
(emphasis added). This stipulation clearly refers to the fact that there are no parcels located in the Historic District that have been approved for Entranceway Special Use (“ESU”) zoning. The stipulation does not state that there are no projects which include condominiums that have been approved in the Historic District. The majority opinion fails to recognize that the trial court’s finding and the stipulation of the parties deal with two different issues, and thus this stipulation cannot be used to discredit the trial court’s finding of fact.
Therefore, I disagree with the majority’s conclusion that the only support for the trial court’s finding is the differing opinions of various Board members. The trial court found as fact, supported by substantial evidence, that other approved projects in the Historic District have had residential condominiums. Since plaintiff’s project was denied because it was a project in the Historic District that had residential condominiums, plaintiff’s project was treated differently than other similarly situated projects. As a result, the trial court correctly concluded as a matter of law that the Board’s dénial of plaintiff’s rezoning request was unduly discriminatory.
The majority also concluded that the record did not support a finding that the two Board members voting against the rezoning request acted in bad faith and that the denial of the request was arbitrary and capricious. I disagree.
A decision is “arbitrary and capricious ‘if it clearly evinces a lack of fair and careful consideration or want of impartial, reasoned decisionmaking.’ ” Vulcan Materials Co. v. Guilford Cty. Bd. of Comrs., 115 N.C. App. 319, 324, 444 S.E.2d 639, 643 (1994)(quoting Joyce v. Winston-Salem State Univ., 91 N.C. App. 153, 156, 370 S.E.2d 866, 868 (1988)). Decisions that are made “patently in bad faith,” are “whimsical,” or “lacked fair and careful consideration” are arbitrary and capricious. Summers v. City of Charlotte, 149 N.C. App. 509, 518, 562 S.E.2d 18, 25 (2002). Since the two members who voted against the request cited reasons wholly unsupported by the Zoning Ordinance, the Comprehensive Plans (including the Churton Street Corridor Plan (“the CSC Plan”), the Strategic Growth Plan and the Vision 2010 Plan), or the facts in the record, the failure to approve plaintiff’s rezoning request was arbitrary and capricious.
*466Commissioner Lloyd voted “no” because she stated that only commercial property was intended to be part of ESU district zoning, that the Vision 2010 Plan was intended to prohibit apartments or condominiums in the Historic District, and that ESU district zoning was created to accommodate “something large south of Town.” These reasons demonstrate that Commissioner Lloyd failed to give fair and careful consideration to the evidence before the Board.
The Permitted Use Table — Special Use Districts, found at § 3.4.1 of the Zoning Ordinance, specifically lists “Residential” as a permissible use in ESU district zoning as long as the residential use is “part of a planned/mixed use development.” Plaintiffs proposed project was a “planned/mixed use development,” as it would include a residential component as well as the already established Sinclair Station,, which contains office and commercial space. This clearly falls within the ESU district requirement. Further, the Zoning Ordinance requires that projects be a minimum of 2 acres to qualify for ESU district zoning. Plaintiffs property is 2.16 acres. Based on the contradictions between Commissioner Lloyd’s reasons for denial and the evidence, her “no” vote for these reasons could not have been the result of “reasoned decisionmaking.”
Commissioner Lloyd’s statement that the Vision 2010 Plan was intended to prohibit apartments or condominiums in the Historic District further renders her decision to deny plaintiff’s request arbitrary and capricious. First, nothing in the Vision 2010 Plan precludes condominiums in the Historic District. Instead, the Vision 2010 Plan speaks of a “diversity of housing opportunities” supporting a “diverse community.” Second, as noted above, the Gateway Center project was approved in the Historic District even though it contained a residential condominium component. Third, any project to be built in the Historic District would still need approval from the Historic District Commission. Any design concerns for the project would be remedied and addressed in that review.
The record also suggests that Commissioner Lloyd was not impartial when determining that plaintiff’s project did not comport with the Vision 2010 Plan. Commissioner Lloyd specifically stated that she had “worked on the Vision 2010 Plan.” She admitted that while not having any more apartments or condominiums in the Historic District was discussed, it was “not written into the Plan.” Her further statements that this idea was “overlooked” and that it “had certainly been the intent” suggest that Commissioner Lloyd intended for additional restrictions to be contained in the Vision 2010 Plan but *467that, for whatever reason, her proposals were not accepted and included in the final draft. Therefore, Commissioner Lloyd’s reasoning for denying plaintiff’s rezoning request on this basis was not the result of impartial decisionmaking, but rather on the basis of what Commissioner Lloyd wished the law to be. Commissioner Lloyd’s denial of plaintiff’s rezoning request was thus arbitrary and capricious.
The record also indicates that Commissioner Gering’s vote against plaintiff’s rezoning request was arbitrary and capricious. A full review of the record suggests that Commissioner Gering also failed to give “fair and careful consideration” to the evidence before him and that he was not impartial in his decisionmaking.
Commissioner Gering voted against plaintiff’s request because he believed that the location of the property at the corner of Churton and Corbin Streets was not an “entranceway” into the Town of Hillsborough, but was instead a “district gateway” and that the Zoning Ordinance required the property to be an “entranceway” for approval. This reasoning directly conflicts with evidence in the record and a careful analysis of the Zoning Ordinance.
The Zoning Ordinance states that the purpose of an ESU district is to provide “for the development of well planned and fully integrated projects containing a diverse mixture of commercial, office, and employment uses along the primary entrances to the Town of Hillsborough.” (emphasis added). Further, the Ordinance requires that property proposed for ESU rezoning:
1) Is adjacent to and has frontage along a street classified as an arterial or higher that leads into the Hillsborough area; and
2) If so located in relationship to existing or proposed public streets that traffic generated by the development of the tract proposed for rezoning can be accommodated without endangering the public health, safety, or welfare; and
3) Will be served by Hillsborough water and sewer lines when developed.
(emphasis added). Thus, based on the plain language of the Zoning Ordinance, in order to qualify for ESU district zoning, a property must be located on a road that leads into Town. Plaintiff’s property is located at the corner of North Churton Street and Corbin Street. Churton Street is “a key transportation link for commuters and visi*468tors from all directions” and “forms the central transportation corridor serving Hillsborough.” Churton Street “connects Hillsborough to Chapel Hill/Carrboro and 1-40 to the south and to Caswell County, and Person County via Hwy 57, to the north.” Additionally, the Corbin/Churton Street intersection is “one block from the city limits” and Sinclair Station was specifically approved because the Board believed it was located at an “entranceway” to Hillsborough. With no requirement that property rezoned as an ESU district must be an “entranceway,” no definition of “entranceway” in the Zoning Ordinance, and specific evidence in the record demonstrating that Churton Street is an entranceway into the Town of Hillsborough, Commissioner Gering’s refusal of plaintiff’s rezoning request was not the result of reasoned decisionmaking.
Commissioner Gering’s refusal of plaintiff’s rezoning request also lacked impartiality. Commissioner Gering heavily debated with Commissioner Lowen about the purported distinction between an “entranceway” and a “gateway” as defined by the CSC Plan. Yet Commissioner Gering’s insistence that the distinction was so great as to support denial of plaintiff’s rezoning request on the basis of such semantics stemmed from the fact that he “had a great deal of involvement in crafting the [CSC] Plan.” Thus, Commissioner Gering’s denial of plaintiff’s rezoning was not impartial, but rather, like Commissioner Lloyd, was from the viewpoint of one advocating for what he wished the law to be. Although no part of the CSC Plan prohibits ESU district zoning, Commissioner Gering believed it was a “misreading” of the plan to support any other interpretation. Commissioner Gering’s denial of plaintiff’s rezoning request was thus not an impartial, reasoned decision made after a fair and careful consideration of the evidence, but was instead arbitrary and capricious.
Because the trial court correctly concluded that the Board’s denial of plaintiff’s request was improper, I would also affirm that portion of the trial court’s order remanding the matter in 07 CVS 685 for the Board to consider plaintiff’s special use permit application for the property.
The trial court should be affirmed.