{ "id": 11915685, "name": "SHONEY'S OF ENKA, INC., a North Carolina Corporation, a Subsidiary of B&G Enterprises, d/b/a \"Shoney's of Asheville\" v. THE BOARD OF ADJUSTMENT FOR THE CITY OF ASHEVILLE and THE CITY OF ASHEVILLE", "name_abbreviation": "Shoney's of Enka, Inc. v. Board of Adjustment for the City of Asheville", "decision_date": "1995-07-05", "docket_number": "No. COA94-837", "first_page": "420", "last_page": "424", "citations": [ { "type": "official", "cite": "119 N.C. App. 420" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "313 A.2d 481", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1974, "pin_cites": [ { "page": "490", "parenthetical": "findings of county board of appeals in granting special exception which merely repeat the exact language of the county code with respect to mandatory requirement are insufficient" } ], "opinion_index": 0 }, { "cite": "379 So.2d 211", "category": "reporters:state_regional", "reporter": "So. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "370 So.2d 839", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9608519 ], "pin_cites": [ { "page": "842" } ], "opinion_index": 0, "case_paths": [ "/so2d/370/0839-01" ] }, { "cite": "202 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562793 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0458-01" ] }, { "cite": "215 S.E.2d 73", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 493", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564022 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0493-01" ] }, { "cite": "219 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1975, "pin_cites": [ { "page": "226", "parenthetical": "citing In re Campsites, 287 N.C. 493, 215 S.E.2d 73 (1975)" }, { "page": "227" }, { "page": "365" }, { "page": "227" } ], "opinion_index": 0 }, { "cite": "27 N.C. App. 361", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553744 ], "year": 1975, "pin_cites": [ { "page": "364", "parenthetical": "citing In re Campsites, 287 N.C. 493, 215 S.E.2d 73 (1975)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/27/0361-01" ] }, { "cite": "270 S.E.2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563992, 8564011, 8563944, 8563965 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0562-03", "/nc/300/0562-04", "/nc/300/0562-01", "/nc/300/0562-02" ] }, { "cite": "265 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "299 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575681 ], "year": 1980, "pin_cites": [ { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0620-01" ] }, { "cite": "444 S.E.2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "114 N.C. App 505", "category": "reporters:state", "reporter": "N.C. App.", "year": 1994, "opinion_index": 0 } ], "analysis": { "cardinality": 495, "char_count": 9331, "ocr_confidence": 0.729, "pagerank": { "raw": 2.701739780900525e-07, "percentile": 0.828537107761881 }, "sha256": "ad97cc67406f097c27f1967d201c74d08df7bfe1593de0f03a3d46b0ce8ac2dc", "simhash": "1:9fbfd1ea0357c470", "word_count": 1520 }, "last_updated": "2023-07-14T17:09:59.579385+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and LEWIS concur." ], "parties": [ "SHONEY\u2019S OF ENKA, INC., a North Carolina Corporation, a Subsidiary of B&G Enterprises, d/b/a \u201cShoney\u2019s of Asheville\u201d v. THE BOARD OF ADJUSTMENT FOR THE CITY OF ASHEVILLE and THE CITY OF ASHEVILLE" ], "opinions": [ { "text": "MARTIN, MARK D., Judge.\nPlaintiff appeals from judgment affirming the decision of the City of Asheville Board of Adjustment (the Board of Adjustment) denying plaintiff\u2019s request for a zoning variance. We reverse and remand.\nOn 5 March 1992 plaintiff applied for a variance from the requirements set forth in \u00a7 30-9-5 (B-4) of the City of Asheville Code of Ordinances to erect a new sign on property located near the intersection of U.S. Highway 19/23 and Interstate 40. On 20 April 1992 the Board of Adjustment held a hearing on the requested variance and voted three to two in favor of plaintiff\u2019s request. However, because N.C. Gen. Stat. \u00a7 160A-388(e) requires a four-fifths vote of the Board of Adjustment to grant a variance, plaintiff\u2019s variance request was ultimately denied. Plaintiff appealed to superior court.\nOn 7 December 1992 the superior court entered an order affirming the Board of Adjustment\u2019s decision denying plaintiff\u2019s requested variance. On 31 December 1992 plaintiff appealed to this Court. On 19 April 1994, in an unpublished opinion, this Court held it was unable to determine from the record whether the superior court had subject matter jurisdiction to hear plaintiff\u2019s petition for review and remanded this matter to the superior court. Shoney\u2019s of Enka v. Bd. of Adjustment for City of Asheville, 114 N.C. App 505, 444 S.E.2d 494 (1994). On 31 May 1994 the trial court entered an order finding that pursuant to N.C. Gen. Stat. \u00a7 160A-388 plaintiff had appealed within the thirty days provided and therefore concluded it had subject matter jurisdiction when it entered its 7 December 1992 order. From this order, plaintiff appeals.\nPlaintiff contends the superior court erred by affirming the Board of Adjustment\u2019s denial of plaintiff\u2019s variance.\nJudicial review of the decision of the Board of Adjustment is limited to: (1) reviewing the record for errors in law; (2) insuring procedures specified in both statute and ordinance are followed; (3) insuring appropriate due process rights of a petitioner are protected, including the right to offer evidence, to cross-examine witnesses, and to inspect documents; (4) insuring decisions of the town board are supported by competent, material and substantial evidence in the whole record; and (5) insuring the decisions are not arbitrary and capricious. Concrete Co. v. Board of Commissioner\u2019s, 299 N.C. 620, 626, 265 S.E.2d 379, 383, reh\u2019g denied, 300 N.C. 562, 270 S.E.2d 106 (1980). \u201cIt is not the function of the reviewing court ... to find the facts but to determine whether the findings of fact made by the Board are supported by the evidence before the Board and whether the Board made sufficient findings of fact.\u201d Rentals Inc. v. City of Burlington, 27 N.C. App. 361, 364, 219 S.E.2d 223, 226 (1975) (citing In re Campsites, 287 N.C. 493, 215 S.E.2d 73 (1975)).\nPlaintiff contends the decision of the Board of Adjustment was not supported by sufficient findings of fact to permit adequate judicial review. We agree.\nFindings of fact provide a safeguard against arbitrary action by the board of adjustment by providing a sufficient record upon which this Court can review the board\u2019s decision. Id. at 365, 219 S.E.2d at 227. \u201c[A]ction[s] by zoning boards in allowing or denying the application of use permits require the board to state the basic facts on which it relied with sufficient specificity to inform the parties, as well as the court, what induced its decision.\u201d Id. at 365, 219 S.E.2d at 226-227 (citing Refining Co. v. Board of Aldermen, 284 N.C. 458, 202 S.E.2d 129 (1974)). As a corollary to this principle, we do not believe the Board may rely on findings of fact which are merely conclusory in form. See, e.g., Wolff v. Dade County, 370 So.2d 839, 842 (Fla. App.) (simple determination by County that development of applicant\u2019s property is not needed is not a proper basis for a determination of the reasonableness of such an application), cert. denied, 379 So.2d 211 (Fla. 1979); Redden v. Montgomery County, 313 A.2d 481, 490 (Md. 1974) (findings of county board of appeals in granting special exception which merely repeat the exact language of the county code with respect to mandatory requirement are insufficient).\nIn the instant case the Board of Adjustment made the following findings of fact:\n1. It is the Board\u2019s conclusion that, if the applicant complies strictly with the provisions of this article, the applicant (can/cannot) make reasonable use of the sign allowed. This conclusion is based on the following findings of fact:\nPetitioner did not satisfy requirements set forth in opening statement.\nand\n2. It is the Board\u2019s conclusion that the hardship of which the applicant complains is funioue/not unique) or nearly so, and is (is/not) suffered by the applicant rather than by owners of surrounding properties or the general public. This conclusion is based on the following findings of fact:\nand\n3. It is the Board\u2019s conclusion that the hardship (relates/does not relate) to the applicant\u2019s land (rather than/but) to personal circumstance. This conclusion is based on the following findings of fact:\nand\n4. It is the Board\u2019s conclusion that the hardship (is/not) the result of the applicant\u2019s own actions. This conclusion is based on the following findings of fact:\nand\n5. It is the Board\u2019s conclusion that the variance (will/will not) result in the extension of a non-conforming use (and/nor) authorize the initiation of a non-conforming use. This conclusion is based on the following findings of fact:\nand\n6. It is the Board\u2019s conclusion that the variance (is/lbs 1 not) in harmony with the general purpose and intent of this article and (preserves/does not preserve') and (secures/does not secure) the public safety and welfare and fdoes/does not do) substantial justice. This conclusion is based on the following findings of fact:\nThe findings of the Board of Adjustment are conclusory at best. Indeed, these findings merely constitute a preprinted form couched in the language of the relevant section of the City\u2019s zoning ordinance. Although the form provides space to insert findings, the Board elected for whatever reason to rely solely on the language of the preprinted form. The only written finding was the conclusion that \u201cpetitioner did not satisfy requirements set forth in opening statement.\u201d Although \u00a7 30-9-11 of the ordinance only requires the Board to make written findings when granting a variance, \u201c[t]he requirement that a board of adjustment make findings may be imposed by statute, by ordinance, or by judicial decision.\u201d 4 R.M. Anderson, American Law of Zoning \u00a7 22.41, at 109-110 (1986). We believe the conclusory findings of the Board do not satisfy the standard articulated in Rentals Inc., supra, where we concluded that findings of fact by a Board of Adjustment must be sufficient \u201cto enable the reviewing court to determine whether the Board ha[s] acted arbitrarily or ha[s] committed errors of law.\u201d Id. at 365, 219 S.E.2d at 227.\nAs noted by Professor Anderson in his American Zoning Law treatise:\nthe requirement that a board of adjustment make appropriate findings is not met by a mere restatement of the terms of the applicable statute or ordinance.\nDisapproval of findings in the language of the statute or ordinance has been explained on the ground that delegations of power to boards of adjustment are broad, and the scope of judicial review is narrow. If the court\u2019s power to correct clear abuses of discretion is to be effectively exercised, the findings must disclose the facts upon which the board\u2019s determination rests.\n4 R.M. Anderson, American Law of Zoning \u00a7 22.44, at 124-125.\nWe conclude the present findings are insufficient to adequately determine whether the Board of Adjustment\u2019s decision is based upon facts which are supported by evidence in the record. The Board\u2019s failure to make such findings, makes it impossible to determine whether the Board rested its decision on considerations other than those set forth in \u00a7 30-9-11 of the ordinance and further complicates this Court\u2019s ability to review whether the Board acted arbitrarily or committed errors of law. Therefore, the order of the superior court affirming the defendant Board\u2019s decision is reversed, and the cause remanded to the superior court for further remand to the City of Asheville Board of Adjustment for further proceedings consistent with this opinion.\nReversed and remanded.\nJudges GREENE and LEWIS concur.", "type": "majority", "author": "MARTIN, MARK D., Judge." } ], "attorneys": [ "T. Karlton Knight for plaintiff-appellant.", "Nesbitt & Slawter, by William F. Slawter and Martha Walker-McGlohon, for defendant-appellees." ], "corrections": "", "head_matter": "SHONEY\u2019S OF ENKA, INC., a North Carolina Corporation, a Subsidiary of B&G Enterprises, d/b/a \u201cShoney\u2019s of Asheville\u201d v. THE BOARD OF ADJUSTMENT FOR THE CITY OF ASHEVILLE and THE CITY OF ASHEVILLE\nNo. COA94-837\n(Filed 5 July 1995)\nZoning \u00a7 123 (NCI4th)\u2014 sign ordinance \u2014 variance denied\u2014 insufficient findings to permit review\nDenial of plaintiff\u2019s request for a variance from the city\u2019s sign ordinance was not supported by sufficient findings of fact for the court to determine whether the Board of Adjustment\u2019s decision was arbitrary or based on errors of law.\nAm Jur 2d, Zoning \u00a7 1064.\nAppeal by plaintiff from order entered 3 December 1992 by Judge Robert D. Lewis in Buncombe County Superior Court. Heard in the Court of Appeals 20 April 1995.\nT. Karlton Knight for plaintiff-appellant.\nNesbitt & Slawter, by William F. Slawter and Martha Walker-McGlohon, for defendant-appellees." }, "file_name": "0420-01", "first_page_order": 454, "last_page_order": 458 }