{ "id": 11917055, "name": "SHARON BALLAS and SHELLEY BURTT, Petitioners v. THE TOWN OF WEAVERVILLE and the TOWN OF WEAVERVILLE ZONING BOARD OF ADJUSTMENT, Respondents", "name_abbreviation": "Ballas v. Town of Weaverville", "decision_date": "1996-01-02", "docket_number": "No. COA95-222", "first_page": "346", "last_page": "351", "citations": [ { "type": "official", "cite": "121 N.C. App. 346" } ], "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": "66 ALR4th 1012", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "451 S.E.2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "338 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519209, 2520269, 2519598, 2518574, 2519998 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0309-05", "/nc/338/0309-02", "/nc/338/0309-03", "/nc/338/0309-01", "/nc/338/0309-04" ] }, { "cite": "444 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "454" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 303", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127274 ], "year": 1994, "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0303-01" ] }, { "cite": "458 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "512" }, { "page": "512" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 420", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915685 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "423" }, { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0420-01" ] }, { "cite": "219 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "226-27" } ], "opinion_index": 0 }, { "cite": "27 N.C. App. 361", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553744 ], "year": 1975, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nc-app/27/0361-01" ] }, { "cite": "209 S.E.2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "449", "parenthetical": "party must be given opportunity to \"meet\" evidence considered by Board" } ], "opinion_index": 0 }, { "cite": "286 N.C. 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564001 ], "year": 1974, "pin_cites": [ { "page": "173-74", "parenthetical": "party must be given opportunity to \"meet\" evidence considered by Board" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0170-01" ] }, { "cite": "406 S.E.2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "616" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522023 ], "year": 1991, "pin_cites": [ { "page": "532" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0527-01" ] }, { "cite": "202 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "136" } ], "opinion_index": 0 }, { "cite": "284 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562793 ], "year": 1974, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0458-01" ] }, { "cite": "141 S.E.2d 11", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "13", "parenthetical": "\"inferences may be drawn if a proper factual basis exist for them\"" } ], "opinion_index": 0 }, { "cite": "264 N.C. 127", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571339 ], "year": 1965, "pin_cites": [ { "page": "130", "parenthetical": "\"inferences may be drawn if a proper factual basis exist for them\"" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0127-01" ] }, { "cite": "463 S.E.2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "583" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 827", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918394 ], "year": 1995, "pin_cites": [ { "page": "830" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0827-01" ] }, { "cite": "365 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566467, 2568453, 2572653, 2570776, 2570206 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0746-01", "/nc/321/0746-04", "/nc/321/0746-05", "/nc/321/0746-02", "/nc/321/0746-03" ] }, { "cite": "362 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "296", "parenthetical": "\"review is limited to assignments of error to the superior court's order\"" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 637", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358977 ], "year": 1987, "pin_cites": [ { "page": "640", "parenthetical": "\"review is limited to assignments of error to the superior court's order\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0637-01" ] }, { "cite": "443 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "92" }, { "page": "92" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 711", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527957 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "716" }, { "page": "716" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0711-01" ] }, { "cite": "265 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "382" }, { "page": "383" }, { "page": "383", "parenthetical": "appellate court determines \"whether the evidence before the town board was supportive of its action\"" } ], "opinion_index": 0 }, { "cite": "299 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575681 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "625" }, { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0620-01" ] } ], "analysis": { "cardinality": 603, "char_count": 11971, "ocr_confidence": 0.744, "pagerank": { "raw": 9.717854893327991e-08, "percentile": 0.530229754707707 }, "sha256": "d267fa25fc2ecb5fd9be5c55cf152a25d215c75d911045ea4558cf989b9cc013", "simhash": "1:5bc30594e48f255e", "word_count": 1935 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, Mark D., and McGEE concur." ], "parties": [ "SHARON BALLAS and SHELLEY BURTT, Petitioners v. THE TOWN OF WEAVERVILLE and the TOWN OF WEAVERVILLE ZONING BOARD OF ADJUSTMENT, Respondents" ], "opinions": [ { "text": "GREENE, Judge.\nSharon Balias and Shelley Burtt (petitioners) appeal an order affirming the Town of Weaverville Zoning Board of Adjustment\u2019s (the Board) denial of petitioners\u2019 request for a special use permit.\nPetitioners applied for a special use permit in the Town of Weaverville (Town), which would allow them to locate and operate a bed and breakfast in a residential area on Hamburg Mountain. Zoning Ordinance \u00a7 17-111 (section 17-111) provides that seven criteria must be met before the Board may approve a special use permit. The two relevant sections state:\n(2) The special exception will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted nor substantially diminish and impair property values within the neighborhood.\n(5) Adequate utilities, access roads, drainage and/or other necessary facilities have been or are being provided.\nAt the public hearing, petitioners stated that they were going to convert a \u201cderelict building into a residence compatible with those in the subdivision\u201d and \u201cprovide such a facility that the neighborhood residents\u201d would recommend it to their \u201cout-of-town friends.\u201d Several neighbors stated that they were in favor of the bed and breakfast because petitioners did an excellent job of renovating the home, and it would be \u201can attribute to the community.\u201d A general certified real estate appraiser who had examined the property and surrounding area and compared it to what happened in another community, presented evidence that the bed and breakfast would lower surrounding property values from 11-23%. The petitioners further offered that the \u201cpublic water and sewer lines have been installed . . . and serve the subject property.\u201d\nAfter the public hearing was closed, the Town manager informed the Board that the roads and utilities had not yet been accepted by the Town for maintenance. The Board voted 4-1, denying petitioners\u2019 request for the special use permit. In denying the request the Board found that the \u201cproposed plans . . . [do] not meet the specific design or other criteria as defined in Section 17-111 Standards of the Town of Weaverville Zoning Ordinance.\u201d\nPursuant to N.C. Gen. Stat. \u00a7 160A-388(e), petitioners appealed the decision to superior court. After consideration of all the available evidence, the court affirmed the Board\u2019s decision, concluding that \u201c [petitioners failed to produce competent, material, and substantial evidence to show compliance with Section 17-111 of the . . . Zoning Ordinance.\u201d\nThe issues are (I) whether there is substantial, competent, and material evidence to support a finding that the petitioners failed in their burden of showing compliance with Section 17-111; and if so, (II) whether the decision of the Board is deficient because of its lack of findings of fact.\nAlthough not governed by the North Carolina Administrative Procedure Act (the Act), N.C.G.S. \u00a7 150B (1995), the principles of the Act are \u201chighly pertinent\u201d to this Court\u2019s review of decisions of a town board. Concrete Co. v. Board of Comm\u2019rs, 299 N.C. 620, 625, 265 S.E.2d 379, 382 (1980). Consistent with the principles of the Act, the duty of this Court includes:\n(1) Reviewing the record for errors in law,\n(2) Insuring that procedures specified by law in both statute and ordinance are followed,\n(3) Insuring that appropriate due process rights of a petitioner are protected including the right to offer evidence, cross-examine witnesses, and inspect documents,\n(4) Insuring that decisions of town boards are supported by competent, material and substantial evidence in the whole record, and\n(5) Insuring that decisions are not arbitrary and capricious.\nId. at 626, 265 S.E.2d at 383. This duty of review, however, is limited to those errors \u201cwhich [are] alleged to have occurred.\u201d Brooks v. Ansco & Assocs., 114 N.C. App. 711, 716, 443 S.E.2d 89, 92 (1994); see Watson v. N.C. Real Estate Comm\u2019n, 87 N.C. App. 637, 640, 362 S.E.2d 294, 296 (1987) (\u201creview is limited to assignments of error to the superior court\u2019s order\u201d), cert. denied, 321 N.C. 746, 365 S.E.2d 296 (1988). \u201cWhere it is alleged that the [Board\u2019s] decision was based upon an error of law, de novo review [by this Court] is required.\u201d Brooks, 114 N.C. App. at 716, 443 S.E.2d at 92.\nWhere it is alleged the [Board\u2019s] decision is not supported by substantial evidence, or is arbitrary and capricious, review is to be conducted under the \u201cwhole record\u201d test, which requires [this Court] to examine all competent evidence in the record, including that which detracts from the [Board\u2019s] decision ... to determine if the [Board\u2019s] decision was supported by substantial evidence.\nId. (citations omitted); see Dockery v. North Carolina Dept. of Human Resources, 120 N.C. App. 827, 830, 463 S.E.2d 580, 583 (1995); Concrete Co., 299 N.C. at 626, 265 S.E.2d at 383 (appellate court determines \u201cwhether the evidence before the town board was supportive of its action\u201d).\nI\nThe petitioners first argue that they presented \u201ccompetent, material, and substantial evidence\u201d on each of the conditions required by the ordinance and that because there is no contrary evidence, the Board erred in denying the special use request. The Board contends that the petitioners did not present \u201ccompetent, material, and substantial evidence\u201d on the effect of the proposed bed and breakfast on the value of adjacent properties and the adequacy of water and sewer lines.\nSection 17-111(2) of the Town ordinance requires the petitioner to show that the granting of the special use permit will not \u201csubstantially diminish and impair property values within the neighborhood.\u201d The petitioners\u2019 evidence on this point, that the bed and breakfast would be an \u201cattribute to the community,\u201d supports an inference that it would not impair the property values in the neighborhood. See Watt v. Housing Auth., 264 N.C. 127, 130, 141 S.E.2d 11, 13 (1965) (\u201cinferences may be drawn if a proper factual basis exist for them\u201d). Thus, on this issue the petitioners did present a prima facie case supporting issuance of the permit and denial of the permit on this basis can be sustained only upon \u201cfindings contra which are supported by competent, material, and substantial evidence.\u201d See Refining Co. v. Bd. of Aldermen, 284 N.C. 458, 468, 202 S.E.2d 129, 136 (1974). On this issue, the testimony of a real estate appraiser that the bed and breakfast would lower the value of the surrounding property from 11-23%, is \u201csuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion,\u201d Rector v. N.C. Sheriff\u2019s Educ. and Training Standards Comm\u2019n, 103 N.C. App. 527, 532, 406 S.E.2d 613, 616 (1991), and is thus substantial evidence. In other words, this testimony could support a finding that the bed and breakfast will \u201csubstantially diminish and impair property values within the neighborhood.\u201d This evidence, however, does not mandate such a finding.\nOn the question of the adequacy of the water and sewer, the petitioners presented evidence that these facilities had been installed and were serving the property. Because the evidence is that these facilities are in fact operational, there is a reasonable inference that they are adequate. Thus, on this issue the petitioners did present a prima facie case supporting issuance of the permit and denial of the permit on this basis can be supported only upon contrary findings supported by substantial, competent and material evidence. Id. In this record, there is no contrary evidence on this point. The record does reveal that after the public hearing was closed, the Town manager informed the Board that the water and sewer had not yet been accepted by the Town for maintenance. This information, however, because it was not revealed at the public hearing and therefore not subject to refutation by the petitioners, is not competent evidence and cannot support a finding that these utilities were not adequate. See Refining Co. v. Bd. of Alderman, 286 N.C. 170, 173-74, 209 S.E.2d 447, 449 (1974) (party must be given opportunity to \u201cmeet\u201d evidence considered by Board).\nII\nThe petitioners next argue that even if the evidence can support a finding that they failed in their burden of showing that the values of the property \u201cwithin the neighborhood\u201d would not be adversely affected, the Board made no such finding and the decision must therefore be reversed.\nAs a general rule, zoning boards, \u201cin allowing or denying the application of use permits,\u201d are required to \u201cstate the basic facts on which [they] relied with sufficient specificity to inform the parties, as well as the court, what induced [their] decision.\u201d Rentals, Inc. v. City of Burlington, 27 N.C. App. 361, 365, 219 S.E.2d 223, 226-27 (1975). This is so even though the ordinance does not include such a requirement, as in this case. Shoney\u2019s v. Bd. of Adjustment for City of Asheville, 119 N.C. App. 420, 423, 458 S.E.2d 510, 512 (1995). The failure to make findings of fact is not, however, fatal if \u201cthe record sufficiently informs [the court] of the basis of decision of the material issues ... or if the facts are undisputed [and different inferences are not permissible].\u201d Dockside Discotheque v. Bd. of Adjustment of Southern Pines, 115 N.C. App. 303, 308, 444 S.E.2d 451, 454, disc. rev. denied, 338 N.C. 309, 451 S.E.2d 634 (1994). In this case, the Board\u2019s written decision does not include any findings to identify the specific reasons for denying the permit. Furthermore, we cannot determine from the record the basis of the decision and some of the relevant evidence is in dispute. It therefore is impossible to effectively review the validity of the Board\u2019s decision. Shoney\u2019s, 119 N.C. App. at 424, 458 S.E.2d at 512. For example, if the denial was based on section 17-111(5), the decision cannot be sustained if it was based on the fact that the water and sewer had not been accepted for Town maintenance. If the denial was based on section 17-111(2), the denial could be sustained if the Board found persuasive the evidence that the bed and breakfast would adversely affect the property values in the neighborhood.\nThe order of the superior court must therefore be reversed and this cause remanded to the superior court for further remand to the Board for the entry of a new decision with the required findings of fact. We have reviewed the other assignments of error asserted by the petitioners and either reject them or find it unnecessary to address them in light of our holding.\nReversed and remanded.\nJudges MARTIN, Mark D., and McGEE concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Van Winkle, Buck, Wall, Starnes & Davis, P.A., by Albert L. Sneed, Jr. and Craig Dixon Justus, for petitioner-appellants.", "Roberts Stevens & Cogbum, P.A., by William Clarke, for respondent-appellees." ], "corrections": "", "head_matter": "SHARON BALLAS and SHELLEY BURTT, Petitioners v. THE TOWN OF WEAVERVILLE and the TOWN OF WEAVERVILLE ZONING BOARD OF ADJUSTMENT, Respondents\nNo. COA95-222\n(Filed 2 January 1996)\nZoning \u00a7 71 (NCI4th)\u2014 denial of permit for bed and breakfast \u2014 failure to include specific reasons for denial \u2014 court unable to review\nThere was competent and adequate evidence that the bed and breakfast proposed by petitioners would substantially impair property values within the neighborhood, but there was no evidence that water and sewer facilities were inadequate; therefore, because respondent board of adjustment\u2019s written decision did not include any findings to identify the specific reasons for denying petitioners a special use permit, it is impossible for the court on appeal to effectively review the validity of the board\u2019s decision.\nAm Jur 2d, Zoning and Planning \u00a7\u00a7 803-806.\nZoning: construction and effect of statute requiring that zoning application be treated as approved if not acted on within specified period of time. 66 ALR4th 1012.\nAppeal by petitioners from order entered 15 November 1994 in Buncombe County Superior Court by Judge Claude S. Sitton. Heard in the Court of Appeals 16 November 1995.\nVan Winkle, Buck, Wall, Starnes & Davis, P.A., by Albert L. Sneed, Jr. and Craig Dixon Justus, for petitioner-appellants.\nRoberts Stevens & Cogbum, P.A., by William Clarke, for respondent-appellees." }, "file_name": "0346-01", "first_page_order": 380, "last_page_order": 385 }