{ "id": 11220043, "name": "JWL INVESTMENTS, INC. and THAD CRAVEN, Petitioners v. THE GUILFORD COUNTY BOARD OF ADJUSTMENT and GUILFORD COUNTY, Respondents", "name_abbreviation": "JWL Investments, Inc. v. Guilford County Board of Adjustment", "decision_date": "1999-06-01", "docket_number": "No. COA98-1081", "first_page": "426", "last_page": "432", "citations": [ { "type": "official", "cite": "133 N.C. App. 426" } ], "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": "473 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "445" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 400", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913460 ], "year": 1996, "pin_cites": [ { "page": "405" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0400-01" ] }, { "cite": "513 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "73" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 465", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238567 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0465-01" ] }, { "cite": "388 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 714", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2489393, 2488819, 2489452, 2492647 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0714-01", "/nc/325/0714-03", "/nc/325/0714-04", "/nc/325/0714-02" ] }, { "cite": "384 S.E.2d 8", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "14" } ], "opinion_index": 0 }, { "cite": "325 N.C. 352", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2489703 ], "year": 1989, "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0352-01" ] }, { "cite": "447 S.E.2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "quoting Finch v. City of Durham, 325 N.C. 352, 363, 384 S.E.2d 8, 14, reh'g denied, 325 N.C. 714, 388 S.E.2d 452 (1989)" } ], "opinion_index": 0 }, { "cite": "336 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535653, 2536426, 2536398, 2533937, 2535833 ], "year": 1994, "pin_cites": [ { "parenthetical": "quoting Finch v. City of Durham, 325 N.C. 352, 363, 384 S.E.2d 8, 14, reh'g denied, 325 N.C. 714, 388 S.E.2d 452 (1989)" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0604-05", "/nc/336/0604-03", "/nc/336/0604-02", "/nc/336/0604-01", "/nc/336/0604-04" ] }, { "cite": "441 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "183", "parenthetical": "quoting Finch v. City of Durham, 325 N.C. 352, 363, 384 S.E.2d 8, 14, reh'g denied, 325 N.C. 714, 388 S.E.2d 452 (1989)" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527022 ], "year": 1994, "pin_cites": [ { "page": "11-12", "parenthetical": "quoting Finch v. City of Durham, 325 N.C. 352, 363, 384 S.E.2d 8, 14, reh'g denied, 325 N.C. 714, 388 S.E.2d 452 (1989)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0001-01" ] }, { "cite": "329 S.E.2d 730", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "733" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 674", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525915 ], "year": 1985, "pin_cites": [ { "page": "676" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0674-01" ] }, { "cite": "411 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "659" }, { "page": "660" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 32", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520953 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "39" }, { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0032-01" ] }, { "cite": "429 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "451" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 302", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525467 ], "year": 1993, "pin_cites": [ { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0302-01" ] }, { "cite": "438 S.E.2d 482", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "485", "parenthetical": "quoting State v. Kennedy, 110 N.C. App. 302, 305, 429 S.E.2d 449, 451 (1993)" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 388", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522447 ], "year": 1994, "pin_cites": [ { "page": "394", "parenthetical": "quoting State v. Kennedy, 110 N.C. App. 302, 305, 429 S.E.2d 449, 451 (1993)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0388-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "118" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. 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App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651162 ], "weight": 5, "year": 1998, "pin_cites": [ { "page": "501" }, { "page": "501" }, { "page": "501" }, { "page": "501" }, { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0499-01" ] }, { "cite": "507 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571734 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0348-01" ] }, { "cite": "498 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "834" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 300", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11649817 ], "year": 1998, "pin_cites": [ { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0300-01" ] }, { "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" ] } ], "analysis": { "cardinality": 702, "char_count": 14840, "ocr_confidence": 0.728, "pagerank": { "raw": 3.882155932121726e-07, "percentile": 0.90095310576022 }, "sha256": "8b7321d3dafc3bc32ce89978e23a58fc874d84a7df081375c8046817ca6c1ace", "simhash": "1:af4c456a320d775c", "word_count": 2390 }, "last_updated": "2023-07-14T19:41:36.377256+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and HUNTER concur." ], "parties": [ "JWL INVESTMENTS, INC. and THAD CRAVEN, Petitioners v. THE GUILFORD COUNTY BOARD OF ADJUSTMENT and GUILFORD COUNTY, Respondents" ], "opinions": [ { "text": "WALKER, Judge.\nPetitioners own a tract of land in Guilford County, North Carolina located behind 7964 National Service Road, on County Tax Map ACL-94-6999, Block 1093, Parcel 35 in Deep River Township. The property adjoins the right-of-way of Interstate 40 (1-40). The property is zoned RS-40, a residential zoning classification and is subject to a scenic corridor ordinance.\nOn 22 November 1996, petitioners were served by the Guilford County Planning and Development Department with a \u201cNotice of Violation.\u201d The cited violation on the property was \u201ca vehicle storage yard which is not a permitted use in the RS-40 zoned district and in the scenic corridor\u201d pursuant to Guilford County Development Ordinance \u00a7 4-3.1 (Table 4-3-1) Permitted Use Schedule. Petitioners appealed from the notice of violation and on 4 March 1997, a hearing was held before the Guilford County Board of Adjustment (the Board). At the hearing, petitioners admitted using the property to store vehicles on a residential lot in a scenic corridor, but argued that such use should be allowed to continue as the property was also previously used, in part, to store commercial vehicles. Petitioners acquired an interest in the property sometime before 1987. Petitioners alleged the property was used to park operable vehicles which they either use or sell at their business in Rockingham County. Prior to petitioners\u2019 ownership of the property, it was owned by an individual with a concrete business who littered it with debris and stored both junked and operable vehicles. Petitioners presented testimony from two neighbors as to the use of the property by its previous owners. Respondents presented evidence of aerial photos of the property taken in 1970, 1986, and 1991 which showed the property to be undeveloped and not in use. The notice of violation was affirmed and the Board gave petitioners 45 days to comply before the start of any civil penalties.\nThe petitioners sought review by filing a writ of certiorari and on 25 May 1998 a hearing was held. The trial court then entered judgment on 9 June 1998 in which it affirmed the decision of the Board and remanded the case to the Board for imposition of civil penalties.\nOn appeal, petitioners contend the trial court committed prejudicial error: (1) in finding petitioners\u2019 due process rights were not violated; (2) in finding that the Board did not lack authority to support its decision; (3) in finding and concluding that the Board had authority to impose civil penalties; (4) in finding and concluding that N.C. Gen. Stat. \u00a7 153A-340 through 345 afforded adequate constitutional protections; (5) in finding that the decision of the Board was not arbitrary and capricious, oppressive, and attended with manifest abuse of authority; and (6) in finding the decision of the Board was supported by competent, material, and substantial evidence in the whole record.\nIn reviewing the decisions of a board of adjustment, the trial court sits in the posture of an appellate court and is responsible for the following:\n(1) Reviewing the record for errors of law,\n(2) Insuring that procedures specified by law in both statutes and ordinances 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.\nConcrete Co. v. Board of Commissioners, 299 N.C. 620, 626, 265 S.E.2d 379, 383, rehearing denied, 300 N.C. 562, 270 S.E.2d 106 (1980); Ball v. Randolph Co. Bd. of Adjust., 129 N.C. App. 300, 302, 498 S.E.2d 833, 834, disc. review improvidently allowed, 349 N.C. 348, 507 S.E.2d 272 (1998); See also, N.C. Gen. Stat. \u00a7 153A-345(e) (Cum. Supp. 1997). If a petitioner contends the Board\u2019s decision was based on an error of law, \u201cde novo\u201d review is proper. In re Appeal of Willis, 129 N.C. App. 499, 501, 500 S.E.2d 723, 725 (1998). However, if the petitioner contends the Board\u2019s decision was not supported by the evidence or was arbitrary and capricious, then the reviewing court must apply the \u201cwhole record\u201d test. Id. It is not the function of the reviewing court, upon writ of certiorari under N.C. Gen. Stat. \u00a7 153A-345(e), to find the facts, but instead, it is to determine if the findings made by the Board are supported by the evidence. Godfrey v. Zoning Bd. Of Adjustment, 317 N.C. 51, 54, 344 S.E.2d 272, 274 (1986). The role of appellate courts is to review the trial court\u2019s order for errors of law. Id. \u201cThe process has been described as a two-fold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.\u201d Willis, 129 N.C. App. at 501, 500 S.E.2d at 726, (quoting Act-Up Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)).\nThe petitioners\u2019 first several assignments of error relate to whether an error of law was committed by the trial court and as such, de novo review is proper and this review requires a court \u201cto consider a question anew.\u201d See Willis, 129 N.C. App. at 501, 500 S.E.2d at 726; Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994). We find the trial court applied the appropriate standard of review; thus, we look to see if \u201cthe court did so properly.\u201d See Willis, 129 N.C. App. at 501, 500 S.E.2d at 726.\nFirst, petitioners argue that their due process rights were violated because one of the members of the Board was a former employee of the County Planning Department, and in that capacity, she had been consulted by petitioners about the possibility of rezoning the property. \u201cA party claiming bias or prejudice may move for recusal and in such event has the burden of demonstrating \u2018objectively that grounds for disqualification actually exist.\u2019 \u201d In re Ezzell, 113 N.C. App. 388, 394, 438 S.E.2d 482, 485 (1994) (quoting State v. Kennedy, 110 N.C. App. 302, 305, 429 S.E.2d 449, 451 (1993)). The petitioners did not object during the hearing to this member\u2019s presence on the Board. Furthermore, petitioners have made no showing that they were prejudiced by this member\u2019s participation in the case. Thus, we find this assignment of error to be without merit.\nNext, petitioners argue that the trial court erred in finding that the Board did not lack authority to support its decision. Petitioners concede that the use of their property does not conform with the ordinance; however, they contend that the use of their property to store vehicles is \u201cgrandfathered in.\u201d According to \u00a7 3-14.2(B)(4) of the County\u2019s development ordinance, a non-conforming use of property that pre-dates the enactment of an ordinance is permitted so long as the non-conforming use is not discontinued for a period of time greater than one year. At the hearing, petitioners presented testimony from Jane Wood, a resident of the area who related the uses of property in the surrounding area and the petitioners present use of the property and Ruth Cannon, the Secretary of J.W.L. Associates, who testified to the previous owner\u2019s use of the property. Petitioners presented no evidence to establish a continuous non-conforming use of the property which would entitle them to be \u201cgrandfathered in.\u201d On the contrary, respondents presented evidence consisting of aerial photographs that showed the non-conforming use had not been continuous since the imposition of the ordinances.\nProperty uses that are non-conforming are not favored by the law. CG&T Corp. v. Bd. of Adjustment of Wilmington, 105 N.C. App. 32, 39, 411 S.E.2d 655, 659 (1992). \u201cZoning ordinances are construed against indefinite continuation of a non-conforming use.\u201d Forsyth Co. v. Shelton, 74 N.C. App. 674, 676, 329 S.E.2d 730, 733 (1985). Thus, we find the Board has ample authority with which to support its decision.\nPetitioners further contend the scenic corridor ordinance is unconstitutional on its face and, as applied in this case, it amounts to a taking of property without just compensation in violation of the Fifth and Fourteenth Amendments of the United States Constitution. Specifically, petitioners argue the property is unacceptable for residential purposes because it adjoins 1-40. In order to determine whether an unconstitutional taking of property has occurred, it must be determined whether, under the \u201cends means\u201d test, the particular exercise of police power by the government was legitimate, whether the means chosen to regulate are reasonable, and \u201cwhether the ordinance was invalid because the interference with the plaintiffs\u2019 use of the property amounted to a taking.\u201d Guilford Co. Dept. of Emer. Serv. v. Seaboard Chemical Corp., 114 N.C. App. 1, 11-12, 441 S.E.2d 177, 183, disc. review denied, 336 N.C. 604, 447 S.E.2d 390 (1994) (quoting Finch v. City of Durham, 325 N.C. 352, 363, 384 S.E.2d 8, 14, reh\u2019g denied, 325 N.C. 714, 388 S.E.2d 452 (1989)). An interference with property rights amounts to a taking where the plaintiffs are deprived of \u201call economically beneficial or productive use.\u201d Id.\nThe legitimacy and reasonableness of enforcement of the ordinance are not contested; therefore, we need only address whether the ordinance is invalid because it constitutes a taking. See id. We conclude the scenic corridor ordinance has not deprived petitioners of \u201call economically beneficial or productive use\u201d of their property. Thus, no unconstitutional taking has occurred.\nNext, petitioners argue the trial court erred in finding and concluding the Board had authority to impose civil penalties. We note that the Board stayed the imposition of a civil penalty for 45 days. N.C. Gen. Stat. \u00a7 153A-345(b) (1991) provides:\nThe board of adjustment may reverse or affirm, in whole or in part, or may modify the order, requirement, decision, or determination appealed from, and shall make any order, requirement, decision, that in its opinion ought to be made in the circumstances. To this end the board has all of the powers of the officer from whom the appeal is taken.\nSection 8-4 of the Guilford County Development Ordinance states that an enforcement officer may impose civil penalties against any person who violates a provision of the ordinance. Therefore, since the Board posseses all of the powers of the enforcement officer for non-compliance, the trial court did not err in finding that the Board had authority to impose civil penalties.\nPetitioners\u2019 last two assignments of error concern whether the decisions of the Board are supported by substantial, competent evidence or are arbitrary and capricious, thus the reviewing court looks to the \u201cwhole record\u201d to determine whether the Board\u2019s findings are supported by substantial evidence in the whole record. See Whiteco Outdoor Adver. v. Johnston County Bd. of Adjust., 132 N.C. App. 465, 513 S.E.2d 70 (1999). Substantial evidence is \u201cevidence a reasonable mind might accept as adequate to support a conclusion.\u201d Hayes v. Fowler, 123 N.C. App. 400, 405, 473 S.E.2d 442, 445 (1996). Furthermore, a decision will be reversed and found to be arbitrary and capricious only when it is established by the petitioner that \u201cthe decision was whimsical, made patently in bad faith, [or] indicates a lack of fair and careful consideration.\u201d Whiteco Outdoor Adven, 132 N.C. App. at 468, 513 S.E.2d at 73. \u201cWhen the Court of Appeals applies the whole record test and reasonable but conflicting views emerge from the evidence, the Court cannot substitute its judgment for the administrative body\u2019s decision.\u201d CG&T Corporation, 105 N.C. App. at 40, 411 S.E.2d at 660. We find the trial court exercised the appropriate scope of review; thus, we look to see if \u201cthe court did so properly.\u201d See Willis, 129 N.C. App. at 501, 500 S.E.2d at 726.\nHere, the trial court properly concluded that there was substantial evidence to affirm the decision of the Board. Therefore, the decision of the Board was not arbitrary and capricious in finding that petitioners violated the ordinances and the trial court did not err.\nAs to petitioners\u2019 remaining assignment of error that N.C. Gen. Stat. \u00a7\u00a7 153A-340 through 345 fail to provide adequate constitutional protections for an aggrieved party such as the petitioners, we agree with the trial court that this contention is without merit.\nAffirmed.\nJudges WYNN and HUNTER concur.", "type": "majority", "author": "WALKER, Judge." } ], "attorneys": [ "Max. D. Ballinger for petitioners-appellants.", "Guilford County Attorney\u2019s Office, by Deputy County Attorney J. Edwin Pons, for respondents-appellees." ], "corrections": "", "head_matter": "JWL INVESTMENTS, INC. and THAD CRAVEN, Petitioners v. THE GUILFORD COUNTY BOARD OF ADJUSTMENT and GUILFORD COUNTY, Respondents\nNo. COA98-1081\n(Filed 1 June 1999)\n1. Zoning\u2014 Board of Adjustment member \u2014 conflict of interest\nAlthough petitioners in a Board of Adjustment decision involving a claim of grandfathered property contended on appeal that their due process rights were violated because one of the members of the Board was a former planning department employee who had been consulted about the possibility of rezoning the property, the assignment of error was without merit because petitioners did not object during the hearing and made no showing of prejudice.\n2. Zoning\u2014 denial of nonconforming use \u2014 supporting authority for Board\u2019s decision\nThe Board of Adjustment had ample authority to support its decision that petitioners\u2019 use of their property was not \u201cgrandfathered\u201d where petitioners presented no evidence to establish a continuous nonconforming use and respondents presented evidence showing that the use had not been continuous.\n3. Zoning\u2014 scenic corridor ordinance \u2014 not an unconstitutional taking\nA scenic corridor ordinance did not deprive petitioners of all economically beneficial or productive use and no unconstitutional taking occurred.\n4. Zoning\u2014 Board of Adjustment \u2014 authority to impose civil penalty\nThe Guilford County Board of Adjustment had the authority to impose civil penalties because, under N.C.G.S. \u00a7 153A-345(b), the Board possesses all of the powers of the enforcement officer and the Guilford County ordinance states that an enforcement officer may impose civil penalties.\n5. Zoning\u2014 denial of nonconforming use \u2014 substantial evidence\nThe trial court properly concluded that there was substantial evidence to affirm the decision of a Board of Adjustment denying a nonconforming use and the decision of the Board was not arbitrary and capricious.\n6. Zoning\u2014 statutes \u2014 constitutional protections\nN.C.G.S. \u00a7\u00a7 153A-340 through 345 provide adequate constitutional protections for an aggrieved party.\nAppeal by petitioners from judgment entered 9 June 1998 by Judge Michael E. Beale in Guilford County Superior Court. Heard in the Court of Appeals 22 April 1999.\nMax. D. Ballinger for petitioners-appellants.\nGuilford County Attorney\u2019s Office, by Deputy County Attorney J. Edwin Pons, for respondents-appellees." }, "file_name": "0426-01", "first_page_order": 456, "last_page_order": 462 }