{ "id": 9250987, "name": "SHOWCASE REALTY AND CONSTRUCTION COMPANY, Petitioner-Appellee v. CITY OF FAYETTEVILLE BOARD OF ADJUSTMENT and STEPHEN BURNHAM, Respondents-Appellants", "name_abbreviation": "Showcase Realty & Construction Co. v. City of Fayetteville Board of Adjustment", "decision_date": "2002-12-31", "docket_number": "No. COA02-314", "first_page": "548", "last_page": "555", "citations": [ { "type": "official", "cite": "155 N.C. App. 548" } ], "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": "458 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1995, "pin_cites": [ { "page": "512" }, { "page": "512" }, { "page": "512" }, { "page": "512-13" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 420", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 9363630 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "55" }, { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0052-01" ] } ], "analysis": { "cardinality": 709, "char_count": 17170, "ocr_confidence": 0.755, "pagerank": { "raw": 1.114690476913653e-07, "percentile": 0.571626183611477 }, "sha256": "0a5fc80405c1704dc9bee645bf2321845a06329356cc7f5f0dc4b93b2c1223f3", "simhash": "1:abd6448026147c6a", "word_count": 2752 }, "last_updated": "2023-07-14T20:08:10.559314+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and BIGGS concur." ], "parties": [ "SHOWCASE REALTY AND CONSTRUCTION COMPANY, Petitioner-Appellee v. CITY OF FAYETTEVILLE BOARD OF ADJUSTMENT and STEPHEN BURNHAM, Respondents-Appellants" ], "opinions": [ { "text": "McGEE, Judge.\nStephen Burnham (Burnham) is the owner of a 1.79 acre tract of real property located at 148 Horseshoe Road in Fayetteville, North Carolina. Burnham obtained a special use permit to construct a mini-storage facility on his property. He submitted a site plan to the City of Fayetteville\u2019s Planning Department (Planning Department), which contained provisions for a front setback of 50 feet and a side setback of 30 feet, as required by City of Fayetteville\u2019s zoning ordinance. The site plan was approved and Burnham began construction.\nThe City of Fayetteville\u2019s Inspections Department (Inspections Department) conducted an on-site investigation and approved the pouring of concrete slabs for the construction. During the subsequent course of construction, the Inspections Department questioned the distance of the construction site from the road. Burnham received a letter from Mr. Combs of the Inspections Department requesting an \u201cas built survey\u201d to address the issue. Upon receipt of the letter, and before construction was completed, Burnham ceased construction on the building. The Inspections Department found that the construction only provided a front setback of 25 feet and a side setback of 29 feet.\nBurnham applied to the Fayetteville Board of Adjustment (the Board) for a zoning variance as to the setbacks for the property on 4 November 2000. The Board held an initial hearing regarding Burnham\u2019s request on 11 December 2000. The Board heard testimony from Burnham, Mr. Combs, and the owner of the adjacent property, Showcase Realty and Construction Company (petitioner). The Board voted on 19 December 2000 to allow Burnham\u2019s requested variance.\nPetitioner filed a petition for judicial review of the Board\u2019s decision on 2 February 2001, pursuant to N.C. Gen. Stat. \u00a7 160A-388. The Board filed an answer and moved to dismiss the petition on 5 April 2001; Burnham filed a response on 6 April 2001. The trial court affirmed the Board\u2019s approval of the variance on 7 December 2001, determining that the Board\u2019s decision to grant the variance was not arbitrary and capricious and that the decision was supported by substantial evidence in the whole record. Petitioner appeals.\n\u201cOn review of a superior court order regarding a board\u2019s decision, this Court examines the trial court\u2019s order for error of law by determining whether the superior court: (1) exercised the proper scope of review, and (2) correctly applied this scope of review.\u201d Tucker v. Mecklenburg Cty. Zoning Bd. of Adjust., 148 N.C. App. 52, 55, 557 S.E.2d 631, 634 (2001); see In re Appeal of Willis, 129 N.C. App. 499, 501-02, 500 S.E.2d 723, 726 (1998). Our Supreme Court has held that the review of a decision of a municipal board by a superior court under N.C. Gen. Stat. \u00a7 160A-388(e) consists of:\n(1) Reviewing the record for errors of 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.\nConcrete Co. v. Board of Commissioners, 299 N.C. 620, 626, 265 S.E.2d 379, 383 (1980).\n\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). If the petitioner argues the municipal body\u2019s decision was either unsupported by the evidence or arbitrary and capricious, the trial court must apply the \u201cwhole record\u201d test. Willis, 129 N.C. App. at 501, 500 S.E.2d at 725. \u201c[T]his Court is to inspect all of the competent evidence which comprises the \u2018whole record\u2019 so as to determine whether there was indeed substantial evidence to support the Board\u2019s decision.\u201d Appalachian Outdoor Advertising Co. v. Town of Boone Bd. of Adjust., 128 N.C. App. 137, 140, 493 S.E.2d 789, 792 (1997), disc. review denied, 347 N.C. 572, 498 S.E.2d 375 (1998). \u201cSubstantial evidence is that which a reasonable mind would regard as adequately supporting a particular conclusion.\u201d Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 503, 397 S.E.2d 350, 354 (1990), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991).\nIf the petitioner argues the governmental body\u2019s decision was erroneous as a matter of law, the trial court must review the issue de novo. Willis, 129 N.C. App. at 501, 500 S.E.2d at 725. When the initial reviewing court should have conducted a de novo review, we will review that court\u2019s decision de novo. See Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118 (1994). \u201cDe novo review requires a court to consider the question anew, as if not considered or decided by the agency or, as here, the local zoning board.\u201d Tucker, 148 N.C. App. at 55, 557 S.E.2d at 634.\nPetitioner argues that the trial court erred in upholding the zoning variance because the Board\u2019s decision was arbitrary and capricious and was unsupported by substantial evidence in the whole record. The trial court used the correct standard of review in examining the Board\u2019s decision by applying the whole record test. We now examine whether the trial court correctly applied this standard of review.\nThe record shows that the Board heard testimony from Burnham, Mr. Combs, and Mr. Etowski, petitioner\u2019s owner. Burnham testified that the Inspections Department told him the building was required to be 50 feet away from the road, not 50 feet from the right-of-way. The Inspections Department approved the pouring of the concrete slab. He also stated that he was not in the construction business and relied on the concrete company and the Inspections Department to locate the concrete slab within the required area. Burnham testified that he had no recourse with the concrete company and that he had expended all construction funds, thus preventing him from beginning new construction within the appropriate setbacks or moving the existing construction. He also indicated that he had owned the land for seven years but had been unable to make use of the land because of \u201cincidences such as the one presented.\u201d Mr. Combs testified that there was road construction occurring at the time of the field measurements that could have resulted in the incorrect measurements. The construction would have made it difficult to ascertain where the shoulder of the road started. The current building met the appropriate setback requirements when measured from the road rather than from the right-of-way, which was consistent with Burnham\u2019s testimony regarding the Inspections Department\u2019s instructions. Mr. Combs stated that he understood how such a mistake could be made under the circumstances.\nMr. Etowski testified that there were pins in the ground that demonstrated the location of the road, despite the ongoing construction, and that the concrete slab had been in place for over a year at the time of the hearing. He also testified as to the requirements that must be met before beginning commercial construction. Mr. Etowski stated that he would suffer a loss in property value and damage to his business if the variance were granted. Burnham\u2019s construction altered the surface of the land in a manner that will force water onto petitioner\u2019s property. Mr. Etowski also testified that Burnham\u2019s building would mask any proposed development or signs on petitioner\u2019s property.\nThe Fayetteville zoning ordinance provides for the granting of a variance \u201conly when it can be shown that [] [t]here are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance.\u201d The ordinance further requires the applicant for the variance to show that it could \u201csecure no reasonable return from, or make no reasonable use of, his property.\u201d After reviewing the whole record, there is insufficient evidence in the record to find that there are \u201cpractical difficulties or unnecessary hardships\u201d in enforcing the ordinance against Burnham. Burnham did state that he had been unable to make reasonable use of his land in the past because of similar incidences; however, this is a conclusory statement unaccompanied by evidence in the record. Burnham testified that he could move the building to comply with the ordinance, but such action would be a prohibitive financial burden. However, there is no evidence in the record demonstrating that Burnham could \u201csecure no reasonable return, or make no reasonable use of, his property.\u201d\nOur Supreme Court stated in Lee v. Board of Adjustment, 226 N.C. 107, 111, 37 S.E.2d 128, 132 (1946), that a \u201cboard cannot disregard the provisions of the statute or its regulations. It can merely \u2018vary\u2019 them to prevent injustice when the strict letter of the provisions would work \u2018unnecessary hardship.\u2019 \u201d In granting a variance, the Board must make findings based on sufficient and competent evidence that comply with each of the requirements of the Code of City of Fayetteville \u00a7 32-71(2). The first term found in section 32-71(2) requires that the applicant suffer \u201cpractical difficulties or unnecessary hardships\u201d in carrying out the strict letter of the ordinance. \u00a7 32-71(a). While the Board found that there were \u201cpractical difficulties and unnecessary hardships in the way of carrying out the strict letter of the ordinance,\u201d there is insufficient evidence in the record to support this conclusion.\nIn Williams v. N.C. Dep\u2019t of Env\u2019t & Natural Res., 144 N.C. App. 479, 548 S.E.2d 793 (2001), our Court recently held that a state administrative agency failed to find facts that addressed the issue of whether the appellee had been denied reasonable use of his land. In reaching our decision, we adopted language from the Maryland Court of Appeals stating that an unnecessary hardship occurs where the \u201c \u2018restriction when applied to the property in the setting of its environment is so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private ownership.\u2019 \u201d Id. at 486, 548 S.E.2d at 798 (quoting Belvoir Farms Homeowners Assoc., Inc. v. John C. North, II, 734 A.2d 227, 237 (Md. 1999)). We also noted that the Virginia Supreme Court has held that financial loss alone is insufficient to constitute an exceptional hardship to justify a zoning variance. Id. (citing Natrella v. Board of Zoning Appeals of Arlington County, 345 S.E.2d 295, 300 (Va. 1986)). In reviewing whether the applicant for a variance \u201csuffers from unnecessary hardship due to strict application of\u201d an ordinance, we apply the reasoning in Williams that the board must make findings of fact and conclusions of law as to the \u201cimpact of the [ordinance] on the landowner\u2019s ability to make reasonable use of his property.\u201d Id. at 487, 548 S.E.2d at 798.\nAs in Williams, to determine whether Burnham suffered unnecessary hardship due to strict application of the ordinance, \u201cthe [Board] must make findings of fact and conclusions of law as to the. impact of the [ordinance] on [Burnham\u2019s] ability to make reasonable use of his property.\u201d Id. The Board failed to make findings about Burnham\u2019s \u201creasonable return from\u201d or \u201creasonable use of\u201d his property as required by the Fayetteville ordinance. There is also no evidence in the record that would support a finding that Burnham could obtain no reasonable return or use from his property if he complied with the setback requirements of the ordinance. The only evidence in the record demonstrating a possible unnecessary hardship to Burnham of denial of the variance was the financial cost to Burnham of relocating the concrete slabs for the construction. However, financial hardship alone is insufficient to constitute an \u201cunnecessary hardship\u201d to satisfy the requirement of the ordinance. The record fails to demonstrate any additional reason to support a finding of \u201cunnecessary hardship.\u201d Thus, there is insufficient evidence to support the Board\u2019s finding of fact on this issue. Since there was no \u201cunnecessary hardship\u201d to Burnham in strict enforcement of the ordinance, section 32-71(2) (a) was not met and a variance should not have been granted.\nAdditionally, the record lacks sufficient evidence to support the Board\u2019s findings as required by the ordinance that the \u201cvariance will not impair any adequate supply of light and air to adjacent property\u201d and the \u201cvariance will not impair established property values within the surrounding area.\u201d Mr. Etowski testified to the negative implications to petitioner\u2019s property value and business from the variance. However, there was no testimony or evidence that the variance would not impair the light and air supply of the adjacent property or impair property values. The ordinance requires a specific finding on these issues and an assumption without evidence is insufficient to satisfy these requirements. While the Board stated that established property values in the surrounding area would not be impaired since the building should be deemed an improvement, there is no evidence to support this finding. The Board did not consider evidence of existing property values or projections of what effect the zoning variance would have on adjoining property values. There is no evidence in the record that would allow the Board to objectively measure the impact. The record lacks substantial evidence to support the Board\u2019s findings of fact on these issues.\nPetitioner also contends the Board\u2019s findings of fact were conclusory statements that violated the standards established by statute and local ordinance. Petitioner cites Shoney\u2019s v. Bd. of Adjustment for City of Asheville, 119 N.C. App. 420, 458 S.E.2d 510 (1995), in support of its argument. In Shoney\u2019s, this Court found that the Board of Adjustment\u2019s conclusions were simply a \u201cpreprinted form couched in the language of the relevant section of the City\u2019s zoning ordinance.\u201d Id. at 423, 458 S.E.2d at 512. The only written finding by the Board in Shoney\u2019s was that \u201c[petitioner did not satisfy requirements set forth in [the] opening statement.\u201d Id. at 422, 458 S.E.2d at 512. The remainder of the findings consisted of circling words on a preprinted form to justify the decision of the Board. Id. at 422-23, 458 S.E.2d at 512. These findings were insufficient to determine if the Board\u2019s decision was based upon sufficient evidence. Id. at 424, 458 S.E.2d at 512-13.\nIn the present case, the Board made findings of fact on its own accord and did not rely on a preprinted form as in Shoney\u2019s. The findings of fact made by the Board were not conclusory or insufficient in form or substance simply because the language mirrored that of the ordinance. However, the record demonstrates a lack of sufficient evidence to support three of the Board\u2019s findings of fact, upon which its conclusion of law and its decision are based. For this reason, the Board erred in granting Burnham\u2019s variance.\nThe order of the trial court affirming the Board\u2019s decision to grant a variance is reversed.\nReversed.\nJudges HUDSON and BIGGS concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "McCoy, Weaver, Wiggins, Cleveland & Raper, P.L.L.C., by Richard M. Wiggins and James A. McLean, III, for petitioner-appellee.", "Anderson, Johnson, Lawrence, Butler & Bock, L.L.P., by Steven C. Lawrence, for respondents-appellants." ], "corrections": "", "head_matter": "SHOWCASE REALTY AND CONSTRUCTION COMPANY, Petitioner-Appellee v. CITY OF FAYETTEVILLE BOARD OF ADJUSTMENT and STEPHEN BURNHAM, Respondents-Appellants\nNo. COA02-314\n(Filed 31 December 2002)\n1. Zoning\u2014 setback requirements \u2014 variance\u2014findings unsupported by evidence\nA decision of a board of adjustment allowing a zoning variance as to the setback requirements for a mini-storage facility being constructed on respondent\u2019s property was unsupported by substantial evidence in the whole record where (1) the evidence was insufficient to support the board\u2019s finding that there was unnecessary hardship in enforcing the zoning ordinance against respondent because the only evidence of hardship was the cost of relocating concrete slabs, financial loss alone does not constitute unnecessary hardship, and there was no evidence that respondent could obtain no reasonable return or use from his property if he complied with the setback requirements, and (2) the evidence was insufficient to support the board\u2019s findings that a variance will not impair the adequate supply of light and air to adjacent property and that a variance will not impair established property values within the surrounding area.\n2. Zoning\u2014 variance \u2014 findings mirroring language of ordinance \u2014 sufficient\nA board of adjustment\u2019s findings in granting a zoning variance were not conclusory or insufficient in form or substance simply because they mirrored the language of the ordinance.\nAppeal by petitioner from judgment entered 7 December 2001 by Judge James F. Ammons, Jr. in Superior Court, Cumberland County. Heard in the Court of Appeals 30 October 2002.\nMcCoy, Weaver, Wiggins, Cleveland & Raper, P.L.L.C., by Richard M. Wiggins and James A. McLean, III, for petitioner-appellee.\nAnderson, Johnson, Lawrence, Butler & Bock, L.L.P., by Steven C. Lawrence, for respondents-appellants." }, "file_name": "0548-01", "first_page_order": 578, "last_page_order": 585 }