{ "id": 8411939, "name": "RICHARD H. ROBERTSON and BARBARA G. ROBERTSON, Petitioners v. ZONING BOARD OF ADJUSTMENT FOR THE CITY OF CHARLOTTE, Respondent", "name_abbreviation": "Robertson v. Zoning Board of Adjustment for the City of Charlotte", "decision_date": "2004-12-21", "docket_number": "No. COA04-166", "first_page": "531", "last_page": "539", "citations": [ { "type": "official", "cite": "167 N.C. App. 531" } ], "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": "548 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "798" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 479", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435274 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/144/0479-01" ] }, { "cite": "334 S.E.2d 103", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "104" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 646", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527768 ], "year": 1985, "pin_cites": [ { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0646-01" ] }, { "cite": "394 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "250", "parenthetical": "citing Sherrill v. Town of Wrightsville Beach, 76 N.C. App. 646, 648, 334 S.E.2d 103, 104 (1985)" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 702", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524722 ], "year": 1990, "pin_cites": [ { "page": "708", "parenthetical": "citing Sherrill v. Town of Wrightsville Beach, 76 N.C. App. 646, 648, 334 S.E.2d 103, 104 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0702-01" ] }, { "cite": "37 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "pin_cites": [ { "page": "132" } ], "opinion_index": 0 }, { "cite": "226 N.C. 107", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613807 ], "year": 1946, "pin_cites": [ { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0107-01" ] }, { "cite": "276 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 217", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564489, 8564527, 8564562, 8564600, 8564633 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0217-01", "/nc/302/0217-02", "/nc/302/0217-03", "/nc/302/0217-04", "/nc/302/0217-05" ] }, { "cite": "271 S.E.2d 550", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "552" } ], "opinion_index": 0 }, { "cite": "49 N.C. App. 439", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521896 ], "year": 1980, "pin_cites": [ { "page": "443" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0439-01" ] }, { "cite": "419 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2504418, 2504101, 2503823, 2506550, 2507231 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0150-01", "/nc/332/0150-05", "/nc/332/0150-04", "/nc/332/0150-02", "/nc/332/0150-03" ] }, { "cite": "178 S.E.2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "81" } ], "opinion_index": 0 }, { "cite": "277 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565670 ], "year": 1970, "pin_cites": [ { "page": "425" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0419-01" ] }, { "cite": "413 S.E.2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "309" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523147 ], "pin_cites": [ { "page": "361" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0354-01" ] }, { "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": "147 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "601" } ], "opinion_index": 0 }, { "cite": "267 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558268 ], "year": 1966, "pin_cites": [ { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0040-01" ] }, { "cite": "501 S.E.2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "663", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 292", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11649745 ], "year": 1998, "pin_cites": [ { "page": "297", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0292-01" ] }, { "cite": "513 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "73", "parenthetical": "quoting Adams v. N.C. State Bd. of Registration for Professional Engineers and Land Surveyors, 129 N.C. App. 292, 297, 501 S.E.2d 660, 663, (1998) (citation omitted)" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 465", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238567 ], "year": 1999, "pin_cites": [ { "page": "468-69", "parenthetical": "quoting Adams v. N.C. State Bd. of Registration for Professional Engineers and Land Surveyors, 129 N.C. App. 292, 297, 501 S.E.2d 660, 663, (1998) (citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0465-01" ] }, { "cite": "458 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "511" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 420", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915685 ], "year": 1995, "pin_cites": [ { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0420-01" ] }, { "cite": "507 S.E.2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "900", "parenthetical": "citing Shoney's v. Bd. of Adjustment for City of Asheville, 119 N.C. App. 420, 421, 458 S.E.2d 510, 511 (1995)" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 404", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11200473 ], "year": 1998, "pin_cites": [ { "page": "405", "parenthetical": "citing Shoney's v. Bd. of Adjustment for City of Asheville, 119 N.C. App. 420, 421, 458 S.E.2d 510, 511 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0404-01" ] }, { "cite": "576 S.E.2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "356 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511411 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/356/0658-01" ] }, { "cite": "566 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 758", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220129, 220138, 220077, 220083, 219964 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0758-04", "/nc/355/0758-03", "/nc/355/0758-02", "/nc/355/0758-01", "/nc/355/0758-05" ] }, { "cite": "500 S.E.2d 723", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "725" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651162 ], "year": 1998, "pin_cites": [ { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0499-01" ] }, { "cite": "557 S.E.2d, 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "634" }, { "page": "634", "parenthetical": "internal citations omitted" }, { "parenthetical": "quotation omitted" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9363630 ], "weight": 2, "pin_cites": [ { "page": "55" }, { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0052-01" ] } ], "analysis": { "cardinality": 790, "char_count": 18358, "ocr_confidence": 0.737, "pagerank": { "raw": 2.2950749486954635e-07, "percentile": 0.7867165228551934 }, "sha256": "1d7aec977c89e6a6d86f94ff5c985a7ade91aba5480d1dbc65675914f1a4ca1d", "simhash": "1:cfef551236862e46", "word_count": 2944 }, "last_updated": "2023-07-14T15:53:28.670431+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and STEELMAN concur." ], "parties": [ "RICHARD H. ROBERTSON and BARBARA G. ROBERTSON, Petitioners v. ZONING BOARD OF ADJUSTMENT FOR THE CITY OF CHARLOTTE, Respondent" ], "opinions": [ { "text": "TYSON, Judge.\nRichard H. Robertson and Barbara G. Robertson (collectively, \u201cpetitioners\u201d) appeal from a judgment and order entered affirming the decision of the Charlotte Zoning Board of Adjustment (\u201cthe Board\u201d) denying petitioners\u2019 application for a variance. We affirm.\nI. Background\nPetitioners own property located at 7113 Signer Road in Charlotte, North Carolina. In February and March 2002, petitioners constructed a fence near Signer Road, in front of their home. The fence extends through the required twenty-foot setback and continues through the petitioners\u2019 side yard to the rear of their property. The fence also runs along the property line of petitioners\u2019 neighbor, Bratton Epps (\u201cEpps\u201d).\nAccording to petitioners\u2019 survey, the fence begins near Signer Road at a height of four and one-half (4.5) feet above grade and rises to eight feet above grade at the twenty-foot front setback line. The height remains at eight feet above grade for the entire remaining length of the fence. The fence breaks beyond the required setback to allow for a sixteen-foot driveway that cuts across Epps\u2019s property to access petitioners\u2019 residence.\nOn 24 May 2002, petitioners submitted a letter to the Mecklenburg County Engineering and Building Standards Department complaining of zoning violations by their neighbor, Epps. Mecklenburg County Zoning Inspector Donald Moore (\u201cInspector Moore\u201d) responded to petitioners\u2019 complaint. When Inspector Moore visited Epps\u2019s property, he noticed that petitioners\u2019 fence violated Section 12.406(1) of the Charlotte Zoning Ordinance (\u201cthe Ordinance\u201d). The Ordinance provides: \u201cAny fence or wall located in the required setback shall not be built to a height greater than 5 feet above grade, unless it is part of a zero lot line subdivision, then it maybe [sic] 6 feet in height.\u201d\nOn 15 July 2002, petitioners received a notice of violation regarding their fence. The notice instructed petitioners to reduce the height of their fence from eight feet to five feet. On 14 August 2002, petitioners filed an application for a three-foot variance from Section 12.406(1) in order to allow their existing fence to remain. After a hearing on 24 September 2002, the Board: (1) granted petitioners a three-foot variance for the portion of the fence located from the opening of the driveway to the end of the fence; and (2) denied a three-foot variance for the portion of the fence from Signer Road to . the driveway opening.\nPetitioners appealed the Board\u2019s decision to the Mecklenburg County Superior Court. The trial court concluded the Board failed to make \u201csufficiently detailed and clear findings of fact from which [the trial court] can determine whether the decision should be affirmed or reversed\u201d and remanded the case to the Board. The Board \u201cconsidered the whole record [of] the September 24, 2002 Board hearing . . . ,\u201d made additional findings of fact, and upheld its earlier decision to deny petitioners\u2019 request for a variance.\nPetitioners again appealed the Board\u2019s decision to the Superior Court. The trial court affirmed the Board\u2019s decision. Petitioners appeal.\nII.Issues\nThe issues on appeal are whether: (1) the trial court applied the proper standard of review; and (2) the Board\u2019s decision was arbitrary and capricious and unsupported by competent, material, and substantial evidence in the whole record.\nIII. Standard of Review\n\u201cOn review of a superior court order regarding a board\u2019s decision, this Court examines the trial court\u2019s order for errors 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 County Zoning Bd. of Adjustment, 148 N.C. App. 52, 55, 557 S.E.2d, 631, 634 (citing In re Appeal of Willis, 129 N.C. App. 499, 501, 500 S.E.2d 723, 725 (1998)), disc. rev. granted, 355 N.C. 758, 566 S.E.2d 483 (2002), aff\u2019d in part, 356 N.C. 658, 576 S.E.2d 324 (2003).\nIV. Trial Court\u2019s Review\nPetitioners argued before the trial court that the Board\u2019s decision was arbitrary and capricious, not supported by the record, and contained errors of law.\nThe proper standard of review for the superior court depends on the particular nature of the issues presented on appeal. When the petitioner correctly contends that the agency\u2019s decision was either unsupported by the evidence or arbitrary and capricious, the appropriate standard of review for the initial reviewing court is \u201cwhole record\u201d review. If, however, petitioner properly alleges that the agency\u2019s decision was based on error of law, de novo review is required.\nTucker, 148 N.C. App. at 55, 557 S.E.2d at 634 (internal citations omitted). \u201cThe \u2018whole record\u2019 test requires the reviewing court to examine all competent evidence (the \u201cwhole record\u201d) to determine whether the Board\u2019s decision is supported by substantial evidence.\u201d Id. (quotation omitted).\nOn 8 April 2003, the trial court remanded this matter to the Board with instructions to make further findings of fact regarding the \u201cdenied variance portion of the Board\u2019s decision....\u201d On remand, the Board made additional findings of fact and upheld its decision to deny petitioners\u2019 request for a variance. On 4 December 2003, the trial court determined that the Board\u2019s \u201cadditional findings of fact are supported by the evidence in the record;\u201d the Board\u2019s decision is \u201csupported by competent, material, and substantial evidence in the whole record\u201d and is not arbitrary and capricious; and petitioners\u2019 \u201crights were protected, including the right to offer evidence, cross-examine witnesses, and inspect documents.\u201d\nV. The Whole Record Test\nOur review is whether the trial court, in applying the \u201cwhole record test,\u201d properly determined that the Board made sufficient findings of fact which were supported by the evidence in an effort to prevent decisions from being arbitrary and capricious. Crist v. City of Jacksonville, 131 N.C. App. 404, 405, 507 S.E.2d 899, 900 (1998) (citing Shoney\u2019s v. Bd. of Adjustment for City of Asheville, 119 N.C. App. 420, 421, 458 S.E.2d 510, 511 (1995)).\nA. Arbitrary and Capricious\nThe trial court\u2019s decision may be reversed as arbitrary and capricious if petitioners establish that the Board\u2019s decision was \u201cwhimsical, made patently in bad faith, indicate [d] a lack of fair and careful consideration, or \u2018 \u201cfail[s] to indicate \u2018any course of reasoning and the exercise of judgment. Whiteco Outdoor Adver. v. Johnston County Bd. of Adjust., 132 N.C. App. 465, 468-69, 513 S.E.2d 70, 73 (1999) (quoting Adams v. N.C. State Bd. of Registration for Professional Engineers and Land Surveyors, 129 N.C. App. 292, 297, 501 S.E.2d 660, 663, (1998) (citation omitted)). Petitioners bear the burden of proving their case and must show what type of variance they need and why the variance is needed. Craver v. Board of Adjustment, 267 N.C. 40, 43, 147 S.E.2d 599, 601 (1966). Relying on Refining Co. v. Board of Aldermen, 284 N.C. 458, 202 S.E.2d 129 (1974), petitioners contend that the Board\u2019s conclusions are speculative, unsupported by any factual data or background, and incompetent and insufficient to support a finding that public safety would be adversely affected. Petitioners argue: (1) the Board did not follow the trial court\u2019s instruction on remand; (2) the Board made determinations unsupported by additional findings of fact; and (3) the Board\u2019s findings are not supported by law or evidence.\nPetitioners argue that the Board did not address the trial court\u2019s concerns on remand as required by the order dated 8 April 2003. Petitioners assert the record lacks any evidence to indicate where the fence is located, how traffic may be hindered because of the fence, and how a safety issue arises because of the fence. Petitioners also assert that the Board cannot deny their variance request simply because it \u201cwould adversely affect the public interest.\u201d Triple E Associates v. Town of Matthews, 105 N.C. App. 354, 361, 413 S.E.2d 305, 309 (citing In re Application of Ellis, 277 N.C. 419, 425, 178 S.E.2d 77, 81 (1970)), disc. rev. denied, 332 N.C. 150, 419 S.E.2d 578 (1992).\nOn remand, the Board made additional findings of fact to support its denial of petitioners\u2019 variance request. These additional findings of fact were: (1) petitioners created their own hardship by not applying for a variance before building a fence outside the Ordinance requirements; (2) petitioners\u2019 hardship is \u201cpersonal in nature\u201d in that petitioners built this fence because of an argument with their neighbors; (3) petitioners\u2019 eight-foot fence would require a three-foot or sixty-percent variance in the front setback and a two-foot or thirty-three-percent variance in the side yard; (4) petitioners\u2019 property slopes more steeply the closer it gets to the lake, and the slope nearest to Signer Road is not proportionate to and does not justify petitioners\u2019 large variance request; (5) the portion of the fence in the front setback and side yard has more of an impact on adjoining property owners than the portion of the fence in the rear yard; and (6) the fence height in the setback is close to the severe curve on Signer Road and \u2022creates safety concerns. The Board found that if it granted petitioners\u2019 variance request, it would \u201cnot promote the public safety and welfare of individuals traveling Signer Road.\u201d\nSufficient evidence in the record supports the Board\u2019s findings of fact. Petitioner Richard Robertson and other witnesses testified regarding the location of the fence.\nCounsel: ... the fence that you built, did it start on the \u2014 all the way over to the margin of the setback line?\nRobertson: No. . . . it\u2019s about four feet back from the corner of our property from the margin of the right-of-way. In other words, we . . . set it back about four feet. And then the fence was about five feet high . .. the fence from that point runs for about sixteen feet horizontally with the property lines ... And so if it is five feet at the very beginning, when it gets back to the next sixteen feet to the twenty-foot setback . . . , then the fence is violating slightly for the whole \u2014 practically the whole sixteen feet.\nCounsel: In other words, you\u2019re saying it\u2019s above five feet for that period and then it slopes up until it gets to eight feet?\nRobertson: Right. And it gets to eight feet, I believe the engineering report will indicate, about two feet before it gets to the twenty-foot setback.\nIn addition to an engineering report submitted, the physical survey of petitioners\u2019 property shows the measurements and locations where the fence violated the ordinance. Thomas Mussoni, a Board member, summarized that \u201cit is a sixty percent variance from the\u2014 within the front setback ... [a] nd as far as the side yard goes, we looked at it as being a thirty-three percent variance . . . .\u201d Additional findings of fact regarding the \u201csteepness of the slope\u201d and the elevation drop in petitioners\u2019 back yard are supported by the evidence.\nOn remand from the trial court, the Board recognized that the neighbors brought the traffic visibility problem to the Board\u2019s attention.\nCity Attorney: I guess the judge . . . was saying it looked as if y\u2019all were relying solely on the testimony of those witnesses, Foster and Brown and I think also Mr. Epps ... as to the safety concerns, in making a determination that there was a safety concern.\nBoard Member: Well, they brought it to our attention and then we evaluated the registered survey of the property that illustrates the drive curving around the end of the fence, so that the sight distance across the end of the fence was fairly short and restricted.\nCity Attorney: So you \u2014 so, in addition to the testimony of the witnesses you are looking at what?\nBoard Member: A survey of the property.\nCity Attorney: ... if you look at the physical survey . . . you interpret [the survey] to show the existence of some sight\u2014\nBoard Member: A severe curve around the comer at the end of the fence that inhibits being able to see oncoming traffic.\nThe trial court\u2019s conclusion that the Board made a decision based on \u201ccompetent, material, and substantial evidence in the whole record\u201d is supported by the Board\u2019s findings of fact and is not arbitrary and capricious. We conclude the reviewing court properly considered the whole record.\nB. Errors of Law\nIn the trial court, petitioners challenged the Board\u2019s conclusions on safety and argued their due process rights were violated. The trial court reviewed the evidence and found, \u201cthe record of the proceedings before the [Board did] not reveal errors of law.\u201d According to the Ordinance, variances are only granted to those applicants whose \u201cdifficulty of hardship is peculiar to the property in question and is not generally shared by other properties in the same neighborhood and/or used for the same purposes.\u201d The trial court determined that the Board\u2019s decision was not arbitrary or capricious, and that its findings of fact were supported by the evidence in the record. The trial court concluded, \u201cThe appropriate due process rights of the petitioners were protected, including the right to offer evidence, cross-examine witnesses, and inspect documents.\u201d Petitioners had \u201cample opportunity to cross-examine adverse witnesses and to offer evidence in [their] behalf.\u201d Burton v. Zoning Board of Adjustment, 49 N.C. App. 439, 443, 271 S.E.2d 550, 552 (1980), cert. denied, 302 N.C. 217, 276 S.E.2d 914 (1981).\nPetitioners assert that the Board determined the fence was a safety issue without any evidence to support its decision. We have already held the trial court did not err in concluding the Board\u2019s decision regarding safety concerns was supported by the whole record. The record indicates that, on remand, the Board considered the exhibits and witnesses\u2019 testimony. It made sufficient additional findings of fact to support the record regarding what portion of the variance was granted or denied.\nOn remand from the trial court, the Board discussed the sixty-percent variance within the front setback and the thirty-three-percent variance for the side yard sought by petitioners as being \u201clarge in scale for the protection that it offered, the increase in protection and privacy that it offered was not proportional to the \u2014 to the variance requested.\u201d Petitioners argue undue hardship to their property because the variance petition was denied. The Board considered the evidence received at the hearing and summarized:\nThe topography is illustrated in the photographs that were exhibits at the time that have children standing next to it and it gives you a very clear idea of what the topography was like and it is apparent the fence is sloping fairly severely down in the ground and then back up to follow the topography.\nThe Board concluded that the petitioners\u2019 alleged undue hardship was personal in nature and a nuisance issue.\nThe Board\u2019s authority to grant a variance arises only when its decision is within the meaning and intent of the zoning ordinance. The Board is prohibited from authorizing a structure that conflicts with the general purpose of the ordinance, \u201cfor to do so would be an amendment of the law and not a variance of its regulations.\u201d Lee v. Board of Adjustment, 226 N.C. 107, 112, 37 S.E.2d 128, 132 (1946). \u201cThe requested variance [by petitioners] would be directly contrary to the zoning ordinance . . . and in the absence of evidence to support the petition, the Board had no authority to grant petitioners request.\u201d Donnelly v. Bd. of Adjustment of the Village of Pinehurst, 99 N.C. App. 702, 708, 394 S.E.2d 246, 250 (1990) (citing Sherrill v. Town of Wrightsville Beach, 76 N.C. App. 646, 648, 334 S.E.2d 103, 104 (1985)).\nRelying on Williams v. N.C. Dep\u2019t of Env\u2019t & Natural Res., 144 N.C. App. 479, 548 S.E.2d 793 (2001), petitioners contend the Board improperly determined whether an unnecessary hardship existed, and argue this factor was irrelevant and not supported by the law. Petitioners misinterpret the law in Williams. This Court did not hold that \u201cunnecessary hardship\u201d was an irrelevant factor when determining whether to grant or deny a variance. Rather, in Williams, this Court held that \u201cto determine whether a parcel of property suffers from unnecessary hardship due to strict application of CAMA, the CRC must make findings of fact and conclusions of law as to the impact of the act on the landowner\u2019s ability to make reasonable use of his property.\u201d Id. at 487, 548 S.E.2d at 798. The trial court properly determined that the Board\u2019s decision was supported by the whole record and its decision was not- arbitrary and capricious. This assignment of error is overruled.\nVI. Conclusion\nThe trial court properly reviewed the whole record and sufficiently concluded the Board\u2019s decision was free of errors of law. The trial court correctly found the Board\u2019s decision was based on competent, material, and substantial evidence and that the Board\u2019s findings were not arbitrary and capricious. The trial court\u2019s order is affirmed.\nAffirmed.\nJudges BRYANT and STEELMAN concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Bledsoe & Bledsoe, P.L.L.C., by Louis A. Bledsoe, Jr., for petitioners-appellants.", "Office of the Charlotte City Attorney, by Assistant City Attorney Terrie V. Hagler-Gray, for respondent-appellee." ], "corrections": "", "head_matter": "RICHARD H. ROBERTSON and BARBARA G. ROBERTSON, Petitioners v. ZONING BOARD OF ADJUSTMENT FOR THE CITY OF CHARLOTTE, Respondent\nNo. COA04-166\n(Filed 21 December 2004)\n1. Zoning\u2014 variance denied \u2014 whole record considered \u2014 decision not arbitrary\nThe trial court properly considered the whole record when reviewing a board of adjustment\u2019s denial of a variance, and the conclusion that the board\u2019s decision was based on competent, material, and substantial evidence is not arbitrary and capricious.\n2. Zoning\u2014 variance \u2014 fence violating set-back \u2014 undue hardship\nThe trial court properly determined that a board of adjustment\u2019s decision to deny a variance for a fence violating a set-back was supported by the whole record and was not arbitrary where the board considered exhibits and testimony about safety issues, made findings regarding the portion of the variance that was granted and denied, and concluded that petitioners\u2019 alleged undue hardship was personal.\nAppeal by petitioners from judgment entered 5 December 2003 by Judge Yvonne Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 October 2004.\nBledsoe & Bledsoe, P.L.L.C., by Louis A. Bledsoe, Jr., for petitioners-appellants.\nOffice of the Charlotte City Attorney, by Assistant City Attorney Terrie V. Hagler-Gray, for respondent-appellee." }, "file_name": "0531-01", "first_page_order": 561, "last_page_order": 569 }