{ "id": 8204053, "name": "STEALTH PROPERTIES, LLC d/b/a ADVANTAGE PLUS HOUSING, and CARL GALLIMORE, Petitioners-Appellees v. TOWN OF PINEBLUFF BOARD OF ADJUSTMENT, Respondent-Appellant", "name_abbreviation": "Stealth Properties, LLC v. Town of Pinebluff Board of Adjustment", "decision_date": "2007-06-05", "docket_number": "No. COA06-705", "first_page": "461", "last_page": "466", "citations": [ { "type": "official", "cite": "183 N.C. App. 461" } ], "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": "619 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634060 ], "year": 2005, "pin_cites": [ { "page": "888", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0885-01" ] }, { "cite": "612 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632829 ], "year": 2005, "pin_cites": [ { "page": "434-35", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/612/0431-01" ] }, { "cite": "174 N.C. App. 186", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351100 ], "year": 2005, "pin_cites": [ { "page": "190", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0186-01" ] }, { "cite": "513 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "816" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 587", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239435 ], "year": 1999, "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0587-01" ] }, { "cite": "202 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1974, "pin_cites": [ { "page": "137" }, { "page": "135-36" } ], "opinion_index": 0 }, { "cite": "284 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562793 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "470-71" }, { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0458-01" ] }, { "cite": "610 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2005, "pin_cites": [ { "page": "796", "parenthetical": "quoting Refining Co. v. Board of Aldermen, 284 N.C. 458, 470-71, 202 S.E.2d 129, 137 (1974)" }, { "page": "796" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 809", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8473946 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "811", "parenthetical": "quoting Refining Co. v. Board of Aldermen, 284 N.C. 458, 470-71, 202 S.E.2d 129, 137 (1974)" }, { "page": "811" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0809-01" ] }, { "cite": "170 N.C. App. 392", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9005601 ], "year": 2005, "pin_cites": [ { "page": "395", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0392-01" ] } ], "analysis": { "cardinality": 504, "char_count": 12232, "ocr_confidence": 0.754, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20141560376686055 }, "sha256": "a7d769974a3301ee17ef931e724971c1724fd3e25627c768bd4def986639fc24", "simhash": "1:4e5c6612010e3c44", "word_count": 1969 }, "last_updated": "2023-07-14T15:07:58.512650+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and BRYANT concur." ], "parties": [ "STEALTH PROPERTIES, LLC d/b/a ADVANTAGE PLUS HOUSING, and CARL GALLIMORE, Petitioners-Appellees v. TOWN OF PINEBLUFF BOARD OF ADJUSTMENT, Respondent-Appellant" ], "opinions": [ { "text": "ELMORE, Judge.\nCarl Gallimore (Gallimore) is the owner of Stealth Properties, LLC d/b/a Advantage Plus Housing (Stealth) (together, petitioner). Petitioner bought property in the Town of Pinebluff, intending to build a modular home on the site for resale. Petitioner believed its property to be zoned R-20; the property is actually zoned R-30. This distinction is important, because while the sixteen foot setback proposed by petitioner in its plans met the fifteen foot requirement of an R-20 zone, it did not meet the twenty-five foot requirement of an R-30 zone.\nOn 7 May 2004, petitioner submitted an \u201cApplication for Certificate of Zoning Compliance.\u201d On the application, petitioner listed the setbacks as sixteen feet. Stephen Minks (Minks), \u201cwho serves as the town\u2019s director of public works, planner, zoning administrator, and chief building inspector,\u201d did not sign and approve the application. However, Minks did issue a Certificate of Zoning Compliance three days later. The Certificate of Zoning Compliance, as issued, indicates that the property was zoned R-30 and that the setbacks were to be twenty-five feet. There appears to be conflicting evidence on whether petitioner ever read the certificate or was otherwise made aware of these requirements.\nAfter receiving the Certificate of Zoning Compliance, petitioner began building. Over the course of the project, the site was inspected numerous times. At no time was petitioner told to stop construction or that the project did not comply with the requirements listed in the Certificate of Zoning Compliance. Upon completion of the modular home, however, petitioner was denied its request for a Certificate of Occupancy as a result of its failure to meet the twenty-five foot setback requirement of the R-30 zone.\nPetitioner applied to the Pinebluff Board of Adjustment (the Board) for a variance, and on 24 May 2005, the Board held a hearing on the matter. The record is unclear as to exactly what occurred at the hearing; though the hearing should have been recorded, the recorder was incorrectly operated and no recording was made. The minutes of the hearing, while initially included in the record, were deleted at petitioner\u2019s request. Accordingly, this Court will not consider the information contained therein. However, it is undisputed that the Board issued an order on 3 June 2005. In its order, the Board found as fact (1) that the Unified Development Ordinance is unambiguous in stating that the property is zoned R-30 and requires twenty-five foot setbacks; (2) that the Certificate of Zoning Compliance stated on its face that the setback requirement was twenty-five feet; (3) that petitioner built a house with a setback of approximately sixteen feet. The Board concluded that it could not \u201cfind that the hardship [petitioner] complainfed] of [was] not the result of [petitioner\u2019s] own actions,\u201d as required to issue the variance. The Board therefore denied the variance.\nPetitioner appealed the Board\u2019s decision to the trial court, which on 27 February 2006 issued a judgment overruling the Board\u2019s decision. It is from this judgment that the Board now appeals.\nThe Board first argues that the trial court erred in concluding that the Board\u2019s denial of the variance was not supported by substantial competent evidence.\nOn appeal from a superior court\u2019s review of a municipal zoning board of adjustment, this Court\u2019s standard of review is limited to (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly. In our review of a Superior court\u2019s order regarding a zoning board of adjustment\u2019s decision, the scope of our review is the same as that of the trial court.\nThe reviewing court applies the \u201cwhole record\u201d test when the petitioner alleges that the decision was not supported by substantial evidence or was arbitrary and capricious.\nHarding v. Board of Adjust. of Davie City, 170 N.C. App. 392, 395, 612 S.E.2d 431, 434-35 (2005) (internal quotations and citations omitted). On the record before this Court, we cannot disagree with the trial court\u2019s conclusion that the Board lacked substantial competent evidence on which to base its decision.\n\u201cSubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d It \u201cmust do more than create the suspicion of the existence of the fact to be established ... It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.\u201d\nMCC Outdoor, LLC v. Town of Franklinton Bd. of Comm\u2019rs, 169 N.C. App. 809, 811, 610 S.E.2d 794, 796 (2005) (quoting Refining Co. v. Board of Aldermen, 284 N.C. 458, 470-71, 202 S.E.2d 129, 137 (1974)). \u201cThe issue of whether substantial competent evidence is contained in the record is a conclusion of law and reviewable by this Court de novo.\" Id. (citing State ex rel. Long v. ILA Corp., 132 N.C. App. 587, 591, 513 S.E.2d 812, 816 (1999)).\nAs noted above, we are without a record of what occurred at the public hearing on this matter. However, the Board\u2019s first finding of fact, that the Unified Development Ordinance is unambiguous in stating that the property is zoned R-30 and requires twenty-five foot setbacks, is clearly unsupported by the record. To the contrary, as petitioner asserts, section 181 of the Unified Development Ordinance clearly states that all lots in an R-30 zone must have at least 30,000 square feet. Petitioner\u2019s property consists of only 24,844 square feet. According to section 181, this means that petitioner\u2019s property should be classified as R-20 for zoning purposes. The construction of the Unified Development Ordinance is not properly before this Court; we therefore decline to issue an opinion regarding the proper classification of the property. However, based on our review, we find it clear that the ordinance\u2019s language is, at a minimum, ambiguous. Accordingly, the Board\u2019s finding that there is no ambiguity was not based on substantial competent evidence.\nMoreover, the Board\u2019s remaining findings of fact, that the Certificate of Zoning Compliance stated on its face that the setback requirement was twenty-five feet and that petitioner built a house with a setback of approximately sixteen feet, are insufficient to constitute \u201csuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d MGC Outdoor, LLC, 169 N.C. App. at 811, 610 S.E.2d at 796. Accordingly, the trial court did not err in concluding that the Board\u2019s denial of the variance was not supported by substantial competent evidence.\nThe Board next argues that the trial court erred in concluding that the Board acted arbitrarily and capriciously when it denied the variance. However, this Court has established that \u201c[w]hen a Board action is unsupported by competent substantial evidence, such action must be set aside for it is arbitrary.\u201d Id. (citing Refining Co., 284 N.C. at 468, 202 S.E.2d at 135-36). As we have already stated that the Board\u2019s action was unsupported by competent substantial evidence, this argument is without merit.\nThe Board also contends that the trial court inappropriately concluded that the Board\u2019s denial of the variance was inconsistent with the Unified Development Ordinance. As we stated above, the construction of the Unified Development Ordinance is not properly before this Court, nor was it properly before the trial court.\nThe Board only had the authority to grant or deny the variance under the zoning ordinance. The superior court, sitting as an appellate court and acting pursuant to a writ of certiorari under N.C. Gen. Stat. \u00a7 160A-388(e), only had the power to consider whether the variance was properly granted or denied. Likewise, this Court\u2019s review is limited to a determination of whether the variance was properly denied under the existing ordinance.\n321 News & Video, Inc. v. Zoning Bd. of Adjust. of Gastonia, 174 N.C. App. 186, 190, 619 S.E.2d 885, 888 (2005) (citations omitted). Accordingly, the trial court erred in addressing the ordinance. The trial court\u2019s finding of fact No. 5, stating that \u201c[b]ased on the ordinance, the Property should be zoned R-20 with side set back requirements of 15 feet, but the lot is actually zoned R-30,\u201d was therefore in error. Likewise, that part of the trial court\u2019s order stating that the Board\u2019s denial of the variance was \u201cinconsistent with the Town of Pinebluff Unified Development Ordinance\u201d is also in error.\nFinally, the Board is correct, and petitioner does not contest, that the trial court had no power to actually issue the variance itself. The proper course for a trial court when sitting in an appellate role is to remand to the Board with instructions to issue the variance in accordance with N.C. Gen. Stat. 160A-388(d).\nAccordingly, we hold that the trial court erred in its treatment of the ordinance. Furthermore, we reverse that part of the trial court\u2019s order purporting to grant the variance, and remand with instructions for the Board to issue the variance in accordance with this opinion. Nevertheless, because we hold that the Board\u2019s denial of petitioner\u2019s application for a variance was not supported by substantial competent evidence and was therefore arbitrary and capricious, the trial court\u2019s reversal of the Board\u2019s denial is affirmed.\nAffirmed in part, reversed and remanded in part.\nJudges McGEE and BRYANT concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Michael B. Brough, for respondent.", "Van Camp, Meachem & Newman, PLLC, by Thomas M. Van Camp, for petitioner." ], "corrections": "", "head_matter": "STEALTH PROPERTIES, LLC d/b/a ADVANTAGE PLUS HOUSING, and CARL GALLIMORE, Petitioners-Appellees v. TOWN OF PINEBLUFF BOARD OF ADJUSTMENT, Respondent-Appellant\nNo. COA06-705\n(Filed 5 June 2007)\n1. Zoning\u2014 denial of request for variance \u2014 whole record test \u2014 substantial competent evidence\nA whole record test revealed that the trial court did not err by concluding that the Board of Adjustment\u2019s denial of petitioners\u2019 request for a zoning variance was not supported by substantial competent evidence, because: (1) the Board\u2019s finding that the Unified Development Ordinance is unambiguous was not supported by substantial competent evidence; and (2) the Board\u2019s remaining findings of fact, that the Certificate of Zoning Compliance stated on its face that the setback requirement was twenty-five feet and that petitioner built a house with a setback of approximately sixteen feet, are insufficient to constitute such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\n2. Zoning\u2014 denial of request for variance \u2014 whole record test \u2014 arbitrary and capricious act\nA whole record test revealed that the trial court did not err by concluding that the Board of Adjustment acted arbitrarily and capriciously when it denied petitioners\u2019 request for a zoning variance, because: (1) when a Board action is unsupported by competent substantial evidence, such action must be set aside as arbitrary; and (2) the Court of Appeals has already determined that the Board\u2019s action was unsupported by competent substantial evidence.\n3. Zoning\u2014 variance \u2014 error to address ordinance\nThe part of the trial court\u2019s order stating that the Board of Adjustment\u2019s denial of a variance was inconsistent with the Town\u2019s Unified Development Ordinance and its finding of fact number 5, are both error because the construction of the Unified Development Ordinance is not properly before the Court of Appeals, nor was it properly before the trial court sitting as an appellate court, when the courts only have the power to determine whether the variance was properly granted or denied.\n4. Zoning\u2014 variance \u2014 issuance by Board of Adjustment and not by trial court\nThe trial court did not have power to actually issue a zoning variance itself, and the proper course for a trial court when sitting in an appellate role is to remand to the Board of Adjustment with instructions to issue the variance in accordance with N.C.G.S. \u00a7 160A-388(d).\nAppeal by respondent from order entered 27 February 2006 by Judge L. Todd Burke in Moore County Superior Court. Heard in the Court of Appeals 24 January 2007.\nMichael B. Brough, for respondent.\nVan Camp, Meachem & Newman, PLLC, by Thomas M. Van Camp, for petitioner." }, "file_name": "0461-01", "first_page_order": 493, "last_page_order": 498 }