{ "id": 4233696, "name": "PREMIER PLASTIC SURGERY CENTER, PLLC; GENESIS VENTURES, LLC; and VICTOR S. FERRARI, M.D., F.A.C.S., Petitioner-Appellants v. THE BOARD OF ADJUSTMENT FOR THE TOWN OF MATTHEWS; and THE TOWN OF MATTHEWS, Respondent-Appellees", "name_abbreviation": "Premier Plastic Surgery Center, PLLC v. Board of Adjustment", "decision_date": "2011-07-19", "docket_number": "No. COA10-863", "first_page": "364", "last_page": "374", "citations": [ { "type": "official", "cite": "213 N.C. App. 364" } ], "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": "99 N.C. App. 702", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524722 ], "opinion_index": -1, "case_paths": [ "/nc-app/99/0702-01" ] }, { "cite": "603 S.E.2d 878", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631956 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/603/0878-01" ] }, { "cite": "358 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631712, 12631714, 12631705, 12631709, 12631711 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/601/0530-02", "/se2d/601/0531-01", "/se2d/601/0527-01", "/se2d/601/0529-01", "/se2d/601/0530-01" ] }, { "cite": "616 S.E.2d 539", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633577, 12633578 ], "weight": 2, "year": 2005, "pin_cites": [ { "parenthetical": "stating that expressions of opinion cannot support a board of adjustment's findings" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0539-01", "/se2d/616/0539-02" ] }, { "cite": "669 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642311 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/669/0742-01" ] }, { "cite": "655 S.E.2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640269 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "845-46" }, { "page": "845-46" } ], "opinion_index": 0, "case_paths": [ "/se2d/655/0843-01" ] }, { "cite": "594 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "842" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8895277 ], "year": 2004, "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0024-01" ] }, { "cite": "233 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "661", "parenthetical": "\"[T]he permit must have been lawfully issued in order for the holder of the permit to acquire a vested right in the use.\"" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 630", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552846 ], "year": 1977, "pin_cites": [ { "page": "635", "parenthetical": "\"[T]he permit must have been lawfully issued in order for the holder of the permit to acquire a vested right in the use.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0630-01" ] }, { "cite": "309 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "524" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 316", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523626 ], "year": 1983, "pin_cites": [ { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0316-01" ] }, { "cite": "359 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3797216, 3798532, 3802309, 3796978, 3801107, 3802777, 3797371 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0634-06", "/nc/359/0634-05", "/nc/359/0634-01", "/nc/359/0634-07", "/nc/359/0634-03", "/nc/359/0634-04", "/nc/359/0634-02" ] }, { "cite": "610 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "798" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 809", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8473946 ], "pin_cites": [ { "page": "815" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0809-01" ] }, { "cite": "458 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "511", "parenthetical": "\"[W]e do not believe the Board may rely on findings of fact which are merely conclusory in form.\"" }, { "page": "512", "parenthetical": "alterations in original" } ], "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": "421-22", "parenthetical": "\"[W]e do not believe the Board may rely on findings of fact which are merely conclusory in form.\"" }, { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0420-01" ] }, { "cite": "219 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "226-27" }, { "page": "227" } ], "opinion_index": 0 }, { "cite": "27 N.C. App. 361", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553744 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "365" }, { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nc-app/27/0361-01" ] }, { "cite": "507 S.E.2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "900" } ], "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" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0404-01" ] }, { "cite": "37 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "pin_cites": [ { "page": "133", "parenthetical": "reversing a board of adjustment's award of a permit for the construction of a business in a district zoned for residential use, stating the board effectively \"rezoned\" the lot and \"amended the ordinance,\" which it had no authority to do" } ], "opinion_index": 0 }, { "cite": "226 N.C. 107", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613807 ], "year": 1946, "pin_cites": [ { "page": "112-13", "parenthetical": "reversing a board of adjustment's award of a permit for the construction of a business in a district zoned for residential use, stating the board effectively \"rezoned\" the lot and \"amended the ordinance,\" which it had no authority to do" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0107-01" ] }, { "cite": "158 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "890" } ], "opinion_index": 0 }, { "cite": "272 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574464 ], "year": 1968, "pin_cites": [ { "page": "718" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0715-01" ] }, { "cite": "473 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "444" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 400", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913460 ], "year": 1996, "pin_cites": [ { "page": "404" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0400-01" ] }, { "cite": "394 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 12, "year": 1990, "pin_cites": [ { "page": "248" }, { "page": "250" }, { "parenthetical": "emphasis added" }, { "page": "250" }, { "page": "250" } ], "opinion_index": 0 }, { "cite": "559 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220028 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0269-01" ] }, { "cite": "552 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "268", "parenthetical": "Greene, J., dissenting" }, { "page": "268" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 388", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11357914 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "392", "parenthetical": "Greene, J., dissenting" }, { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0388-01" ] }, { "cite": "362 N.C. 679", "category": "reporters:state", "reporter": "N.C.", "year": 2008, "opinion_index": 0 }, { "cite": "188 N.C. App. 466", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156379 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "469" }, { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0466-01" ] }, { "cite": "557 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "634" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9363630 ], "year": 2001, "pin_cites": [ { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0052-01" ] }, { "cite": "642 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2007, "pin_cites": [ { "page": "253", "parenthetical": "second alteration in original" } ], "opinion_index": 0 }, { "cite": "182 N.C. App. 427", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8172752 ], "year": 2007, "pin_cites": [ { "page": "429", "parenthetical": "second alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0427-01" ] }, { "cite": "99 N.C. App. 702", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524722 ], "weight": 4, "pin_cites": [ { "page": "704" }, { "page": "708" }, { "page": "708" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0702-01" ] } ], "analysis": { "cardinality": 1050, "char_count": 25974, "ocr_confidence": 0.735, "pagerank": { "raw": 4.719567370958748e-08, "percentile": 0.29637828305820146 }, "sha256": "3649978ed039587f191ccf5cd9528dafe310b9301464fafc0ab54bac0d234086", "simhash": "1:af3d7112ca4eac66", "word_count": 4249 }, "last_updated": "2023-07-14T21:51:58.983312+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and STROUD concur." ], "parties": [ "PREMIER PLASTIC SURGERY CENTER, PLLC; GENESIS VENTURES, LLC; and VICTOR S. FERRARI, M.D., F.A.C.S., Petitioner-Appellants v. THE BOARD OF ADJUSTMENT FOR THE TOWN OF MATTHEWS; and THE TOWN OF MATTHEWS, Respondent-Appellees" ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nPremier Plastic Surgery Center, PLLC, Genesis Ventures, LLC, and Victor S. Ferrari, M.D., F.A.C.S. (\u201cDr. Ferrari\u201d) (collectively \u201cPetitioners\u201d) appeal the trial court\u2019s 21 January 2010 Order affirming the decision of the Town of Matthews Board of Adjustment (\u201cthe Board\u201d) to deny Petitioners\u2019 application for a variance to the Town of Matthews\u2019 sign ordinance. We reverse, in part, and remand, in part.\nI. Factual and Procedural History\nThis dispute arises from Petitioners\u2019 construction of a sign in front of Dr. Ferrari\u2019s business, which is located in Matthews, North Carolina. Petitioners operate a medical facility at 1635 Matthews Township Parkway on one of four lots that are part of a multi-lot business development. When the lots were originally developed, all four lots shared one drive that permitted ingress and egress from Matthews Township Parkway. Later, a second drive was constructed between Petitioners\u2019 building and the other buildings in the development. The development sits in a curve of Matthews Township Parkway and the two drives are separated by approximately 500 feet. At the first drive stands a monument-style sign providing signage for several of the tenants in the development. This sign, however, cannot accommodate the current number of tenants. Additionally, as a result of the curve in the parkway, it is difficult, if not impossible, to see the second drive from the first.\nPetitioners testified that patients routinely have trouble locating the medical practice, drive past the entrance, and have to turn around in their attempt to find it. Dr. Ferrari claims that ninety percent of first-time patients experience this problem and are often up to thirty minutes late as a result. Because he performs surgeries on-site, Dr. Ferrari is concerned that paramedics would be similarly delayed if attempting to respond to a medical emergency that could arise during surgery.\nSeeking to cure these problems, in late 2006, Dr. Ferrari\u2019s wife met with Town of Matthews staff to discuss the construction of a sign outside the medical practice, but was told a sign was not permitted. Petitioners subsequently hired a local sign company, Comeo Signs, Inc. (\u201cComeo\u201d), to determine if they could put a sign on the front of the building. The vice-president of Comeo, Randy Ulery, suggested Dr. Ferrari construct a monument sign, assured Dr. Ferrari that the Town of Matthews would allow it, and said he would look into the matter. On 4 April 2007, Charlie D. Butler, zoning inspector for the Mecklenburg County Land Use and Environmental Services Agency (\u201cMCLUESA\u201d) \u2014 which administers permits for the Town of Matthews \u2014 issued a sign permit authorizing Comeo to construct a sign outside Petitioners\u2019 business.\nApproximately two and one half months later, in early June 2007, Comeo constructed a monument sign in front of Petitioners\u2019 business in accordance with the permit at an expense of $7,210. Zoning Inspector Butler was present the day of the sign\u2019s construction and helped determine its proper placement. Approximately one week after the sign was erected, however, MCLUESA notified Petitioners that the sign permit had been revoked stating the permit was issued in error because the sign violated section 153.144(A) of the Matthews Zoning Code.\nPetitioners appealed the permit revocation to the Matthews Board of Adjustment. The Board denied the appeal at its 8 November 2007 meeting and notified Petitioners of their right to appeal the denial to superior court or to draft a text amendment to the zoning ordinance. Petitioners filed an application for a text amendment to the ordinance, which was denied by the Board at their 14 April 2008 meeting.\nOn 8 May 2008, Petitioners applied to the Board for a variance to section 153.144(A) of the Matthews Zoning Code that would allow the sign to remain in place. Following a hearing on the matter, the Board denied the variance by a vote of four to one, and notified Petitioners in writing on 11 July 2008.\nOn 8 August 2008, Petitioners filed a petition for writ of certiorari to the Mecklenburg County Superior Court pursuant to N.C. Gen. Stat. \u00a7 160A-388(e2) (2009). In their petition, Petitioners alleged, inter alia, the Board\u2019s decision to deny the variance was arbitrary, capricious, and contrary to statute and case law. The petition was granted on 23 September 2008 and the case came on for hearing during the 14 December 2009 session of the Mecklenburg County Superior Court, Judge James W. Morgan presiding. Judge Morgan affirmed the Board\u2019s denial of Petitioner\u2019s application for a variance in an Order entered 21 January 2010. In its Order the trial court concluded: that because the sign was expressly prohibited by section 153.144(A) of the Matthews Zoning Code, the Board had no authority to issue the requested variance; that Petitioners acquired no vested rights in the sign because the permit was illegal from its inception; that because the permit was revoked approximately one week after the sign was erected, the Town of Matthews was not barred by estoppel or laches from revoking the permit; that the Board had sufficient evidence on which to base its decision and did so with sufficient findings of fact; and that the Board had no duty to make findings of fact. Petitioners timely entered notice of appeal from this Order.\nII. Jurisdiction and Standard of Review\nJurisdiction in this Court is proper pursuant to N.C. Gen. Stat. \u00a7 7A-27(b) (2009) (stating a right of appeal lies with this Court from the final judgment of a superior court \u201centered upon review of a decision of an administrative agency\u201d). \u201c[T]his Court examines the trial court\u2019s order for error[s] of law by determining whether the superior court: (1) exercised the proper scope of review, and (2) correctly applied this scope of review.\u201d Turik v. Town of Surf City, 182 N.C. App. 427, 429, 642 S.E.2d 251, 253 (2007) (second alteration in original) (internal quotation marks omitted) (quoting Tucker v. Mecklenburg Cnty. Zoning Bd. of Adjustment, 148 N.C. App. 52, 55, 557 S.E.2d 631, 634 (2001)). If a petitioner appeals an administrative decision \u201con the basis of an error of law, the trial court applies de novo review; if the petitioner alleges the decision was arbitrary and capricious, or challenges the sufficiency of the evidence, the trial court applies the whole record test.\u201d Blue Ridge Co. v. Town of Pineville, 188 N.C. App. 466, 469, 655 S.E.2d 843, 845-46, disc. review denied, 362 N.C. 679, 669 S.E.2d 742 (2008). \u201c[A]n appellate court\u2019s obligation to review a superior court order for errors of law can be accomplished by addressing the dispositive issue(s) before the agency and the superior court without examining the scope of review utilized by the superior court.\u201d Capital Outdoor, Inc. v. Guilford Cnty. Bd. of Adjustment, 146 N.C. App. 388, 392, 552 S.E.2d 265, 268 (2001) (Greene, J., dissenting) (citation omitted), rev\u2019d for reasons stated in the dissent, 355 N.C. 269, 559 S.E.2d 547 (2002).\nIII. Analysis\nPetitioners first allege the trial court erred by applying the wrong standard when reviewing the decision of the Board. Specifically, Petitioners contend the trial court applied the \u201cwhole record\u201d test rather than de novo review. Petitioners, however, abandoned this issue by failing to provide any reason or argument in support of their assertion. See N.C. R. App. P. 28(b)(6) (2011) (\u201cIssues not presented in a party\u2019s brief, or in support of which no reason or argument is stated, will be taken as abandoned.\u201d) Moreover, as stated above, we may properly resolve this dispute by addressing the dispositive issues before the Board and the trial court without determining the standard of review utilized below. See Capital Outdoor, Inc., 146 N.C. App. at 392, 552 S.E.2d at 268. The dispositive issues presented in this dispute are whether the trial court erred in its interpretation of the sign ordinance and in its conclusion that the Board made sufficient findings of fact to support its denial of Petitioners\u2019 request.\nA. The Board\u2019s Authority to Grant the Variance\nPlaintiff argues that the trial court erred, as a matter of law, in finding that the Board of Adjustment had no authority to grant Petitioner the requested variance. We agree.\nThe trial court\u2019s Order affirming the Board\u2019s decision to deny Petitioners\u2019 application for a variance from the sign ordinance provides the following pertinent finding:\n(a) The sign which is the subject of the variance application is expressly prohibited by Section 153.144(A) of the Matthews Zoning Code, in that the Record shows it to be an individual business sign within multi-tenant property. Therefore, the Board has no authority to grant a variance for the sign. \u201cThe requested variance would be directly contrary to the Zoning Ordinance and, therefore, the Board has no authority to grant [p]etitioner[\u2019]s request.\u201d Donnelly v. The Board of Adjustment of the Village of Pinehurst, 99 N.C. App. 702, 394 S.E.2d 246 (1990).\nAs the trial court\u2019s interpretation of the zoning ordinance presents a question of law, it is subject to de novo review. Hayes v. Fowler, 123 N.C. App. 400, 404, 473 S.E.2d 442, 444 (1996). We conclude the trial court erred in its reliance on Donnelly, our reading of that decision does not support the trial court\u2019s conclusion.\nAt issue in Donnelly was the denial of the petitioner\u2019s application for a variance that would permit him to maintain a privacy fence across the back of his commercial property in order to block the view of an adjacent highway. 99 N.C. App. 702, 704, 394 S.E.2d 246, 248. A city ordinance prohibited fences above a certain height, a height the petitioner\u2019s fence exceeded. Id. Only after erecting the fence did the petitioner seek a variance, which was denied by the inspector, by the Board of Adjustment, and by the superior court. Id.\nOn appeal, this Court affirmed the trial court\u2019s order, but did so after an analysis of the statutory factors required for the issuance of a variance. Id. at 708, 394 S.E.2d at 250. The Donnelly Court noted that in limited circumstances a board of adjustment may grant a variance to an ordinance as provided by section 160A-388 of our General Statutes, which states, in part:\nWhen practical difficulties or unnecessary hardships would result from carrying out the strict letter of a zoning ordinance, the board of adjustment shall have the power, in passing on appeals, to vary or modify any of the regulations or provisions of the ordinance ... so that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done.\nId. (emphasis added) (quoting N.C. Gen. Stat. \u00a7 160A-388(d)).\nThe Donnelly Court emphasized that while a board of adjustment has the power to grant a variance, its power is limited such that the variance may not violate the spirit of the ordinance; \u201cthe board is prohibited from authorizing a structure which conflicts with the general purpose of the ordinance.\u201d Donnelly, 99 N.C. App. 702, 708, 394 S.E.2d 246, 250. When the statute was \u201c[r]ead as a whole,\u201d the Court interpreted the spirit of the ordinance as being to preserve the appearance of the town, specifically excluding tall privacy fences. Id. Thus, the Donnelly Court concluded, the requested variance would directly contradict the ordinance. Id. As such, the board of adjustment had no authority to grant the variance. Id.\nIn the present case, the section of the Matthews Zoning Code regulating signs begins with a statement of its purpose:\nThe purpose of this subchapter is intended to:\n(1) Establish standards for the erection, alteration and maintenance of signs that are appropriate to various zoning districts;\n(2) Allow for adequate and effective signs for communicating identification and other messages while preventing signs from dominating the visual appearance of the area in which they are located;\n(3) Protect and enhance the view of properties from public rights-of-way;\n(4) Avoid confusing or misleading a driver or obstructing necessary vision for traffic safety;\n(5) Insure that permitted signs do not become a hazard or nuisance;\n(6) Advance the economic stability, preservation and enhancement of property values; and\n(7) Ensure and advance the positive visual impact and image of the town. These regulations are designed to provide flexibility for individual needs of business identification and for general communication opportunities.\nMatthews Zoning Code \u00a7 153.140(A) (emphasis added) (R. at 44.).\nClearly, the statute is intended to protect the general appearance of commercial properties and prevent hazards and nuisances. When, \u201c[r]ead as a whole\u201d, as we are instructed to do by Donnelly, it is apparent the ordinance was also intended to provide means for adequate and effective signage, prevent driver confusion, and allow for flexibility to meet individual needs for business identification \u2014 the very problems of which Petitioners complain. Id. Given this statement of purpose, we cannot agree with the trial court that Petitioners\u2019 sign is, as a matter of law, contrary to the zoning ordinance.\nRespondents place great emphasis on section 153.144(A) of the Matthews Zoning Code, which prohibits more than one sign for multitenant properties. This does not, however, end the proper inquiry; to conclude otherwise would negate the purpose of a variance. The Board\u2019s power to deviate from this mandate was expressly provided by our legislature upon the inclusion of section 160A-388 in our General Statues. N.C. Gen. Stat. \u00a7 160A-388 (stating a board of adjustment \u201cshall have the power to vary or modify any of the regulations or provisions\u201d of an ordinance). Additionally, the Town of Matthews contemplated deviations from its zoning requirements by its inclusion of this delegated power in section 153.287(C)(1) of the Zoning Code: \u201cThe Board of Adjustment will hear and decide appeals on variances from the requirements of the chapter which relate to the establishment or extension of structures or uses of land.\u201d Indeed, as our Supreme Court has stated, a board of adjustment\u2019s \u201cprincipal function [is] to issue variance permits so as to prevent injustice by a strict application of the ordinance.\u201d Application of REA Const. Co., 272 N.C. 715, 718, 158 S.E.2d 887, 890 (1968). To summarily conclude that Petitioners\u2019 requested variance is directly contrary to the zoning ordinance suggests that no variances could ever be permitted, and leads this Court to conclude the proper analysis was not made by the trial court.\nRespondents also emphasize the statutory mandate that \u201c[n]o change in permitted uses may be authorized by variance.\u201d N.C. Gen. Stat. \u00a7 160A-388(d). Likewise, Respondents cite to section 153.287 of the Matthews Zoning Code, which states, \u201cThe Board may not grant a variance which would allow the establishment of a use which is not otherwise permitted in the district.\u201d Matthews Zoning Code \u00a7 153.287(C)(1). We conclude Respondents\u2019 argument misinterprets the statute\u2019s prohibition of a \u201cuse.\u201d\nAn \u201carea variance\u201d is defined as \u201c[a] variance permitting deviation from zoning requirements about construction and placement, but not from requirements about use.\u201d Black\u2019s Law Dictionary 1692-93 (9th ed. 2009). Furthermore, \u201c[a]n \u2018area\u2019 variance is one which does not involve a use prohibited by the zoning ordinance, and generally speaking, it involves no change in the essential character of the zoned district, nor does it seek to change the essential use of the land.\u201d 83 Am. Jur. 2d, Zoning and Planning \u00a7 807 (footnotes omitted).\nOn the other hand, a \u201cuse variance\u201d is \u201ca variance permitting deviation from zoning requirements about use.\u201d Black\u2019s Law Dictionary 1693 (9th ed. 2009). \u201cA \u2018use variance\u2019 generally permits a land use other than the uses permitted in the particular zoning ordinance; it essentially is a license to use property in a way not permitted under an ordinance.\u201d 83 Am. Jur. 2d, Zoning and Planning \u00a7 756 (footnotes omitted); see Lee v. Bd. of Adjustment, 226 N.C. 107, 112-13, 37 S.E.2d 128, 133 (1946) (reversing a board of adjustment\u2019s award of a permit for the construction of a business in a district zoned for residential use, stating the board effectively \u201crezoned\u201d the lot and \u201camended the ordinance,\u201d which it had no authority to do).\nDespite Respondents\u2019 suggestion otherwise, we conclude the variance Petitioners seek is not a use variance, seeking permission for a nonconforming use, but is an area variance, by which they seek to deviate from the ordinance for construction and placement of their sign.\nB. The Board\u2019s Findings of Fact\nPetitioners also argue the trial court erred in concluding the Board made sufficient findings of fact to support its denial of Petitioners\u2019 application for a variance. We agree.\nIn its 21 January 2010 Order, the trial court summarily concluded the Board made sufficient findings to support its decision. Then, citing to Donnelly, the trial court reasoned that because the requested variance was directly contrary to the Ordinance, \u201cthe board of adjustment has no duty to make findings and conclusions on the merits of the request.\u201d Donnelly, 99 N.C. App. at 708, 394 S.E.2d at 250. As we have determined the trial court erred in concluding the variance was directly contrary to the Ordinance, it also erred in concluding the Board had no duty to make sufficient findings. Consequently, we review the Board\u2019s decision de novo. Blue Ridge Co., 188 N.C. App. at 469, 655 S.E.2d at 845-46.\n\u201cFindings of fact are an important safeguard against arbitrary and capricious action by the Board of Adjustment because they establish a sufficient record upon which this Court can review the Board\u2019s decision.\u201d Crist v. City of Jacksonville, 131 N.C. App. 404, 405, 507 S.E.2d 899, 900 (1998). In making its findings of fact, the Board is required \u201cto state the basic facts on which it relied with sufficient specificity to inform the parties, as well as the court, what induced its decision.\u201d Deffet Rentals, Inc. v. City of Burlington, 27 N.C. App. 361, 365, 219 S.E.2d 223, 226-27 (1975). Our review of the Board\u2019s findings of fact leads us to conclude they are insufficient on several grounds.\nThe only record of the Board\u2019s findings of fact is the minutes to the Board\u2019s 10 July 2008 meeting. The minutes, introduced with the notation \u201cVice Chairman Lee discussed the findings of fact,\u201d provide no indication these minutes were intended to be the sole record of the findings. Significantly, the Board\u2019s discussion of the findings occurs after the Board members voted to deny Petitioners\u2019 application for a variance. From these minutes, we discern eight findings of fact:\nIf the property owner complied with the ordinance, he can secure a reasonable return from that property.\nThe property sold because of the merits of the location.\nSignage is an issue for most retail in most Matthews locations. This is not a unique hardship.\nAlso, this is not a result of unique circumstances or lay of the land. It was a known condition upon purchase.\nA variance would not be not in harmony or spirit of intent of the ordinance.\nIt would not secure the health or welfare of the public. The previously mentioned 90/10 split of elective vs. emergency situations at this facility did not, in his opinion, sway his mind on public safety.\nAny hardship is the result of the applicant\u2019s own actions: He said it was a difficult decision, but they purchased the land knowing the conditions.\nDr. Ferrari operated his practice for 9-10 months without the monument sign. That is an indication that he can enjoy a reasonable return on his property without having the sign in place.\nThe first, fourth, and fifth findings, presented with no reasoning, are conclusory statements and thus insufficient to support the Board\u2019s decision. E.g., Shoney\u2019s of Enka, Inc. v. Bd. of Adjustment, 119 N.C. App. 420, 421-22, 458 S.E.2d 510, 511 (1995) (\u201c[W]e do not believe the Board may rely on findings of fact which are merely conclusory in form.\u201d).\nThe second, third, seventh, and eighth findings are not supported by any evidence in the record, are mere conjecture, and cannot support the Board\u2019s decision. See MCC Outdoor, LLC v. Town of Franklinton Bd. of Comm\u2019rs, 169 N.C. App. 809, 815, 610 S.E.2d 794, 798 (stating that speculative assertions and expressions of opinion cannot support a board of adjustment\u2019s findings), disc. review denied, 359 N.C. 634, 616 S.E.2d 539 (2005).\nThe sixth finding of fact (the variance \u201cwould not secure the health and welfare of the public\u201d) is supported solely by the opinion of Vice Chairman Lee and provides no reasoning for how the Board came to this conclusion. As such it is not sufficient to support the Board\u2019s finding. Id. (stating that expressions of opinion cannot support a board of adjustment\u2019s findings).\nWe conclude the Board\u2019s findings of fact lack the specificity necessary for this Court \u201c \u2018to determine whether the Board ha[s] acted arbitrarily or ha[s] committed errors of law.\u2019 \u201d Shoney\u2019s, 119 N.C. App. at 423, 458 S.E.2d at 512 (alterations in original) (quoting Deffet Rentals, 27 N.C. App. at 365, 219 S.E.2d at 227).\nC. Vested Rights, Estoppel, and Laches\nFinally, Petitioners argue the trial court erred in concluding they did not acquire vested rights in the permit and that the Town of Matthews was not barred by estoppel or laches from revoking the permit. We disagree.\nOn 9 November 2007, the Board notified Dr. Ferrari that his appeal of the revocation of the sign permit had been denied. The written notification informed Dr. Ferrari that he had the right to appeal the Board\u2019s decision to superior court, or draft a text amendment to the ordinance. Petitioners did not appeal the Board\u2019s decision. Consequently, the Board\u2019s determination that the permit was issued in error and properly revoked is the law of the case and the parties are bound by the decision. Martin Marietta Corp. v. Forsyth Cnty. Zoning Bd. of Adjustment, 65 N.C. App. 316, 317, 309 S.E.2d 523, 524 (1983).\nProvided the permit was issued in error, Petitioners cannot establish vested rights in reliance on the permit, and this argument is dismissed. See Mecklenburg Cnty. v. Westbery, 32 N.C. App. 630, 635, 233 S.E.2d 658, 661 (1977) (\u201c[T]he permit must have been lawfully issued in order for the holder of the permit to acquire a vested right in the use.\u201d); Clark Stone Co. v. N.C. Dept. of Env\u2019t & Natural Res., Div. of Land Res., 164 N.C. App. 24, 40, 594 S.E.2d 832, 842, appeal dismissed, disc. review denied, 358 N.C. 731, 603 S.E.2d 878 (2004).\nSimilarly, because Petitioners did not appeal the Board\u2019s 9 November 2007 decision denying his appeal of MCLUESA\u2019s revocation of the sign permit, Petitioners are bound by the decision and cannot now assert the town was barred by estoppel or laches from revoking the permit. These arguments are without merit.\nIV. Conclusion\nIn summary, we conclude the trial court erred in finding the Board had no authority to grant a variance for Petitioners\u2019 sign. We also conclude the trial court erred in finding the Board made sufficient findings of fact to support its decision. Therefore, the Order of the superior court affirming the Board\u2019s decision is reversed, in part, and the case is remanded, in part, to the superior court with instructions to further remand to the Town of Matthews Board of Adjustment for further proceedings consistent with this opinion.\nReversed, in part, and remanded, in part.\nJudges CALABRIA and STROUD concur.", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." } ], "attorneys": [ "Essex Richards, RA., by Norris A. Adams, II, attorney for Petitioner-appellants.", "Cranford, Buckley, Schultze, Tomchin, Allen & Buie, P.A., by Charles R. Buckley, III, attorney for Respondent-appellees." ], "corrections": "", "head_matter": "PREMIER PLASTIC SURGERY CENTER, PLLC; GENESIS VENTURES, LLC; and VICTOR S. FERRARI, M.D., F.A.C.S., Petitioner-Appellants v. THE BOARD OF ADJUSTMENT FOR THE TOWN OF MATTHEWS; and THE TOWN OF MATTHEWS, Respondent-Appellees\nNo. COA10-863\n(Filed 19 July 2011)\n1. Preservation of issues\u2014 failure to argue \u2014 issue abandoned\nPetitioners in a zoning case abandoned their argument that the trial court erred by applying the wrong standard when reviewing the decision of the Board of Adjustment to deny petitioners\u2019 application for a variance. Petitioners failed to provide any reason or argument in support of their assertion.\n2. Zoning\u2014 application for variance \u2014 erroneously denied\nThe trial court erred in a zoning case by finding that the Board of Adjustment had no authority to grant petitioner the requested variance. The trial court\u2019s reliance on Donnelly, 99 N.C. App. 702, was erroneous as petitioners\u2019 sign was not, as a matter of law, contrary to the zoning ordinance. Moreover, the variance petitioners sought was not a use variance but was an area variance.\n3. Zoning\u2014 variance \u2014 denial of petition \u2014 findings of fact insufficient\nThe trial court erred in a zoning case by concluding that the Board of Adjustment made sufficient findings of fact to support its denial of petitioners\u2019 application for a variance. As the trial court erred in concluding the variance was directly contrary to the zoning ordinance, it also erred in concluding the Board had no duty to make sufficient findings. Furthermore, the Board\u2019s findings of fact lacked the specificity necessary for a reviewing court to determine whether the Board acted arbitrarily or committed errors of law.\n4. Zoning\u2014 sign permit \u2014 vested rights not acquired \u2014 estoppel or laches inapplicable\nThe trial court did not err in a zoning case by concluding that petitioners did not acquire vested rights in a sign permit and that the Town of Matthews was not barred by estoppel or laches from revoking the permit. Petitioners did not appeal the Board of Adjustment\u2019s decision to deny petitioner\u2019s appeal of the revocation of the sign permit.\nAppeal by Petitioner from Judgment entered 21 January 2010 by Judge James W. Morgan in Mecklenburg County Superior Court. Heard in the Court of Appeals 12 January 2011.\nEssex Richards, RA., by Norris A. Adams, II, attorney for Petitioner-appellants.\nCranford, Buckley, Schultze, Tomchin, Allen & Buie, P.A., by Charles R. Buckley, III, attorney for Respondent-appellees." }, "file_name": "0364-01", "first_page_order": 374, "last_page_order": 384 }