Appeal by petitioner from judgment entered 14 October 1998 and
filed 16 October 1998 by Judge John M. Gardner in Mecklenburg
County Superior Court. Heard in the Court of Appeals 19 October
1999.
Perry, Patrick, Farmer & Michaux, P.A., by Roy H. Michaux,
Jr., for petitioner-appellant.
City of Charlotte, Office of the City Attorney, by Assistant
City Attorneys David M. Smith and Robert E. Hagemann, for
respondent-appellee.
WALKER, Judge.
Petitioner requested that the Board of Adjustment (Board) for
the City of Charlotte grant it variances. At its meeting on 24
February 1998, the Board denied the following two variances: (1)
elimination of the 10 foot Class C buffer requirement for the
adjoining residence which was zoned residential to allow the
driveway to remain in place, and (2) elimination of a 5 foot
setback for the driveway. Petitioner then appealed through a writ
of certiorari to the superior court, which determined that
respondent's decision was supported by material, competent, andsubstantial evidence based upon the whole record and affirmed the
decision.
Petitioner's evidence before the Board tended to establish the
following: In November 1997, petitioner purchased the fifty foot
lot (Lot) at 1818 Lombardy Circle, which consists of less than one-
half of an acre. At that time, the Lot was zoned O-2 for office
use and the previous owner had used it as both a residence and a
floral shop. Petitioner planned to use the Lot as an office for
its antique business, which would organize antique buying trips for
individuals and dealers who wanted to purchase antiques overseas.
In transacting its business, petitioner would not deliver, store,
or show goods at its office. Petitioner would use the office only
to arrange the buying trips and to conduct the accounting functions
associated with these trips. Additionally, while petitioner has
three employees who work in the office, it also has an adequate
number of parking spaces at the rear of the Lot for more vehicles
than required by the zoning ordinance (Ordinance).
When petitioner acquired the Lot, the three other lots at the
northwest end of Lombardy Circle, which are also located in the O-2
zone, were used as a Wildlife Federation office building, a parking
lot, and a multiple-tenant office building. After purchasing the
lot, petitioner learned that the prior owner had failed to secure
the necessary permits to operate the floral shop on the Lot and
that the property could not be used as an office without meeting
certain buffer requirements which are imposed on property zoned O-2
and which abuts a residential zone. Petitioner alleges that it did
not know or have reason to know when it acquired the Lot thateither the current or purposed use of the Lot was in violation of
the Ordinance. Thus, petitioner filed an application requesting
variances from the Ordinance.
The applicable provisions of the Ordinance for lots in an O-2
zone are set forth as follows: Code Tables 12.302 (a) and (b)
require a parcel less than one-half acre developed as an office use
to provide a 10 foot Class C buffer where the parcel abuts a single
family use or zoning district. Code Section 12.206(3) provides
that no off-street parking or driveways are permitted within 5 feet
of any exterior lot line. Code Section 9.705(1)(f) requires a
minimum 5 foot side yard for non-residential development.
The standards for granting a variance are set forth in § 5.108
of the Ordinance which provides:
(1) Before granting a variance, the Board ...
shall find: (a) That practical difficulties
or unnecessary hardship would result from the
strict application of these regulations; and
(b) That the spirit of these regulations
should be observed by taking into
consideration the general intent of these
regulations..., and (c) That the public safety
and welfare have been protected and
substantial justice done.
(3) Only the following three conditions shall
constitute a practical difficulty or
unnecessary hardship and all three must be
met: (a) The difficulty or hardship would
result only from these regulations and from no
other cause, including the actions of the
owner or previous owners of the property; and
(b) The difficulty or 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; and (c) The difficulty or hardship
resulting from the application of these
regulations would prevent the owner from
securing a reasonable return or making areasonable use of the property.... Petitioner alleges that the variances sought by it were
essentially identical to those sought in February 1997 by the
property owner of the lot which is directly across the street (lot
22). Lot 22 had been granted five variances by the Board:
1) a 10 foot variance in the required 10 foot
wide Class “C” buffer adjacent to Tax Parcel
Number 151-023-23 (eliminate buffer) to allow
the existing driveway to remain;
2) a 5 foot variance in the required 5 foot
separation from any lot line to allow the same
driveway in the side yard;
3) a 10 foot variance in the required 10 foot
wide Class “C” buffer adjacent to Tax Parcel
Number 151-023-14 (eliminate buffer) to allow
parking in the rear yard;
4) a 5 foot variance in the required 5 foot
side yard adjacent to Tax Parcel Number 151-
023-23 (eliminate required side yard) to allow
an existing carport to remain; and
5) a .7 foot variance in the required side
yard adjacent to Tax Parcel Number 151-023-21
(O-2 zoning) to allow an existing screen porch
to remain,
with the condition that a 6 foot
wooden fence be erected along the rear
property line with the planting of two (2)
trees and that the existing wooden fence is
maintained as currently erected....
The Board, however, denied petitioner's request for two
variances, and its findings included the following:
19. The Applicant submitted a Board decision
letter of February 25, 1997, pertaining to lot22 across the street from the Applicant's
property, where the Board granted in part a
variance from the 10 foot buffer and 5 foot
driveway separation.
20. The Board cannot adequately assess the
Board's lot 22 decision based upon the
submitted material. Each decision rests upon
the particular facts in the case. The lot 22
case reveals, for example, that an existing
wooden fence had to be maintained between the
driveway and the abutting property.
Based on these findings, the Board concluded:
In respect to Code Section 5.108 “Standards
for Granting a Variance:”
1. The hardship is not the result of the
Zoning Ordinance but that the Applicant's lot
has difficulty accommodating a 10 foot buffer
on one side and a 5 foot driveway separation
from residentially zoned property.
2. The spirit of the Zoning Ordinance would
not be observed if a 10 foot buffer
requirement on one side and a 5 foot driveway
separation were both completely eliminated to
allow an office use to abut a single-family
residentially zoned district, and, therefore,
the Board would be in effect amending the
Zoning Ordinance.
3. The purpose of the buffer and separation
requirements is to protect the welfare of the
Lombardy Circle neighborhood and, therefore,
the elimination entirely of both requirements
to allow an office use in a residential
structure would not achieve substantial
justice.
Judicial review of the decision of the Board of Adjustment is
limited to: (1) reviewing the record for errors in law; (2)
insuring procedures specified in both the statute and ordinance are
followed; (3) insuring appropriate due process rights of a
petitioner are protected, including the right to offer evidence, to
cross-examine witnesses, and to inspect documents; (4) insuringdecisions of the town board are supported by competent, material
and substantial evidence in the whole record; and (5) insuring the
decisions are not arbitrary and capricious.
Crist v. City of
Jacksonville, 131 N.C. App. 404, 507 S.E.2d 899 (1998). On appeal
from a decision of the Board of Adjustment, the reviewing court
must determine whether the Board made sufficient findings of fact
which are supported by the evidence before it.
Id. Findings of
fact are an important safeguard against arbitrary and capricious
action by the Board because they establish a sufficient record upon
which this Court can review the Board's decision.
Id. Thus, the
Board must set forth the basic facts on which it relied with
sufficient specificity to inform the parties, as well as the court,
what induced its decision and may not rely on findings which are
merely conclusory in form.
Shoney's v. Bd. of Adjustment For City
of Asheville, 119 N.C. App. 420, 458 S.E.2d 510 (1995).
Here, the Board's findings referenced its prior decision
regarding lot 22, but only to the extent that it could not “assess
the Board's lot 22 decision based upon the submitted material.”
Apparently the Board did not render a decision with findings and
conclusions in granting the variances for lot 22. The record only
contains a letter from the zoning administrator to the applicant
for lot 22 advising that the Board granted the requested variances
on 25 February 1997. However, the record on appeal contains
information which reveals that lot 22 is essentially identical to
petitioner's lot. Both lots are approximately the same size, zoned
O-2 for office use, and adjoin the same residential district. Thetwo variances sought by petitioner here are also essentially
identical to two of those which were granted for lot 22 in that
both properties sought variances to eliminate the 10 foot buffer
and the 5 foot separation requirement.
We recognize that the Board of Adjustment is not required to
grant a petitioner a variance merely because it granted another
petitioner a variance for the same type of property in the same
district.
See Philip P. Green, Jr., Functions of the Zoning Board of
Adjustment in North Carolina, 1974, at 4 (Institute of Government, The
University of North Carolina at Chapel Hill);
Harden v. Raleigh,
192 N.C. 395, 135 S.E. 151 (1926). Instead, the Board should
closely examine the facts in each case to determine whether the
variance should be granted under the standards of the ordinance.
Green,
supra, at 4. Where the fact situations are exactly the same
in two cases, the decisions should, of course, be the same.
Id.
Where the facts differ, each case must be examined independently to
determine whether its facts bring it within the principles of the
ordinance.
Id. The Board's interpretation of the meaning of these
principles should remain uniform, but not its decisions where
different fact situations are involved.
Id.
The only reason assigned by the Board that lot 22 is
distinguishable from petitioner's lot is that the existing fence
had to be maintained on lot 22. Petitioner argues, however, that
its lot likewise contains a fence which it is willing to maintain.
Furthermore, the Board in its findings and conclusions failed to
address § 5.108(3) of the Ordinance when it concluded that thehardship here did not result from the Ordinance but from the fact
that petitioner's lot has difficulty accommodating a 10 foot buffer
on one side and a 5 foot driveway separation from residentially
zoned property. Despite the similarities in the two lots and in
the variances requested for both of these lots, the Board denied
petitioner's request for the two variances without setting forth
sufficient findings and conclusions for this Court to adequately
determine whether its decision was supported by competent,
material, and substantial evidence or whether its decision was
arbitrary and capricious.
Therefore, the order of the superior court affirming the
Board's decision is reversed, and the cause is remanded to the
superior court for remand to the Board for further proceedings
consistent with this opinion.
Reversed and remanded.
Judges GREENE and HUNTER concur.
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