SHOWCASE REALTY AND CONSTRUCTION COMPANY,
Petitioner-Appellee,
v
.
CITY OF FAYETTEVILLE BOARD OF ADJUSTMENT and STEPHEN BURNHAM,
Respondents-Appellants.
McCoy, Weaver, Wiggins, Cleveland & Raper, P.L.L.C., by
Richard M. Wiggins and James A. McLean, III, for petitioner-
appellee.
Anderson, Johnson, Lawrence, Butler & Bock, L.L.P., by Steven
C. Lawrence, for respondents-appellants.
McGEE, Judge.
Stephen Burnham (Burnham) is the owner of a 1.79 acre tract of
real property located at 148 Horseshoe Road in Fayetteville, North
Carolina. Burnham obtained a special use permit to construct a
mini-storage facility on his property. He submitted a site plan to
the City of Fayetteville's Planning Department (Planning
Department), which contained provisions for a front setback of 50
feet and a side setback of 30 feet, as required by City of
Fayetteville's zoning ordinance. The site plan was approved and
Burnham began construction.
The City of Fayetteville's Inspections Department (Inspections
Department) conducted an on-site investigation and approved the
pouring of concrete slabs for the construction. During thesubsequent course of construction, the Inspections Department
questioned the distance of the construction site from the road.
Burnham received a letter from Mr. Combs of the Inspections
Department requesting an "as built survey" to address the issue.
Upon receipt of the letter, and before construction was completed,
Burnham ceased construction on the building. The Inspections
Department found that the construction only provided a front
setback of 25 feet and a side setback of 29 feet.
Burnham applied to the Fayetteville Board of Adjustment (the
Board) for a zoning variance as to the setbacks for the property on
4 November 2000. The Board held an initial hearing regarding
Burnham's request on 11 December 2000. The Board heard testimony
from Burnham, Mr. Combs, and the owner of the adjacent property,
Showcase Realty and Construction Company (petitioner). The Board
voted on 19 December 2000 to allow Burnham's requested variance.
Petitioner filed a petition for judicial review of the Board's
decision on 2 February 2001, pursuant to N.C. Gen. Stat. § 160A-
388. The Board filed an answer and moved to dismiss the petition
on 5 April 2001; Burnham filed a response on 6 April 2001. The
trial court affirmed the Board's approval of the variance on 7
December 2001, determining that the Board's decision to grant the
variance was not arbitrary and capricious and that the decision was
supported by substantial evidence in the whole record. Petitioner
appeals.
"On review of a superior court order regarding a board's
decision, this Court examines the trial court's order for error oflaw by determining whether the superior court: (1) exercised the
proper scope of review, and (2) correctly applied this scope of
review." Tucker v. Mecklenburg Cty. Zoning Bd. of Adjust., 148
N.C. App. 52, 55, 557 S.E.2d 631, 634 (2001); see In re Appeal of
Willis, 129 N.C. App. 499, 501-02, 500 S.E.2d 723, 726 (1998). Our
Supreme Court has held that the review of a decision of a municipal
board by a superior court under N.C. Gen. Stat. § 160A-388(e)
consists of:
(1) Reviewing the record for errors of law,
(2) Insuring that procedures specified by law
in both statute and ordinance are
;
followed,
(3) Insuring that appropriate due process
rights of a petitioner are protected
including the right to offer evidence,
cross-examine witnesses, and inspect
documents,
(4) Insuring that decisions of town boards
are supported by competent, material and
substantial evidence in the whole record,
and,
(5) Insuring that decisions are not arbitrary
and capricious.
Concrete Co. v. Board of Commissioners, 299 N.C. 620, 626, 265
S.E.2d 379, 383 (1980).
"It is not the function of the reviewing court . . . to find
the facts but to determine whether the findings of fact made by the
Board are supported by the evidence before the Board and whether
the Board made sufficient findings of fact." Rentals, Inc. v. City
of Burlington, 27 N.C. App. 361, 364, 219 S.E.2d 223, 226 (1975).
If the petitioner argues the municipal body's decision was eitherunsupported by the evidence or arbitrary and capricious, the trial
court must apply the "whole record" test. Willis, 129 N.C. App. at
501, 500 S.E.2d at 725. "[T]his Court is to inspect all of the
competent evidence which comprises the 'whole record' so as to
determine whether there was indeed substantial evidence to support
the Board's decision." Appalachian Outdoor Advertising Co. v. Town
of Boone Bd. of Adjust., 128 N.C. App. 137, 140, 493 S.E.2d 789,
792 (1997), disc. review denied, 347 N.C. 572, 498 S.E.2d 375
(1998). "Substantial evidence is that which a reasonable mind
would regard as adequately supporting a particular conclusion."
Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 503,
397 S.E.2d 350, 354 (1990), disc. review denied, 328 N.C. 98, 402
S.E.2d 430 (1991).
If the petitioner argues the governmental body's decision was
erroneous as a matter of law, the trial court must review the issue
de novo. Willis, 129 N.C. App. at 501, 500 S.E.2d at 725. When
the initial reviewing court should have conducted a de novo review,
we will review that court's decision de novo. See Amanini v. N.C.
Dept. of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114,
118 (1994). "De novo review requires a court to consider the
question anew, as if not considered or decided by the agency or, as
here, the local zoning board." Tucker, 148 N.C. App. at 55, 557
S.E.2d at 634.
Petitioner argues that the trial court erred in upholding the
zoning variance because the Board's decision was arbitrary and
capricious and was unsupported by substantial evidence in the wholerecord. The trial court used the correct standard of review in
examining the Board's decision by applying the whole record test.
We now examine whether the trial court correctly applied this
standard of review.
The record shows that the Board heard testimony from Burnham,
Mr. Combs, and Mr. Etowski, petitioner's owner. Burnham testified
that the Inspections Department told him the building was required
to be 50 feet away from the road, not 50 feet from the right-of-
way. The Inspections Department approved the pouring of the
concrete slab. He also stated that he was not in the construction
business and relied on the concrete company and the Inspections
Department to locate the concrete slab within the required area.
Burnham testified that he had no recourse with the concrete company
and that he had expended all construction funds, thus preventing
him from beginning new construction within the appropriate setbacks
or moving the existing construction. He also indicated that he had
owned the land for seven years but had been unable to make use of
the land because of "incidences such as the one presented." Mr.
Combs testified that there was road construction occurring at the
time of the field measurements that could have resulted in the
incorrect measurements. The construction would have made it
difficult to ascertain where the shoulder of the road started. The
current building met the appropriate setback requirements when
measured from the road rather than from the right-of-way, which was
consistent with Burnham's testimony regarding the Inspections
Department's instructions. Mr. Combs stated that he understood howsuch a mistake could be made under the circumstances.
Mr. Etowski testified that there were pins in the ground that
demonstrated the location of the road, despite the ongoing
construction, and that the concrete slab had been in place for over
a year at the time of the hearing. He also testified as to the
requirements that must be met before beginning commercial
construction. Mr. Etowski stated that he would suffer a loss in
property value and damage to his business if the variance were
granted. Burnham's construction altered the surface of the land in
a manner that will force water onto petitioner's property. Mr.
Etowski also testified that Burnham's building would mask any
proposed development or signs on petitioner's property.
The Fayetteville zoning ordinance provides for the granting of
a variance "only when it can be shown that [][t]here are practical
difficulties or unnecessary hardships in the way of carrying out
the strict letter of the ordinance." The ordinance further
requires the applicant for the variance to show that it could
"secure no reasonable return from, or make no reasonable use of,
his property." After reviewing the whole record, there is
insufficient evidence in the record to find that there are
"practical difficulties or unnecessary hardships" in enforcing the
ordinance against Burnham. Burnham did state that he had been
unable to make reasonable use of his land in the past because of
similar incidences; however, this is a conclusory statement
unaccompanied by evidence in the record. Burnham testified that he
could move the building to comply with the ordinance, but suchaction would be a prohibitive financial burden. However, there is
no evidence in the record demonstrating that Burnham could "secure
no reasonable return, or make no reasonable use of, his property."
Our Supreme Court stated in Lee v. Board of Adjustment, 226
N.C. 107, 111, 37 S.E.2d 128, 132 (1946), that a "board cannot
disregard the provisions of the statute or its regulations. It can
merely 'vary' them to prevent injustice when the strict letter of
the provisions would work 'unnecessary hardship.'" In granting a
variance, the Board must make findings based on sufficient and
competent evidence that comply with each of the requirements of the
Code of City of Fayetteville § 32-71(2). The first term found in
section 32-71(2) requires that the applicant suffer "practical
difficulties or unnecessary hardships" in carrying out the strict
letter of the ordinance. § 32-71(a). While the Board found that
there were "practical difficulties and unnecessary hardships in the
way of carrying out the strict letter of the ordinance," there is
insufficient evidence in the record to support this conclusion.
In Williams v. N.C. Dep't of Env't & Natural Res., 144 N.C.
App. 479, 548 S.E.2d 793 (2001), our Court recently held that a
state administrative agency failed to find facts that addressed the
issue of whether the appellee had been denied reasonable use of his
land. In reaching our decision, we adopted language from the
Maryland Court of Appeals stating that an unnecessary hardship
occurs where the "'restriction when applied to the property in the
setting of its environment is so unreasonable as to constitute an
arbitrary and capricious interference with the basic right ofprivate ownership.'" Id. at 486, 548 S.E.2d at 798 (quoting
Belvoir Farms Homeowners Assoc., Inc. v. John C. North, II, 734
A.2d 227, 237 (Md. 1999)). We also noted that the Virginia Supreme
Court has held that financial loss alone is insufficient to
constitute an exceptional hardship to justify a zoning variance.
Id. (citing Natrella v. Board of Zoning Appeals of Arlington
County, 345 S.E.2d 295, 300 (Va. 1986)). In reviewing whether the
applicant for a variance "suffers from unnecessary hardship due to
strict application of" an ordinance, we apply the reasoning in
Williams that the board must make findings of fact and conclusions
of law as to the "impact of the [ordinance] on the landowner's
ability to make reasonable use of his property." Id. at 487, 548
S.E.2d at 798.
As in Williams, to determine whether Burnham suffered
unnecessary hardship due to strict application of the ordinance,
"the [Board] must make findings of fact and conclusions of law as
to the impact of the [ordinance] on [Burnham's] ability to make
reasonable use of his property." Id. The Board failed to make
findings about Burnham's "reasonable return from" or "reasonable
use of" his property as required by the Fayetteville ordinance.
There is also no evidence in the record that would support a
finding that Burnham could obtain no reasonable return or use from
his property if he complied with the setback requirements of the
ordinance. The only evidence in the record demonstrating a
possible unnecessary hardship to Burnham of denial of the variance
was the financial cost to Burnham of relocating the concrete slabsfor the construction. However, financial hardship alone is
insufficient to constitute an "unnecessary hardship" to satisfy the
requirement of the ordinance. The record fails to demonstrate any
additional reason to support a finding of "unnecessary hardship."
Thus, there is insufficient evidence to support the Board's finding
of fact on this issue. Since there was no "unnecessary hardship"
to Burnham in strict enforcement of the ordinance, section 32-
71(2)(a) was not met and a variance should not have been granted.
Additionally, the record lacks sufficient evidence to support
the Board's findings as required by the ordinance that the
"variance will not impair any adequate supply of light and air to
adjacent property" and the "variance will not impair established
property values within the surrounding area." Mr. Etowski
testified to the negative implications to petitioner's property
value and business from the variance. However, there was no
testimony or evidence that the variance would not impair the light
and air supply of the adjacent property or impair property values.
The ordinance requires a specific finding on these issues and an
assumption without evidence is insufficient to satisfy these
requirements. While the Board stated that established property
values in the surrounding area would not be impaired since the
building should be deemed an improvement, there is no evidence to
support this finding. The Board did not consider evidence of
existing property values or projections of what effect the zoning
variance would have on adjoining property values. There is no
evidence in the record that would allow the Board to objectivelymeasure the impact. The record lacks substantial evidence to
support the Board's findings of fact on these issues.
Petitioner also contends the Board's findings of fact were
conclusory statements that violated the standards established by
statute and local ordinance. Petitioner cites Shoney's v. Bd. of
Adjustment for City of Asheville, 119 N.C. App. 420, 458 S.E.2d 510
(1995), in support of its argument. In Shoney's, this Court found
that the Board of Adjustment's conclusions were simply a
"preprinted form couched in the language of the relevant section of
the City's zoning ordinance." Id. at 423, 458 S.E.2d at 512. The
only written finding by the Board in Shoney's was that
"[p]etitioner did not satisfy requirements set forth in [the]
opening statement." Id. at 422, 458 S.E.2d at 512. The remainder
of the findings consisted of circling words on a preprinted form to
justify the decision of the Board. Id. at 422-23, 458 S.E.2d at
512. These findings were insufficient to determine if the Board's
decision was based upon sufficient evidence. Id. at 424, 458
S.E.2d at 512-13.
In the present case, the Board made findings of fact on its
own accord and did not rely on a preprinted form as in Shoney's.
The findings of fact made by the Board were not conclusory or
insufficient in form or substance simply because the language
mirrored that of the ordinance. However, the record demonstrates
a lack of sufficient evidence to support three of the Board's
findings of fact, upon which its conclusion of law and its decision
are based. For this reason, the Board erred in granting Burnham'svariance.
The order of the trial court affirming the Board's decision to
grant a variance is reversed.
Reversed.
Judges HUDSON and BIGGS concur.
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