1. Zoning--certificate of occupancy_-zoning variance--oceanfront property_setback
requirement
A de novo review revealed that the trial court did not err by affirming the Board of
Adjustment's denial of petitioners' certificate of occupancy or alternatively a variance after the
completion of construction of their oceanfront residence that failed to be in compliance with the
town's rear yard setback requirements even though petitioners contend that a 1939 Act of the
General Assembly that affects oceanfront property in Wrightsville Beach supercedes any contrary
zoning ordinance enacted by the town, because: (1) while the 1939 Act does not contain language
granting the town the authority to establish setbacks, a 1981 amendment to the 1939 Act does;
(2) the town was authorized by N.C.G.S. § 160A-381(a) to establish setback requirements; and
(3) the clear language of the pertinent ordinance provided for a rear yard setback of 7 ½ feet from
the property line, and petitioners' house was 1 ½ feet from the property line.
2. Zoning--selective enforcement of ordinance--due process and equal protection
Respondent town did not selectively enforce its rear yard setback ordinance and thus did
not violate petitioners' due process and equal protection guarantees under both the North
Carolina and United States Constitutions, because: (1) a review of the evidence shows that only
four residences in the vicinity of petitioners' residence have been built to or beyond the property
line; (2) there is uncontradicted testimony from a town building inspector that during his sixteen
years with the town a rear yard setback of 7 ½ feet from the property line was required; and (3)
the record is devoid of any evidence to suggest conscious and intentional discrimination on the
part of the town in enforcing its ordinances.
Shipman & Hodges, L.L.P., by Gary K. Shipman and William G.
Wright, for petitioner-appellants.
Wessell & Raney, L.L.P., by John C. Wessell, III, for
respondent-appellees.
HUDSON, Judge.
This appeal arises from a decision by the Board of Adjustment
of the Town of Wrightsville Beach denying petitioners a certificateof occupancy or alternatively a variance after the completion of
construction on their residence. On review pursuant to a petition
for writ of certiorari, the superior court affirmed. We affirm.
Petitioners are the owners of a parcel of real property
located at 753 Lumina Avenue in Wrightsville Beach, North Carolina
(“the Property”). The eastern or oceanfront boundary of the
Property is located 175 feet from the street on which the Property
fronts. In 1998, petitioners retained Wright Holman Construction
Company, Inc. (“Holman”) to construct a residence on the Property.
Holman obtained a copy of a survey performed by Jack Stocks of the
existing structure located on the Property, and prepared a plot
plan for petitioners that showed the new structure would be located
7 ½ feet from the eastern property line. Petitioners submitted the
plot plan to the Town in June 1998, and the Town approved the plan.
The first page of the plan submitted by Holman provides that:
No revisions shall be made of plans without
approval of building inspector.
In April 2000, Tony Wilson, a Town building inspector required
petitioners to submit a new survey. The new survey, dated 14 April
2000, indicated that the house had been actually built
approximately sixteen feet closer to petitioners' eastern property
line than was shown on the approved plan. Additionally, the new
survey indicated that stairs leading down from the back of the
house had been constructed east of the property line on property
owned by the Town. The new set of plans indicated several other
changes in the plan as approved, including an additional finished
bathroom, an unfinished attic, additional windows and twoadditional exterior decks. Mr. Wilson testified that he never
discussed these changes with Holman or any of his agents.
After receiving this information, the Town's building
inspector refused to issue petitioners a certificate of occupancy
because the newly built structure was not in compliance with the
Town's rear yard setback requirements. On 26 April 2000,
petitioners appealed the Building Inspector's decision, and,
alternatively, applied to the Board of Adjustment for a variance
from the setback ordinance. On 2 May 2001, the Board of Adjustment
of the Town of Wrightsville Beach denied both petitioners' appeal
and their application for the variance. Petitioners then filed a
Petition for Writ of Certiorari in the superior court. On 4
October 2001, the superior court in New Hanover County granted the
Petition for review, and, after a hearing, on 3 June 2002, the
court affirmed the decision of the Respondent Board of Adjustment.
Petitioners appeal.
Upon review of a decision from a Board of Adjustment, the
superior court should:
(1) review the record for errors of law; (2)
ensure that procedures specified by law in
both statute and ordinance are followed; (3)
ensure that appropriate due process rights of
the petitioner are protected, including the
right to offer evidence, cross-examine
witnesses, and inspect documents; (4) ensure
that the decision is supported by competent,
material, and substantial evidence in the
whole record; and (5) ensure that the decision
is not arbitrary and capricious.
Whiteco Outdoor Adver. v. Johnston County Bd. of Adjust., 132 N.C.
App. 465, 468, 513 S.E.2d 70, 73 (1999). This Court recently
explained that: an appellate court's 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 [(1)] examining the
scope of review utilized by the superior court
and (2) remanding the case . . . .
Capital Outdoor, Inc. v. Guilford County Bd. of Adjustment (II),152
N.C. App. 474, 567 S.E.2d 440 (2002) (quoting Capital Outdoor, Inc.
v. Guilford County Bd. of Adjustment (I), 146 N.C. App. 388, 390,
392, 552 S.E.2d 265, 267 (2001), (Greene, J., dissenting), rev'd
per dissent, 355 N.C. 269, 559 S.E.2d 547 (2002)); Cf. Hedgepeth v.
N.C. Div. of Servs. for the Blind, 142 N.C. App. 338, 543 S.E.2d
169 (2001), appeal after remand, 153 N.C. App. 652, 571 S.E.2d 262
(2002). “Where the petitioner alleges that a board decision is
based on error of law, the reviewing court must examine the record
de novo, as though the issue had not yet been determined.” Id. at
470, 513 S.E.2d at 74. Upon de novo review, we can freely
substitute our judgment for that of the respondent. Capricorn
Equity Corp. v. Town of Chapel Hill Board of Adjust., 334 N.C. 132,
137, 431 S.E.2d 183, 187 (1993). Here, all of the assignments of
error brought forth by petitioner allege errors of law. Thus, we
review these issues de novo.
The pertinent conclusions of law made by the superior court
are as follows:
10. Sufficient competent evidence was
introduced to establish that Petitioners'
residence on the Property was required to be
constructed 7 ½ feet west of Petitioners'
eastern property line, that eastern property
line being the Building Line. Further, the
evidence shows that Petitioners' residence has
been constructed within 1 ½ feet of their
eastern property line (the Building Line) and
therefore violates the 7 ½ foot rear yardsetback established under the provisions of
the zoning ordinances of the Town of
Wrightsville Beach.
11. This Court further concludes that the
decision of the Wrightsville Beach Board of
Adjustment as set forth in its Order entered
herein on May 2, 2001 was not arbitrary and
capricious. Specifically, the evidence
supports the findings by the Board of
Adjustment that the Building Line is a
property line, that the Petitioners' residence
was required to be constructed 7 ½ feet from
said Building Line, that Petitioners'
residence is not construction 7 ½ feet from
said Building Line, but rather is constructed
1 ½ feet from said Building Line, that
Petitioners' residence was relocated from the
position as shown on the plans originally
submitted to the Town of Wrightsville Beach
and that such relocation was done without the
consent or approval of the Town of
Wrightsville Beach and that while there was
some evidence presented indicating that
residences in the vicinity of Petitioners'
property were constructed in violation of the
rear yard setbacks . . ., there was no
evidence that any such violations were
approved by the Building Inspector.
[1] Petitioners first argue that a 1939 Act of the General
Assembly (“the 1939 Act”) that affects oceanfront property in
Wrightsville Beach supercedes any contrary zoning ordinance enacted
by the Town. The Act, entitled “An Act Relative to the Title to
the Land Built Up and Constructed in the Town of Wrightsville Beach
in the County of New Hanover as a Result of Certain Erosion Control
Work in Said Town,” provides in pertinent part as follows:
Section 1. That all land filled in, restored,
and made, and to be filled in, restored, and
made, as the result of the recitals in
preamble of this Act, which will exist between
the present Eastern property line of the lot
owners at present bordering on said ocean, and
the low water mark of the Atlantic Ocean,
after the work referred to in the preamble
hereof, is completed, shall be within the
corporate limits of the Town of WrightsvilleBeach, and so much of said lands so filled in,
restored and made, which will lie West of “the
building line,” to be defined and determined
by Section two of this Act, is hereby granted
and conveyed in fee simple to the land owner,
to the extent that his land abuts thereon, and
the balance of said land lying East of said
building line to be fixed and determined by
Section two of this Act, is hereby granted and
conveyed in fee simple to the Town of
Wrightsville Beach; provided, however, that no
building or structure shall be built and
erected on said made and built up land lying
East of “the building line,” to be defined and
set out in Section two of this Act, and
provided further that all made and constructed
land lying East of ”the building line” shall
be, at all times, kept open for the purpose of
streets and highways for the use of the
public, and further for the development and
uses as a public square or park, as the
governing authorities of the Town of
Wrightsville Beach, by ordinance, shall
determine; and provided further that if any
such property as is hereby granted and
conveyed to the Town of Wrightsville Beach,
shall cease to be used for the purposes or in
the manner prescribed in this Act, it shall
revert and become the property of the State of
North Carolina, and provided further that the
owners of property abutting on said newly made
or constructed land, shall, in front of their
said property, possess and keep their rights,
as if littoral owners, in the waters of the
Atlantic Ocean, bordering on said newly
acquired and constructed land.
Act of March 30, 1939, ch. 246, sec. 1, 1939 N.C. Sess. Laws 508-
11.
Section two of the 1939 Act requires the Town to survey and
fix “the building line” for beachfront lots and to record a map
showing the same. Such a map was prepared and duly recorded in
1939. This map reflects that the “building line” for petitioners'
property is 175 feet from the eastern boundary of Seaforth Avenue
(now South Lumina Avenue).
Petitioners contend that “the building line” discussed in the1939 Act “supersedes Respondent Town's setback requirements for
oceanfront homes on Wrightsville Beach, because to hold that
section 155.009(A) [of the Town's ordinances] creates a second
building line in addition to the 1939 Act would be tantamount to a
second taking of the land of oceanfront property owners.”
Petitioners further claim that had the General Assembly “truly
intended Wrightsville Beach to establish an additional setback from
the 'Building Line,' such language would be included within the
1939 Act.” While we agree that the 1939 Act does not contain
language granting the Town the authority to further zone setbacks,
a later amendment to the 1939 Act does.
In 1981, the General Assembly amended the 1939 Act as follows:
Section 1. Chapter 246 of the Public
Laws of 1939 is amended by striking the word
phrase “the building line” where it appears in
quotes throughout the act and substituting in
lieu thereof the word phrase “the property
line” which shall be without quotes as the
phrase “the building line” was in the original
act.
Sec. 2. The Town of Wrightsville Beach,
by ordinance, shall determine the minimum
building setback requirements from the
property line described in Chapter 246, Public
Laws of 1939, as amended by this act.
Act of June 19, 1981, ch. 618, sec. 1, 2, 1981 N.C. Sess. Laws 904.
Additionally, the General Assembly has authorized
municipalities to “regulate and restrict the height, number of
stories and size of buildings and other structures, the percentage
of lots that may be occupied, the size of yards, courts and other
open spaces, . . . and the location and use of buildings,
structures and land . . . ,” in order to promote health, safety,
morals, or the general welfare. G.S. . 160A-381(a). Here, the Town enacted a zoning ordinance that provides that
there shall be a “15 feet setback for the front yard street access
frontage and 7-l/2 feet for all other yards.” Town of Wrightsville
Beach, Zoning Ordinance . 155.009(A). This ordinance was
established under the grant of power contained in both the 1981
Amendment to the 1939 Act and G.S. . 160A-381(a), and is valid.
The clear language of this ordinance calls for a rear yard setback
of “7-1/2 feet,” from the property line. Petitioners' house was
one and one-half feet from the property line, and thus was not in
conformity with the ordinance, as the Board of Adjustment and the
superior court found. This assignment of error is overruled.
[2] Petitioners next argue that the Town's selective
enforcement of its rear yard setback ordinance violates
petitioners' due process and equal protection guarantees under both
the North Carolina and United States Constitutions. Specifically,
petitioners contend that the Town allowed other residents near
their property to build closer to the property line than the 7 ½
foot rear yard setback. For the following reasons, we overrule
this assignment of error.
In Grace Baptist Church v. City of Oxford, 320 N.C. 439, 358
S.E.2d 372, our Supreme Court held that:
A party seeking to prove that a municipality's
enforcement of a facially valid ordinance
amounted to a denial of equal protection must
show that the municipality engaged in
conscious and intentional discrimination.
Mere laxity in enforcement does not satisfy
the elements of a claim of selective or
discriminatory enforcement in violation of the
equal protection clause. The party who
alleges selective enforcement of an ordinance
has the burden of showing that the ordinance
has been administered with an evil eye and anunequal hand. To satisfy this burden, he must
demonstrate a pattern of conscious
discrimination.
Id. at 445, 358 S.E.2d at 376 (internal citations and
quotation marks omitted).
A review of the evidence shows that only four residences in
the vicinity of petitioners' residence have been built to or beyond
the property line. Further, there is uncontradicted testimony from
Bill Manley, a Town Building Inspector, that during his sixteen
years with the Town a rear yard setback of 7 ½ feet from the
property line was required. The record is devoid of any evidence
to suggest “conscious and intentional discrimination” on the part
of the Town in enforcing its ordinances.
Affirmed.
Judges WYNN and STEELMAN concur.
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