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RICHARD H. ROBERTSON and BARBARA G. ROBERTSON, Petitioners, v.
ZONING BOARD OF ADJUSTMENT FOR THE CITY OF CHARLOTTE, Respondent
Filed: 21 December 2004
1. Zoning_variance denied_whole record considered_decision not arbitrary
The trial court properly considered the whole record when reviewing a board of
adjustment's denial of a variance, and the conclusion that the board's decision was based on
competent, material, and substantial evidence is not arbitrary and capricious.
2. Zoning_variance_fence violating set-back_undue hardship
The trial court properly determined that a board of adjustment's decision to deny a
variance for a fence violating a set-back was supported by the whole record and was not arbitrary
where the board considered exhibits and testimony about safety issues, made findings regarding
the portion of the variance that was granted and denied, and concluded that petitioners' alleged
undue hardship was personal.
Appeal by petitioners from judgment entered 5 December 2003 by
Judge Yvonne Mims Evans in Mecklenburg County Superior Court.
Heard in the Court of Appeals 14 October 2004.
Bledsoe & Bledsoe, P.L.L.C., by Louis A. Bledsoe, Jr., for
Office of the Charlotte City Attorney, by Assistant City
Attorney Terrie V. Hagler-Gray, for respondent-appellee.
Richard H. Robertson and Barbara G. Robertson (collectively,
petitioners) appeal from a judgment and order entered affirming
the decision of the Charlotte Zoning Board of Adjustment (the
Board) denying petitioners' application for a variance. We
Petitioners own property located at 7113 Signer Road in
Charlotte, North Carolina. In February and March 2002, petitioners
constructed a fence near Signer Road, in front of their home. The
fence extends through the required twenty-foot setback and
continues through the petitioners' side yard to the rear of their
property. The fence also runs along the property line of
petitioners' neighbor, Bratton Epps (Epps).
According to petitioners' survey, the fence begins near Signer
Road at a height of four and one-half (4.5) feet above grade and
rises to eight feet above grade at the twenty-foot front setback
line. The height remains at eight feet above grade for the entire
remaining length of the fence. The fence breaks beyond the
required setback to allow for a sixteen-foot driveway that cuts
across Epps's property to access petitioners' residence.
On 24 May 2002, petitioners submitted a letter to the
Mecklenburg County Engineering and Building Standards Department
complaining of zoning violations by their neighbor, Epps.
Mecklenburg County Zoning Inspector Donald Moore (Inspector
Moore) responded to petitioners' complaint. When Inspector Moore
visited Epps's property, he noticed that petitioners' fence
violated Section 12.406(1) of the Charlotte Zoning Ordinance (the
Ordinance). The Ordinance provides: Any fence or wall located
in the required setback shall not be built to a height greater than
5 feet above grade, unless it is part of a zero lot line
subdivision, then it maybe [sic] 6 feet in height. On 15 July 2002, petitioners received a notice of violation
regarding their fence. The notice instructed petitioners to reduce
the height of their fence from eight feet to five feet. On 14
August 2002, petitioners filed an application for a three-foot
variance from Section 12.406(1) in order to allow their existing
fence to remain. After a hearing on 24 September 2002, the Board:
(1) granted petitioners a three-foot variance for the portion of
the fence located from the opening of the driveway to the end of
the fence; and (2) denied a three-foot variance for the portion of
the fence from Signer Road to the driveway opening.
Petitioners appealed the Board's decision to the Mecklenburg
County Superior Court. The trial court concluded the Board failed
to make sufficiently detailed and clear findings of fact from
which [the trial court] can determine whether the decision should
be affirmed or reversed and remanded the case to the Board. The
Board considered the whole record [of] the September 24, 2002
Board hearing . . . , made additional findings of fact, and upheld
its earlier decision to deny petitioners' request for a variance.
Petitioners again appealed the Board's decision to the
Superior Court. The trial court affirmed the Board's decision.
The issues on appeal are whether: (1) the trial court applied
the proper standard of review; and (2) the Board's decision was
arbitrary and capricious and unsupported by competent, material,
and substantial evidence in the whole record.
III. Standard of Review
On review of a superior court order regarding a board's
decision, this Court examines the trial court's order for errors of
law by determining whether the superior court: (1) exercised the
proper scope of review, and (2) correctly applied this scope of
review. Tucker v. Mecklenburg County Zoning Bd. of Adjustment,
148 N.C. App. 52, 55, 557 S.E.2d, 631, 634 (citing In re Appeal of
Willis, 129 N.C. App. 499, 501, 500 S.E.2d 723, 725 (1998)), disc.
rev. granted, 355 N.C. 758, 566 S.E.2d 483 (2002), aff'd in part,
356 N.C. 658, 576 S.E.2d 324 (2003).
IV. Trial Court's Review
Petitioners argued before the trial court that the Board's
decision was arbitrary and capricious, not supported by the record,
and contained errors of law.
The proper standard of review for the superior
court depends on the particular nature of the
issues presented on appeal. When the
petitioner correctly contends that the
agency's decision was either unsupported by
the evidence or arbitrary and capricious, the
appropriate standard of review for the initial
reviewing court is whole record review. If,
however, petitioner properly alleges that the
agency's decision was based on error of law,
de novo review is required.
Tucker, 148 N.C. App. at 55, 557 S.E.2d at 634 (internal citations
omitted). The 'whole record' test requires the reviewing court to
examine all competent evidence (the whole record) to determine
whether the Board's decision is supported by substantial evidence.
Id. (quotation omitted). On 8 April 2003, the trial court remanded this matter to the
Board with instructions to make further findings of fact regarding
the denied variance portion of the Board's decision. . . . On
remand, the Board made additional findings of fact and upheld its
decision to deny petitioners' request for a variance. On 4
December 2003, the trial court determined that the Board's
additional findings of fact are supported by the evidence in the
record; the Board's decision is supported by competent, material,
and substantial evidence in the whole record and is not arbitrary
and capricious; and petitioners' rights were protected, including
the right to offer evidence, cross-examine witnesses, and inspect
V. The Whole Record Test
Our review is whether the trial court, in applying the whole
record test, properly determined that the Board made sufficient
findings of fact which were supported by the evidence in an effort
to prevent decisions from being arbitrary and capricious. Crist v.
City of Jacksonville, 131 N.C. App. 404, 405, 507 S.E.2d 899, 900
(1998) (citing Shoney's v. Bd. of Adjustment for City of Asheville,
119 N.C. App. 420, 421, 458 S.E.2d 510, 511 (1995)).
A. Arbitrary and Capricious
 The trial court's decision may be reversed as arbitrary
and capricious if petitioners establish that the Board's decision
was whimsical, made patently in bad faith, indicate[d] a lack of
fair and careful consideration, or 'fail[s] to indicate 'any
course of reasoning and the exercise of judgment. . . .'' Whiteco Outdoor Adver. v. Johnston County Bd. of Adjust.
, 132 N.C.
App. 465, 468-69, 513 S.E.2d 70, 73 (1999) (quoting Adams v. N.C.
State Bd. of Registration for Professional Engineers and Land
, 129 N.C. App. 292, 297, 501 S.E.2d 660, 663, (1998)
Petitioners bear the burden of proving their
case and must show what type of variance they need and why the
variance is needed. Craver v. Board of Adjustment
, 267 N.C. 40,
43, 147 S.E.2d 599, 601 (1966). Relying on Refining Co. v. Board
, 284 N.C. 458, 202 S.E.2d 129 (1974), petitioners
contend that the Board's conclusions are speculative, unsupported
by any factual data or background, and incompetent and insufficient
to support a finding that public safety would be adversely
affected. Petitioners argue: (1) the Board did not follow the
trial court's instruction on remand; (2) the Board made
determinations unsupported by additional findings of fact; and (3)
the Board's findings are not supported by law or evidence.
Petitioners argue that the Board did not address the trial
court's concerns on remand as required by the order dated 8 April
2003. Petitioners assert the record lacks any evidence to indicate
where the fence is located, how traffic may be hindered because of
the fence, and how a safety issue arises because of the fence.
Petitioners also assert that the Board cannot deny their variance
request simply because it would adversely affect the public
interest. Triple E Associates v. Town of Matthews
, 105 N.C. App.
354, 361, 413 S.E.2d 305, 309 (citing In re Application of Ellis
,277 N.C. 419, 425, 178 S.E.2d 77, 81 (1970)), disc. rev. denied
332 N.C. 150, 419 S.E.2d 578 (1992).
On remand, the Board made additional findings of fact to
support its denial of petitioners' variance request. These
additional findings of fact were: (1) petitioners created their
own hardship by not applying for a variance before building a fence
outside the Ordinance requirements; (2) petitioners' hardship is
personal in nature in that petitioners built this fence because
of an argument with their neighbors; (3) petitioners' eight-foot
fence would require a three-foot or sixty-percent variance in the
front setback and a two-foot or thirty-three-percent variance in
the side yard; (4) petitioners' property slopes more steeply the
closer it gets to the lake, and the slope nearest to Signer Road is
not proportionate to and does not justify petitioners' large
variance request; (5) the portion of the fence in the front setback
and side yard has more of an impact on adjoining property owners
than the portion of the fence in the rear yard; and (6) the fence
height in the setback is close to the severe curve on Signer Road
and creates safety concerns. The Board found that if it granted
petitioners' variance request, it would not promote the public
safety and welfare of individuals traveling Signer Road.
Sufficient evidence in the record supports the Board's
findings of fact. Petitioner Richard Robertson and other witnesses
testified regarding the location of the fence.
COUNSEL: . . . the fence that you built,
did it start on the - - all the way over to the margin of the
ROBERTSON: No. . . . it's about four feet
back from the corner of our
property from the margin of the
right-of-way. In other words,
we . . . set it back about four
feet. And then the fence was
about five feet high . . . the
fence from that point runs for
about sixteen feet horizontally
with the property lines . . .
And so if it is five feet at
the very beginning, when it
gets back to the next sixteen
feet to the twenty-foot setback
. . . , then the fence is
violating slightly for the
whole - - practically the whole
COUNSEL: In other words, you're saying
it's above five feet for that
period and then it slopes up
until it gets to eight feet?
ROBERTSON: Right. And it gets to eight
feet, I believe the engineering
report will indicate, about two
feet before it gets to the
In addition to an engineering report submitted, the physical
survey of petitioners' property shows the measurements and
locations where the fence violated the ordinance. Thomas Mussoni,
a Board member, summarized that it is a sixty percent variance
from the _ within the front setback . . . [a]nd as far as the side
yard goes, we looked at it as being a thirty-three percent variance
. . . . Additional findings of fact regarding the steepness of
the slope and the elevation drop in petitioners' back yard are
supported by the evidence. On remand from the trial court, the Board recognized that the
neighbors brought the traffic visibility problem to the Board's attention.
CITY ATTORNEY: I guess the judge . . . was
saying it looked as if y'all
were relying solely on the
testimony of those witnesses,
Foster and Brown and I think
also Mr. Epps . . . as to the
safety concerns, in making a
determination that there was a
BOARD MEMBER: Well, they brought it to our
attention and then we evaluated
the registered survey of the
property that illustrates the
drive curving around the end of
the fence, so that the sight
distance across the end of the
fence was fairly short and
CITY ATTORNEY: So you - _ so, in addition to
the testimony of the witnesses
you are looking at what?
BOARD MEMBER: A survey of the property.
CITY ATTORNEY: . . . if you look at the
physical survey . . . you
interpret [the survey] to show
the existence of some sight - -
BOARD MEMBER: A severe curve around the
corner at the end of the fence
that inhibits being able to see
The trial court's conclusion that the Board made a decision
based on competent, material, and substantial evidence in the
whole record is supported by the Board's findings of fact and is
not arbitrary and capricious. We conclude the reviewing court
properly considered the whole record.
B. Errors of Law
 In the trial court, petitioners challenged the Board's
conclusions on safety and argued their due process rights were
The trial court reviewed the evidence and found, the
record of the proceedings before the [Board did] not reveal errors
of law. According to the Ordinance, variances are only granted to
those applicants whose difficulty of 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. The trial court determined that the Board's decision
was not arbitrary or capricious, and that its findings of fact were
supported by the evidence in the record. The trial court
concluded, The appropriate due process rights of the petitioners
were protected, including the right to offer evidence, cross-
examine witnesses, and inspect documents. Petitioners had ample
opportunity to cross-examine adverse witnesses and to offer
evidence in [their] behalf. Burton v. Zoning Board of Adjustment,
49 N.C. App. 439, 443, 271 S.E.2d 550, 552 (1980), cert. denied,
302 N.C. 217, 276 S.E.2d 914 (1981).
Petitioners assert that the Board determined the fence was a
safety issue without any evidence to support its decision. We have
already held the trial court did not err in concluding the Board's
decision regarding safety concerns was supported by the whole
record. The record indicates that, on remand, the Board considered
the exhibits and witnesses' testimony. It made sufficient
additional findings of fact to support the record regarding what
portion of the variance was granted or denied.
On remand from the trial court, the Board discussed the sixty-
percent variance within the front setback and the thirty-three-
percent variance for the side yard sought by petitioners as being
large in scale for the protection that it offered, the increase in
protection and privacy that it offered was not proportional to the
- - to the variance requested. Petitioners argue undue hardship
to their property because the variance petition was denied. The
Board considered the evidence received at the hearing and
The topography is illustrated in the
photographs that were exhibits at the time
that have children standing next to it and it
gives you a very clear idea of what the
topography was like and it is apparent the
fence is sloping fairly severely down in the
ground and then back up to follow the
The Board concluded that the petitioners' alleged undue hardship
was personal in nature and a nuisance issue.
The Board's authority to grant a variance arises only when its
decision is within the meaning and intent of the zoning ordinance.
The Board is prohibited from authorizing a structure that conflicts
with the general purpose of the ordinance, for to do so would be
an amendment of the law and not a variance of its regulations.
Lee v. Board of Adjustment, 226 N.C. 107, 112, 37 S.E.2d 128, 132
(1946). The requested variance [by petitioners] would be directly
contrary to the zoning ordinance . . . and in the absence of
evidence to support the petition, the Board had no authority to
grant petitioners request. Donnelly v. Bd. of Adjustment of the
Village of Pinehurst, 99 N.C. App 702, 708, 394 S.E.2d 246, 250(1990) (citing Sherrill v. Town of Wrightsville Beach, 76 N.C. App.
646, 648, 334 S.E.2d 103, 104 (1985)).
Relying on Williams v. N.C. Dep't of Env't & Natural Res.,
144 N.C. App. 479, 548 S.E.2d 793 (2001), petitioners contend the
Board improperly determined whether an unnecessary hardship
existed, and argue this factor was irrelevant and not supported by
the law. Petitioners misinterpret the law in Williams. This Court
did not hold that unnecessary hardship was an irrelevant factor
when determining whether to grant or deny a variance. Rather, in
Williams, this Court held that to determine whether a parcel of
property suffers from unnecessary hardship due to strict
application of CAMA, the CRC must make findings of fact and
conclusions of law as to the impact of the act on the landowner's
ability to make reasonable use of his property. Id. at 487, 548
S.E.2d at 798. The trial court properly determined that the
Board's decision was supported by the whole record and its decision
was not arbitrary and capricious. This assignment of error is
The trial court properly reviewed the whole record and
sufficiently concluded the Board's decision was free of errors of
law. The trial court correctly found the Board's decision was
based on competent, material, and substantial evidence and that the
Board's findings were not arbitrary and capricious. The trial
court's order is affirmed.
Affirmed. Judges BRYANT and STEELMAN concur.
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