An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA04-918


Filed: 4 October 2005


v .                             Guilford County
                                No. 03 CVS 13096

    Appeal by petitioner from judgment entered 12 May 2004 by Judge Judson D. DeRamus, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 2 March 2005.

    Tuggle, Duggins & Meschan, by J. Reed Johnston, Jr., and Cynthia Munk Swindlehurst, for petitioner-appellant.

    City of Greensboro Attorney's Office, by M. Blair Carr, for respondent-appellee.

    CALABRIA, Judge.

    William Duke Elkins (“petitioner”) appeals a judgment affirming a zoning variance (the “variance”) from the City of Greensboro Board of Adjustment (the “board”) to Westover Church, Inc. (the “church”). We reverse and remand.
    The church is the owner of a parcel of land containing two adjoining lots (“lot 1” and “lot 2”) , which encompass approximately 4.162 acres. Lots 1 and 2 are located east of the main church campus and are accessible by crossing Muirs Chapel Road, a “minorthoroughfare”   (See footnote 1)  that runs north to south. Lot 1 is vacant and its western border, totaling approximately 358 feet, abuts the eastern borders of petitioner's lot, a lot to the south of petitioner, and two lots north of petitioner, as well as the eastern end of Benway Place. Benway Place is a residential “stub street,”   (See footnote 2)  which runs eastward from Muirs Chapel Road and provides access to petitioner's residential lot and the residential lot north of petitioner. The northern border of lot 2, totaling approximately 496 feet, abuts the entire southern borders of lot 1 and the lot to the south of petitioner. The western border of lot 2 abuts the eastern right of way of Muirs Chapel Road for approximately 138 feet. Lot 2 is developed with a single story residential home located in the western portion of the lot and faces Muirs Chapel Road. The church acquired these lots in order to build an overflow parking lot for its congregants.
    In order to construct the parking lot, the church was required to comply with Greensboro Ordinance § 30-5-2.26 which states that “[c]hurches located on sites of three (3) acres or more shall haveprimary access to a collector or thoroughfare street.”   (See footnote 3)  Initially, the church submitted a site plan to the Greensboro Planning Department (the “planning department”) proposing access to the parking lot via an extension of Benway Place. The initial plan was denied because Benway place was not a “collector or thoroughfare street.” The church then submitted a revised site plan proposing access to the parking lot via a driveway from Muirs Chapel Road that would extend eastward across lot 2 to the southern portion of the parking lot. According to the revised plan, this driveway would lie approximately 150 feet north of the signal lights at the intersection of Muirs Chapel Road and Tower Road. The planning department approved the revised plan, and the Greensboro Department of Transportation (the “G-DOT”) approved the proposed access drive from Muirs Chapel Road as a “right in and right out” only drive.
    However, on 3 October 2003, the church applied to the board for a variance to allow access to the parking lot via the extension of Benway Place. In its application, the church contended the requirement of access from Muirs Chapel Road was “unreasonable in that Benway Place provides adequate access” and was “the most practical” entrance to the parking lot. The church further contended that requiring access from Muirs Chapel Road would “create additional hardship on adjoining Church property.” At the 24 November 2003 hearing, the board acknowledged the G-DOT had approved a driveway from Muirs Chapel Road, indicating the drivewayposed no safety hazard. Nonetheless, the board determined evidence submitted by the church satisfied the requirements necessary for a variance and approved access to the parking lot via Benway Place. Petitioner appealed the board's decision to the trial court, and on 12 May 2004, the trial court entered a judgment affirming the board's grant of a variance. From this judgment petitioner appeals.
    Petitioner asserts the trial court erred in affirming the board's decision because no substantial evidence supports the church's contention that practical difficulties and unnecessary hardship would prevent reasonable use of lots 1 and 2. Specifically, petitioner argues all evidence indicates the church could reasonably access the parking lot without the variance by placing a drive from Muirs Chapel Road eastward across lot 2. We agree.     
    The board decision to grant a variance is governed by Greensboro Ordinance § 30-9-6.10(D) which provides that:
        Granting of Variance: A variance may be granted by the Board if evidence presented by the applicant persuades it to reach each of the following conclusions:
        (1) There are practical difficulties or unnecessary hardships that would result from carrying out the strict letter of this Ordinance. The Board may reach this conclusion if it finds that:
            (a) If the applicant complies with the provisions of this Ordinance, he can make no reasonable use of his property;
            (b) The hardship of which the applicant complains results from unique circumstances related to the applicant's property;            (c) The hardship results from the application of the Ordinance to the property; and
            (d) The hardship is not the result of the applicant's own actions.
        (2) The variance is in harmony with the general purpose and intent of the Ordinance and preserves its spirit.
        (3) The granting of the variance assures the public safety and welfare and does substantial justice.

In reviewing a board of adjustment's decision, the trial court sits as an appellate court and is responsible for the following:
        (1) Reviewing the record for errors of law,
        (2) Insuring that procedures specified by law in both statutes and ordinances 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.

JWL Invs., Inc. v. Guilford County Bd. of Adjust., 133 N.C. App. 426, 428-29, 515 S.E.2d 715, 717 (1999). If a petitioner argues a board of adjustment committed an error of law, the trial court reviews the board's decision de novo. Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjust., 140 N.C. App. 99, 102, 535 S.E.2d 415, 417 (2000). “However, if a petitioner contends [a board's] decision was not supported by the evidence or was arbitrary and capricious, then the reviewing court must apply the 'whole record' test.” Id. Under the whole record test, a court is required to examine all competent evidence in the record to determine if the board's decision was supported by substantial evidence. Brooks v. Ansco & Associates., Inc., 114 N.C. App. 711,716, 443 S.E.2d 89, 92 (1994). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” SBA, Inc. v. City of Asheville City Council, 141 N.C. App. 19, 26, 539 S.E.2d 18, 22 (2000)(internal quotation marks and citations omitted).
    On appeal, this Court reviews the trial court's judgment for errors of law. In re Appeal of Willis, 129 N.C. App. 499, 502, 500 S.E.2d 723, 726 (1998). Our review “'has been described as a two-fold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.'” Id. (quoting Act-Up Triangle v. Comm'n for Health Servs., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)).     In the instant case, although the trial court applied the whole record test, it failed to properly apply the test to the board's determination that compliance with the ordinance would work an unnecessary hardship by rendering the church unable to make reasonable use of lots 1 and 2. “[A]n 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 of private ownership.'” Showcase Realty & Const. Co. v. City of Fayetteville Bd. of Adjust., 155 N.C. App. 548, 553, 573 S.E.2d 737, 741 (2002) (quoting Williams v. N.C. Dep't of Env't & Natural Res., 144 N.C. App. 479, 486, 548 S.E.2d 793, 798 (2001)). “[T]he Board must make findings of fact and conclusions of law as to the 'impact of theordinance on [an applicant's] ability to make reasonable use of his property.'” Id. (quoting Williams, 144 N.C. App. at 487, 548 S.E.2d at 798).
    The board made the following finding, “If the applicant complies with the provision of the ordinance, he or she can make no reasonable use of the property because the uses of the property are limited by the topographical features of the property and by the lack of access options[.]” However, contrary to this finding and the board's decision, the uncontroverted evidence shows the church was able to make reasonable use of its property without the variance. The church, prior to seeking the variance, submitted a plan proposing access to the parking lot via a driveway leading to Muirs Chapel Road. The planning department approved this plan and the G-DOT concluded that the driveway met its safety requirements. Moreover, at the board hearing, the church conceded a driveway from Muirs Chapel Road eastward across lot 2 would provide access to the parking lot. The church merely argued Benway Place would provide “the most reasonable” access and access from Muirs Chapel Road would involve “several complications,” specifically that: (1) “the church would be required to construct and maintain a driveway separate and apart from Benway Place”; (2) the “long driveway” would run near the residence located in the western portion of lot 2 and behind residences to the south of lot 2; and (3) the driveway's location, 150 feet from a signal-light intersection, would create traffic and pedestrian flow problems. These alleged “complications” do not render the church unable to make reasonableuse of lots 1 and 2. Nor do the “complications” constitute an unnecessary hardship such that requiring the church to comply with the ordinance would be an arbitrary and capricious interference with the church's private ownership rights.
    In sum, no substantial evidence in the record supports the board's finding and decision that the church would be prevented from making reasonable use of lots 1 and 2 absent a variance. Rather, uncontroverted evidence and the church's own evidence establishes that the church could safely make reasonable use of lots 1 and 2 via a driveway from Muirs Chapel Road in compliance with the Greensboro Ordinance. Accordingly, we hold the trial court erred in affirming the board's grant of a variance to the church.
    For the foregoing reasons, we reverse the trial court's judgment affirming the board's grant of a variance and remand the case to the trial court for further remand to the board for entry of a decision denying a variance. Having so held, we need not address petitioner's remaining assertions.
    Reversed and remanded.
    Judges HUNTER and JACKSON concur.
    Report per Rule 30(e).

Footnote: 1
     As defined in Greensboro Ordinance § 30-2-2.12, “[m]inor thoroughfares collect traffic from collector, subcollector, and local streets and carry it to the major thoroughfare system. Minor thoroughfares may be use to supplement the major thoroughfare system by facilitating movement of moderate volumes of traffic within and through urban areas and may also serve abutting property.”
Footnote: 2
     Under the Greensboro Ordinance § 30-2-2.12, a “stub street” is “[a] street having one (1) end open to traffic, but which is neither a cul-de-sac street nor a permanent dead-end street.”
Footnote: 3
     We agree with the parties that this ordinance applies to the church's development of the parking lot.

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