NORTH CAROLINA COURT OF APPEALS
Filed: 18 July 2006
CHAPEL HILL TITLE AND
ABSTRACT CO., INC., and
JONATHAN STARR and wife,
No. 04 CVS 1850
TOWN OF CHAPEL HILL and
the TOWN OF CHAPEL HILL
BOARD OF ADJUSTMENT,
Appeal by petitioners from an order entered 21 April 2005 by
Judge J.B. Allen, Jr. in Orange County Superior Court. Heard in
the Court of Appeals 10 April 2006.
The Brough Law Firm, by Michael B. Brough and William C.
Morgan, Jr., for petitioner-appellants.
Coleman, Gledhill, Hargrave & Peek, P.C., by Geoffrey E.
Gledhill and Shanda S. Setzer, and Chapel Hill Town Attorney
Ralph D. Karpinos for respondent-appellees.
Petitioners Chapel Hill Title and Abstract, Co., Inc. and
Jonathan and Lindsay Starr appeal from an order entered 21 April
2005 by the Honorable J.B. Allen, Jr. in Orange County Superior
Court affirming the denial of a variance from provisions of the
Chapel Hill Zoning Ordinance. We find the denial of the variance
request was not supported by sufficient findings to permit judicial
review and we reverse and remand for further findings.
Petitioner Chapel Hill Title and Abstract Co., Inc. is the
owner of an undeveloped lot, approximately .60 acres in size,
located at 901 Coker Drive in Chapel Hill, North Carolina (the
Property). Petitioners Jonathan and Lindsay Starr have entered
into a contract to purchase the Property, contingent upon
obtaining a variance from the Board of Adjustment.
Respondent Town of Chapel Hill has adopted and enforces a Land
Use Management Ordinance (the Ordinance). Section 3.6.3 of the
Ordinance creates an overlay zoning district within the Town's
zoning jurisdiction called the Resource Conservation District
(RCD). Chapel Hill, N.C., Land Use Mgmt. Ordinance § 3.6.3 (2004).
The RCD is applied to areas within and along watercourses within
the Town's planning jurisdiction and essentially prohibits
development of any above-ground structure in this area.
Petitioners sought a variance from the Ordinance to build a home on
the Property in the RCD but were denied by the Town of Chapel Hill
Board of Adjustment (the Board). The Board's decision was affirmed
by the Orange County Superior Court.
Prior to petitioners' instant variance application, the
current and previous owners of the Property applied for a variance
with the Board three times (2 October 1995, 7 July 1998, and 8
August 2000). Each previous application was either withdrawn by
the owner of the Property or denied by the Board. Petitioners
commenced this action on 29 June 2004 when they applied for avariance from the Board. The Board addressed the issue on 1
September 2004 and failed to grant a variance.
As provided by N.C. Gen. Stat. § 160A-388(e), the concurring
vote of four-fifths of the Board members was required to grant a
variance. N.C. Gen. Stat. § 160A-388(e) (2005). Two resolutions
were presented to the Board, one granting and one denying the
variance. The Board voted five for and five against the adoption
of a resolution denying a variance and then voted five for and five
against the adoption of a resolution granting the variance. Thus,
petitioners fell short of the four-fifths vote required to obtain
a variance, and the requested variance was denied without the
adoption of a resolution by the Board.
On 28 September 2004, petitioners filed a Petition for Review
in the Nature of Certiorari which was granted on 29 September 2004.
A hearing was held in Orange County Superior Court on 21 March 2005
and the trial court entered an Order on 21 April 2005 affirming the
Board's decision. Petitioners appeal.
Petitioners raise two issues on appeal: (I) whether the trial
court erred in affirming the Board's decision because it was not
based on competent, material, and substantial evidence; and (II)
whether the trial court erred in affirming the Board's decision
because it was legally erroneous. For the reasons below, we cannot
adequately address these issues and must remand for further
Standard of Review
A board of adjustment acts in a quasi-judicial capacity when
reviewing variance applications so as to prevent injustice by a
strict application of a zoning ordinance. Application of Rea
, 272 N.C. 715, 718, 158 S.E.2d 887, 890 (1968).
Judicial review of the decision of the quasi-judicial body is
(1) Reviewing the record for errors in law,
(2) Insuring that procedures specified by law
in both statute and ordinance are
(3) Insuring that appropriate due process
rights of a petitioner are protected
including the right to offer evidence,
cross-examine witnesses, and inspect
(4) Insuring that decisions of town boards
are supported by competent, material and
substantial evidence in the whole record,
(5) Insuring that decisions are not arbitrary
Coastal Ready-Mix Concrete Co. v. Bd. of Comm'rs of Nags Head
N.C. 620, 626, 265 S.E.2d 379, 383, reh'g denied
, 300 N.C. 562, 270
S.E.2d 106 (1980). Generally, our case law requires some statement
of facts upon which a reviewing court can determine the basis for
its decision. See Through the Looking Glass, Inc. v. Zoning Bd. of
Adjustment for Charlotte
, 136 N.C. App. 212, 523 S.E.2d 444 (1999)
(holding the board's denial of a request for a variance must
contain sufficient findings and conclusions to enable the reviewing
court to adequately determine whether the board's decision is
supported by competent, material and substantial evidence orwhether it was arbitrary and capricious); Crist v. City of
, 131 N.C. App. 404, 405, 507 S.E.2d 899, 900 (1998)
(The reviewing court does not make findings of fact, but instead,
determines whether the Board of Adjustment made sufficient findings
of fact which are supported by the evidence before it.); Shoney's
of Enka, Inc. v. Bd. of Adjustment for Asheville,
119 N.C. App.
420, 458 S.E.2d 510 (1995) (holding that inadequate findings of
fact prevented a proper judicial review of a variance request).
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. Deffet Rentals Inc.
v. City of Burlington
, 27 N.C. App. 361, 364, 219 S.E.2d 223, 226
(1975) (citing Application of Campsites Unlimited, Inc.
, 287 N.C.
493, 215 S.E.2d 73 (1975)). Findings of fact provide a safeguard
against arbitrary action by the board of adjustment by providing a
sufficient record upon which this Court can review the board's
at 365, 219 S.E.2d at 226-27. [A]ction[s] by
zoning boards in allowing or denying
the application of use permits
require the [B]oard to state the basic facts on which it relied
with sufficient specificity to inform the parties, as well as the
court, what induced its decision. Id.
(emphasis added) (citing
Humble Oil & Ref. Co. v. Bd. of Aldermen of Chapel Hill
, 284 N.C.
458, 202 S.E.2d 129 (1974)).
Cause for Remand
In the case before us, we are unable to review the Board's
decision because it has failed to set out specific findings which
justify its decision. The Chapel Hill Land Use Management
Ordinance states that the Board of Adjustment must make required
findings to grant a variance:
A. The review of the Board of Adjustment
shall extend to the entire zoning lot
that includes area within the [RCD]. The
Board of Adjustment shall grant a
variance, subject to the protections of
this Article, if it finds:
(1.) That the provisions of this
Article leave an owner no
legally reasonable use of the
portion of the zoning lot
outside of the regulatory
(2.) That a failure to grant the
variance would result in
B. In making such findings, the Board of
Adjustment shall consider the uses
available to the owner of the entire
zoning lot that includes the area within
Chapel Hill, N.C., Land Use Mgmt. Ordinance § 3.6.3(j)(2) (2004).
The owner of the property applying for the variance has the burden
of establishing that a variance should be granted by the Board.
Chapel Hill, N.C., Land Use Mgmt. Ordinance § 3.6.3(j)(6) (2004).
However, a showing that the portion of the [RCD] outside of a
regulatory floodplain overlays more than seventy-five percent (75%)
of the area of a zoning lot, shall establish a rebuttable
presumption that the [RCD] leaves no legally reasonable use of thezoning lot outside of the regulatory floodplain. Chapel Hill,
N.C., Land Use Mgmt. Ordinance § 3.6.3(j)(7) (2004).
Nonetheless, the Board may refuse to grant any variance if it
finds that the owner of a lot, or any predecessor in interest, . .
. has otherwise acted in an attempt to avoid or evade the
provisions or intent of the [RCD]. Chapel Hill, N.C., Land Use
Mgmt. Ordinance § 3.6.3(j)(5) (2004). Further, the Board shall not
grant any variance if it finds that such a variance would:
A. result in any increased regulatory
floodway water surface elevation during
the base flood discharge as certified by
a registered professional engineer; or
B. result in significantly increased
velocity of flow or deposit of sediment;
C. result in significantly increased
erosion, significant additional threats
to public safety; or
D. result in significant threats to water
E. result in the removal of significant
wildlife habitat; or
F. result in extraordinary public expense;
G. result in public nuisance; or
H. impede the provision of greenway paths
called for by the Town's Greenway Plan;
I. conflict with the provisions of any other
law or ordinance.
Chapel Hill, N.C., Land Use Mgmt. Ordinance § 3.6.3(j)(4) (2004).
In denying the variance, the Board of Adjustment did not
specifically state the findings on which it based its decision. The only findings before us are the summary of facts by the
Board's Chair at the conclusion of the variance hearing, the
comments of various Board members during the deliberations, and the
text of the two failed resolutions. The Board's findings, as
presented at the end of the variance hearing, merely summarize the
evidence presented to the Board and do not specifically address the
basic facts on which it relied to reach its decision.
Similarly, the Board members' comments during deliberations
cannot establish the Board's findings of fact because they were
merely deliberations before a final vote and were hardly unanimous.
Five members voted for the variance and five against, with both
sides presenting different arguments for and against the variance
during the deliberations. In addition, of the five Board members
voting against the granting of a variance, two did not speak at all
during the deliberations and another made only a factual statement,
not relaying his opinion on the issues. From these fractured
deliberations, this Court cannot decipher the findings that induced
the Board to deny the variance request.
Finally, this Court cannot infer the Board's findings from its
failed resolutions because the resolutions presented only two
findings of fact (reasonable use and hardship) and required the
voting Board members to adopt an either/or position: either the
Board found no legally reasonable use and hardship or
failed to find no legally reasonable use and hardship. This
fails to allow for the possibility of findings satisfying one of
the requirements but failing to meet the other. For example, Boardmembers could have found no legally reasonable use but no
hardship and thus voted to deny the variance, but this was not an
option based on the either/or nature of the resolutions.
We conclude that the findings presented by the Board are
insufficient for us to adequately determine whether its decision is
based upon facts which are supported by evidence in the record and
is not erroneous as to matters of law. The Board's failure to make
such findings makes it impossible to determine whether the variance
was properly denied. The order of the Superior Court affirming the
Board's decision is reversed, and the cause remanded to the
Superior Court for further remand to the Town of Chapel Hill Board
of Adjustment for further proceedings consistent with this opinion.
Reversed and remanded.
Chief Judge MARTIN and Judge HUDSON concur.
Report per Rule 30(e).
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