An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1118


Filed: 18 July 2006


v .                         Orange County
                            No. 04 CVS 1850

    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.

    BRYANT, Judge.

    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.
Procedural History

    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 findings.
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 Constr. Co., 272 N.C. 715, 718, 158 S.E.2d 887, 890 (1968). Judicial review of the decision of the quasi-judicial body is limited to:
        (1)    Reviewing the record for errors in 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.

Coastal Ready-Mix Concrete Co. v. Bd. of Comm'rs of Nags Head, 299 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 Jacksonville, 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 decision. Id. 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 floodplain; and

            (2.)    That a failure to grant the variance would result in extreme hardship.

        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 the [RCD].

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; or

        C.    result in significantly increased erosion, significant additional threats to public safety; or

        D.    result in significant threats to water quality; or

        E.    result in the removal of significant wildlife habitat; or

        F.    result in extraordinary public expense; or

        G.    result in public nuisance; or

        H.    impede the provision of greenway paths called for by the Town's Greenway Plan; or

        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 the Board 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).

*** Converted from WordPerfect ***