Link to original WordPerfect file
Link to PDF file
How to access the above link?
Return to nccourts.org
Return to the Opinions Page
All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
SCOTT TURIK, D.D.S., MARY S. TUCKER, LANA S. WARLICK, and
husband, ROBERT WARLICK, Petitioners v. TOWN OF SURF CITY and
TOWN OF SURF CITY BOARD OF ADJUSTMENT, Respondents
Filed: 3 April 2007
1. Zoning--variance--whole record test--findings of fact
The superior court properly applied the whole record test and did not substitute its
judgment for that of the Board of Adjustment when it affirmed respondent Board's granting of a
zoning variance of approximately 7.2 inches to the Hunters where the court essentially repeated
the Board's findings and summarized the procedural history of the case.
2. Zoning--variance--literal enforcement would result in unnecessary hardship
The superior court did not err by upholding a zoning variance even though petitioners
contend respondent Board of Adjustment's decision was arbitrary and capricious, and
unsupported by competent evidence in the record, because there was sufficient evidence in the
record to support the Board's finding that literal enforcement of the ordinance would result in an
unnecessary hardship for the Hunters when: (1) only after the construction permit was granted
and construction had begun were the Hunters notified that there was a possible discrepancy
between the property lines indicated by their survey and the property lines indicated by their
neighbor's survey; (2) there was no indication that granting the variance would harm neighboring
properties or structures, nor would the variance give any special privileges to the Hunters; and (3)
the Board followed the procedures for granting a variance as outlined in the ordinance.
3. Zoning--variance--strict application of ordinance--pecuniary loss an unnecessary
The superior court did not err by concluding the Board of Adjustment's decision
regarding whether strict application of the ordinance would create an unnecessary hardship to the
Hunters was not based solely upon the potential pecuniary loss to the Hunters, because: (1) to
determine whether a parcel of property suffers from unnecessary hardship, findings of fact and
conclusions of law must be made as to the impact of the ordinance on the landowner's ability to
make reasonable use of his property; (2) there was no testimony that neighboring property would
be damaged if the variance was granted for 7.2 inches; (3) there was no independent
circumstances which may have made it difficult to conduct an accurate survey of the Hunters'
property or any showing that the Hunters' survey was in fact inaccurate; (4) the Board considered
other factors in addition to the apparent pecuniary loss the Hunters would suffer if their variance
request was denied; (5) the Hunters followed the necessary procedures to obtain a building
permit before they began construction on their property and the hardship that the Hunters faced
was not one of their own making; and (6) the variance requested by the Hunters was not directly
contrary to the ordinance and did not conflict with the general purpose of the ordinance.
Judge JACKSON concurring in a separate opinion.
Appeal by petitioners from order entered 1 December 2005 by
Judge Jay D. Hockenbury in Pender County Superior Court. Heard in
the Court of Appeals 13 September 2006.
Robert W. Kilroy for petitioners-appellants.
Lanier & Fountain, by Charles S. Lanier and Trey Carter, for
Scott Turik, Mary S. Tucker, Lana S. Warlick and Robert
Warlick (collectively petitioners) appeal from a judgment
affirming the Order of the Town of Surf City Board of Adjustment
(the Board) granting a variance of approximately 7.2 inches to
Lloyd D. Hunter and Milton R. Hunter (the Hunters). We affirm.
The Hunters are owners of property located at 1220 South Shore
Drive, Surf City, North Carolina. The Hunters hired Charles F.
Riggs & Associates, Inc. to conduct a survey of the property in
preparation for a construction project. According to the survey,
the proposed construction complied with zoning requirements. The
property is zoned R-10 and subject to a setback of 7.5 feet. The
Hunters submitted the survey along with an application for a
building permit to the Town of Surf City (Surf City). On 8
November 2004, Surf City issued the Hunters a building permit for
construction of a duplex (the Hunters' duplex) on the property.
After the Hunters began construction, Mary S. Tucker (Ms.
Tucker), the owner of the adjacent property, notified the Surf
City Inspections Department (the Inspections Department) that the
piling for the Hunters' duplex did not comply with the setback
requirements for R-10 zoned property. Ms. Tucker also submitted a
survey to the Inspections Department that was prepared in 1993 by
John Pierce (Pierce), a licensed surveyor. The property lines on
the survey Ms. Tucker submitted differed from the property lines on
the survey the Hunters submitted with their construction permit
application. Subsequently, Ms. Tucker hired Pierce to conduct
another survey of the Hunter property. Pierce's new surveydiffered from both the 1993 survey and the Hunters' survey.
On 21 February 2005, Charles F. Riggs (Mr. Riggs) and Wilman
Keith Andrews filed an Application for Variance Request on behalf
of the Hunters and requested a variance of approximately 7.2 inches
from the setback requirements. On 29 March 2005, the Board granted
the variance request. Pursuant to N.C. Gen. Stat. § 160A-388(e2),
the petitioners filed a petition for writ of certiorari for
judicial review of the Board's decision. On 1 December 2005, the
superior court affirmed the Board's decision determining that the
decision was not arbitrary and capricious and was supported by
substantial and competent evidence in the whole record.
On review of a superior court order regarding a board's
decision, this Court examines the trial court's order for error[s]
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 Cty. Zoning Bd. of Adjustment, 148
N.C. App. 52, 55, 557 S.E.2d 631, 634 (2001). When reviewing a
decision of a municipal board 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.
Knight v. Town of Knightdale, 164 N.C. App. 766, 768, 596 S.E.2d
881, 883 (2004) (citations omitted). The Board sits as the fact
finder, and the Superior Court reviews the Board's findings as anappeals court. 321 News & Video, Inc. v. Zoning Bd. of Adjustment,
174 N.C. App. 186, 188, 619 S.E.2d 885, 886 (2005).
When the petitioner questions (1) whether the agency's
decision was supported by the evidence or (2) whether the decision
was arbitrary or capricious, then the reviewing court must apply
the whole record test. Mann Media, Inc. v. Randolph Cty. Planning
Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002)(quotations and
citations omitted). This Court is to inspect all of the competent
evidence which comprises the 'whole record' so as to determine
whether there was indeed substantial evidence to support the
Board's decision. Showcase Realty and Constr. Co. v. City of
Fayetteville Bd. of Adjust., 155 N.C. App. 548, 550, 573 S.E.2d
737, 739 (2002). Substantial evidence is that which a reasonable
mind would regard as adequately supporting a particular
conclusion. Id. However, if a petitioner contends the board's
decision was based on an error of law, 'de novo' review is proper.
Mann Media, 356 N.C. at 13, 565 S.E.2d at 17 (citations and
quotations omitted). Under a de novo review, the superior court
considers the matter anew and freely substitutes its own judgment
for the agency's judgment. Id. (citations and quotations
I. Whole Record Test
 Petitioners argue that the superior court impermissibly
made its own findings of fact when affirming the Board's decision
to grant the variance request. We disagree.
The superior court reviewed the Board's decision by applying
the whole record test. The 'whole record' test does not allow the
reviewing court to replace the [Board's] judgment as between two
reasonably conflicting views, even though the court couldjustifiably have reached a different result had the matter been
before it de novo. Piney Mt. Neighborhood Assoc. v. Town of
Chapel Hill, 63 N.C. App. 244, 257, 304 S.E.2d 251, 258 (1983).
Further, whether the superior court substituted its judgment for
that of the [Board] could not be determinative of the review by
this Court, for our task is to review the [Board's] action, not
that of the superior court . . . . Id., 63 N.C. App. at 257, 304
S.E.2d at 259. In this case, the superior court did not substitute
its own judgment for that of the Board's, but essentially repeated
the Board's findings and summarized the procedural history of the
II. Surf City Zoning Ordinance
 Petitioners next argue that the superior court erred in
upholding the zoning variance because the Board's decision was
arbitrary and capricious and was unsupported by competent evidence
in the record. We disagree.
The record indicates the testimony before the Board included
testimony from Steve Padgett, a Surf City Building Inspector, Mr.
Riggs, and Ms. Tucker. Mr. Padgett testified that the survey
submitted with the Hunters' construction permit application
complied with the setback requirements for R-10 zoned property.
After construction began, Ms. Tucker informed Mr. Padgett that the
pilings for the duplex appeared to be too close to the property
line. After Ms. Tucker submitted a survey showing conflicting
property lines, Mr. Padgett stopped the construction on the
Mr. Riggs testified that he conducted a survey of the Hunters'
property before the construction project began, and the survey did
not reveal any discrepancies regarding the property line. Mr.Riggs also testified that he was one hundred percent confident
that the survey he conducted was accurate.
During Ms. Tucker's testimony, she read a letter from Scott
Turik (Mr. Turik), an adjacent landowner. In the letter, Mr.
Turik stated that the Hunters' property was subject to a deed
restriction which prohibited construction of a duplex on the
property. Mr. Turik stated that he agreed not to oppose the
construction of a duplex on the condition that the required
setbacks were not changed. During the remainder of Ms. Tucker's
testimony, she stated that after she notified the Inspections
Department that the pilings for the duplex appeared to be too close
to the property line, the Hunters attempted to reach a compromise
with her regarding the property line. However, no compromise was
reached. Ms. Tucker never testified about the effect the variance
would have on her property. Specifically, there was no testimony
that granting the variance would adversely affect the use of her
property or any other properties.
The Surf City Zoning Ordinance (the Ordinance) provides for
a variance when owing to special conditions a literal enforcement
of the provisions of [the] ordinance would result in unnecessary
hardship. The Ordinance further requires the Board to make the
following findings of fact:
a) That special conditions and circumstances
exist which are peculiar to the land,
structure, or building involved and which
are not applicable to other land,
structures or buildings in the same
b) That literal interpretation of the
provisions of this ordinance would
deprive the applicant of rights commonly
enjoyed by other properties in the same
district under the terms of this
c) That the special conditions and
circumstances do not result from the
actions of the applicant;
d) That granting the variance requested will
not confer on the applicant any special
privilege that is denied by this
ordinance to other land, structures or
buildings in the same district. [R.p.52]
In it's decision, the Board made the following relevant findings:
12. That conditions and circumstances exist
which are peculiar to the [Hunters']
property in that a boundary line dispute
does not exist between other landowners
in the same district. That other
structures in this district have been
constructed with no conflicting surveys
which creates a unique situation with
13. That the special conditions and
circumstances of the (sic) this case do
not result from the actions of the
[Hunters] in that they obtained a valid
survey from a surveyor licensed by the
State of North Carolina and obtained all
applicable permits to construct the
duplex on their property.
14. That no special privilege is being
granted to the [Hunters] in that the
neighboring property (the Tucker
Property) has experienced the same type
of setback encroachment since 1993.
15. That the literal interpretation of the
said setback requirement would deprive
the [Hunters] of their property rights in
common and enjoyed by others in the same
zoning district in that other property
owners are allowed to build on their
property upon obtaining building permits
issued by the Town pursuant to a valid
survey and application for a building
16. That the conflicting surveys have created
an unnecessary hardship if the [Hunters]
were required to demolish or
substantially alter the existing
structure which was built by them in good
faith and in reliance on their existing
After reviewing the whole record, we hold there is sufficient
evidence in the record to support the Board's finding that literal
enforcement of the Ordinance would result in an unnecessary
hardship for the Hunters.
Prior to beginning construction, the Hunters hired Mr. Briggs
to conduct a survey of the property. Mr. Briggs' survey did not
indicate any discrepancies regarding the Hunters' property lines.
Based on Mr. Briggs' survey, the Hunters applied for a construction
permit to build a duplex on their property. Only after the
construction permit was granted and construction had begun were the
Hunters notified that there was a possible discrepancy between the
property lines indicated by their survey and the property lines
indicated by Ms. Tucker's survey. Because of the conflicting
surveys and because the Hunters and Ms. Tucker were unable to reach
a compromise, the Hunters requested a variance of approximately 7.2
inches. This variance would allow the Hunters to continue their
construction project that was started only after obtaining a
legitimate construction permit. Further, there was no indication
that granting the variance would harm neighboring properties or
structures, neither would the variance give any special privileges
to the Hunters. Based upon the evidence in the whole record, the
superior court was correct in affirming the order of the Board
because the Board's decision was not arbitrary or capricious and
was supported by competent evidence.
Additionally, it is clear from the record that the Board
followed the procedures for granting a variance as outlined in the
Ordinance. The Board heard testimony from individuals who opposed
the variance as well as those who supported the variance. Further,the Board reviewed relevant documents and made findings required by
III. Pecuniary Loss as Unnecessary Hardship
 Petitioners next argue that the Board's decision regarding
whether strict application of the Ordinance would create an
unnecessary hardship to the Hunters was based solely upon the
potential pecuniary loss to the Hunters and that basis is
insufficient to grant a variance. We disagree.
[I]n the context of zoning, . . . pecuniary loss alone is not
enough to show an 'unnecessary hardship' requiring a grant of a
variance. Williams v. N.C. Dep't of Env't & Natural Res.
N.C. App. 479, 486, 548 S.E.2d 793, 798 (2001) (citations omitted).
This Court noted in Williams
that the Virginia Supreme Court has
also held that financial loss alone is insufficient to grant a
variance, but it is a factor or an element to be taken into
consideration and should not be ignored. Id.
held that to determine whether a parcel of property suffers from
unnecessary hardship . . . findings of fact and conclusions of law
[must be made] as to the impact of the [ordinance] on the
landowner's ability to make reasonable use of his property. Id.
at 487, 548 S.E.2d at 798.
This rule was recently applied in Showcase Realty
. In that
the property owner obtained a special use permit to build a
storage facility on his land. Id.
at 549, 573 S.E.2d at 738. The
property owner's site plan provided for a front setback of 50 feet
and a side setback of 30 feet as required by the City of
Fayetteville Zoning Ordinance. Id.
at 549, 573 S.E.2d at 739.
Before the property owner began construction, the City of
Fayetteville's Inspection Department (Inspection Department)conducted an on-site investigation and approved the location where
the concrete slabs were to be poured. Id.
During a subsequent
inspection, the Inspection Department questioned the distance from
the construction site to the road. Id.
investigation, it was discovered that the construction site did not
comply with the required setbacks. Id.
The Inspection Department
found that the front setback was only 25 feet and the
was only 29 feet. Id.
Based on the Inspection Department's
findings, the property owner requested a zoning variance. The
variance was granted by the Board of Adjustment and affirmed by the
The petitioner, a neighboring property owner,
appealed to this Court. After conducting a whole record review,
this Court reversed the Board's decision and concluded that there
was insufficient evidence to support the Board's finding of
unnecessary hardship. Id.
at 553, 573 S.E.2d at 741. This Court
noted that the only evidence of unnecessary hardship to the
property owner was the pecuniary loss he would suffer by relocating
the concrete slabs in order to continue the construction project.
is distinguishable from the case before us for
several reasons. Most notably, the variance requested in Showcase
was for a variance of 25 feet. The variance requested in
the case sub judice
was only for a variance of approximately 7.2
inches. Also, in Showcase Realty
, the adjoining property owner
testified that allowing the variance would cause not only a loss of
property value but also damage to his property. There was no
testimony in the case sub judice
that neighboring property would be
damaged if the variance was granted. Further, the testimony in
indicated that it was difficult to determine thelocation of the shoulder of the road at the time of the initial
inspection because of the road construction. In the case before
us, there were no independent circumstances which may have made it
difficult to conduct an accurate survey of the Hunters' property or
any showing that the Hunters' survey was in fact inaccurate.
Additionally, unlike Showcase Realty
, the Board in the case before
us considered other factors in addition to the apparent pecuniary
loss the Hunters would suffer if their variance request was denied.
The case before us is also distinguishable from other cases in
which our Courts have affirmed an order denying a variance request.
In Robertson v. Zoning Bd. of Adjust. for City of Charlotte
N.C. App. 531, 605 S.E.2d 723 (2004), this Court affirmed an order
denying the petitioners' variance request where the petitioners
created their own hardship by not requesting a sixty-percent
variance before building a fence and the petitioners' hardship was
personal in nature because it arose out of a dispute between
at 535, 605 S.E.2d at 726. Likewise, in Donnelly
v. Bd. of Adjustment of the Village of Pinehurst
, 99 N.C. App. 702,
394 S.E.2d 246 (1990), this Court affirmed the denial of a variance
request where the petitioner requested a variance after he built a
fence on his property and a variance allowing the fence to remain
on the petitioner's property was directly contrary to the
applicable zoning ordinance. Id.
at 708, 394 S.E.2d at 250. In
the case before us, the Hunters followed the necessary procedures
to obtain a building permit before they began construction on their
property and the hardship that the Hunters faced was not one of
their own making. Further, the variance requested by the Hunters
was not directly contrary to the Ordinance and did not conflict
with the general purpose of the Ordinance. Upon thorough review of the whole record, we hold the Board's
decision was based upon competent evidence and was not arbitrary or
capricious. The Order of the Board is affirmed.
Because petitioners failed to present any authority in support
of assignments of error numbered VII and XI, these assignments of
error are deemed abandoned pursuant to N.C. R. App. P. 28(b)(6)
Judge GEER concurs.
Judge JACKSON concurs in a separate opinion.
JACKSON, Judge concurring in a separate opinion.
I concur with the majority's decision to affirm the instant
case. However, with respect to issue I, I believe that we must
reiterate to the court below that when a trial court reviews a
decision of a municipal board, it does so in the role of an
appellate court and may not make additional findings of fact. See
321 News & Video, Inc. v. Zoning Bd. of Adjust. of Gastonia, 174
N.C. App. 186, 188, 619 S.E.2d 885, 886 (2005). In the instant
case, the trial court made several additional findings of fact
which were not contained in the Board's decision, including:
4. That Charles F. Riggs & Associates, Inc.
is a licensed professional land surveyor.
. . . .
10. That Tucker submitted to the Town of Surf
City a survey which was prepared in 1993
by a licensed professional land surveyor
John Pierce, which survey conflicted with
the recent survey submitted by the
Hunters with their application for a
(See footnote 1)
. . . .
13. That there are three different surveys
done by two different licensed
professional land surveyors which each
show a different property line between
the subject property and the adjoining
property, and the exact location of the
property line cannot be determined.
. . . .
15. That the cantilever of the residence
located on the adjoining property owned
by Tucker encroaches two (2) feet within
the sideline setback for the subject
Although these additional findings of fact are not contrary to the
findings of the Board, nor do they alter the outcome of this case,
they still are improper. However, as our task is to review the
Board's decision, not that of the superior court, I would hold that
the additional findings of fact, while improper, do not affect the
ultimate result. See Piney Mt. Neighborhood Assoc. v. Town of
Chapel Hill, 63 N.C. App. 244, 257, 304 S.E.2d 251, 259 (1983)
(Court affirmed action made by Town Council even when trial court
made additional findings of fact which may have been contrary to
those made by the Council, but did not substitute its judgment for
that of the Council); cf. Batch v. Town of Chapel Hill, 326 N.C. 1,
387 S.E.2d 655 (1990) (Court reversed decision of trial court where
it made additional findings which were contrary to that of the town
council). Therefore, I concur in the majority's decision to affirm
the Order of the Board.
Bolded text indicates portion of finding that is in
addition to findings of the Board.
*** Converted from WordPerfect ***