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1. Zoning--denial of request for variance--whole record test--substantial competent evidence
A whole record test revealed that the trial court did not err by concluding that the Board of Adjustment's denial of petitioners' request for a zoning variance was not supported by substantial competent evidence, because: (1) the Board's finding that the Unified Development Ordinance is unambiguous was not supported by substantial competent evidence; and (2) the Board's remaining findings of fact, that the Certificate of Zoning Compliance stated on its face that the setback requirement was twenty-five feet and that petitioner built a house with a setback of approximately sixteen feet, are insufficient to constitute such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
2. Zoning--denial of request for variance--whole record test--arbitrary and capricious
A whole record test revealed that the trial court did not err by concluding that the Board of Adjustment acted arbitrarily and capriciously when it denied petitioners' request for a zoning variance, because: (1) when a Board action is unsupported by competent substantial evidence, such action must be set aside as arbitrary; and (2) the Court of Appeals has already determined that the Board's action was unsupported by competent substantial evidence.
3. Zoning--variance--error to address ordinance
The part of the trial court's order stating that the Board of Adjustment's denial of a variance was inconsistent with the Town's Unified Development Ordinance. and its finding of fact number 5, are both error because the construction of the Unified Development Ordinance is not properly before the Court of Appeals, nor was it properly before the trial court sitting as an appellate court, when the courts only have the power to determine whether the variance was properly granted or denied.
4. Zoning--variance--issuance by Board of Adjustment and not by trial court
The trial court did not have power to actually issue a zoning variance itself, and the proper course for a trial court when sitting in an appellate role is to remand to the Board of Adjustment with instructions to issue the variance in accordance with N.C.G.S. § 160A-388(d).
Michael B. Brough, for respondent.
Van Camp, Meachem & Newman, PLLC, by Thomas M. Van Camp, for petitioner.
Carl Gallimore (Gallimore) is the owner of Stealth Properties, LLC d/b/a Advantage Plus Housing (Stealth) (together, petitioner). Petitioner bought property in the Town of Pinebluff, intending to build a modular home on the site for resale. Petitioner believed its property to be zoned R-20; the property is actually zoned R-30. This distinction is important, because while the sixteen foot setback proposed by petitioner in its plans met the fifteen foot requirement of an R-20 zone, it did not meet the twenty-five foot requirement of an R-30 zone.
On 7 May 2004, petitioner submitted an Application for Certificate of Zoning Compliance. On the application, petitioner listed the setbacks as sixteen feet. Stephen Minks (Minks), who serves as the town's director of public works, planner, zoning administrator, and chief building inspector, did not sign and approve the application. However, Minks did issue a Certificate of Zoning Compliance three days later. The Certificate of Zoning Compliance, as issued, indicates that the property was zoned R-30 and that the setbacks were to be twenty-five feet. There appears to be conflicting evidence on whether petitioner ever read the certificate or was otherwise made aware of these requirements.
After receiving the Certificate of Zoning Compliance, petitioner began building. Over the course of the project, the site was inspected numerous times. At no time was petitioner toldto stop construction or that the project did not comply with the requirements listed in the Certificate of Zoning Compliance. Upon completion of the modular home, however, petitioner was denied its request for a Certificate of Occupancy as a result of its failure to meet the twenty-five foot setback requirement of the R-30 zone. Petitioner applied to the Pinebluff Board of Adjustment (the Board) for a variance, and on 24 May 2005, the Board held a hearing on the matter. The record is unclear as to exactly what occurred at the hearing; though the hearing should have been recorded, the recorder was incorrectly operated and no recording was made. The minutes of the hearing, while initially included in the record, were deleted at petitioner's request. Accordingly, this Court will not consider the information contained therein. However, it is undisputed that the Board issued an order on 3 June 2005. In its order, the Board found as fact (1) that the Unified Development Ordinance is unambiguous in stating that the property is zoned R-30 and requires twenty-five foot setbacks; (2) that the Certificate of Zoning Compliance stated on its face that the setback requirement was twenty-five feet; (3) that petitioner built a house with a setback of approximately sixteen feet. The Board concluded that it could not find that the hardship [petitioner] complain[ed] of [was] not the result of [petitioner's] own actions, as required to issue the variance. The Board therefore denied the variance.
Petitioner appealed the Board's decision to the trial court, which on 27 February 2006 issued a judgment overruling the Board's decision. It is from this judgment that the Board now appeals.  The Board first argues that the trial court erred in concluding that the Board's denial of the variance was not supported by substantial competent evidence.
On appeal from a superior court's review of a municipal zoning board of adjustment, this Court's standard of review is limited to (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly. In our review of a Superior court's order regarding a zoning board of adjustment's decision, the scope of our review is the same as that of the trial court.
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