Capricorn Equity Corp. v. Town of Chapel Hill Bd. of Adjustment

• Decision Date: 02 July 1993
• Docket Number: No. 187PA92,187PA92
• Citation: 431 S.E.2d 183,334 N.C. 132
• Court: North Carolina Supreme Court
• Parties: , 83 Ed. Law Rep. 1161 CAPRICORN EQUITY CORPORATION, a North Carolina Corporation v. The TOWN OF CHAPEL HILL BOARD OF ADJUSTMENT.

Page 183

431 S.E.2d 183

334 N.C. 132, 83 Ed. Law Rep. 1161

CAPRICORN EQUITY CORPORATION, a North Carolina Corporation v. The TOWN OF CHAPEL HILL BOARD OF ADJUSTMENT.

No. 187PA92.

Supreme Court of North Carolina.

July 2, 1993.

On discretionary review of the decision of the Court of Appeals, 106 N.C.App. 134, 415 S.E.2d 752 (1992), reversing a judgment entered 20 February 1991 by Allsbrook, J., in the Superior Court, Orange County, which reversed respondent's decision affirming denial of building and zoning compliance permits to petitioner. Heard in the Supreme Court 15 February 1993.

Michael B. Brough & Associates by Michael B. Brough, Chapel Hill, for petitioner-appellant.

Ralph D. Karpinos, Chapel Hill Town Attorney's Office, Chapel Hill, for respondent-appellee.

PARKER, Justice.

The issues before the Court for review are (i) whether the Court of Appeals erred in remanding the case to superior court to make findings of fact and (ii) whether the superior court erred in reversing the decision of respondent board to deny petitioner's application for building and zoning compliance permits. The factual background of this action is as follows. In October 1989 petitioner applied to the Town of Chapel Hill Inspections Department for building permits to construct duplexes intended for occupancy by graduate students on Roberson Street in Chapel Hill, North Carolina ("Town"). Half of each duplex comprised about 3100 square feet and contained 6 bedrooms with 3 connecting bathrooms, a kitchen/dining area, and a great room. Town's planning director notified petitioner that the structures appeared to be rooming houses in violation of Town's zoning ordinance and that certificates of occupancy would not be issued. Petitioner made changes in the proposed leases to make all tenants jointly and severally liable for rent, reduced available parking spaces, and changed individual keyed locks on the bedroom doors to privacy locks. With these modifications, on 27 July 1990 certificates of occupancy for the Roberson Street duplexes were issued.

On 14 September 1990 petitioner applied for building and zoning compliance permits for three duplexes on Green Street; these duplexes are the subject of the instant action. Each affected half-acre lot was in an R-4 zoning district, within which duplexes are a permitted use. Chapel Hill, N.C., Development Ordinance art. 12, § 12.3 (1990). Each half of a duplex had a proposed floor area of about 3000 square feet, 6 bedrooms with 3 connecting bathrooms, a kitchen/dining area, and a great room. Although the Green Street structures were substantially similar to those on Roberson Street, Town's planning director determined that the Green Street structures constituted rooming houses. Approval of the structures as rooming houses would require site plan approval by the Planning Board and compliance with additional provisions of the Development Ordinance. On 10 October 1990 the town manager officially denied the permit requests on this basis.

Petitioner appealed the town manager's decision to respondent board; respondent heard the appeal on 5 December 1990. Respondent voted six to four to reverse the decision to deny the permits. Since a four-fifths majority vote was required to reverse, see N.C.G.S. § 160A-388(e) (Supp.1992), the decision to deny the permits stood.

Thereafter, petitioner sought judicial review by petitioning for a writ of certiorari to the superior court. The superior court issued its writ on 31 December 1990. In its judgment, the superior court concluded that the Green Street structures constituted duplexes and satisfied all applicable requirements for issuance of building and zoning compliance permits under Town's ordinance. The court concluded further that respondent's "decision affirming the town manager's interpretation of the development ordinance was erroneous as a matter of law." Thus the court ordered that respondent reverse the town manager's decision to deny permits.

Respondent appealed to the Court of Appeals, contending that (i) respondent correctly denied the permits because the proposed structures were rooming houses and not duplexes and (ii) the superior court erred in reversing respondent's decision interpreting Town's ordinance. The Court of Appeals addressed only the latter contention and stated that the superior court reversed respondent's decision on grounds that its interpretation of the ordinance was erroneous as a matter of law but failed to set forth any findings of fact in support of this conclusion or tending to show respondent's "decision was arbitrary, oppressive, or an abuse of authority." Capricorn Equity Corp. v. Town of Chapel Hill Bd. of Adjust., 106 N.C.App. 134, 138, 415 S.E.2d 752, 755, review allowed, 332 N.C. 482, 421 S.E.2d 350 (1992). The court remanded the case to the superior court with instructions to make adequate findings of fact establishing the erroneous nature of respondent's interpretation and decision and to "mold its findings to the language of the ordinance." Id. at 138-39, 415 S.E.2d at 755. This Court granted petitioner's petition for discretionary review on 10 October 1992.

Chapter 160A provides that every decision of a municipal board of adjustment "shall be subject to review by the superior court by proceedings in the nature of certiorari." N.C.G.S. § 160A-388(e) (Supp.1992). In proceedings of this nature,

the findings of fact made by the Board, if supported by evidence introduced at the hearing before the Board, are conclusive. In re Application of Hasting, 252 N.C. 327, 113 S.E.2d 433; In re Pine Hill Cemeteries, Inc., 219 N.C. 735, 15 S.E.2d 1. The matter is before the Court to determine whether an error of law has been committed and to give relief from an order of the Board which is found to be arbitrary, oppressive or attended with manifest abuse of authority. Durham County v. Addison, 262 N.C. 280, 136 S.E.2d 600; Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128. It is not the function of the reviewing court, in such a proceeding, to find the facts but to determine whether the findings of fact made by the Board are supported by the evidence before the Board. It may vacate an order based upon a finding of fact not supported by evidence.

In re Campsites Unlimited, 287 N.C. 493, 498, 215 S.E.2d 73, 76 (1975); see also Godfrey v. Zoning Bd. of Adjustment, 317 N.C. 51, 54-55, 344 S.E.2d 272, 274 (1986). The superior court is not the trier of fact but rather sits as an appellate court and may review both (i) sufficiency of the evidence presented to the municipal board and (ii) whether the record reveals error of law. Concrete Co. v. Board of Commissioners, 299 N.C. 620, 626, 265 S.E.2d 379, 383, reh'g denied, 300 N.C. 562, 270 S.E.2d 106 (1980); see also Batch v. Town of Chapel Hill, 326 N.C. 1, 11, 387 S.E.2d 655, 662 ("The superior court judge may not make additional findings [of fact]. The test is whether the findings of fact are supported by competent evidence in the record; if so, they are conclusive upon review.") (citation omitted), cert. denied, 496 U.S. 931, 110 S.Ct. 2631, 110 L.Ed.2d 651 (1990). Contra CG & T Corp. v. Bd. of Adjustment of Wilmington, 105 N.C.App. 32, 40, 411 S.E.2d 655, 660 (1992) (adopting whole record test). In light of these principles of review applicable to the superior court when hearing a case based solely on the record certified from an administrative board, the Court of Appeals erred in remanding this case to the superior court for findings of fact.

The superior court's judgment states that the court "reviewed the undisputed facts set forth in the record stipulated by counsel for petitioner and respondent as the official record of the board of adjustment's decision." Respondent did not assign error to this portion of the judgment and argued in the Court of Appeals and before this Court that written findings of fact were not required. Before this Court petitioner argues, and we agree, that there were no factual disputes raised by the evidence presented at the hearing before respondent. The questions respondent was called upon to decide were (i) how to interpret "duplex" as used in Town's ordinance and (ii) whether on the undisputed facts petitioner's plan came within the purview of that definition. See Concrete Co. v. Board of Commissioners, 299 N.C. at 629, 265 S.E.2d at 384 (stating issue was whether commissioners made an error of law in interpreting exemption section of county's ordinance).

The only question for the Court of Appeals, then, was whether in reversing respondent's decision, the superior court committed error of law in interpreting and applying the municipal ordinance. In determining whether error of law existed, the superior court, sitting as an appellate court, could freely substitute its judgment for that of respondent and apply de novo review as could the Court of Appeals with respect to the judgment of the superior court. See Savings and Loan League v. Credit Union...