Frazier v. Town of Blowing Rock
| Decision Date | 06 December 2022 |
| Docket Number | COA21-388 |
| Citation | 2022 NCCOA 782 |
| Parties | CHAD FRAZIER, Petitioner-Appellee, v. TOWN OF BLOWING ROCK and MORGAN HORNER, Respondent-Appellants |
| Court | North Carolina Court of Appeals |
Heard in the Court of Appeals 23 February 2022.
Appeal by Respondent from Order entered 15 March 2021 by Judge Gary M. Gavenus in Watauga County Superior Court No. 20CVS188
Deal Moseley &Smith, LLP, by Bryan P. Martin, for Respondent-Appellant.
Nexsen Pruet, PLLC, by David S. Pokela, for Petitioner-Appellee.
¶ 1 The Town of Blowing Rock ("Town") seeks review of the superior court's 15 March 2021 Amended Order reversing the Town of Blowing Rock Board of Adjustment's ("BOA") decision denying Petitioner's appeal of a Final Notice of Violation ("NOV") for operating a short-term rental property in violation of a local zoning ordinance. After careful review, we affirm the Amended Order of the superior court.
¶ 2 On 29 June 2016, Chad Frazier ("Petitioner") acquired a three-unit property at 163 Wilmot Circle ("Property") in the Town from the prior owners, who had owned the Property since 1981. Petitioner owns and maintains the Property for short-term rentals.
¶ 3 The phrase "tourist homes and other temporary residences renting by the day or week" existed in the Town's Ordinances since 1984. In 2000, the Town's Ordinances were amended ("2000 Amendment") to define "short-term rentals" as the "rental lease, or use of an attached or detached residential dwelling unit that is less than 28 consecutive days," and to establish a short-term rental overlay district in multi-family residential districts. The Town, however, did not contemporaneously add "short-term rentals" to its Table of Permissible Uses.[1] On 13 August 2019, another amendment was enacted ("2019 Amendment") to add "short-term rental of a residential dwelling unit" to the Table of Permissible Uses, replacing "tourist homes and other temporary residences renting by the day or week[.]"
¶ 4 On 13 September 2019, Petitioner was cited by the Town's Planning Director with a NOV for purportedly violating a local ordinance prohibiting short-term rentals in R-15 zoning districts. The NOV explained, "[a] short-term rental is a home or dwelling unit that is rented for a period less than 28 days." The parties do not dispute the Property is located in a R-15 zoning district, the Property has at all relevant times been zoned residential by the Town, and the Property is not within the short-term rental overlay district created by the 2000 Amendment.
¶ 5 Petitioner timely appealed the NOV to the BOA, contending his use of the Property amounted to a grandfathered, nonconforming use as a short-term rental. Petitioner maintained he used and intended to use the Property for short-term rentals before, as of, and after the effective date of the new short-term rental ordinance, and during his ownership, there were no periods of 180 days or more in which he did not use the Property for short-term rentals. Over two hearing dates in January and February of 2020, the BOA considered Petitioner's appeal of the NOV. On 2 March 2020, the BOA issued its decision, concluding Petitioner's use of the Property as a short-term rental was an illegal, non-conforming use.
¶ 6 Petitioner sought review of the BOA's decision by filing a petition for writ of certiorari with the Watauga County Superior Court. The writ was granted, a hearing was held before the superior court, and the Amended Order was entered on 15 March 2021. In the Amended Order, the superior court reversed the BOA's decision, concluding Petitioner's use of the Property as a short-term rental was "a grandfathered and valid non-conforming use . . . which may be continued." The superior court concluded as a matter of law that the language of the Town's 1984 Land Use Act prohibiting "temporary residences renting by the day or week" in residentially zoned areas was vague and ambiguous, and therefore the Town had no enforceable restriction against "short-term rentals of less than 28 days" until the enactment of the 2019 Amendment.[2] The Town filed notice of appeal from the Amended Order on 15 April 2021.
¶ 7 This Court has jurisdiction to address the Town's appeal from a final judgment pursuant to N.C. Gen. Stat. § 7A-27(b) (2021) and N.C. Gen. Stat. § 1-277 (2021).
¶ 8 The issues raised on appeal are whether: (1) the superior court erred as a matter of law in reversing the BOA's decision, and (2) omissions of the superior court deprived Petitioner of alternative bases in law for supporting the Amended Order.
IV. Standard of Review ¶ 9 A local zoning board, such as a board of adjustment, acts as "a quasi-judicial body." Refining Co. v. Bd. of Aldermen, 284 N.C. 458, 469, 202 S.E.2d 129, 136-37 (1974). At the time of the BOA hearings and decision, former North Carolina General Statute § 160A-388 provided that "[e]very quasi-judicial decision shall be subject to review by the superior court by proceedings in the nature of certiorari[.]" N.C. Gen. Stat. § 160A-388(e2)(2) (2019) ) (recodified as N.C. Gen. Stat. § 160D-406(k) (2021)).
¶ 10 Decisions issued by quasi-judicial bodies are "subject to review by the superior court by proceedings in the nature of certiorari," wherein the superior court sits as an appellate court, and not as a trier of facts. Tate Terrace Realty Invs., Inc. v. Currituck Cnty., 127 N.C.App. 212, 217, 488 S.E.2d 845, 848 (1997) (quoting Capricorn Equity Corp. v. Town of Chapel Hill, 334 N.C. 132, 135-36, 431 S.E.2d 183, 186 (1993)). If the board's decision is challenged as resting on an error of law, the proper standard of review for the superior court is de novo. Bailey & Assocs., Inc. v. Wilmington Bd. of Adjustment, 202 N.C.App. 177, 189, 689 S.E.2d 576, 586 (2010).
¶ 11 "However, if the petitioner contends the Board's decision was not supported by the evidence or was arbitrary and capricious, then the reviewing court must apply the 'whole record' test." NCJS, LLC v. City of Charlotte, 255 N.C.App. 72, 76, 803 S.E.2d 684, 688 (2017) (quoting Four Seasons Mgmt. Servs. Inc. v. Town of Wrightsville Beach, 205 N.C.App. 65, 75, 695 S.E.2d 456, 462 (2010)). "The whole record test requires the reviewing court to examine all competent evidence (the whole record) in order to determine whether the agency decision is supported by substantial evidence[,]" which is evidence that "a reasonable mind would consider sufficient to support a particular conclusion . . . ." Thompson v. Union Cnty., 2022-NCCOA-382, ¶ 12 (citation and internal quotations omitted). "In reviewing the sufficiency and competency of evidence before the Superior Court, the question is not whether the evidence supported the Superior Court's order . . . [t]he question is whether the evidence before the BOA was supportive of the BOA's decision." Id. at ¶ 13 (citing Dellinger v. Lincoln Cnty., 248 N.C.App. 317, 323, 789 S.E.2d 21, 26 (2016)).
¶ 12 The Court of Appeals, on a writ of certiorari considering the decision of a quasi-judicial body, has the authority to review a superior court judgment as it is "derivative of the power of the superior court to review the action." Tate Terrace Realty Invs., Inc., 127 N.C.App. at 219, 488 S.E.2d at 849 (citing Sherrill v. Town of Wrightsville Beach, 76 N.C.App. 646, 649, 334 S.E.2d 103, 105 (1985)). "An appellate court's review of the trial court's zoning board determination is limited to determining whether the superior court applied the correct standard of review, and . . . whether the superior court correctly applied that standard." Bailey & Assocs., Inc., 202 N.C.App. at 190, 689 S.E.2d at 586.
V. Analysis
¶ 13 The Town contends the superior court erred in concluding as a matter of law that the Town's Land Use Code did not prohibit or regulate short-term rentals until the enactment of the 2019 Amendment. By applying the effective date of the 2019 Amendment, 13 August 2019, as the date by which the Petitioner's "grandfathered" status should be measured, the Town further asserts the superior court erred by concluding that Petitioner established a prima facie case for the Property to be "grandfathered" as a non-conforming use. Petitioner, on the other hand, claims the superior court was correct in concluding that no clear ordinance purporting to regulate short-term rentals existed in the Town prior to the 2019 Amendment. Therefore, Petitioner asserts the superior court correctly determined that he had established a prima facie case of a grandfathered and valid non-conforming use based upon the facts found by the BOA.
¶ 14 We initially note the Town raises only issues of law on appeal, and neither party disputes the superior court applied the appropriate standard of review, de novo, in its appellate role. See id. at 189, 689 S.E.2d at 586. Our analysis is therefore limited to whether the superior court "correctly applied" its de novo review to the BOA's conclusions of law. See id. at 190, 689 S.E.2d at 586.
(1) The Town Did Not Properly Prohibit or Regulate "Short-Term Rentals of Less Than 28 Days" Until 13 August 2019
¶ 15 The free use of property is favored in our State. Harry v. Crescent Res., Inc., 136 N.C.App. 71, 80 523 S.E.2d 118, 124 (1999).[3] "Zoning ordinances are in derogation of the right of private property, and where exemptions appear in favor of the property owner, they must be liberally construed in favor of such owner." Hampton v. Cumberland Cnty., 256 N.C.App. 656, 665, 808 S.E.2d 763, 770 (2017) (citation omitted). Because "[z]oning regulations are in derogation of common law rights . . . they...
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