In Re Pine Hill Cemeteries Inc.

• Citation: 210 N.C. 735,15 S.E.2d 1
• Decision Date: 31 May 1941
• Docket Number: No. 754.,754.
• Parties: In re PINE HILL CEMETERIES, INC.
• Court: United States State Supreme Court of North Carolina

15 S.E.2d 1

210 N.C. 735

In re PINE HILL CEMETERIES, INC.

No. 754.

Supreme Court of North Carolina.

May 31, 1941.

Appeal from Superior Court, Durham County; Leo Carr, Judge.

Certiorari proceeding by J. L. Morehead to review a decision of the Board of Adjustment of the City of Durham, which reversed a decision of the building inspector and directed the issuance of a certificate of occupancy to Pine Hill Cemeteries, Incorporated. From an adverse judgment, Pine Hill Cemeteries appeals.

Error and remanded.

In May, 1926, the City of Durham, under authority contained in Ch. 250, P.L. 1923, adopted a comprehensive zoning ordinance. That portion of the land within the eastern part of the city which embraces lands owned by the petitioner and by the respondent were placed in a residence district. The respondent owns 27.58 acres of land within the district. It asserts that this property had been set apart and dedicated for cemetery purposes prior to the enactment of the zoning ordinance. The petitioner, J. L. Morehead, owns property within the district adjoining that of the respondent.

On November 8, 1940, the respondent applied for a certificate of occupancy for the continued use of its land within said residence district in the City of Durham, asserting that such land was dedicated to a nonconforming use prior to the enactment of the ordinance. The Building Inspector declined to issue the certificate and respondent appealed to the Board of Adjustment. After a full hearing upon public notice, the Board of Adjustment found certain facts upon which it reversed the decision of the building inspector and directed the issuance of a certificate of occupancy. The petitioner, J. L. Morehead, appeared at the public hearing, offered evidence and resisted the granting of the certificate.

Upon the entry of the order of the Board of Adjustment, said Morehead applied to the Superior Court for a writ of certiorari, which was granted.

When the cause came on for hearing in the court below, the petitioner moved the court (1) that it hear additional evidence and find additional facts; (2) that he be allowed to cross-examine one Walter B. Markham; (3) that he be allowed to introduce newly discovered evidence. He further moved that in the event the foregoing motions were disallowed, then that the court re-refer the entire matter to the Board of Adjustment with instructions to take further evidence and find such further facts as may be found therefrom and to recall Walter B. Markham for examination.

The court, "being of the opinion that for a proper determination of the matters in controversy it is necessary that the testimony be specifically correlated to the exhibits so as to show the type of land adjoining the proposed cemetery and that additional evidence be taken", ordered that this entire matter be referred to the Adjustment Board of the City of Durham to correlate the testimony and exhibits and to permit the parties to produce newly discovered evidence and witnesses relative to the controversy and to the matters and things set forth in the affidavit of Walter B. Markham. It further ordered that "upon rehearing, the Adjustment Board is directed to determine facts upon all the evidence and enter a new determination". The respondent Pine Hill Cemeteries, Incorporated, appealed.

W. L. Foushee and Marshall T. Spears, both of Durham, for appellant.

Albert W. Kennon, Jr., and J. L. More-head, both of Durham, for appellee.

BARNHILL, Justice.

The act, Ch. 250, P.L. 1923, which authorizes cities and towns to adopt zoning ordinances and to provide machinery for the enforcement thereof makes no provision for an appeal from a determination by the Board of Adjustment to the courts. It does provide, in sec. 7 thereof, that "every decision of such board shall, however, be subject to review by proceedings in the nature of certiorari". It follows that petitioner has adopted the proper procedure.

The writ of certiorari, as permitted by the zoning ordinance, statute, is a writ to bring the matter before the court, upon the evidence presented by the record itself, for review of alleged errors of law. It does not lie to review questions of fact to be determined by evidence outside the record. 5 R.C.L. 253; Williams v. Williams, 71 N.C. 427. Petitioner so understood when he filed his petition in which he asserts, in substance, that there was error in law in that (1) the Board of Adjustment is without jurisdiction to authorize the use of the tract of land owned by the respondent for the construction and maintenance of the cemetery or as an extension of its...