Overton v. Camden County, COA02-275.

• Decision Date: 31 December 2002
• Docket Number: No. COA02-275.,COA02-275.
• Citation: 574 S.E.2d 157,155 NC App. 391
• Court: North Carolina Court of Appeals
• Parties: G. Wayne OVERTON, Petitioner-Appellee, v. CAMDEN COUNTY and the Camden County Board of Adjustment, Respondents-Appellants.

574 S.E.2d 157

155 NC App. 391

G. Wayne OVERTON, Petitioner-Appellee, v. CAMDEN COUNTY and the Camden County Board of Adjustment, Respondents-Appellants.

No. COA02-275.

Court of Appeals of North Carolina.

December 31, 2002.

Hornthal, Riley, Ellis & Maland, L.L.P., by Donald I. McRee, Jr., Elizabeth City, for petitioner-appellee.

Herbert T. Mullen, Jr., Elizabeth City, and Shelley T. Eason, Raleigh, for respondents-appellants. McGEE, Judge.

G. Wayne Overton (petitioner) is the owner of property located at 1330 South NC 343 in Camden County, North Carolina (the property). Petitioner first placed a mobile home on the property in 1972. Petitioner replaced the original mobile home on the property with another mobile home (replacement mobile home) in 1995 without obtaining a building permit or a conditional use permit from Camden County. The Camden County Code Enforcement Officer (Enforcement Officer) mailed petitioner a certified letter on 18 February 2000 advising petitioner of violations of sections 3.02, 3.05, 7.07(C-4), and 8.06 of the Camden County Zoning Ordinance (CCZO). The CCZO was enacted and effective on 20 December 1993. It was replaced on 1 January 1998, by the Camden County Unified Development Ordinance (UDO). Petitioner appealed the Enforcement Officer's decision to the Camden County Board of Adjustment (Board of Adjustment) on 6 March 2000.

The Board of Adjustment issued a decision on 10 April 2000 finding (1) petitioner in violation of the "adopted ordinance" for failing to secure a building permit before replacing the original mobile home with the replacement mobile home; (2) allowing the replacement mobile home to remain on the site upon petitioner obtaining a building permit and the paying of a fifty dollar fine; and (3) subjecting petitioner to the additional conditions that the replacement mobile home must be removed if vacated for more than sixty days, that the lot must be maintained, that only one person could live in the replacement mobile home, and that the replacement mobile home must have been manufactured after 1 July 1976.

Petitioner filed a petition for a writ of certiorari for review by the Camden County Superior Court on 9 May 2000. He contended that the Board of Adjustment had no authority to impose the additional conditions cited above on its decision to allow the replacement mobile home to remain on the property. The trial court entered an order on 25 October 2001 concluding, inter alia, that: (1) the "Board of Adjustment erroneously applied the [CCZO] to Petitioner, the [replacement] mobile home, and the Property where such ordinance had been replaced as of January 1, 1998 by the ... UDO"; (2) the "Board of Adjustment erroneously failed to apply the ... UDO"; (3) "Petitioner's replacement mobile home constituted a `nonconforming situation' ... protected under the ... UDO, and Article 14 of the UDO [did] not require a conditional use permit for Petitioner's continued use of his mobile home as a `nonconforming situation'"; (4) "[t]he only permit required of Petitioner under the UDO was a building permit"; and (5) the "Board of Adjustment was without authority to impose the [additional] conditions...." The order vacated the Board of Adjustment's decision and remanded the matter to the Board of Adjustment for issuance of a building permit for the replacement mobile home, without the unauthorized conditions, upon payment by petitioner of the required seventy-five dollar fee and fifty dollar fine. Respondents appeal the order.

When a superior court grants certiorari to review the decision of a board of adjustment, "the superior court sits as an appellate court, and not as a trier of facts." Sun Suites Holdings, LLC v. Board of Alderman of Town of Garner, 139 N.C.App. 269, 271, 533 S.E.2d 525, 527, disc. review denied, 353 N.C. 280, 546 S.E.2d 397 (2000) (quoting Tate Terrace Realty Investors, Inc. v. Currituck County, 127 N.C.App. 212, 217, 488 S.E.2d 845, 848, disc. review denied, 347 N.C. 409, 496 S.E.2d 394 (1997)). The superior court's review is limited to determinations of whether

"1) the [b]oard committed any errors in law; 2) the [b]oard followed lawful procedure; 3) the petitioner was afforded appropriate due process; 4) the [b]oard's decision was supported by competent evidence in the whole record; and 5) [whether] the [b]oard's decision was arbitrary and capricious."

Capital Outdoor, Inc. v. Guilford Cty. Bd. of Adjust., 152 N.C.App. 474,___, 567 S.E.2d 440, 441 (2002) (quoting Capital Outdoor, Inc. v. Guilford Cty. Bd. of Adjust., 146 N.C.App. 388, 390, 552 S.E.2d 265, 267 (2001)),rev'd per curiam on other grounds, 355 N.C. 269, 559 S.E.2d 547 (2002). If the superior court is reviewing either the sufficiency of the evidence or whether the board's decision was arbitrary and capricious, the superior court applies the "whole record test." Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjust., 140 N.C.App. 99, 102, 535 S.E.2d 415, 417 (2000),aff'd,354 N.C. 298, 554 S.E.2d 634 (2001). Errors of law are reviewed de novo. Id. 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 to determine whether the superior court correctly applied that standard. Id. at 102-03, 535 S.E.2d at 417-18.

We first decide whether the trial court exercised the appropriate scope of review. The issues presented for review at each stage of these proceedings relate to which ordinance to apply and the proper interpretation of that ordinance, both of which present questions of law, requiring a de novo review. Id. at 103, 535 S.E.2d at 417. The trial court applied the de novo standard of review, and therefore, we must determine whether the trial court was correct in its exercise of the de novo review. Id.

Respondents argue that the trial court erred in applying the UDO to petitioner's zoning violation, instead of the CCZO. Our State's courts have not decided the issue of which zoning ordinance to apply when an alleged violation occurs while one ordinance is in effect, but enforcement is sought only after a new ordinance has replaced the previous ordinance. At the time of the alleged violation, being the replacement of a mobile home by petitioner in 1995, the CCZO was the zoning ordinance in effect. However, when the enforcement action was brought by Camden County, the UDO had superceded the CCZO.

In Naegele Outdoor Advertising v. Harrelson, 336 N.C. 66, 442 S.E.2d 32 (1994), our Supreme Court reversed the majority's decision from this Court which had stated that application for permits must be viewed under the facts and laws as they existed at the time of the application, not at the ultimate time of decision by the court. Naegele, 112 N.C.App. 98, 101-02, 434 S.E.2d 244, 246 (1993), rev'd per curium, 336 N.C. 66, 442 S.E.2d 32 (1994). The Supreme Court reversed this Court's decision for the reasons stated in the dissenting opinion by Judge Greene. 336 N.C. at 66, 442 S.E.2d at 33. Judge Greene's dissent "disagree[d] with the majority's conclusion that [the petitioner's] application must be viewed at the time it was made, without regard to the fact that the Department of Transportation had a subsequent statutory obligation to screen the junkyard." 112 N.C.App. at 102, 434 S.E.2d at 247 (Greene, J., dissenting). Naegele rejects the proposition that a court or board need not look at subsequent changes in the law when Board of Adjustment decisions are made.

Courts in other jurisdictions have addressed similar questions. " `It is well settled that the zoning ordinance in effect at the time the case is ultimately decided is controlling'.... The purpose of this principle is to effectuate the current policy declared by the legislative body." Dinizo v. Planning Board of the Town of Westfield, 312 N.J.Super. 225, 711 A.2d 425, 428 (1998) (citations omitted); see also MacDonald Advertising Co. v. McIntyre, 211 Mich.App. 406, 536 N.W.2d 249, 251 (1995) ("[T]he general rule is that the law to be applied is that which was in effect at the time of the decision.") (citation omitted); Enviro-Gro Technologies v. Bockelmann, 88 Md.App. 323, 594 A.2d 1190, 1198 (1991),cert. denied, 325 Md. 94, 599 A.2d 447 (1991); Shiloh Gospel Chapel, Inc. v. Roer, 170 A.D.2d 608, 566 N.Y.S.2d 382, 382 (N.Y.App.Div.1991) ("[I]t is well-settled that a court will apply the zoning ordinance in existence at the time of its decision.") (citations omitted). "The majority rule ... is that the zoning law or regulation in effect at the time of the decision of a court is controlling as opposed to that in effect when the proceedings were instituted or when the administrative agency entered its decision upon the application." McCallum v. Inland Wetlands Com'n of Avon, 196 Conn. 218, 492 A.2d 508 (1985) (citing 4 Anderson, American Law of Zoning § 25.31), superceded by statute as stated in McNally v. Zoning Com'n of City of Norwalk, 225 Conn. 1, 621 A.2d 279, 282-83 (1993) (noting that a statute specifically changed the common law rule as stated above in Connecticut). Respondents have not directed us to any statute that would prevent the application of such a rule in North Carolina.

Other jurisdictions have recognized exceptions to this "time of decision rule." Dinizo, 711 A.2d at 428 (citation omitted) (noting the vested right exception and calling for a reevaluation of the "time of decision" rule); MacDonald Advertising Co., 536 N.W.2d at 252 (noting a bad faith exception but finding insufficient evidence to apply the exception); Shiloh Gospel Chapel, Inc., 566 N.Y.S.2d at 383 (noting a "special facts exception" pursuant to which a former ordinance might still be deemed controlling if there is evidence of bad faith, conspiracy, or undue delay by the board). However, in the case before us there is no evidence that any such circumstances were present to warrant the use of such an exception by this Court.

The ...