Premier Plastic Surgery Ctr. v. the Bd. of Adjustment For the Town of Matthews

• Decision Date: 19 July 2011
• Docket Number: No. COA10–863.,COA10–863.
• Citation: 713 S.E.2d 511
• Parties: PREMIER PLASTIC SURGERY CENTER, PLLC; Genesis Ventures, LLC; and Victor S. Ferrari, M.D., F.A.C.S., Petitioner–Appellants,v.The BOARD OF ADJUSTMENT for the TOWN OF MATTHEWS; and the Town of Matthews, Respondent–Appellees.
• Court: North Carolina Court of Appeals

713 S.E.2d 511

PREMIER PLASTIC SURGERY CENTER, PLLC; Genesis Ventures, LLC; and Victor S. Ferrari, M.D., F.A.C.S., Petitioner–Appellants,

v.The BOARD OF ADJUSTMENT for the TOWN OF MATTHEWS; and the Town of Matthews, Respondent–Appellees.

No. COA10–863.

Court of Appeals of North Carolina.

July 19, 2011.

OPINION TEXT STARTS HERE

Appeal by Petitioner from Judgment entered 21 January 2010 by Judge James W. Morgan in Mecklenburg County Superior Court. Heard in the Court of Appeals 12 January 2011.

Essex Richards, P.A., Charlotte, by Norris A. Adams, II, attorney for Petitioner-appellants.

Cranford, Buckley, Schultze, Tomchin, Allen & Buie, P.A., Charlotte, by Charles R. Buckley, III, attorney for Respondent-appellees.

HUNTER, JR., ROBERT N., Judge.

Premier Plastic Surgery Center, PLLC, Genesis Ventures, LLC, and Victor S. Ferrari, M.D., F.A.C.S. (“Dr. Ferrari”) (collectively “Petitioners”) appeal the trial court's 21 January 2010 Order affirming the decision of the Town of Matthews Board of Adjustment (“the Board”) to deny Petitioners' application for a variance to the Town of Matthews' sign ordinance. We reverse, in part, and remand, in part.

I. Factual and Procedural History

This dispute arises from Petitioners' construction of a sign in front of Dr. Ferrari's business, which is located in Matthews, North Carolina. Petitioners operate a medical facility at 1635 Matthews Township Parkway on one of four lots that are part of a multi-lot business development. When the lots were originally developed, all four lots shared one drive that permitted ingress and egress from Matthews Township Parkway. Later, a second drive was constructed between Petitioners' building and the other buildings in the development. The development sits in a curve of Matthews Township Parkway and the two drives are separated by approximately 500 feet. At the first drive stands a monument-style sign providing signage for several of the tenants in the development. This sign, however, cannot accommodate the current number of tenants. Additionally, as a result of the curve in the parkway, it is difficult, if not impossible, to see the second drive from the first.

Petitioners testified that patients routinely have trouble locating the medical practice, drive past the entrance, and have to turn around in their attempt to find it. Dr. Ferrari claims that ninety percent of first-time patients experience this problem and are often up to thirty minutes late as a result. Because he performs surgeries on-site, Dr. Ferrari is concerned that paramedics would be similarly delayed if attempting to respond to a medical emergency that could arise during surgery.

Seeking to cure these problems, in late 2006, Dr. Ferrari's wife met with Town of Matthews staff to discuss the construction of a sign outside the medical practice, but was told a sign was not permitted. Petitioners subsequently hired a local sign company, Comco Signs, Inc. (“Comco”), to determine if they could put a sign on the front of the building. The vice-president of Comco, Randy Ulery, suggested Dr. Ferrari construct a monument sign, assured Dr. Ferrari that the Town of Matthews would allow it, and said he would look into the matter. On 4 April 2007, Charlie D. Butler, zoning inspector for the Mecklenburg County Land Use and Environmental Services Agency (“MCLUESA”)—which administers permits for the Town of Matthews—issued a sign permit authorizing Comco to construct a sign outside Petitioners' business.

Approximately two and one half months later, in early June 2007, Comco constructed a monument sign in front of Petitioners' business in accordance with the permit at an expense of $7,210. Zoning Inspector Butler was present the day of the sign's construction and helped determine its proper placement. Approximately one week after the sign was erected, however, MCLUESA notified Petitioners that the sign permit had been revoked stating the permit was issued in error because the sign violated section 153.144(A) of the Matthews Zoning Code.

Petitioners appealed the permit revocation to the Matthews Board of Adjustment. The Board denied the appeal at its 8 November 2007 meeting and notified Petitioners of their right to appeal the denial to superior court or to draft a text amendment to the zoning ordinance. Petitioners filed an application for a text amendment to the ordinance, which was denied by the Board at their 14 April 2008 meeting.

On 8 May 2008, Petitioners applied to the Board for a variance to section 153.144(A) of the Matthews Zoning Code that would allow the sign to remain in place. Following a hearing on the matter, the Board denied the variance by a vote of four to one, and notified Petitioners in writing on 11 July 2008.

On 8 August 2008, Petitioners filed a petition for writ of certiorari to the Mecklenburg County Superior Court pursuant to N.C. Gen.Stat. § 160A–388(e2) (2009). In their petition, Petitioners alleged, inter alia, the Board's decision to deny the variance was arbitrary, capricious, and contrary to statute and case law. The petition was granted on 23 September 2008 and the case came on for hearing during the 14 December 2009 session of the Mecklenburg County Superior Court, Judge James W. Morgan presiding. Judge Morgan affirmed the Board's denial of Petitioner's application for a variance in an Order entered 21 January 2010. In its Order the trial court concluded: that because the sign was expressly prohibited by section 153.144(A) of the Matthews Zoning Code, the Board had no authority to issue the requested variance; that Petitioners acquired no vested rights in the sign because the permit was illegal from its inception; that because the permit was revoked approximately one week after the sign was erected, the Town of Matthews was not barred by estoppel or laches from revoking the permit; that the Board had sufficient evidence on which to base its decision and did so with sufficient findings of fact; and that the Board had no duty to make findings of fact. Petitioners timely entered notice of appeal from this Order.

II. Jurisdiction and Standard of Review

Jurisdiction in this Court is proper pursuant to N.C. Gen.Stat. § 7A–27(b) (2009) (stating a right of appeal lies with this Court from the final judgment of a superior court “entered upon review of a decision of an administrative agency”). “[T]his Court examines the trial court's order for error[s] of law by determining whether the superior court: (1) exercised the proper scope of review, and (2) correctly applied this scope of review.” Turik v. Town of Surf City, 182 N.C.App. 427, 429, 642 S.E.2d 251, 253 (2007) (second alteration in original) (internal quotation marks omitted) (quoting Tucker v. Mecklenburg Cnty. Zoning Bd. of Adjustment, 148 N.C.App. 52, 55, 557 S.E.2d 631, 634 (2001)). If a petitioner appeals an administrative decision “on the basis of an error of law, the trial court applies de novo review; if the petitioner alleges the decision was arbitrary and capricious, or challenges the sufficiency of the evidence, the trial court applies the whole record test.” Blue Ridge Co. v. Town of Pineville, 188 N.C.App. 466, 469, 655 S.E.2d 843, 845–46, disc. review denied, 362 N.C. 679, 669 S.E.2d 742 (2008). “[A]n appellate court's obligation to review a superior court order for errors of law can be accomplished by addressing the dispositive issue(s) before the agency and the superior court without examining the scope of review utilized by the superior court.” Capital Outdoor, Inc. v. Guilford Cnty. Bd. of Adjustment, 146 N.C.App. 388, 392, 552 S.E.2d 265, 268 (2001) (Greene, J., dissenting) (citation omitted), rev'd for reasons stated in the dissent, 355 N.C. 269, 559 S.E.2d 547 (2002).

III. Analysis

Petitioners first allege the trial court erred by applying the wrong standard when reviewing the decision of the Board. Specifically, Petitioners contend the trial court applied the “whole record” test rather than de novo review. Petitioners, however, abandoned this issue by failing to provide any reason or argument in support of their assertion. See N.C.R.App. P. 28(b)(6) (2011) (“Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned.”) Moreover, as stated above, we may properly resolve this dispute by addressing the dispositive issues before the Board and the trial court without determining the standard of review utilized below. See Capital Outdoor, Inc., 146 N.C.App. at 392, 552 S.E.2d at 268. The dispositive issues presented in this dispute are whether the trial court erred in its interpretation of the sign ordinance and in its conclusion that the Board made sufficient findings of fact to support its denial of Petitioners' request.

A. The Board's Authority to Grant the Variance

Plaintiff argues that the trial court erred, as a matter of law, in finding that the Board of Adjustment had no authority to grant Petitioner the requested variance. We agree.

The trial court's Order affirming the Board's decision to deny Petitioners' application for a variance from the sign ordinance provides the following pertinent finding:

(a) The sign which is the subject of the variance application is expressly prohibited by Section 153.144(A) of the Matthews Zoning Code, in that the Record shows it to be an individual business sign within multi-tenant property. Therefore, the Board has no authority to grant a variance for the sign. “The requested variance would be directly contrary to the Zoning Ordinance and, therefore, the Board has no authority to grant [p]etitioner[']s request.” Donnelly v. The Board of Adjustment of the Village of Pinehurst, 99 N.C.App. 702, 394 S.E.2d 246 (1990).

As the trial court's interpretation of the zoning ordinance presents a question of law, it is subject to de novo review. Hayes v. Fowler, 123 N.C.App. 400, 404, 473 S.E.2d 442, 444 (1996). We conclude the trial court erred in its reliance on Donnelly; our reading of that decision does...