Shoney's of Enka, Inc. v. Board of Adjustment for City of Asheville
| Decision Date | 05 July 1995 |
| Docket Number | No. COA94-837,COA94-837 |
| Court | North Carolina Court of Appeals |
| Parties | SHONEY'S OF ENKA, INC., a North Carolina Corporation, a Subsidiary of B & G Enterprises, d/b/a "Shoney's of Asheville" v. The BOARD OF ADJUSTMENT FOR the CITY OF ASHEVILLE and the City of Asheville. |
T. Karlton Knight, Asheville, for plaintiff-appellant.
Nesbitt & Slawter by William F. Slawter and Martha Walker-McGlohon, Asheville, for defendant-appellees.
Plaintiff appeals from judgment affirming the decision of the City of Asheville Board of Adjustment (the Board of Adjustment) denying plaintiff's request for a zoning variance. We reverse and remand.
On 5 March 1992 plaintiff applied for a variance from the requirements set forth in § 30-9-5(B-4) of the City of Asheville Code of Ordinances to erect a new sign on property located near the intersection of U.S. Highway 19/23 and Interstate 40. On 20 April 1992 the Board of Adjustment held a hearing on the requested variance and voted three to two in favor of plaintiff's request. However, because N.C. Gen.Stat. § 160A-388(e) requires a four-fifths vote of the Board of Adjustment to grant a variance, plaintiff's variance request was ultimately denied. Plaintiff appealed to superior court.
On 7 December 1992 the superior court entered an order affirming the Board of Adjustment's decision denying plaintiff's requested variance. On 31 December 1992 plaintiff appealed to this Court. On 19 April 1994, in an unpublished opinion, this Court held it was unable to determine from the record whether the superior court had subject matter jurisdiction to hear plaintiff's petition for review and remanded this matter to the superior court. Shoney's of Enka v. Bd. of Adjustment for City of Asheville, 114 N.C. App. 505, 444 S.E.2d 494 (1994). On 31 May 1994 the trial court entered an order finding that pursuant to N.C. Gen.Stat. § 160A-388 plaintiff had appealed within the thirty days provided and therefore concluded it had subject matter jurisdiction when it entered its 7 December 1992 order. From this order, plaintiff appeals.
Plaintiff contends the superior court erred by affirming the Board of Adjustment's denial of plaintiff's variance.
Judicial review of the decision of the Board of Adjustment is limited to: (1) reviewing the record for errors in law; (2) insuring procedures specified in both statute and ordinance are followed; (3) insuring appropriate due process rights of a petitioner are protected, including the right to offer evidence, to cross-examine witnesses, and to inspect documents; (4) insuring decisions of the town board are supported by competent, material and substantial evidence in the whole record; and (5) insuring the decisions are not arbitrary and capricious. Concrete Co. v. Board of Commissioner's, 299 N.C. 620, 626, 265 S.E.2d 379, 383, reh'g denied, 300 N.C. 562, 270 S.E.2d 106 (1980). "It is not the function of the reviewing court ... to find the facts but to determine whether the findings of fact made by the Board are supported by the evidence before the Board and whether the Board made sufficient findings of fact." Rentals Inc. v. City of Burlington, 27 N.C.App. 361, 364, 219 S.E.2d 223, 226 (1975) (citing In re Campsites, 287 N.C. 493, 215 S.E.2d 73 (1975)).
Plaintiff contends the decision of the Board of Adjustment was not supported by sufficient findings of fact to permit adequate judicial review. We agree.
Findings of fact provide a safeguard against arbitrary action by the board of adjustment by providing a sufficient record upon which this Court can review the board's decision. Id. at 365, 219 S.E.2d at 227. "[A]ction[s] by zoning boards in allowing or denying the application of use permits require the board to state the basic facts on which it relied with sufficient specificity to inform the parties, as well as the court, what induced its decision." Id. at 365, 219 S.E.2d at 226-227 (citing Refining Co. v. Board of Aldermen, 284 N.C. 458, 202 S.E.2d 129 (1974)). As a corollary to this principle, we do not believe the Board may rely on findings of fact which are merely conclusory in form. See, e.g., Wolff v. Dade County, 370 So.2d 839, 842 (Fla.App.) (simple determination by County that development of applicant's property is not needed is not a proper basis for a determination of the reasonableness of such an application), cert. denied, 379 So.2d 211 (Fla.1979); Redden v. Montgomery County, 313 A.2d 481, 490 (Md.1974) ().
In the instant case the Board of Adjustment made the following findings of fact:
1. It is the Board's conclusion that, if the applicant complies strictly with the provisions of this article, the applicant (can /cannot) make reasonable use of the sign allowed. This conclusion is based on the following findings of fact:
Petitioner did not satisfy requirements set forth in opening statement.
___
and
2. It is the Board's conclusion that the hardship of which the applicant complains is (unique/not unique ) or nearly so, and is (is/not ) suffered by the applicant rather than by owners of surrounding properties or the general public. This conclusion is based on the following findings of fact:
___
and
3. It is the Board's conclusion that the hardship (relates/does not relate ) to the applicant's land (rather than/but ) to personal circumstance. This conclusion is based on the following findings of fact:
___
and
4. It is the Board's conclusion that the hardship (is /not) the result of the applicant's own actions. This conclusion is based on the following findings of fact:
___
and
5. It is the Board's conclusion that the variance (will /will not) result in the extension of a non-conforming use (and /nor) authorize the initiation of a non-conforming use. This conclusion is based on the following findings of fact:
___
and
6. It is the Board's conclusion that the variance (is/[is]not ) in...
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