Thompson v. Union Cnty.

• Decision Date: 07 June 2022
• Docket Number: COA21-220
• Citation: 874 S.E.2d 623
• Parties: Willie THOMPSON and Earlene Thompson, Petitioners, v. UNION COUNTY, Respondent.
• Court: North Carolina Court of Appeals

874 S.E.2d 623

Willie THOMPSON and Earlene Thompson, Petitioners,

v.UNION COUNTY, Respondent.

No. COA21-220

Court of Appeals of North Carolina.

Filed June 7, 2022

Ferguson Chambers & Sumter, PA, Charlotte, by Geraldine Sumter, for petitioners-appellants.

Perry, Bundy, Plyler & Long, LLP, Monroe, by Ashley J. McBride, for respondent-appellee.

STROUD, Chief Judge.

¶ 1 Willie and Earlene Thompson ("Appellants") appeal from a Superior Court order affirming a decision by the Union County Board of Adjustment ("BOA") which upheld zoning Notices of Violation and a fine issued to Appellants by Union County. Appellants argue (1) the Superior Court erred in failing to make findings of fact and conclusions of law in compliance with North Carolina Rule of Civil Procedure 52(a)(1) ; (2) erred by retroactively applying the 2014 Union County Unified Development Ordinance ("2014 UDO") to a property constructed prior to enactment of the 2014 UDO; (3) the County's enforcement actions are barred by statutes of limitations in accordance with North Carolina General Statutes §§ 1-49(3) and 1-51(5) ; and (4) the Superior Court erred by affirming a decision by the BOA without sufficient findings of fact and conclusions of law. Because Appellants’ residence is presumed lawful if it was in compliance with the ordinance in effect at the time of construction and any applicable issued permits, and because the prior ordinance applicable to the residence and garage was not in evidence, Union County failed to show the structures are in violation of the 2014 UDO. The BOA and Superior Court therefore erred in holding Appellants’ property in violation of the 2014 UDO. For these reasons, the Superior Court's order is reversed in part and vacated and remanded in part.

I. Background

¶ 2 Appellants purchased a residence with two detached garages located behind the house in Indian Trail, Union County on 20 June 2018. The property is accessed by a 60-foot private right-of-way which connects to Stinson Hartis Road, a public street. At issue in this case are the single-family residence and the larger of the two detached garages.

¶ 3 The property was developed between 2004 and 2009. The residence was built in 2004, and the larger garage was later constructed in 2009. The property was sold to Appellants’ immediate predecessor in interest in 2013. For purposes of this appeal, we assume a permit was issued for construction of the residence in 2004. At the BOA hearing, James King, Union County Zoning Administrator, acknowledged as to the residence that

we cannot verify whether or not a permit was issued because we purge our records after 6 years .... It has been destroyed, so we don't know if there's a permit or not. We're going to assume for the benefit of the resident that the permit was issued and we're just going to go with that.

As to the large garage, Appellant Earlene testified that the garage was built without a permit and presented a 3 May 2018 application for a building permit to the BOA. The BOA made no findings as to the existence of a permit for either structure. As noted by the Zoning Administrator, Union County maintains a policy of purging permitting records after six years, and copies of the permits and applications no longer exist.

¶ 4 Years after the construction of the residence and garages, on 6 October 2014, Union County enacted the UDO which contains minimum setback requirements. Under the UDO, the Appellants’ property is zoned "R-20," allowing for single-family residential development. The minimum setback requirements for property zoned R-20 under the UDO require a home or structure to be set back at least 20 feet from side property lines or rights-of-way, commonly called street side yard setbacks.

¶ 5 The property was later listed for sale, and on 2 January 2018 the property was surveyed in connection with a potential purchase. According to the survey, based upon the 2014 UDO the larger of the two garages encroached upon the private right-of-way and was in violation of the UDO 20-foot setback requirement. This survey also showed the residence was in violation of the same 2014 UDO 20-foot street side yard setback, although the survey did not identify the exact extent of the encroachment.

¶ 6 In April 2018, the survey was presented to Mr. King. On 1 June 2018, after reviewing the survey, Mr. King issued a Notice of Violation to Appellants’ predecessor in interest, noting that a "portion of both the principal structure and one of the accessory structures encroach into the required street side yard setback." The property was left on the market for sale, and the Multiple Listing Service (MLS) listing for the property noted "133K BELOW APPRAISED VALUE, SEE APPRAISAL. CASH OFFERS ONLY-HOUSE IS ENCROACHING ON PRIVATE DRIVE BESIDE HOUSE. Being sold AS IS, NO REPAIRS." Appellants purchased the home 20 June 2018. They also received a $10,000 credit from seller at closing because of the encroachment violation.

¶ 7 After Appellants purchased the property, the Union County Zoning Administrator issued a Notice of Violation to them on 6 September 2018. This Notice called for an additional survey to determine the extent of the violation by the residence and noted the setback violation as "the accessory structures encroaches [sic] into the required street side yard setback and there is a potential encroachment with a portion of the principal structure as well." This Notice also required removal of any portion of a structure violating the setback requirement. Appellants were subsequently fined $50 for the setback violation on 3 October 2018; this citation again noted violations by both structures, called for a new survey, and required removal of any portions of the structures that violated the UDO setback requirements. Another Notice of Violation was issued 31 January 2019, referencing the 2 January 2018 survey and again stating both the garage and residence were in violation of the minimum setback requirements.

¶ 8 Appellants appealed the Notices of Violation and the fine to the Union County Board of Adjustment. Hearings were held for the appeal on 11 February 2019 and 13 May 2019. Both parties presented testimony and evidence. The Board of Adjustment affirmed the Notices and determined that the residence and larger garage were encroaching into the street side yard setback in violation of the UDO.

¶ 9 Appellants petitioned for Writ of Certiorari to the Superior Court of Union County and requested the Court reverse and vacate the BOA's decision. The Superior Court entered an Order 9 November 2020 affirming the Union County BOA's decision. Appellants timely appealed to this Court.

II. Standard of Review

¶ 10 In this case, the Superior Court sat as an appellate court, reviewing the BOA's decision on a writ of certiorari. See Dellinger v. Lincoln County , 248 N.C. App. 317, 322, 789 S.E.2d 21, 26 (2016). At the time of the BOA decision and Superior Court proceeding, 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 pursuant to G.S. 160A-393." N.C. Gen. Stat. § 160A-388(e2)(2) (2019) (repealed by S.L. 2019-111, § 2.3 as amended by S.L. 2020-25, § 51(b), eff. June 19, 2020) (recodified at N.C. Gen. Stat. § 160D-406(k) (2021) ); see also Four Seasons Management Services v. Town of Wrightsville Beach , 205 N.C. App. 65, 75, 695 S.E.2d 456, 462 (2010). The Superior Court's functions when reviewing the decision of a board sitting as a quasi-judicial body include:

(1) Reviewing the record for errors in law,

(2) Insuring that procedures specified by law in both statute and ordinance are followed,

(3) Insuring that appropriate due process rights of a petitioner are protected including the right to offer evidence, cross-examine witnesses, and inspect documents,

(4) Insuring that decisions of [the Board] are supported by competent, material and substantial evidence in the whole record, and

(5) Insuring that decisions are not arbitrary and capricious.

Dellinger , 248 N.C. App. at 322, 789 S.E.2d at 26 (citation omitted). This Court's review of the Superior Court is limited to determining whether the Superior Court exercised the appropriate standard of review, and whether that standard of review was correctly applied. See Overton v. Camden County , 155 N.C. App. 391, 393–94, 574 S.E.2d 157, 160 (2002) ; Appeal of Willis , 129 N.C. App. 499, 501–02, 500 S.E.2d 723, 726 (1998).

¶ 11 When reviewing administrative decisions, determining the appropriate standard of review to be applied depends on "the substantive nature of each assignment of error." Morris Communications Corp. v. City of Bessemer City Zoning Bd. of Adjustment , 365 N.C. 152, 155, 712 S.E.2d 868, 870 (2011) (quoting N.C. Dep't of Env't & Nat. Res. v. Carroll , 358 N.C. 649, 658, 599 S.E.2d 888, 894 (2004) ). When the assignment of error alleges an error of law, de novo review is appropriate. Dellinger , 248 N.C. App. at 323, 789 S.E.2d at 26. Under a de novo standard of review, "a reviewing court considers the case anew and may freely substitute its own interpretation of an ordinance for a board of adjustment's conclusions of law." Morris Communications Corp. , 365 N.C. at 156, 712 S.E.2d at 871. The court shall consider the interpretation of the decision-making board but is not bound by that interpretation and may freely substitute its judgment as appropriate. Id.

¶ 12 When the assignment of error alleges that a board's decision was not supported by evidence, or was arbitrary and capricious, the appropriate review is the whole record test. Amanini v. North Carolina Dept. of Human Resources, N.C. Special Care Center , 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994). "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.’ " Id. " ‘Substantial...