Thompson v. Union Cty. ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-382
No. COA21-220
Filed 7 June 2022
Union County, No. 19CVS1912
WILLIE THOMPSON AND EARLENE THOMPSON, Petitioners,
v.
UNION COUNTY, Respondent.
Appeal by petitioners from orders entered 9 November 2020 by Judge Hunt
Gwyn in Superior Court, Union County. Heard in the Court of Appeals 16 November
2021.
Ferguson Chambers & Sumter, PA, by Geraldine Sumter, for petitioners-
appellants.
Perry, Bundy, Plyler & Long, LLP, 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
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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,
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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
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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
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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,
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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
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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’)
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in order to determine whether the agency decision is supported by ‘substantial
evidence.’” Id. “‘Substantial evidence’ is that which a reasonable mind would consider
sufficient to support a particular conclusion . . . .” Id. at 682, 443 S.E.2d at 122.
¶ 13 “[W]hether competent, material and substantial evidence is present in the
record is a conclusion of law.” Dellinger, 248 N.C. App. at 324–25, 789 S.E.2d at 27
(alteration in original) (quoting Clark v. City of Asheboro, 136 N.C. App. 114, 119, 524
S.E.2d 46, 50 (1999)). The initial issue of whether the evidence presented by
Appellants met the requirements of being competent, material, and substantial is
subject to de novo review, but the BOA’s ultimate decision about how to weigh that
evidence is subject to whole record review. Id. at 325, 789 S.E.2d at 27. “The
reviewing court should not replace the [BOA’s] judgment as between two reasonably
conflicting views; while the record may contain evidence contrary to the findings of
the agency, this Court may not substitute its judgment for that of the agency.” SBA,
Inc. v. City of Asheville City Council, 141 N.C. App. 19, 27, 539 S.E.2d 18, 22 (2000)
(quotation, citations, and alterations in original omitted). In reviewing the
sufficiency and competency of evidence before the Superior Court, the question is not
whether the evidence supported the Superior Court’s order. Dellinger, 248 N.C. App.
at 323, 789 S.E.2d at 26. The question is whether the evidence before the BOA was
supportive of the BOA’s decision. Id.
III. Analysis
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A. The Superior Court’s Application of Standards of Review
¶ 14 This Court’s first task is determining whether the Superior Court applied the
correct standards of review. See Overton, 155 N.C. App. at 393–94, 574 S.E.2d at 160.
It appears that the Superior Court correctly identified de novo review and the whole
record test as the appropriate standards to apply. The Superior Court reviewed the
decision to determine whether there was “substantial, admissible evidence in the
record to support the findings of fact set forth in the Decision,” and conducted a de
novo review of the decision to determine whether the conclusions of law were
supported by the findings of fact. The Superior Court also reviewed the BOA decision
de novo to determine whether the decision was affected by other errors of law.
¶ 15 Before moving on to this Court’s second task, reviewing the Superior Court’s
application of these standards, we note Appellants allege that the Superior Court’s
order does not comply with our Rules of Civil Procedure.
1. Application of North Carolina Rule of Civil Procedure 52 to the
Superior Court’s Order
¶ 16 Appellants’ first argument asserts the Superior Court erred in failing to issue
an order with findings of fact in compliance with North Carolina Rule of Civil
Procedure 52(a)(1). We disagree. Rule 52(a)(1) has no application in the present case.
¶ 17 North Carolina Rule of Civil Procedure 52(a)(1) states, in relevant part, “[i]n
all actions tried upon the facts without a jury or with an advisory jury, the court shall
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find the facts specially and state separately its conclusions of law thereon and direct
the entry of the appropriate judgment.” N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2019).
But this Court has repeatedly held that a superior court, when sitting as an appellate
court, is not required to “make findings of fact and enter a judgment thereon in the
same manner as the court would be when acting in its role as trial court.” Shepherd
v. Consolidated Judicial Retirement System, 89 N.C. App. 560, 562, 366 S.E.2d 604,
605 (1988) (citing Markham v. Swails, 29 N.C. App. 205, 208, 223 S.E.2d 920, 922
(1976) (discussing the application of Rule 52 to a trial court’s appellate review of
agency decisions in accordance with North Carolina General Statutes §§ 143-314,
315)). “The trial court, when sitting as an appellate court to review an administrative
agency’s decision, must [only] set forth sufficient information in its order to reveal
the scope of review utilized and the application of that review.” Sutton v. North
Carolina Dept. of Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 342 (1999). Separate
findings of fact are not required, and Rule 52 has no application where the superior
court sits in the posture of an appellate court. See Myers Park Homeowners Ass’n,
Inc. v. City of Charlotte, 229 N.C. App. 204, 214, 747 S.E.2d 338, 346 (2013) (citing
Markham, 29 N.C. App. at 208, 233 S.E.2d at 922).
¶ 18 The Superior Court is not the trier of fact; that is the function of the town
board. Coastal Ready-Mix Concrete Co., Inc. v. Board of Com’rs of Town of Nags
Head, 299 N.C. 620, 626, 265 S.E.2d 379, 383 (1980). The Superior Court “may affirm
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the decision, reverse the decision and remand the case with appropriate instructions,
or remand the case for further proceedings.” Hampton v. Cumberland County, 256
N.C. App. 656, 662, 808 S.E.2d 763, 768 (2017) (quoting N.C. Gen. Stat. § 160A-393(l)
(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-1402(k) (2021)); see also id. at 671, 808
S.E.2d at 773 (summarizing Myers Park Homeowners Ass’n as interpreting North
Carolina General Statute § 160A-393 and “affirming a superior court’s denial, in a de
novo review of a board of adjustment’s order interpreting a zoning ordinance, of
motions requesting additional findings of fact under Rule[] 52 . . . on the basis that
‘the superior court functions as an appellate court rather than a trier of fact’” (quoting
Myers Park Homeowners Ass’n, 229 N.C. App. at 214, 747 S.E.2d at 341 (alterations
from internal quotation omitted))). This Court has even held that a superior court
may err by making its own findings of fact after a de novo review of an agency
decision. See Hampton, 256 N.C. App. at 668, 808 S.E.2d at 772; Carroll, 358 N.C. at
660–61, 599 S.E.2d at 895.
¶ 19 Because the Superior Court’s order is sufficient to allow this Court to identify
the scope and standards of review applied by the court below, and findings of fact
according to Rule 52 are not required when the Superior Court sits as an appellate
court, Appellants’ argument is overruled.
B. Application of Standards of Review by the Superior Court
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¶ 20 This Court’s second task is determining if the Superior Court correctly applied
the appropriate standards of review. See Overton, 155 N.C. App. at 393–94, 574
S.E.2d at 160. This Court reviews alleged errors of law de novo. See Westminster
Homes, Inc. v. Town of Cary Zoning Bd. of Adjustment, 140 N.C. App. 99, 102–03, 535
S.E.2d 415, 417 (2000).
¶ 21 Appellants contend the Superior Court did not apply the standard of review
properly because (1) the 2014 UDO is unenforceable against Appellants’ property,
and (2) the UDO should not have been applied to the property because the statutes
of limitations in North Carolina General Statutes §§ 1-49(3) and 1-51(5) both prohibit
the assessment of the civil penalty and the issuance of the Notices of Violation.
Because Appellants failed to raise the statute of limitations defense before the Board
of Adjustment and first raised the defense in their Petition for Writ of Certiorari
before the Superior Court, while the court sat as an appellate court, this defense was
waived. N.C. Gen. Stat. § 1A-1, Rule 8(c); Gragg v. W.M. Harris & Son, 54 N.C. App.
607, 609, 284 S.E.2d 183, 185 (1981) (“[T]he statute of limitations is a technical
defense, and must be timely pleaded or it is deemed waived.”); Delp v. Delp, 53 N.C.
App. 72, 76, 280 S.E.2d 27, 30 (1981) (“Where a defendant does not raise an
affirmative defense in his pleadings or [before the BOA], he cannot present it on
appeal.”). We therefore only address Appellants’ arguments that their property was
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exempted from the 2014 UDO or the 2014 UDO was otherwise inapplicable to the
Appellants’ property.
¶ 22 Appellants assert the Superior Court’s decision was erroneous because
Appellants’ residence and garage predate the enactment of the 2014 UDO. The
residence was constructed in 2004, the garage in 2009, and the 2014 UDO did not
become effective until 6 October 2014. The County did not issue a citation under the
2014 UDO to the Appellants until September 2018. Appellants identify three errors
of law and bases for reversal of the lower court’s decision: (1) their property was
exempted from enforcement by the plain language of the 2014 UDO, (2) Appellants
have a vested right under North Carolina General Statute § 153A-344 to maintain
their structures where currently located, and (3) it was error to affirm the retroactive
application of the UDO to Appellants’ property.
1. Application of the 2014 UDO under UDO § 1.120-A(1) and UDO § 1.120-
B
¶ 23 Appellants challenge several of the BOA’s findings of fact, but before we
address the findings, we must first determine the ordinances applicable to analysis
of the issues on appeal. The interpretation of an ordinance is reviewed de novo. See
Westminster Homes, 140 N.C. App. at 102–03, 535 S.E.2d at 417.
¶ 24 The residence and garage on the property were constructed prior to the
adoption of the 2014 UDO, and the land use ordinance in effect prior to 2014 is not in
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the record. Appellants argue the plain language of the 2014 UDO exempts their
property from enforcement under Section 1.120-A(1), but this Section is also not in
the record and we cannot take notice of municipal ordinances not in the record. High
Point Surplus Co. v. Pleasants, 263 N.C. 587, 591, 139 S.E.2d 892, 895 (1965);
Fulghum v. Town of Selma, 238 N.C. 100, 105, 76 S.E.2d 368, 371 (1953) (“We cannot
take judicial notice of municipal ordinances.”). Appellants quote Section 1.120-A(1)
to us in their brief as:
Any building, development or structure for which a
building permit was issued . . . before the effective date
specified in Section 1.030 may be completed in
comformance [sic] with the issued building permit . . . even
if such building, development or structure does not comply
with the provisions of this ordinance.
(Alterations in original.)
¶ 25 Appellants contend a permit was issued for construction of the residence and
garages prior to “the effective date specified in Section 1.030,” 6 October 2014, and
the structures were “completed in comformance [sic] with the issued building permit
. . . .” Thus, even if the residence and garages do not comply with the setback
provisions of the 2014 UDO, they comply with this provision of the 2014 UDO and
are not in violation of the ordinance. Appellee contends the purported Section 1.120-
A(1) applies only to the narrow scenario in which a permit was issued prior to
enactment of the ordinance, but construction was incomplete or had not started by
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the time of enactment. Appellee contends Section 1.120-A(1) does not apply to this
case because the structures were both completed long before the effective date of the
2014 UDO.
¶ 26 Appellee instead argues that Section 1.120-B, entitled “Violations Continue,”
is applicable to Appellant’s structures and cites Section 1.120-B to us as: “[A]ny
violation of the previous land use ordinance will continue to be a violation under this
ordinance and be subject to penalties and enforcement under Article 95.” Appellee
asserts the setbacks in the prior land use ordinance are the same as the 2014 UDO,
and therefore the encroachment by the garage and the residence are both continuing
violations. Additionally, because the garage encroaches on not only the setback, but
the right-of-way, regardless of the setback distance under the previous land use
ordinance the garage is a continuing violation punishable under the 2014 UDO.
Appellee contends neither structure could have been constructed “in conformance
with [an] issued building permit” as asserted by Appellants. However, the actual
permits, if any, no longer exist since Appellee purged its records. Additionally,
Appellee’s argument suffers the same fatal flaw as the Appellants’ argument, since
Section 1.120-B is not in the record before us and we cannot take notice of it. High
Point Surplus Co., 263 N.C. at 591, 139 S.E.2d at 895; Fulghum, 238 N.C. at 105, 76
S.E.2d at 371.
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¶ 27 For purposes of appellate review, we must consider only the evidence and
ordinances in the record. High Point Surplus Co., 263 N.C. at 591, 139 S.E.2d at 895;
Fulghum, 238 N.C. at 105, 76 S.E.2d at 371. The burden of proof to show the
existence of a violation of the ordinance is upon the Appellee. See Shearl v. Town of
Highlands, 236 N.C. App. 113, 116–17, 762 S.E.2d 877, 881 (2014) (“As to the first
question, the burden of proving the existence of an operation in violation of the local
zoning ordinance is on Respondent. Thus, it was Respondent’s responsibility to
present evidence that Petitioner’s commercial use of his storage building was in
violation of Respondent’s zoning ordinance when the notice of violation was issued on
19 August 2009.” (citation omitted)).
Ordinarily, once a town meets its burden to establish the
existence of a current zoning violation, the burden of proof
shifts to the landowner to establish the existence of a legal
nonconforming use or other affirmative defense. See City of
Winston–Salem [v. Hoots Concrete Co., Inc.], 47 N.C. App.
[405,] 414, 267 S.E.2d [569,] 575 [(1980)] (“The defendant,
of course, has the burden of establishing all affirmative
defenses, whether they relate to the whole case or only to
certain issues in the case. As to such defenses, he is the
actor and has the laboring oar. The city had the burden of
proving the existence of an operation in violation of its
zoning ordinance. It was defendant’s burden to prove the
city had already made a determination that the operation
was permissible and did not violate the zoning ordinance.”
(internal quotation marks and citation omitted)). Here,
however, Respondent has seriously handicapped
Petitioner’s ability to prove the location of the zoning line
in 1993 because Respondent has lost the Official Zoning
Map adopted with the 1990 zoning ordinance.
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Shearl, 236 N.C. App. at 118, 762 S.E.2d at 882.
¶ 28 The plain language of Section 1.120-A(1) and Section 1.120-B as quoted to us
appears to support Appellee’s argument that Section 1.120-B applies to this situation,
since the residence and garage were completed long before adoption of the 2014 UDO.
But Appellee failed to carry its burden of proving the residence and garage were in
violation of the ordinance in effect when they were built since they produced neither
the permits nor the applicable ordinance from the time of the construction.
Additionally, Section 1.120-B is not in the record, and we cannot determine whether
Section 1.120-B is applicable and whether Appellants’ property is a continuing
violation under the 2014 UDO. Appellee’s argument that the residence and garage
are in violation of Section 1.120-B is based upon assumptions unsupported by the
record. Appellee’s arguments as to Section 1.120-B are based upon its
representations as to the provisions of the ordinance in effect at the time Appellants’
residence and garages were built, but that ordinance is not in our record and was not
presented to the Superior Court either; our record includes only the portion of the
2014 UDO providing for setbacks in residential districts. In addition, Appellee
acknowledged it had purged the records of the permits and thus has no evidence of
the permits or any specific requirements of the permits.
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¶ 29 Appellee asks us to assume the residence was not constructed in compliance
with its permit and both structures were in violation of the prior land use ordinance
when constructed in 2004 and 2009 and thus are continuing violations under Section
1.120-B, but there is no legal or evidentiary basis for this assumption. In Shearl, this
Court addressed a similar situation where the Town had lost the zoning maps which
would purportedly show the location of a zoning line at issue in that case. 236 N.C.
App. at 118, 762 S.E.2d at 882. The Shearl Court noted, “Respondent has seriously
handicapped Petitioner’s ability to prove the location of the zoning line in 1993
because Respondent has lost the Official Zoning Map adopted with the 1990 zoning
ordinance.” Id. The Court also noted that the parties conceded some of the relevant
maps and other evidence were not in the record, but this deficiency was not the fault
of the appellant in that case. Id. at 117, 762 S.E.2d at 881. The case was remanded
for further proceedings where all the relevant maps and evidence could be considered,
with the burden upon the Town to prove the zoning violation.
We believe that where, as here, a town fails to comply with
its obligations under local ordinances and state law by
failing to keep official zoning maps on record for public
inspection, the appropriate remedy is to place the burden
back on the town to establish the location and classification
of zoning districts when the landowner began his or her
nonconforming use. Because the BOA placed the burden
on Petitioner to establish the location of the zoning line
when he began his nonconforming use in 1993, the
Superior Court’s order affirming that allocation of proof
must be vacated and the matter remanded for a new
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hearing. At the new hearing, Respondent must: (1) present
evidence establishing the existence of a current zoning
violation, and (2) present evidence that the 1990 zoning
ordinance moved the zoning line on the subject property
from 230 feet to 150 feet from the centerline of Highway 28.
Petitioner must be allowed to offer additional evidence in
rebuttal.
Id. at 119, 762 S.E.2d at 882.
¶ 30 As in Shearl, Appellee failed to carry its burden of proving a violation of the
ordinance in effect at the time the residence and garage were constructed because it
failed to present evidence of the permits (or lack thereof) and the applicable ordinance
at the time of construction. With no evidence of terms of the permits or of the
ordinance in effect when the residence and garage were constructed, the BOA and
Superior Court had no factual or legal basis upon which to find that the structures
were not in compliance with any permits and applicable provisions of the ordinance
in effect when the structures were built. There is no dispute the structures were all
completed long before adoption of the 2014 UDO and the first Notice of Violation was
not issued until 1 June 2018.
¶ 31 We must thus consider whether remand is proper in this case. In Shearl, the
parties conceded that certain maps and evidence were missing from the record, but
this Court determined the deficiency was not the fault of the appellant. Id. at 117,
762 S.E.2d at 881. In addition, in Shearl, the town had “lost” the maps, apparently
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inadvertently, id. at 118, 762 S.E.2d at 882, but here the Appellee had intentionally
purged its records of permits more than 6 years old. Because the issue was the lack
of information in the record, the Shearl Court remanded for a new hearing. Here,
Appellee conceded it had purged its records of permits and permit applications more
than 6 years old and presumed that a permit was issued for the residence, so remand
for further consideration as to the residence would be futile. As to the residence, we
will not hold Appellee’s unilateral decision to purge its records as to permits after 6
years against the Appellants. Appellee had the burden of proving Appellants were in
violation of the 2014 UDO but did not produce evidence of any applicable permits
issued for the residence and did not provide the ordinance in effect at the time of the
residence’s construction to the Superior Court.
¶ 32 As to the garage, Appellants acknowledged it was constructed without a
permit, so the garage could potentially be in violation under Section 1.120-B. But
Section 1.120-B is not in the record before us and the BOA failed to make findings of
fact regarding the garage and the prior ordinance. However, there may be relevant
evidence available regarding the garage on remand. The survey and testimony in
evidence address the requirements of the 2014 UDO but do not purport to show
whether the garage violated the ordinance in effect at the time of the structure’s
construction and whether the garage is consequently a continuing violation under the
2014 UDO.
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Opinion of the Court
¶ 33 Because there was no basis to apply the 2014 UDO to Appellants’ pre-existing
residence and garage, the Superior Court erred in affirming the BOA decision finding
the structures in violation of the 2014 UDO. However, Appellant conceded at the
BOA hearing the garage was constructed without a permit, so we remand for further
proceedings with respect to Appellants’ garage.
2. Vested Rights under North Carolina General Statute § 153A-344
¶ 34 Appellants next challenge the Superior Court’s affirmation of the BOA decision
because the BOA decision directly conflicts with former North Carolina General
Statute § 153A-344, which provided that:
Amendments in zoning ordinances shall not be applicable
or enforceable without consent of the owner with regard to
buildings and uses for which either (i) building permits
have been issued pursuant to G.S. 153A-357 prior to the
enactment of the ordinance making the change or changes
so long as the permits remain valid and unexpired
pursuant to G.S. 153A-358 and unrevoked pursuant to G.S.
153A-362 . . . .
N.C. Gen. Stat. § 153A-344(b) (2017)1 (repealed by S.L. 2019-111, § 2.2, as amended
by S.L. 2020-25, § 51(b), eff. June 19, 2020) (recodified at N.C. Gen. Stat. § 160D-
108(c) (2021)).
1 While this case was ongoing, the statute changed in July 2019. N.C. Gen. Stat. § 153A-
344(b) (2019). The changes in the statute do not make a substantive difference, but we use
the version of the statute in effect in 2018 because that is when the citations that started this
case were issued.
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Opinion of the Court
¶ 35 Appellants argue the property’s development was authorized by the County
via building permits, inspections, and occupancy certificates, so North Carolina
General Statute § 153A-344 provides Appellants with a vested right to maintain their
residence and garage where currently located. The County was consequently barred
from enforcing the UDO against Appellants without their written consent. As a
result, it was erroneous for the Superior Court to affirm the Board’s retroactive
application of the UDO to structures completed 5 to 10 years prior to the enactment
of the UDO. We agree in part.
¶ 36 North Carolina law provides a statutory vested right to maintain buildings
constructed in conformity with a building permit, and the County presumed
Appellants’ residence was properly permitted since it had purged its records.
Appellee had an opportunity to prove Appellants’ property was not constructed in
conformity with a building permit or the applicable ordinances, but instead chose to
presume a permit was issued and only pursued setback violations under the 2014
UDO. The absence of evidence of a permit should be held against the County, not the
property owner. See Shearl, 236 N.C. App. at 118, 762 S.E.2d at 882. As to
Appellants’ garage, Appellant Earlene testified before the BOA that the garage was
unpermitted. Therefore, there was no permit that may grant Appellants a vested
right to maintain their garage where located.
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Opinion of the Court
¶ 37 Vested rights in a zoning ordinance can be established through one of two
means. See Browning-Ferris Industries of South Atlantic, Inc. v. Guilford County Bd.
of Adjustment, 126 N.C. App. 168, 171, 484 S.E.2d 411, 414 (1997). Vested rights
may be created by qualification with certain statutes or by qualification under the
common law. See id. Appellants only assert a statutory vested right, and we
consequently limit our discussion.
¶ 38 Issuance of a building permit is a necessary prerequisite to the creation of a
vested statutory right under North Carolina General Statute § 153A-344. See § 153A-
344(b); see also Sandy Mush Properties, Inc. v. Rutherford County ex rel. Rutherford
County Bd. of Com’rs, 181 N.C. App. 224, 233, 638 S.E.2d 557, 563 (2007)
(interpreting § 153A-344 as applied to an office building with a valid permit).
Additionally, any such right created under North Carolina General Statute § 153A-
344 may be limited by the precise language of the permit. See Sandy Mush Properties,
181 N.C. App. at 235–36, 638 S.E.2d at 564. Should a permit contain language such
as “all work will comply with the State Building Code and all other applicable State
and Local laws and ordinances,” then any rights created under North Carolina
General Statute § 153A-344 would be limited to rights to construct buildings in
conformity with North Carolina law, including local zoning ordinances. See id.
¶ 39 Appellee argues, based upon the testimony of the Union County Zoning
Administrator, that any permit issued to Appellants to construct their residence
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Opinion of the Court
would have included similar language. The BOA also appears to have considered the
likelihood that any permit issued to Appellants would have declared setback
requirements and that construction must comply with those requirements.
¶ 40 However, as to Appellants’ residence, no evidence of the specific requirements
of a building permit was presented. The only evidence regarding the permit was the
statement by Mr. King 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.
(Emphasis added.) The rest of the testimony before the BOA appears to focus on the
2 January 2018 survey, but the evidence does not address whether the residence’s
construction complied with a building permit or what the prior ordinance required in
2004. Additionally, the BOA made no findings as to the existence or nonexistence of
a permit for Appellants’ residence. According to the evidence and the County’s
concession it had purged its records and assumption that a permit was issued, we
must also assume a permit was issued. Based upon the permit, Appellants have a
vested right to maintain the residence where currently located. Appellee did not use
its opportunity before the BOA to prove the absence of a permit for the residence,
failure to comply with a permit, or that a permit was issued and expired but instead
chose to assume a valid permit was issued to Appellants. Appellants have a vested
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Opinion of the Court
right under North Carolina General Statute § 153A-344 to maintain the residence
where currently located. But since no permit was issued for the garage, Appellants
have no vested right under North Carolina General Statute § 153A-344 to maintain
the garage where it is located.
C. Application of the Standard of Review to Findings of Fact
¶ 41 This Court must next determine if the Superior Court correctly applied the
whole record test to challenged findings of fact. See Dellinger, 248 N.C. App. at 323,
789 S.E.2d at 26. Our duty is to determine, after a review of the whole record, if there
was substantial evidence to support the BOA decision. Id. “The whole record test
does not allow the reviewing court to replace the Board’s judgment as between two
reasonably conflicting views, even though the court could justifiably have reached a
different result had the matter been before it de novo.” Turik v. Town of Surf City,
182 N.C. App. 427, 430, 642 S.E.2d 251, 253 (2007) (alterations and quotation
omitted). But any “[f]acts found under misapprehension of the law will be set aside
on the theory that the evidence should be considered in its true legal light . . . .” State
v. Moir, 369 N.C. 370, 389, 794 S.E.2d 685, 698 (2016) (alteration in original) (quoting
Helms v. Rea, 282 N.C. 610, 620, 194 S.E.2d 1, 8 (1973)). The BOA’s sole conclusion
of law is reviewed de novo. Westminster Homes, 140 N.C. App. at 102, 535 S.E.2d at
417.
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Opinion of the Court
¶ 42 Appellant assigns error to three specific findings of fact, and the BOA’s sole
conclusion of law.
1. Board of Adjustment Finding of Fact No. 4
¶ 43 The BOA Finding of Fact No. 4 states: “A portion of the principal residential
structure is located in the 20-foot side yard setback. The date that the encroachment
first occurred is unknown.” Appellant argues there was no competent evidence
presented at either BOA hearing to support this finding, and that the testimony by
the Union County Zoning Administrator indicates the County did not have sufficient
information to conclusively determine if the house encroached upon the setback line.
This finding is accurate in that the survey does show an encroachment, and the
Zoning Administrator testified that an encroachment is evidenced by the survey, but
it is the extent of the encroachment that is unknown. Regardless, the survey and
testimony were based upon the 2014 UDO and thus this finding is not relevant to the
issue of setback violations for the reasons stated above. This finding only shows that
the property would be in violation of the 2014 UDO if the residence was built after
the effective date of the UDO, not that Appellants’ property is a continuing violation
of the prior ordinance.
2. Board of Adjustment Finding of Fact No. 8
¶ 44 The BOA Finding of Fact No. 8 states: “At the time Thompson purchased the
Thompson Residence, she was aware of both violations of the side yard setbacks.”
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Appellants argue this finding is at odds with Appellant Earlene’s testimony at the
hearing, and that Appellants were only aware of a potential permitting issue with
the garage. After a review of the evidence available to the BOA, we agree with
Appellants’ arguments for the reasons set forth in the prior section. Appellee had the
burden of proving a violation of the 2014 UDO and failed to produce evidence to carry
that burden. The BOA should not have applied the 2014 UDO against Appellants’
property, and Appellants’ knowledge of a survey showing an encroachment based
upon the 2014 UDO has no bearing on whether either structure was in violation of
the ordinance in effect when the structures were built. Ultimately, Appellants’
knowledge of a potential violation of the 2014 UDO is not relevant.
3. Board of Adjustment Finding of Fact No. 12
¶ 45 The BOA Finding of Fact No. 12 states: “The various depictions and testimony
of the location of the Thompson Residence and the accessory detached garage all show
both buildings encroach into the required side yard setbacks.” Appellants argue this
finding is erroneous for the same reasons that Finding No. 4 is erroneous; there is no
competent evidence to support the finding. Again, this finding is accurate because
the survey does show an encroachment, but the survey was based upon the 2014 UDO
and thus this finding is not relevant to the issue of violation for the reasons stated
above. For the same reasons as Finding No. 4, we conclude it was error for the
Superior Court to affirm the BOA’s findings applying the UDO when it was not shown
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Opinion of the Court
that Appellants’ property violated the prior ordinance in effect when the structures
were built.
4. Board of Adjustment Conclusion of Law
¶ 46 Appellants also challenge the Board of Adjustment’s sole conclusion of law.
The BOA concluded that “both the Thompson Residence and the accessory detached
garage encroach into the side yard setbacks and are thus in violation of the Union
County Development Ordinance.” As discussed above, this conclusion of law is based
upon application of the 2014 UDO, but Appellee failed to show that the structures
were in violation of the ordinance in effect when they were built. The Superior Court
erred in affirming the BOA’s conclusion of law.
IV. CONCLUSION
¶ 47 We conclude Appellants waived the defense of the statutes of limitations in
North Carolina General Statutes §§ 1-49(3) and 1-51(5) as to the civil penalty and
Notices of Violation by failure to raise this defense before the BOA. We conclude the
Superior Court erred by affirming the BOA’s decision because Appellee failed to carry
its burden of proving the residence and garage were in violation of the 2014 UDO. As
to Appellants’ residence, the trial court’s order is reversed. As to Appellants’ garage,
the trial court’s order is vacated and remanded with instructions to remand to the
BOA for further proceedings consistent with this opinion, with the burden upon
Appellee to prove a zoning violation based upon the applicable ordinances.
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2022-NCCOA-382
Opinion of the Court
REVERSED IN PART; VACATED AND REMANDED IN PART.
Judges ARROWOOD and JACKSON concur.