Jamison v. Kyles , 271 N.C. 722 ( 1967 )

157 S.E.2d 550 (1967) 271 N.C. 722

W. H. JAMISON, Superintendent of Building Inspection for the City of Charlotte,
v.
Mrs. H. F. KYLES.

No. 284.

Supreme Court of North Carolina.

November 8, 1967.

Paul L. Whitfield, Charlotte, for plaintiff-appellant.

No counsel contra.

BRANCH, Justice.

At the threshold of this appeal we are confronted with the question of whether the judge of superior court exceeded his certiorari powers of review in making findings of fact at variance with those found by the Board of Adjustment.

G.S. § 143-315 provides:

"The court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: * * * (5) Unsupported by competent, material, and substantial evidence in view of the entire record as submitted; * * * If the court reverses or modifies the decision of the agency, the judge shall set out in writing, which writing shall become a part of the record, the reasons for such reversal or modification."

The findings of fact before the court were as follows:

"After the presentation of new evidence the Board finds as fact Para. 1-2-3.

(4) That the equipment being used in the operation of the business includes 2 commercial type chairs not normally used in a household and one commercial type sink not normally found in a household.

(5) That the new evidence presented was that the above equipment was being used primarily for commercial purposes.

(6) Paragraph 5.

CONCLUSIONS:

(1) The case was remanded by the Court for additional findings of fact.

(2) At the rehearing on November 29, 1966 with the new evidence presented, the Board finds Mrs. Kyles' business does not constitute a customary home occupation as set forth in Section 23-32 Para. D particularly.

DECISION OF THE BOARD

In view of the above findings of fact, the decision of the Board was expressed in a motion by Commissioner Phillips, seconded by Commissioner Watt, and unanimously carried."

It is apparent that the court could only speculate as to what Paragraphs 1, 2, 3 and 6 refer to. Thus, only findings of fact 4 and 5 of the Board are to be considered.

In re Appeal of Hasting, 252 N.C. 327, 113 S.E.2d 433, is a case which grew out of another Charlotte Zoning Board of Adjustment decision. In that case, under the zoning ordinance, petitioner was permitted to continue a nonconforming use when the ordinance was enacted. He later sought to get permission for additional construction upon contention that the construction was to complete facilities under his original plan. The Board affirmed the refusal of the building inspector to issue a permit to increase the use of the property. The decision of the Board was reviewed by the Superior Court, which sustained the Board's findings. In deciding this case on appeal from the Superior Court, this Court said:

"The city had the authority to prohibit an enlargement of a nonconforming use. In re O'Neal, 243 N.C. 714, 92 S.E.2d 189. Whether what petitioner sought was the right to complete construction of facilities for a nonconforming use to which property had been dedicated when the ordinance took effect or was an enlargement of a subsisting nonconforming use was a question of fact to be determined by the Board of Adjustment. The rule applicable is stated in In re Pine Hill Cemeteries, Inc., 219 N.C. 735, 15 S.E.2d 1, 3, thus: ``The duties of the building inspector being administrative, appeals from him to the Board of Adjustment present controverted questions of fact—not issues of fact. Hence it is that the findings of the board, when made in good faith and supported by evidence, are final. Little v. [Board of Adjustment of City of] Raleigh, 195 N.C. 793, 143 S.E. 827. Such findings of fact are not subject to review by the courts."

The case of Freeman v. Board of Alcoholic Control, 264 N.C. 320, 141 S.E.2d 499, again considered the authority of the Superior Court when reviewing proceedings of an administrative board. There the Court stated:

"The duty to weigh the evidence and find the facts is lodged in the agency that hears the witnesses and observes their demeanor as they testify—in this case the Board of Alcoholic Control. Its findings are conclusive if supported by material and substantial evidence. (Citing cases) ``Courts will not undertake to control the exercise of discretion and judgment on the part of members of a commission in performing the functions of a state agency.' (Citing cases) ``When discretionary authority is vested in such commission, the court has no power to substitute its discretion for that of the commission; and, in the absence of fraud, manifest abuse of discretion or conduct in excess of lawful authority, the court has no power to intervene.' (Citing cases) ``Hence it is that the findings of the board, when made in good faith and supported by evidence, are final.'" (Citing cases)

Our examination of the competent evidence submitted to the Board discloses it to be sufficient to support its findings of fact. The court below erred in reversing these findings of fact. Neither did the trial court comply with the requirements of G.S. § 143-315 by setting out in writing the reasons for such reversal.

Mrs. Kyles, appellee, has advised her attorneys in writing, copies of which are filed with the Court, that she does not desire to further pursue this appeal since she is moving to another State. Counsel did not appear or file brief in her behalf when the case was called for argument in this Court. Thus, the questions presented by this appeal have become moot.

The judgment entered by the court below is vacated and the cause is remanded to Mecklenburg County Superior Court with direction to enter order dismissing Mrs. Kyles' appeal to the Superior Court of Mecklenburg County, as moot.

Error and remanded.