Long v. Winston-Salem Board of Adjustment

205 S.E.2d 807 (1974) 22 N.C. App. 191

Thomas E. LONG et al., Petitioners,
v.
The WINSTON-SALEM BOARD OF ADJUSTMENT et al., Respondents.

No. 7421SC299.

Court of Appeals of North Carolina.

June 19, 1974.

White & Crumpler by Melvin F. Wright, Jr., Winston-Salem, for petitioner appellees.

Womble, Carlyle, Sandridge & Rice by Roddey M. Ligon, Jr., Winston-Salem, for respondent appellants.

VAUGHN, Judge.

A board of adjustment's denial of a special use permit should be based on findings of fact supported by competent, material and substantial evidence. Refining Co. v. Board of Aldermen, 284 N.C. 458, 202 S.E.2d 129, and cases cited therein. The Board made no findings of fact. After two hearings, where apparently none of the evidence was given under oath, the Board's findings in their entirety were as follows:

". . . Mr. Palmer stated that in his opinion the Planning Board and others who had reviewed the site plan had erred in judgment by not determining that the proposed development would create a traffic hazard. He read from the ordinance the following site requirement relating to planned residential developments:

``Streets or highways, both within and in the vicinity of the planned residential development, shall be of such design and traffic-carrying capacity that the construction of a planned residential development would not create a traffic hazard.'

Based on the above, Mr. Palmer made a motion to deny the application. Mr. Meletis seconded the motion, and the vote was unanimous in favor of denial."

Assuming that the foregoing could be treated as a finding of fact, it is not supported by substantial competent evidence in the record before us. Neither does the record contain such substantial competent evidence as to allow the court to hold, as a matter of law, that the permit must be issued and specifically direct the imposition of special conditions to be attached to the issuance of the permit.

The judgment of the Superior Court is vacated. The cause is remanded to the Superior Court of Forsyth County for entry of a judgment (1) vacating the purported findings of fact and order of the Board of Adjustment, and (2) directing the Board to consider the application de novo and to make findings of fact based on competent evidence.

Vacated and remanded.

CAMPBELL and MORRIS, JJ., concur.