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Thompson v. Town of White Lake

Court of Appeals of North Carolina

March 7, 2017

NOEL THOMPSON, Petitioner,
v.
TOWN OF WHITE LAKE, Respondent.

          Heard in the Court of Appeals 7 June 2016.

         Appeal by Petitioner from an order entered 14 May 2015 by Judge James Gregory Bell in Bladen County Superior Court. No. 14 CVS 526

          Morningstar Law Group, by William J. Brian, Jr. and Jeffrey L. Roether, for Petitioner-Appellant.

          Hester, Grady & Hester, P.L.L.C., by H. Clifton Hester, for Respondent-Appellee.

          INMAN, JUDGE.

         This appeal arises from a zoning dispute. Because the superior court misapplied a de novo standard of review and entered new findings of fact contrary to a municipal zoning board's findings, the judgment must be reversed. Also, because the appellee concedes that the record evidence did not support the municipal zoning board's only finding of fact supporting its decision, the board's decision must be reversed.

         Noel Thompson ("Petitioner") appeals from an order by the trial court affirming a zoning decision by the Town of White Lake Board of Adjustment (the "Board") that stopped Petitioner from completing construction of a storage building in a residential neighborhood. Petitioner asserts the Board's decision was not supported by competent evidence and misinterpreted the local zoning ordinance. Petitioner also contends the superior court applied the incorrect standard of review to the Board's decision. Respondent, the Town of White Lake (the "Town"), asserts that the superior court applied the correct standard of review and that its judgment should be affirmed. After careful review, we reverse the trial court's judgment as well as the Board's decision.

         Factual and Procedural History

         Petitioner is the owner of real property located at 1431 Highway 53 East (the "Property") in the Town of White Lake, North Carolina. The Property is zoned as an R-1, residential zoning district. The Town's zoning ordinance (the "Ordinance") provides that a person may construct an accessory storage structure on residential property by obtaining a zoning permit from the Town, which will be issued so long as the structure conforms to the Ordinance and the construction conforms to the issued permit.

         On 13 March 2014, Petitioner obtained a zoning permit (the "Permit") from the zoning inspector for the Town, Timothy Frush (the "Zoning Inspector"). The Permit allowed Petitioner to construct a 24'x40' tan, metal storage building on her property for residential purposes. The Permit further specified the Building would have four doors, all facing away from the street. Petitioner proceeded to construct a building (the "Building") with eight doors, including four facing the street.

         In response to complaints about the Building under construction, the Zoning Inspector investigated and found two deviations from the Permit: (1) the Building had four doors on each side, and (2) the Building had a center dividing wall, which created eight separate 10x12' units within the whole structure. On 7 April 2014, the Zoning Inspector issued a stop work order (the "Stop Work Order") for the construction of the Building and on 16 April 2014 sent Petitioner a notice of intent to revoke the Permit (the "Notice of Intent"). In the Notice of Intent, the Zoning Inspector cited three reasons that the Building violated the Ordinance:

• The accessory structure is a commercial structure and is inconsistent with the R-1 zoning permit authorization granted by the Town of White Lake. (Article V, 5-1.2)
• The permit recipient failed to develop or maintain the property in accordance with the approved plans. (Article V, 5-6.1)
• The accessory structure is not located behind the front building line of the principle structure. (Article XII, 12-7(A) [sic]

         Petitioner appealed the Stop Work Order and Notice of Intent to the Board. After an open meeting which included testimony by the Zoning Inspector and Petitioner, the Board affirmed the Zoning Inspector's decision on the first of the three allegations: that "[t]he accessory structure is a commercial structure and is inconsistent with the R-1 zoning permit authorization . . . ." The Board unanimously voted that "[b]ased on the evidence provided, the allegation is: Valid." The Board rejected the Zoning Inspector's other two allegations-that Petitioner "failed to develop or maintain the property . . . in accordance with the approved plans" and that "[t]he accessory structure is not located behind the front building line of the principle structure." The Board voted unanimously that each of those grounds was "[e]rroneous and not supported in fact or under the applicable provisions of the White Lake Zoning Ordinance as alleged by the [Zoning Inspector]." The Board concluded its decision with a comment that "the most serious violation (That the structure would be used for commercial purposes[]) was valid and was sufficient to support the action of revoking the permit."

         Petitioner appealed the Board's decision to the Superior Court of Bladen County, arguing, inter alia, that (1) the Zoning Inspector presented no competent evidence to support the Board's finding that the Building would be used for commercial purposes, and (2) the Board erred as a matter of law by affirming the Stop Work Order and Notice of Intent pursuant to Article V, 5-1.2 of the Ordinance.

         On 14 May 2015, the superior court entered an order affirming the Board's decision. The superior court entered findings of fact including, inter alia, that although the Permit approved a building with only four exterior doors facing the residential side of the structure and no internal dividing walls, "[t]he actual structure . . . contained [eight] doors and [eight] separate rooms, each with a separate door." The superior court further found that

the actual structure (a mini-storage building with [eight] separate compartments/rooms with [four] street-side doors) [was] not a permissible 'Accessory Use' structure incidental to a residential use as those terms are defined by the White Lake Zoning Ordinance. Furthermore, the [Building], as originally represented by the petitioner (a one-room storage building with [four] doors facing the ...

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