Ballas v. Town of Weaverville

465 S.E.2d 324, 121 N.C. App. 346, 1996 N.C. App. LEXIS 13
CourtCourt of Appeals of North Carolina
DecidedJanuary 2, 1996
DocketCOA95-222
StatusPublished
Cited by6 cases

This text of 465 S.E.2d 324 (Ballas v. Town of Weaverville) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ballas v. Town of Weaverville, 465 S.E.2d 324, 121 N.C. App. 346, 1996 N.C. App. LEXIS 13 (N.C. Ct. App. 1996).

Opinion

GREENE, Judge.

Sharon Balias and Shelley Burtt (petitioners) appeal an order affirming the Town of Weaverville Zoning Board of Adjustment’s (the Board) denial of petitioners’ request for a special use permit.

Petitioners applied for a special use permit in the Town of Weaverville (Town), which would allow them to locate and operate a bed and breakfast in a residential area on Hamburg Mountain. Zoning Ordinance § 17-111 (section 17-111) provides that seven criteria must be met before the Board may approve a special use permit. The two relevant sections state:

(2) The special exception will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted nor substantially diminish and impair property values within the neighborhood.
(5) Adequate utilities, access roads, drainage and/or other necessary facilities have been or are being provided.

At the public hearing, petitioners stated that they were going to convert a “derelict building into a residence compatible with those in the subdivision” and “provide such a facility that the neighborhood residents” would recommend it to their “out-of-town friends.” Several neighbors stated that they were in favor of the bed and breakfast because petitioners did an excellent job of renovating the home, and it would be “an attribute to the community.” A general certified real estate appraiser who had examined the property and surrounding area and compared it to what happened in another community, presented evidence that the bed and breakfast would lower surrounding property values from 11-23%. The petitioners further offered that the “public water and sewer lines have been installed . . . and serve the subject property.”

*348 After the public hearing was closed, the Town manager informed the Board that the roads and utilities had not yet been accepted by the Town for maintenance. The Board voted 4-1, denying petitioners’ request for the special use permit. In denying the request the Board found that the “proposed plans . . . [do] not meet the specific design or other criteria as defined in Section 17-111 Standards of the Town of Weaverville Zoning Ordinance.”

Pursuant to N.C. Gen. Stat. § 160A-388(e), petitioners appealed the decision to superior court. After consideration of all the available evidence, the court affirmed the Board’s decision, concluding that “ [petitioners failed to produce competent, material, and substantial evidence to show compliance with Section 17-111 of the . . . Zoning Ordinance.”

The issues are (I) whether there is substantial, competent, and material evidence to support a finding that the petitioners failed in their burden of showing compliance with Section 17-111; and if so, (II) whether the decision of the Board is deficient because of its lack of findings of fact.

Although not governed by the North Carolina Administrative Procedure Act (the Act), N.C.G.S. § 150B (1995), the principles of the Act are “highly pertinent” to this Court’s review of decisions of a town board. Concrete Co. v. Board of Comm’rs, 299 N.C. 620, 625, 265 S.E.2d 379, 382 (1980). Consistent with the principles of the Act, the duty of this Court includes:

(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 town boards are supported by competent, material and substantial evidence in the whole record, and
(5) Insuring that decisions are not arbitrary and capricious.

Id. at 626, 265 S.E.2d at 383. This duty of review, however, is limited to those errors “which [are] alleged to have occurred.” Brooks v. Ansco & Assocs., 114 N.C. App. 711, 716, 443 S.E.2d 89, 92 (1994); see *349 Watson v. N.C. Real Estate Comm’n, 87 N.C. App. 637, 640, 362 S.E.2d 294, 296 (1987) (“review is limited to assignments of error to the superior court’s order”), cert. denied, 321 N.C. 746, 365 S.E.2d 296 (1988). “Where it is alleged that the [Board’s] decision was based upon an error of law, de novo review [by this Court] is required.” Brooks, 114 N.C. App. at 716, 443 S.E.2d at 92.

Where it is alleged the [Board’s] decision is not supported by substantial evidence, or is arbitrary and capricious, review is to be conducted under the “whole record” test, which requires [this Court] to examine all competent evidence in the record, including that which detracts from the [Board’s] decision ... to determine if the [Board’s] decision was supported by substantial evidence.

Id. (citations omitted); see Dockery v. North Carolina Dept. of Human Resources, 120 N.C. App. 827, 830, 463 S.E.2d 580, 583 (1995); Concrete Co., 299 N.C. at 626, 265 S.E.2d at 383 (appellate court determines “whether the evidence before the town board was supportive of its action”).

I

The petitioners first argue that they presented “competent, material, and substantial evidence” on each of the conditions required by the ordinance and that because there is no contrary evidence, the Board erred in denying the special use request. The Board contends that the petitioners did not present “competent, material, and substantial evidence” on the effect of the proposed bed and breakfast on the value of adjacent properties and the adequacy of water and sewer lines.

Section 17-111(2) of the Town ordinance requires the petitioner to show that the granting of the special use permit will not “substantially diminish and impair property values within the neighborhood.” The petitioners’ evidence on this point, that the bed and breakfast would be an “attribute to the community,” supports an inference that it would not impair the property values in the neighborhood. See Watt v. Housing Auth., 264 N.C. 127, 130, 141 S.E.2d 11, 13 (1965) (“inferences may be drawn if a proper factual basis exist for them”). Thus, on this issue the petitioners did present a prima facie case supporting issuance of the permit and denial of the permit on this basis can be sustained only upon “findings contra which are supported by competent, material, and substantial evidence.” See Refining Co. v. Bd. of Aldermen, 284 N.C. 458, 468,

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465 S.E.2d 324, 121 N.C. App. 346, 1996 N.C. App. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ballas-v-town-of-weaverville-ncctapp-1996.