Eastern Outdoor, Inc. v. Board of Adjustment

564 S.E.2d 78, 150 N.C. App. 516, 2002 N.C. App. LEXIS 582
CourtCourt of Appeals of North Carolina
DecidedJune 4, 2002
DocketCOA01-546
StatusPublished
Cited by5 cases

This text of 564 S.E.2d 78 (Eastern Outdoor, Inc. v. Board of Adjustment) 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
Eastern Outdoor, Inc. v. Board of Adjustment, 564 S.E.2d 78, 150 N.C. App. 516, 2002 N.C. App. LEXIS 582 (N.C. Ct. App. 2002).

Opinions

[517]*517TIMMONS-GOODSON, Judge.

Eastern Outdoor, Inc. (“petitioner”) appeals from the trial court’s order upholding the decision by the Johnston County Board of Adjustment (“respondent”) approving the revocation of certain land-use permits issued to petitioner. For the reasons stated herein, we affirm the order of the trial court.

The facts pertinent to the instant appeal are as follows: On 17 December 1999, the Johnston County Planning Department (“Planning Department”) issued two land-use permits to petitioner for the erection of outdoor advertising signs, or billboards. The permits allowed the placement of billboards on two parcels of private property adjacent to North Carolina Highway 42 within the zoning jurisdiction of Johnston County. The applicable zoning designation for these parcels of land was “AR/R-40.” Pursuant to the issuance of the permits, petitioner began construction for the placement of its billboards on the two sites. On 8 February 2000, however, the director of the Planning Department revoked the permits on the grounds that the AR/R-40 zoning district did not permit outdoor advertising.

Petitioner appealed the revocation of its permits to respondent, which held a hearing on the matter on 31 May 2000. In its subsequent order upholding the decision of the Planning Director, respondent concluded that, because the AR/R-40 zoning designation of the land for which petitioner’s permits were issued did not permit billboards, “the permits issued to [petitioner] were issued under a mistake of law. As such, the permits were not valid permits and the Planning Director acted within his authority to revoke the subject permits.” Respondent therefore issued an order upholding the Planning Director’s decision to revoke petitioner’s permits.

Petitioner sought a writ of certiorari from the Johnston County Superior Court, which heard the matter on 12 December 2000. Reviewing respondent’s decision de novo, the trial court concluded that respondent had committed no error of law, and further, that upon review of the whole record, respondent’s order “was supported by competent, material and substantial evidence” and “was neither arbitrary nor capricious.” The court further determined that respondent had “followed procedures specified by law, in statute and ordinance” and had not violated petitioner’s due process rights. The trial court therefore issued an order upholding respondent’s decision, from which order petitioner now appeals.

[518]*518Petitioner contends that the trial court did not consider and rule upon all of the issues raised by petitioner, and further, that the trial court failed to specify the standard under which it reviewed those issues upon which it did rule. Petitioner further argues that the trial court erred in affirming respondent’s decision.

Upon reviewing a decision by a board of adjustment, the superior court’s scope of review 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.

Simpson v. City of Charlotte, 115 N.C. App. 51, 54, 443 S.E.2d 772, 775 (1994). Depending upon the nature of the alleged error, the superior court must apply one of two standards of review in an administrative appeal of a decision by a board of adjustment. Where the petitioner asserts that the board’s decision is based on an error of law, de novo review is proper. See Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjust., 140 N.C. App. 99, 102, 535 S.E.2d 415, 417 (2000), affirmed, 354 N.C. 298, 554 S.E.2d 634 (2001). If the petitioner contends that the board’s decision is arbitrary or capricious, or is unsupported by the evidence, the court applies the “whole record” test. See In re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993). When this Court reviews such appeals from the superior court, our review is limited to determining whether (1) the superior court determined the appropriate scope of review and (2) whether the superior court, after determining the proper scope of review, properly applied such a standard. See id. at 166, 435 S.E.2d at 363.

By its first assignment of error, petitioner asserts that the trial court’s order must be reversed because it failed to specify the standard under which the court reviewed respondent’s decision. Petitioner also contends that the trial court erred in fail[519]*519ing to address constitutional and equitable estoppel issues raised by petitioner.

In a case remarkably similar to the one at bar, Capital Outdoor, Inc. v. Guilford Cty. Bd. of Adjust., 146 N.C. App. 388, 552 S.E.2d 265 (2001), the petitioner was engaged in the business of outdoor advertising. The Planning Department of Guilford County issued the petitioner a building permit, but later revoked it because such permit was issued in violation of a development ordinance. The petitioner appealed the revocation of its permit to the Guilford County Board of Adjustment, which affirmed the Planning Department’s decision. Like present petitioner, the petitioner in Capital Outdoor thereafter filed a writ of certiorari with the Guilford County Superior Court, alleging that the Board’s decision was arbitrary and capricious, unsupported by the evidence, and violative of the petitioner’s constitutionally protected rights of free speech, due process and equal protection. The petitioner further asserted that the Board was equitably estopped from revoking the permit. The superior court affirmed the Board’s decisions, stating that they were “supported by competent material and substantial evidence and are not affected by error of law.” Id. at 391, 552 S.E.2d at 267.

On appeal, this Court reversed the trial court’s judgment, holding that, because the trial court had failed to delineate which standard it had applied in resolving each separate issue raised, “this Court cannot readily ascertain whether the superior court applied the appropriate standard of review to each allegation.” Id. We therefore reversed and remanded the case to the superior court “with instructions to characterize the issues before the court and clearly delineate the standard of review used to resolve each issue raised by the parties.” Id. at 392, 552 S.E.2d at 268.

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Eastern Outdoor, Inc. v. Board of Adjustment
564 S.E.2d 78 (Court of Appeals of North Carolina, 2002)

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Bluebook (online)
564 S.E.2d 78, 150 N.C. App. 516, 2002 N.C. App. LEXIS 582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eastern-outdoor-inc-v-board-of-adjustment-ncctapp-2002.