Sanders P'ship, LLC v. City of Charlotte

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance with

the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-604

Filed 7 January 2026

Mecklenburg County, No. 23CVS015944-590

SANDERS PARTNERSHIP, LLC, and DEW GREEN LCID, LLC, Petitioners,

v.

CITY OF CHARLOTTE, Respondent.

Appeal by Respondent from order entered 15 February 2024 by Judge Peter B.

Knight in Mecklenburg County Superior Court. Heard in the Court of Appeals 24

April 2025.

Office of the City Attorney, by Senior Assistant City Attorney Jill Y. Sanchez-

Myers and Nicole Hewitt, for Respondent-Appellant.

Murray Law Firm, PLLC, by David William Murray, for Petitioners-Appellees.

CARPENTER, Judge.

The City of Charlotte (the “City”) appeals from the superior court’s 15 February

2024 order (the “Order”), reversing the zoning variance decision (the “Decision”) by

Charlotte’s Unified Development Board of Adjustment (the “Board”). In the Decision,

the Board denied a zoning variance application from Sanders Partnership, LLC and

Dew Green LCID, LLC (collectively, “Petitioners”). On appeal, the City argues: (1)

SANDERS P’SHIP, LLC V. CITY OF CHARLOTTE

Opinion of the Court

the superior court erred by reversing the Decision; (2) the superior court erred by

making additional findings of fact in the Order; and (3) we must remand for the Board

to make additional findings of fact. After careful review, we affirm the Order.

I. Factual & Procedural Background

Petitioners own six parcels of land, totaling approximately 62.5 acres, at the

corner of Pleasant Grove Road and Kelly Road in Charlotte, North Carolina (the

“Property”). Per the City’s zoning ordinance (the “Ordinance”), the Property is zoned

as a R-3 single family residential property.

Petitioners desire to construct a Land Clearing and Inert Debris Landfill

(“LCID”) on the Property. The Ordinance defines an LCID as a “facility for the land

disposal of inert debris, land clearing debris, yard trash and untreated and unpainted

wood.”1 Charlotte, N.C., Zoning Ordinance § 2.201. An LCID is only permitted in R-

3 zones if eight prescribed conditions in the Ordinance are met. Id. § 12.503. One

condition requires road access to the LCID be provided from “any other street that is

not a part of a residential local or residential collector street.” Id.

Sometime in 2019, a zoning administrator interpreted Kelly Road as a

residential collector street. Kelly Road is a two-lane road that has few residential

properties. Even though “there are some developers potentially trying to buy up

1 Opposition testimony presented at the Board’s hearing tended to show the Ordinance was amended

almost one year after Petitioners applied for their LCID. Pursuant to the amendment, R-3 zones “no

longer allow” LCIDs. Because Petitioners applied for an LCID before the amendment, they were

“grandfathered in” and allowed to continue pursuing an LCID.

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property” on Kelly Road, such as a “potential town home development,” the area

remains “largely undeveloped.” An animal farm is located on Kelly Road across from

the Property. The North Carolina Department of Transportation (“NCDOT”)

maintains “Trucks Entering Highway” signs on Kelly Road immediately adjacent to

the Property. These signs were originally erected because the northern portion of the

Property, which only has street access from Kelly Road, was previously used as an

LCID from 1992 to 2004. Similarly, the Kelly Road Landfill is located directly across

Kelly Road from the Property and was operating as an LCID as recently as 2022. The

only street access to the Kelly Road Landfill was on Kelly Road. The City issued

permits to the Kelly Road Landfill for its operation as an LCID as recently as 2009.

Pleasant Grove Road is not a residential collector street and is a two-lane road

until it meets the entrance of the Sutton Farms subdivision on Linhay Drive.

Pleasant Grove Road and Kelly Road are maintained by NCDOT, which controls the

issuance of road entrance permits to the Property. Because Kelly Road is a

residential collector street and thus cannot serve as an LCID entrance under the

Ordinance, Petitioners requested NCDOT approve a Pleasant Grove Road entrance

to the Property. NCDOT denied Petitioners’ request because of Pleasant Grove

Road’s close proximity to Linhay Drive and the entrance to the Sutton Farms

subdivision. NCDOT explained that it denied Petitioners’ request to avoid creating

“conflict points . . . specifically related to pedestrians and vehicles.” When denying

Petitioners’ request, NCDOT determined the LCID entrance should be on Kelly Road.

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NCDOT’s denial prevented Petitioners from meeting all of the Ordinance’s

LCID requirements. As a result, on 24 May 2023, Petitioners submitted a variance

application to the Board seeking a variance from the Ordinance. Specifically,

Petitioners requested a variance from the LCID condition that vehicular access be

provided from “any other street that is not a part of a residential local or residential

collector street.” See id. In other words, Petitioners sought to use Kelly Road for the

LCID entrance as NCDOT recommended. On 25 July 2023, the Board conducted a

hearing on the matter.

Following the hearing, the Board determined Petitioners did not meet three of

the four requirements for a variance. Subsequently, the Board entered the Decision

denying Petitioners’ variance application, supported by findings of fact and

conclusions of law. In particular, the Board concluded that:

1. Unnecessary hardships would not result from the strict

application of the Ordinance.

2. The hardship does not result from conditions that are

peculiar to the [P]roperty (location, size or topography).

3. The hardship does not result from actions taken by

[Petitioners].

4. The requested variance is not consistent with the spirit,

purpose, and intent of the [ ] Ordinance, in that the

public safety is secured and substantial justice is

achieved.

On 8 September 2023, Petitioners filed a petition for writ of certiorari with the

superior court. On appeal to the superior court, Petitioners argued: (1) the Decision’s

conclusions of law 1, 2, and 4 were erroneous as a matter of law and Petitioners

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presented sufficient evidence to demonstrate they were entitled to the variance as a

matter of law; (2) the Decision’s findings of fact supported granting the variance, so

the Decision was unsupported by the evidence; and (3) the Decision was arbitrary and

capricious.

On 1 February 2024, the superior court conducted a hearing on the matter. On

14 February 2024, the superior court entered the Order, reversing the Decision and

remanding to the Board with instructions to issue Petitioners’ requested variance.

The superior court determined: (1) the Decision’s conclusions of law 1, 2, and 4 were

erroneous as a matter of law and Petitioners presented sufficient evidence to

demonstrate they were entitled to the variance as a matter of law; (2) the Decision’s

conclusions of law 1, 2, and 4 were unsupported by the evidence and findings of fact;

and (3) the Decision was arbitrary and capricious. On 26 February 2024, the City

filed notice of appeal to this Court.

II. Jurisdiction

This Court has jurisdiction under N.C. Gen. Stat. §§ 7A-27(b)(1) and 1-277(a)

(2023).

III. Issues

The issues are whether: (1) the superior court erred in reversing the Decision;

(2) the superior court erred by making additional findings of fact in the Order; and

(3) this Court must remand for the Board to make additional findings of fact.

IV. Analysis

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The City argues the superior court erred by reversing the Decision.

Specifically, the City contends the superior court incorrectly determined that the

Decision’s conclusions of law 1, 2, and 4 are erroneous as a matter of law and

unsupported by sufficient evidence. As a result, according to the City, the superior

court also erred by concluding that the Decision was arbitrary and capricious.

Finally, the City argues the superior court erred by making additional findings of fact

in the Order, and that we must remand for the Board to make additional findings of

fact. We disagree.

A. Standard of Review

“Each of the three levels—the board of adjustment, the superior court, and this

Court—has a particular standard of review.” Cook v. Union Cnty. Zoning Bd. of

Adjust., 185 N.C. App. 582, 585, 649 S.E.2d 458, 463 (2007). A board of adjustment

acts as “a quasi-judicial” body and factfinder, Humble Oil & Refin. Co. v. Bd. of

Aldermen, 284 N.C. 458, 469, 202 S.E.2d 129, 137 (1974), and its decisions are subject

to appellate review by the superior court, Tate Terrace Realty Invs., Inc. v. Currituck

Cnty., 127 N.C. App. 212, 217, 488 S.E.2d 845, 848 (1997). The superior court decides

whether:

1) the board committed any errors in law; 2) the board

followed lawful procedure; 3) the petitioner was afforded

appropriate due process; 4) the board’s decision was

supported by competent evidence in the whole record; and

5) the board’s decision was arbitrary and capricious.

Cap. Outdoor, Inc. v. Guilford Cty. Bd. of Adjust., 152 N.C. App. 474, 475, 567 S.E.2d

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440, 441 (2002) (cleaned up). The superior court’s standard of review depends on the

nature of the challenge to the board of adjustment’s decision. Bailey & Assocs., Inc.

v. Wilmington Bd. of Adjust., 202 N.C. App. 177, 189, 689 S.E.2d 576, 586 (2010).

“When the petitioner questions (1) whether the agency’s decision was

supported by the evidence or (2) whether the decision was arbitrary or capricious,

then the reviewing court must apply the whole record test.” Mann Media, Inc. v.

Randolph Cty. Plan. Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002) (internal quotation

marks and citation omitted). “The ‘whole record test’ requires the reviewing court to

examine all competent evidence . . . to determine whether the agency decision is

supported by ‘substantial evidence.’” Amanini v. N.C. Dep’t of Hum. Res., N.C.

Special Care Ctr., 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994) (quoting Rector

v. N.C. Sheriffs’ Educ. & Training Standards Comm., 103 N.C. App. 527, 532, 406

S.E.2d 613, 616 (1991)). “Substantial evidence is that which a reasonable mind would

regard as adequately supporting a particular conclusion.” Walker v. N.C. Dep’t of

Hum. Res., 100 N.C. App. 498, 503, 397 S.E.2d 350, 354 (1990).

De novo review applies when the petitioner argues the board’s decision was

erroneous as a matter of law. Showcase Realty & Const. Co. v. City of Fayetteville Bd.

of Adjust., 155 N.C. App. 548, 551, 573 S.E.2d 737, 740 (2002). De novo review also

applies to whether the applicant presented “competent, material, and substantial

evidence” because that “is a conclusion of law.” N.C. Gen. Stat. § 160D-1402(j)(2)

(2023) (“Whether the record contains competent, material, and substantial evidence

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is a conclusion of law, reviewable de novo.”); Weaverville Partners, LLC v. Town of

Weaverville Zoning Bd. of Adjust., 188 N.C. App. 55, 59–60, 654 S.E.2d 784, 788

(2008) (concluding the superior court properly applied de novo review to the issue of

whether the applicant “presented in the record . . . competent, material and

substantial evidence”). Under de novo review, “the superior court considers the

matter anew and freely substitutes its own judgment for the agency’s

judgment.” Mann Media, Inc., 356 N.C. at 13, 565 S.E.2d at 17 (cleaned up).

On appeal from the superior court, we consider “whether the superior court

applied the correct standard of review, and . . . whether the superior court correctly

applied that standard.” Overton v. Camden Cnty., 155 N.C. App. 391, 393–94, 574

S.E.2d 157, 160 (2002). When the superior court should have conducted de novo

review, we review its decision de novo. Showcase Realty & Const. Co., 155 N.C. App.

at 551, 573 S.E.2d at 740.

B. De Novo Review

First, Petitioners argued to the superior court that the Decision’s conclusions

of law 1, 2, and 4 are erroneous as a matter of law and that Petitioners presented

sufficient evidence to demonstrate they were entitled to the variance as a matter of

law. In its de novo review, the superior court agreed with Petitioners. On appeal to

this Court, the City argues the superior court erred by determining that the

Decision’s conclusions of law 1, 2, and 4 are erroneous as a matter of law. The City

also argues the superior court incorrectly applied de novo review, rather than the

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whole record test, to the issue of whether Petitioners presented sufficient evidence to

show they were entitled to the variance. Finally, the City argues the superior court

erred by making additional findings of fact.

Because the superior court conducted a de novo review in considering whether

conclusions of law 1, 2, and 4 are erroneous as a matter of law, the superior court

applied the correct standard of review. See id. at 551, 573 S.E.2d at 740. Similarly,

the superior court applied the correct standard of review, de novo review, to the issue

of whether Petitioners presented sufficient evidence to show they were entitled to the

variance—as that is a conclusion of law. See N.C. Gen. Stat. § 160D-140(j)(2);

Weaverville Partners, LLC, 188 N.C. App. at 59, 654 S.E.2d at 788. We next

determine whether the superior court “correctly applied that standard.” See Overton,

155 N.C. App. at 393–94, 574 S.E.2d at 160.

An applicant for a variance “bear[s] the burden of proving their case and must

show what type of variance they need and why the variance is needed.” Robertson v.

Zoning Bd. of Adjust. for City of Charlotte, 167 N.C. App. 531, 534, 605 S.E.2d 723,

726 (2004). An applicant must prove four elements:

(1) Unnecessary hardship would result from the strict

application of the regulation. It is not necessary to

demonstrate that, in the absence of the variance, no

reasonable use can be made of the property.

(2) The hardship results from conditions that are peculiar

to the property, such as location, size, or topography.

Hardships resulting from personal circumstances, as well

as hardships resulting from conditions that are common to

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the neighborhood or the general public, may not be the

basis for granting a variance . . . .

(3) The hardship did not result from actions taken by the

applicant or the property owner. The act of purchasing

property with knowledge that circumstances exist that

may justify the granting of a variance is not a self-created

hardship.

(4) The requested variance is consistent with the spirit,

purpose, and intent of the regulation, such that public

safety is secured and substantial justice is achieved.

N.C. Gen. Stat. § 160D-705(d) (2023). If an applicant meets their burden in proving

these four elements, “the board of adjustment shall vary any of the provisions of the

zoning regulation . . . .” Id. (emphasis added).

In the Decision, the Board determined that Petitioners presented sufficient

evidence as to only the third element, concluding:

1. Unnecessary hardships would not result from the strict

application of the Ordinance.

2. The hardship does not result from conditions that are

peculiar to the [P]roperty (location, size or topography).

3. The hardship does not result from actions taken by

[Petitioners].

4. The requested variance is not consistent with the spirit,

purpose, and intent of the [ ] Ordinance, in that the

public safety is secured and substantial justice is

achieved.

Therefore, on appeal to the superior court, Petitioners argued conclusions of law 1, 2,

and 4 were erroneous as a matter of law and that Petitioners presented sufficient

evidence to demonstrate they were entitled to the variance as a matter of law.

1. Unnecessary Hardship

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“One of the fundamental purposes of zoning boards of adjustment is to provide

flexibility and prevent . . . practical difficulties and unnecessary hardships resulting

from strict interpretations of zoning ordinances.” Morris Comm. Corp. v. City of

Bessemer City Zoning Bd. of Adjust., 365 N.C. 152, 159, 712 S.E.2d 868, 873 (2011)

(internal quotation marks and citation omitted). Unnecessary hardship occurs when

a zoning ordinance denies a property owner “ ‘reasonable use of his property.’ ” Turik

v. Town of Surf City, 182 N.C. App. 427, 434, 642 S.E.2d 251, 255 (2007) (quoting

Williams v. N.C. Dep’t of Env. and Nat. Res., 144 N.C. App. 479, 487, 548 S.E.2d 793,

798 (2001)). But an unnecessary hardship does not occur when there is only

pecuniary loss or when the hardship is “personal in nature . . . .” Id. at 434–35, 642

S.E.2d at 255–56 (internal quotation marks and citation omitted).

For example, in Turik, a property owner desired to construct a duplex on his

property but could not do so in compliance with the relevant zoning ordinance due to

conflicting land surveys and a boundary-line dispute with a neighbor. Id. at 431, 642

S.E.2d at 254. As a result, the property owner sought a variance from the zoning

ordinance. Id. at 431, 642 S.E.2d at 254. On appeal, this Court agreed the property

owner was entitled to a variance after concluding the conflicting land surveys and

boundary-line dispute created an unnecessary hardship. Id. at 434, 642 S.E.2d at

256.

Here, the evidence and Board’s unchallenged findings of fact demonstrate the

following. The Property has two frontage points for road access: one on Pleasant

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Grove Road and one on Kelly Road. Kelly Road is a residential collector street, which

is impermissible for an LCID entrance under the Ordinance. Pleasant Grove Road is

permissible for an LCID entrance. NCDOT, however, determined that Petitioners

could not use Pleasant Grove Road for their LCID entrance due to its close proximity

to Linhay Drive and the entrance to the Sutton Farms subdivision. Instead, NCDOT

determined Petitioners should use Kelly Road for their LCID entrance.

Therefore, Petitioners could only satisfy the Ordinance’s LCID requirements

by using Pleasant Grove Road for their LCID entrance. But Petitioners could not

obtain a permit from NCDOT for a Pleasant Grove entrance. Like the property owner

in Turik, who was caught in a quandary between conflicting land surveys, a

boundary-line dispute, and the relevant zoning ordinance, Petitioners could not

operate an LCID on the Property as they desired in strict compliance with the

Ordinance without violating NCDOT’s determination. See id. at 431, 642 S.E.2d at

254. Because the evidence and findings of fact demonstrated that NCDOT’s

determination denied Petitioners “reasonable use of [their] property,” Petitioners

experienced an unnecessary hardship. See id. at 434, 642 S.E.2d at 255 (quoting

Williams, 144 N.C. App. at 487, 548 S.E.2d at 798). Accordingly, the superior court

did not err by reversing the Board’s conclusion that Petitioners did not demonstrate

an unnecessary hardship.

2. Peculiar Condition

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An applicant for a variance must next prove their unnecessary hardship

results “from conditions that are peculiar to the property,” including but not limited

to the “location, size, or topography.” N.C. Gen. Stat. § 160D-705(d)(2). But

“conditions that are common to the neighborhood or the general public, may not be

the basis for granting a variance.” Id. In Turik, concerning the conflicting surveys

and boundary-line dispute that prevented a property owner from constructing his

desired duplex, this Court agreed with the Board’s determination that

conditions and circumstances exist which are peculiar to

the [property owners’] property in that a boundary line

dispute does not exist between other landowners in the

same district. That other structures in this district have

been constructed with no conflicting surveys which creates

a unique situation with this property.

182 N.C. App. at 432, 642 S.E.2d at 254.

Here, the evidence and Board’s undisputed findings establish that the Property

experienced an unnecessary hardship resulting from peculiar conditions. The Board

found, and the City conceded at the hearing, that the “combined parcels on which the

proposed LCID landfill is located create a project area that is irregular in shape.”

Given the irregular shape, the Board also found that the Property had two entrance

points and Pleasant Grove Road was the only road sufficient for an LCID entrance.

But NCDOT would only allow an entrance on Kelly Road, which was impermissible

for an LCID entrance under the Ordinance as it is a residential collector street. Thus,

the evidence and findings of fact demonstrated Petitioners’ unnecessary hardship

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results from a condition peculiar to the Property. See id. at 432, 642 S.E.2d at 254.

Accordingly, the superior court did not err by reversing the Board’s conclusion that

Petitioners did not demonstrate their unnecessary hardship resulted from a peculiar

condition.

3. Spirit, Purpose, and Intent

While a board of adjustment has the power to grant a variance, “the board is

prohibited from authorizing a structure which conflicts with the general purpose of

the ordinance . . . .” Donnelly v. Bd. of Adjust. of Vill. of Pinehurst, 99 N.C. App. 702,

708, 394 S.E.2d 246, 250 (1990). Therefore, a variance applicant must demonstrate

the requested variance is “consistent with the spirit, purpose, and intent of the

regulation, such that public safety is secured and substantial justice is achieved.”

N.C. Gen. Stat. § 160D-705.

Petitioners presented evidence demonstrating that Kelly Road is a residential

collector street, which the Ordinance defines as a road “which assembles traffic from

local streets and distributes it to the nearest arterial street, providing direct primary

access to low/medium density land uses and designed to carry low to moderate traffic

volumes at low to moderate speeds.” Charlotte, N.C., Zoning Ordinance § 2.201. A

residential local street, which the Ordinance combines with collector streets when

describing impermissible streets for LCID entrances, is defined as a “two-lane

roadway which provides access directly to adjoining low/medium density land uses

and conducts traffic to local limited and Class V streets which serve the area. The

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Class VI road is designed to accommodate low volumes of traffic at low speeds.” Id.

In addition, the Ordinance’s LCID conditions prescribe: “All driveways which serve

the site must be wide enough to accommodate two-way traffic at all times, and an

area on the site must be provided to accommodate vehicles entering the site so that

no traffic waiting to enter the site will be backed up on any public right-of-way.” Id.

§ 12.503. Based on the plain language of the Ordinance, including its focus on

controlling traffic in a residential area, the primary purpose behind the Ordinance’s

LCID requirements is to address traffic conflicts and pedestrian safety in residential

zones while also allowing LCIDs to be constructed.

Petitioners demonstrated that the City previously allowed multiple LCIDs to

operate with entrances on Kelly Road—the Kelly Road Landfill and the LCID that

previously existed on the Property. Despite the City’s determination that Kelly Road

is a residential collector street, which occurred sometime in 2019, the Kelly Road

Landfill operated as an LCID with its entrance on Kelly Road as recently as 2022. In

addition, NCDOT would not allow Petitioners to operate an LCID entrance on

Pleasant Grove Road due to NCDOT’s concerns for pedestrian safety and traffic

conflict involving Linhay Drive and the entrance to Sutton Farms subdivision, which

are close in proximity to Petitioners’ proposed LCID entrance on Pleasant Grove

Road. With this safety concern in mind, NCDOT recommended Kelly Road for an

LCID entrance as Kelly Road did not experience the same conflict points and

potential traffic concerns.

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Accordingly, granting the variance and allowing Petitioners to operate an

LCID entrance on Kelly Road would not violate the spirit, purpose, and intent of the

Ordinance. Indeed, NCDOT’s primary concern was safety and minimizing traffic

conflicts in a residential zone—the reason NCDOT recommended the entrance be on

Kelly Road rather than Pleasant Grove Road. Similarly, NCDOT continues to

maintain “Trucks Entering Highway” signs near the location of Petitioners’ proposed

LCID entrance on Kelly Road and Kelly Road has few residential properties. We

cannot consider uncertain future events, such as whether developers are “potentially”

purchasing property on Kelly Road for housing developments.

Strikingly, in opposition to the City’s argument that an LCID entrance on Kelly

Road poses safety and traffic concerns, the Ordinance allows Petitioners to operate

an LCID entrance on Pleasant Grove Road despite its close proximity to the Sutton

Farms subdivision—a safety and traffic concern noted by NCDOT when it denied

Petitioners’ permit request. Thus, Petitioners’ requested variance does not conflict

with the general spirit, purpose, and intent of the Ordinance. See Donnelly, 99 N.C.

App. at 708, 394 S.E.2d at 250. Accordingly, the superior court did not err by

reversing the Board’s conclusion that Petitioners did not demonstrate their requested

variance does not conflict with the general spirit, purpose, and intent of the

Ordinance.

The City also argues that by granting the variance, the Board would be

effectively “legislatively amending the Ordinance . . . in violation of the Board’s

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authority.” But a board of adjustment must grant variances should an applicant

prove all elements warranting a variance. N.C. Gen. Stat. § 160D-705 (explaining a

board of adjustment “shall vary any of the provisions of the zoning regulation upon a

showing” of all four variance elements) (emphasis added). The Ordinance adopts the

requirements of section 160D-705—demonstrating the Ordinance was created by the

City to allow variances to the Ordinance’s requirements, such as those for LCIDs,

should an applicant establish the four variance elements. Therefore, the City’s

argument is meritless.

4. Additional Findings of Fact

The City argues the superior court erred in making additional findings of fact.

In reviewing an appeal from a board of adjustment, a superior court is without

authority to “make additional findings.” Batch v. Town of Chapel Hill, 326 N.C. 1,

11, 387 S.E.2d 655, 662 (1990); Deffet Rentals, Inc. v. City of Burlington, 27 N.C. App.

361, 364, 219 S.E.2d 223, 226 (1975) (“It is not the function of the reviewing court . .

. to find the facts but to determine whether the findings of fact made by the Board

are supported by the evidence before the Board and whether the Board made

sufficient findings of fact.”). But we have also recognized that “a recitation of largely

uncontroverted evidence” by a superior court in reviewing a local decision is not

prejudicial error. Cannon v. Zoning Bd. of Adjust. of City of Wilmington, 65 N.C. App.

44, 47, 308 S.E.2d 735, 737 (1983).

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Although the superior court’s order contains findings of fact not included in the

Decision, the superior court’s findings of fact recite the Board’s findings of fact and

synthesize the evidence presented to the Board. The superior court’s findings are

also uncontroverted by the evidence. Therefore, even if the superior court did err, it

did not prejudicially err. See id. at 47, 308 S.E.2d at 737; Turik, 182 N.C. App. at

430–31, 642 S.E.2d at 253 (“In this case, the superior court did not substitute its own

judgment for that of the Board’s, but essentially repeated the Board’s findings and

summarized the procedural history of the case.”)

C. Whole Record Test

On appeal to the superior court, Petitioners next argued that because “all of

the Board’s findings of fact supported granting the variance, the Decision was

unsupported by substantial, competent evidence and the Decision was arbitrary and

capricious.” After conducting the whole record test, the superior court determined

the Decision’s findings of fact were supported by the evidence. The superior court,

however, concluded that conclusions of law 1, 2, and 4 were unsupported by the

findings of fact and not supported by sufficient evidence. As a result, the superior

court also determined the Decision was arbitrary and capricious. The City argues

the superior court erred because conclusions of law 1, 2, and 4 are supported by the

findings of fact and sufficient evidence, and as a result, the Decision was not arbitrary

and capricious.

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The superior court applied the whole record test in considering whether the

Decision was supported by sufficient evidence and whether it was arbitrary and

capricious. Accordingly, the superior court applied the correct standard of review.

See Overton, 155 N.C. App. at 393, 574 S.E.2d at 159–60. We next determine whether

the superior court “correctly applied that standard.” See id. at 393–94, 574 S.E.2d at

160.

The record shows the Board heard testimony demonstrating the following. The

Property is irregular in shape, with frontage points fit for a road entrance on Kelly

Road and Pleasant Grove Road. Kelly Road was interpreted to be a residential

collector street sometime in 2019. Despite this interpretation, the Kelly Road

Landfill operated as an LCID with an entrance on Kelly Road as recently as 2022.

Kelly Road has few residential properties and there is an animal farm across from

the Property. In addition, NCDOT still maintains “Trucks Entering Highway” signs

on Kelly Road immediately adjacent to the Property. Petitioners requested a permit

for a Pleasant Grove Road entrance to the Property for their LCID, as it is not a

residential local or collector street and allowable as an entrance under the Ordinance,

but NCDOT denied the request due to its concerns for pedestrian safety and traffic

conflicts. Specifically, NCDOT was concerned about the proposed entrance’s

proximity to Linhay Drive and the entrance to the Sutton Farms subdivision.

Instead, NCDOT recommended the entrance be on Kelly Road. Traffic conflict and

safety concerns are the purpose of the Ordinance’s LCID requirements, including the

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SANDERS P’SHIP, LLC V. CITY OF CHARLOTTE

Opinion of the Court

requirement that an LCID does not operate with an entrance on a residential local or

collector street. But the Ordinance would allow an LCID entrance on Pleasant Grove

Road despite the established concerns for pedestrian safety and traffic conflict

regarding Linhay Drive and the Sutton Farms subdivision.

After reviewing the whole record and the Board’s undisputed findings of fact,

sufficient evidence does not support the Decision because conclusions 1, 2, and 4 are

not supported by the evidence. Indeed, the evidence supports granting the variance—

not denying the variance. See Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118.

Because the Decision was unsupported by sufficient evidence, it was also arbitrary

and capricious. See Weaverville Partners, LLC, 188 N.C. App. at 67, 654 S.E.2d at

792; MCC Outdoor, LLC v. Town of Franklinton Bd. of Comm’rs, 169 N.C. App. 809,

811, 610 S.E.2d 794, 796 (2005) (“When a Board action is unsupported by competent

substantial evidence, such action must be set aside for it is arbitrary.”). Accordingly,

the superior court did not err by concluding the Decision was unsupported by

sufficient evidence and was arbitrary and capricious.

Alternatively, the City argues that we must remand for the Board to make

additional findings of fact if we determine: (1) the Board’s findings of fact did not

resolve all contested issues of fact necessary to arrive at its conclusions of law, or (2)

this Court cannot properly perform its review function due to insufficient findings.

Because we did not make these determinations, the City’s alternative argument fails.

V. Conclusion

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SANDERS P’SHIP, LLC V. CITY OF CHARLOTTE

Opinion of the Court

We conclude the superior court correctly applied the proper standards of

review in reversing the Board’s denial of Petitioner’s variance application. In

addition, the superior court did not commit prejudicial error by making additional

findings of fact in the Order. Accordingly, we affirm the Order reversing the Decision

and remanding to the Board with instructions to grant the variance.

AFFIRMED.

Judges GORE and FLOOD concur.

Report per Rule 30(e).

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