The opinion
An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-1123
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
HUGH OSBORNE AND TERESA OSBORNE,
Petitioners,
v. Dare County
No. 12 CVS 402
TOWN OF NAGS HEAD, et al.,
Respondents.
Appeal by petitioners from order entered 16 April 2013 by
Judge J. Richard Parker in Dare County Superior Court. Heard in
the Court of Appeals 18 March 2014.
Vandeventer Black LLP, by Norman W. Shearin and Wyatt M.
Booth, for petitioner-appellants.
Hornthal, Riley, Ellis & Maland, L.L.P., by Benjamin M.
Gallop and John D. Leidy, for respondent-appellee.
STEELMAN, Judge.
Where there was evidence in the record to support the
findings of fact made by the Board of Adjustment, and these
findings supported its denial of petitioners’ request for a
variance, the Board did not err in denying the variance, and the
trial court did not err in affirming the Board of Adjustment.
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I. Factual and Procedural Background
The factual and procedural background in this case is set
forth in our opinion in the case of Osborne v. Nags Head, COA
13-1122.
II. 17 April 2012 Decision
In their sole argument on appeal, the Osbornes contend that
the trial court erred in affirming the 17 April 2012 decision of
the Board of Adjustment (BOA). We disagree.
A. Standard of Review
The proper standard for the superior court’s
judicial review depends upon the particular
issues presented on appeal. 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.
However, [i]f a petitioner contends the
[b]oard’s decision was based on an error of
law, de novo review is proper. Moreover,
[t]he trial court, when sitting as an
appellate court to review a [decision of a
quasi-judicial body], must set forth
sufficient information in its order to
reveal the scope of review utilized and the
application of that review.
Mann Media, Inc. v. Randolph Cnty. Planning Bd., 356 N.C. 1, 13,
565 S.E.2d 9, 17 (2002) (citations and quotation marks omitted).
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“When utilizing the whole record test, . . . the reviewing
court must examine all competent evidence (the whole record) in
order to determine whether the agency decision is supported by
substantial evidence.” Id. at 14, 565 S.E.2d at 17 (citations
and quotation marks omitted).
B. Analysis
In its order dated 24 April 2012, BOA concluded that:
It is the Board's CONCLUSION that
enforcement of the strict letter of the
ordinance, specifically Town Code Section
48-442(f)(2)(c), Dimensional Requirements
for Single-family Detached Dwellings within
in the SED-80 District, Setback from Ridge
Line Forest, Town Code Section 48-
442(g)(2)(b), Special Development Standards,
Site Design within the SED-80 District and
the requested deviations in from the
November 13, 1997 variance as it pertains to
driveway length and footprint of the
proposed home does not create unnecessary
hardship for the applicant.
(R p. 7) In support of this conclusion, BOA found that:
A. On November 13, 1997 the following
variances were granted for the subject
property: (1) reduce the ridge line forest
eastern boundary setback from 130 feet west
of the ridge line forest to approximately 5
feet west of the ridge line forest; (2)
reduce the ridge line forest eastern
boundary vegetation removal restriction from
100 feet west of the ridge line forest to 0
feet at the ridge line forest; (3) allow
grading and alteration of a dune with a
slope of 42 percent and a height of 35 feet;
and (4) increase the four-inch caliper tree
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removal limit from five feet along driveways
to approximately 60 feet.
B. In consideration of all the facts the
Board of Adjustment determined by a vote of
3-2 that the applicant can secure reasonable
use of the property without the granting of
the requested variance as variances already
exist for the placement of a single-family
dwelling and the necessary access upon this
lot (Lot 30).
. . .
D. The Board found that applicant provided
no evidence that the practical difficulty or
unnecessary hardship of which he complains
is suffered by his property directly and not
others, based upon the fact that variances
are already in place for development of this
lot (Lot 30) and the adjoining lot (Lot 29),
of the Hills at Nags Head Subdivision. The
Board further found that any deviation from
the originally approved variance of 1997 for
Lot 30 could subsequently result in a need
for additional variances for Lot 29 as
access is shared.
(R p. 7) Pursuant to the whole record test, even in the
presence of conflicting evidence and findings, we must affirm if
there was substantial evidence supporting BOA’s findings. We
hold that there was such evidence in the record, that this
evidence supports the findings cited above, and that those
findings in turn support BOA’s conclusion that the Osbornes are
not subject to unnecessary hardship in their use of Lot 30. We
hold that BOA did not err in denying the Osbornes’ request for a
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variance, and that the trial court did not err in its 16 April
2013 order affirming BOA.
AFFIRMED.
Judges HUNTER, Robert C., and BRYANT concur.
Report per Rule 30(e).