The opinion
NO. COA13-1122
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
HUGH OSBORNE AND TERESA OSBORNE,
Petitioners,
v. Dare County
No. 12 CVS 661
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, Wyatt M.
Booth, and Ashley P. Holmes for petitioner-appellants.
Hornthal, Riley, Ellis & Maland, L.L.P., by Benjamin M.
Gallop and John D. Leidy, for respondent-appellee.
STEELMAN, Judge.
Where the Board of Adjustment voted to deny petitioners’
motion to reconsider, it lacked jurisdiction to consider the
merits of that motion.
I. Factual and Procedural Background
In 1997, the owner of Lot 30 of the Hills of Nags Head
subdivision in the Town of Nags Head requested a variance from
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the Town of Nags Head Board of Adjustment (BOA), which would
permit the use of a shared driveway with an adjoining lot in the
subdivision, Lot 29. At the time, the two lots were owned by
the same entity. The owner contended that the topography of the
land made it impossible to construct a single family residence
on the property within the setback requirements of the
ordinance, and proposed the variance as a solution. BOA found
that the zoning restrictions created an unnecessary hardship and
granted the variance. After the granting of the variance,
neither lot was developed. Subsequently, the lots were acquired
by different owners.
In 2012, Hugh and Teresa Osborne (Osbornes) sought to
purchase Lot 30 from Gateway Bank. The contract to purchase the
property was contingent upon receiving a variance from BOA for
their development plan, which would include a single driveway
entirely on Lot 30, a shorter driveway than that proposed in
1997, and a smaller size dwelling than was proposed in 1997.
On 13 March 2012, the Osbornes applied to BOA for a
variance to eliminate the shared driveway under the 1997
variance. On 24 April 2012, BOA denied this request and refused
to modify the terms of the 1997 variance. BOA concluded that,
while the ordinance did create an unnecessary hardship,
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reasonable use of the property could still be had pursuant to
the 1997 variance. The Osbornes appealed this order in a
separate appeal that is pending before this Court. Osborne v.
Nags Head, COA 13-1123.
Subsequently, the Osbornes sought a cross-easement from the
owners of Lot 29 to proceed with construction of the shared
driveway, pursuant to the 1997 variance. The owners of Lot 29
refused to grant the necessary cross-easement, and provided an
affidavit documenting their refusal.
On 11 June 2012, the Osbornes filed a motion to reconsider
before BOA, citing a change in circumstances and new evidence.
On 12 July 2012, BOA held a meeting regarding the Osbornes’
motion to reconsider. A motion was made to deny the motion,
based upon a failure to show a substantial change in
circumstances. The members of BOA voted 3-2 in favor of denying
the motion to reconsider. However, BOA then determined that a
4/5 supermajority vote was required, and therefore the motion to
deny reconsideration failed.
BOA then conducted a hearing upon the motion to reconsider.
After hearing arguments, BOA determined that the Osbornes still
had a reasonable use for the property, and in an order dated 13
September 2012, denied the Osbornes’ request for a variance.
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The Osbornes appealed to the Superior Court of Dare County,
which, on 16 April 2013, affirmed BOA’s decision to deny the
Osbornes’ request.
The Osbornes appeal.
II. 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).
“Under a de novo review, the superior court consider[s] the
matter anew[] and freely substitut[es] its own judgment for the
agency’s judgment.” Id. (citations and quotation marks
omitted).
III. Denial of the Variance
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On appeal, the Osbornes contend that BOA erred in denying
their variance request on 13 September 2012, and that the trial
court erred in affirming BOA’s decision. We disagree.
When BOA considered the Osbornes’ motion to reconsider, its
members “voted three in favor of denying the Motion to
Reconsider and two against denying it.” The Chair then
“announced that the Motion to Reconsider failed as it did not
pass by the needed 4/5 vote.”
The Chair misconstrued the applicable law. The General
Statutes provide that “[t]he concurring vote of four-fifths of
the board shall be necessary to grant a variance. A majority of
the members shall be required to decide any other quasi-judicial
matter or to determine an appeal made in the nature of
certiorari.” N.C. Gen. Stat. § 160A-388(e)(1) (2013) (emphasis
added); see also Nags Head Town Code § 48-595 (2013). The
language of the statute is quite clear; a four-fifths majority
is required to grant a variance, but an ordinary majority is
sufficient to conduct other business. In the instant case,
three fifths of BOA voted to deny the motion to reconsider.
Under both the North Carolina General Statutes and the Nags Head
Town Code, this was a sufficient vote to deny the motion to
reconsider.
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The failure to deny a negative proposition is not the same
as adopting a positive proposition. BOA was not voting on a
motion to grant a variance, but rather on a motion to deny a
motion to reconsider.
Because the chair of BOA mistakenly ruled that the motion
to reconsider had passed, BOA was without authority to consider
the merits of the motion. Boards of Adjustments, and other
local government boards, perform vital services within our
governmental structure. It is as important that they follow
proper procedures as it is for city councils and boards of
county commissioners. Procedures for the operation of such
boards are in place to ensure fair treatment for all persons who
come before them for rulings. We cannot ignore the violation,
in the instant case, of procedures set forth in N.C. Gen. Stat.
§ 160A-388(e) and the Town Code of Nags Head.
BOA’s order dated 12 July 2012 as to the merits of the
Osbornes’ application for a variance is vacated. The order of
the trial court dated 16 April 2013 is also vacated. This
matter is remanded to the Superior Court of Dare County for
further remand to the Board of Adjustment of the Town of Nags
Head. BOA is directed to enter an order denying the Osbornes’
motion to reconsider, dated 11 June 2012.
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VACATED AND REMANDED.
Judges HUNTER, Robert C., and BRYANT concur.