Thompson v. Union Cty.

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-382

No. COA21-220

Filed 7 June 2022

Union County, No. 19CVS1912

WILLIE THOMPSON AND EARLENE THOMPSON, Petitioners,

v.

UNION COUNTY, Respondent.

Appeal by petitioners from orders entered 9 November 2020 by Judge Hunt

Gwyn in Superior Court, Union County. Heard in the Court of Appeals 16 November

2021.

Ferguson Chambers & Sumter, PA, by Geraldine Sumter, for petitioners-

appellants.

Perry, Bundy, Plyler & Long, LLP, by Ashley J. McBride, for respondent-

appellee.

STROUD, Chief Judge.

¶1 Willie and Earlene Thompson (“Appellants”) appeal from a Superior Court

order affirming a decision by the Union County Board of Adjustment (“BOA”) which

upheld zoning Notices of Violation and a fine issued to Appellants by Union County.

Appellants argue (1) the Superior Court erred in failing to make findings of fact and

conclusions of law in compliance with North Carolina Rule of Civil Procedure 52(a)(1);

(2) erred by retroactively applying the 2014 Union County Unified Development

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Ordinance (“2014 UDO”) to a property constructed prior to enactment of the 2014

UDO; (3) the County’s enforcement actions are barred by statutes of limitations in

accordance with North Carolina General Statutes §§ 1-49(3) and 1-51(5); and (4) the

Superior Court erred by affirming a decision by the BOA without sufficient findings

of fact and conclusions of law. Because Appellants’ residence is presumed lawful if it

was in compliance with the ordinance in effect at the time of construction and any

applicable issued permits, and because the prior ordinance applicable to the residence

and garage was not in evidence, Union County failed to show the structures are in

violation of the 2014 UDO. The BOA and Superior Court therefore erred in holding

Appellants’ property in violation of the 2014 UDO. For these reasons, the Superior

Court’s order is reversed in part and vacated and remanded in part.

I. Background

¶2 Appellants purchased a residence with two detached garages located behind

the house in Indian Trail, Union County on 20 June 2018. The property is accessed

by a 60-foot private right-of-way which connects to Stinson Hartis Road, a public

street. At issue in this case are the single-family residence and the larger of the two

detached garages.

¶3 The property was developed between 2004 and 2009. The residence was built

in 2004, and the larger garage was later constructed in 2009. The property was sold

to Appellants’ immediate predecessor in interest in 2013. For purposes of this appeal,

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we assume a permit was issued for construction of the residence in 2004. At the BOA

hearing, James King, Union County Zoning Administrator, acknowledged as to the

residence that

we cannot verify whether or not a permit was issued

because we purge our records after 6 years . . . . It has been

destroyed, so we don’t know if there’s a permit or not.

We’re going to assume for the benefit of the resident that

the permit was issued and we’re just going to go with that.

As to the large garage, Appellant Earlene testified that the garage was built without

a permit and presented a 3 May 2018 application for a building permit to the BOA.

The BOA made no findings as to the existence of a permit for either structure. As

noted by the Zoning Administrator, Union County maintains a policy of purging

permitting records after six years, and copies of the permits and applications no

longer exist.

¶4 Years after the construction of the residence and garages, on 6 October 2014,

Union County enacted the UDO which contains minimum setback requirements.

Under the UDO, the Appellants’ property is zoned “R-20,” allowing for single-family

residential development. The minimum setback requirements for property zoned R-

20 under the UDO require a home or structure to be set back at least 20 feet from

side property lines or rights-of-way, commonly called street side yard setbacks.

¶5 The property was later listed for sale, and on 2 January 2018 the property was

surveyed in connection with a potential purchase. According to the survey, based

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upon the 2014 UDO the larger of the two garages encroached upon the private right-

of-way and was in violation of the UDO 20-foot setback requirement. This survey

also showed the residence was in violation of the same 2014 UDO 20-foot street side

yard setback, although the survey did not identify the exact extent of the

encroachment.

¶6 In April 2018, the survey was presented to Mr. King. On 1 June 2018, after

reviewing the survey, Mr. King issued a Notice of Violation to Appellants’ predecessor

in interest, noting that a “portion of both the principal structure and one of the

accessory structures encroach into the required street side yard setback.” The

property was left on the market for sale, and the Multiple Listing Service (MLS)

listing for the property noted “133K BELOW APPRAISED VALUE, SEE

APPRAISAL. CASH OFFERS ONLY-HOUSE IS ENCROACHING ON PRIVATE

DRIVE BESIDE HOUSE. Being sold AS IS, NO REPAIRS.” Appellants purchased

the home 20 June 2018. They also received a $10,000 credit from seller at closing

because of the encroachment violation.

¶7 After Appellants purchased the property, the Union County Zoning

Administrator issued a Notice of Violation to them on 6 September 2018. This Notice

called for an additional survey to determine the extent of the violation by the

residence and noted the setback violation as “the accessory structures encroaches [sic]

into the required street side yard setback and there is a potential encroachment with

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a portion of the principal structure as well.” This Notice also required removal of any

portion of a structure violating the setback requirement. Appellants were

subsequently fined $50 for the setback violation on 3 October 2018; this citation again

noted violations by both structures, called for a new survey, and required removal of

any portions of the structures that violated the UDO setback requirements. Another

Notice of Violation was issued 31 January 2019, referencing the 2 January 2018

survey and again stating both the garage and residence were in violation of the

minimum setback requirements.

¶8 Appellants appealed the Notices of Violation and the fine to the Union County

Board of Adjustment. Hearings were held for the appeal on 11 February 2019 and 13

May 2019. Both parties presented testimony and evidence. The Board of Adjustment

affirmed the Notices and determined that the residence and larger garage were

encroaching into the street side yard setback in violation of the UDO.

¶9 Appellants petitioned for Writ of Certiorari to the Superior Court of Union

County and requested the Court reverse and vacate the BOA’s decision. The Superior

Court entered an Order 9 November 2020 affirming the Union County BOA’s

decision. Appellants timely appealed to this Court.

II. Standard of Review

¶ 10 In this case, the Superior Court sat as an appellate court, reviewing the BOA’s

decision on a writ of certiorari. See Dellinger v. Lincoln County, 248 N.C. App. 317,

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322, 789 S.E.2d 21, 26 (2016). At the time of the BOA decision and Superior Court

proceeding, former North Carolina General Statute § 160A-388 provided that “[e]very

quasi-judicial decision shall be subject to review by the superior court by proceedings

in the nature of certiorari pursuant to G.S. 160A-393.” N.C. Gen. Stat. § 160A-

388(e2)(2) (2019) (repealed by S.L. 2019-111, § 2.3 as amended by S.L. 2020-25,

§51(b), eff. June 19, 2020) (recodified at N.C. Gen. Stat. § 160D-406(k) (2021)); see

also Four Seasons Management Services v. Town of Wrightsville Beach, 205 N.C. App.

65, 75, 695 S.E.2d 456, 462 (2010). The Superior Court’s functions when reviewing

the decision of a board sitting as a quasi-judicial body include:

(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 [the Board] are supported by

competent, material and substantial evidence in the

whole record, and

(5) Insuring that decisions are not arbitrary and

capricious.

Dellinger, 248 N.C. App. at 322, 789 S.E.2d at 26 (citation omitted). This Court’s

review of the Superior Court is limited to determining whether the Superior Court

exercised the appropriate standard of review, and whether that standard of review

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was correctly applied. See Overton v. Camden County, 155 N.C. App. 391, 393–94,

574 S.E.2d 157, 160 (2002); Appeal of Willis, 129 N.C. App. 499, 501–02, 500 S.E.2d

723, 726 (1998).

¶ 11 When reviewing administrative decisions, determining the appropriate

standard of review to be applied depends on “the substantive nature of each

assignment of error.” Morris Communications Corp. v. City of Bessemer City Zoning

Bd. of Adjustment, 365 N.C. 152, 155, 712 S.E.2d 868, 870 (2011) (quoting N.C. Dep’t

of Env’t & Nat. Res. v. Carroll, 358 N.C. 649, 658, 599 S.E.2d 888, 894 (2004)). When

the assignment of error alleges an error of law, de novo review is appropriate.

Dellinger, 248 N.C. App. at 323, 789 S.E.2d at 26. Under a de novo standard of review,

“a reviewing court considers the case anew and may freely substitute its own

interpretation of an ordinance for a board of adjustment’s conclusions of law.” Morris

Communications Corp., 365 N.C. at 156, 712 S.E.2d at 871. The court shall consider

the interpretation of the decision-making board but is not bound by that

interpretation and may freely substitute its judgment as appropriate. Id.

¶ 12 When the assignment of error alleges that a board’s decision was not supported

by evidence, or was arbitrary and capricious, the appropriate review is the whole

record test. Amanini v. North Carolina Dept. of Human Resources, N.C. Special Care

Center, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994). “The ‘whole record’ test

requires the reviewing court to examine all competent evidence (the ‘whole record’)

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in order to determine whether the agency decision is supported by ‘substantial

evidence.’” Id. “‘Substantial evidence’ is that which a reasonable mind would consider

sufficient to support a particular conclusion . . . .” Id. at 682, 443 S.E.2d at 122.

¶ 13 “[W]hether competent, material and substantial evidence is present in the

record is a conclusion of law.” Dellinger, 248 N.C. App. at 324–25, 789 S.E.2d at 27

(alteration in original) (quoting Clark v. City of Asheboro, 136 N.C. App. 114, 119, 524

S.E.2d 46, 50 (1999)). The initial issue of whether the evidence presented by

Appellants met the requirements of being competent, material, and substantial is

subject to de novo review, but the BOA’s ultimate decision about how to weigh that

evidence is subject to whole record review. Id. at 325, 789 S.E.2d at 27. “The

reviewing court should not replace the [BOA’s] judgment as between two reasonably

conflicting views; while the record may contain evidence contrary to the findings of

the agency, this Court may not substitute its judgment for that of the agency.” SBA,

Inc. v. City of Asheville City Council, 141 N.C. App. 19, 27, 539 S.E.2d 18, 22 (2000)

(quotation, citations, and alterations in original omitted). In reviewing the

sufficiency and competency of evidence before the Superior Court, the question is not

whether the evidence supported the Superior Court’s order. Dellinger, 248 N.C. App.

at 323, 789 S.E.2d at 26. The question is whether the evidence before the BOA was

supportive of the BOA’s decision. Id.

III. Analysis

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A. The Superior Court’s Application of Standards of Review

¶ 14 This Court’s first task is determining whether the Superior Court applied the

correct standards of review. See Overton, 155 N.C. App. at 393–94, 574 S.E.2d at 160.

It appears that the Superior Court correctly identified de novo review and the whole

record test as the appropriate standards to apply. The Superior Court reviewed the

decision to determine whether there was “substantial, admissible evidence in the

record to support the findings of fact set forth in the Decision,” and conducted a de

novo review of the decision to determine whether the conclusions of law were

supported by the findings of fact. The Superior Court also reviewed the BOA decision

de novo to determine whether the decision was affected by other errors of law.

¶ 15 Before moving on to this Court’s second task, reviewing the Superior Court’s

application of these standards, we note Appellants allege that the Superior Court’s

order does not comply with our Rules of Civil Procedure.

1. Application of North Carolina Rule of Civil Procedure 52 to the

Superior Court’s Order

¶ 16 Appellants’ first argument asserts the Superior Court erred in failing to issue

an order with findings of fact in compliance with North Carolina Rule of Civil

Procedure 52(a)(1). We disagree. Rule 52(a)(1) has no application in the present case.

¶ 17 North Carolina Rule of Civil Procedure 52(a)(1) states, in relevant part, “[i]n

all actions tried upon the facts without a jury or with an advisory jury, the court shall

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find the facts specially and state separately its conclusions of law thereon and direct

the entry of the appropriate judgment.” N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2019).

But this Court has repeatedly held that a superior court, when sitting as an appellate

court, is not required to “make findings of fact and enter a judgment thereon in the

same manner as the court would be when acting in its role as trial court.” Shepherd

v. Consolidated Judicial Retirement System, 89 N.C. App. 560, 562, 366 S.E.2d 604,

605 (1988) (citing Markham v. Swails, 29 N.C. App. 205, 208, 223 S.E.2d 920, 922

(1976) (discussing the application of Rule 52 to a trial court’s appellate review of

agency decisions in accordance with North Carolina General Statutes §§ 143-314,

315)). “The trial court, when sitting as an appellate court to review an administrative

agency’s decision, must [only] set forth sufficient information in its order to reveal

the scope of review utilized and the application of that review.” Sutton v. North

Carolina Dept. of Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 342 (1999). Separate

findings of fact are not required, and Rule 52 has no application where the superior

court sits in the posture of an appellate court. See Myers Park Homeowners Ass’n,

Inc. v. City of Charlotte, 229 N.C. App. 204, 214, 747 S.E.2d 338, 346 (2013) (citing

Markham, 29 N.C. App. at 208, 233 S.E.2d at 922).

¶ 18 The Superior Court is not the trier of fact; that is the function of the town

board. Coastal Ready-Mix Concrete Co., Inc. v. Board of Com’rs of Town of Nags

Head, 299 N.C. 620, 626, 265 S.E.2d 379, 383 (1980). The Superior Court “may affirm

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the decision, reverse the decision and remand the case with appropriate instructions,

or remand the case for further proceedings.” Hampton v. Cumberland County, 256

N.C. App. 656, 662, 808 S.E.2d 763, 768 (2017) (quoting N.C. Gen. Stat. § 160A-393(l)

(repealed by S.L. 2019-111, § 2.3 as amended by S.L. 2020-25, §51(b), eff. June 19,

2020) (recodified at N.C. Gen. Stat. § 160D-1402(k) (2021)); see also id. at 671, 808

S.E.2d at 773 (summarizing Myers Park Homeowners Ass’n as interpreting North

Carolina General Statute § 160A-393 and “affirming a superior court’s denial, in a de

novo review of a board of adjustment’s order interpreting a zoning ordinance, of

motions requesting additional findings of fact under Rule[] 52 . . . on the basis that

‘the superior court functions as an appellate court rather than a trier of fact’” (quoting

Myers Park Homeowners Ass’n, 229 N.C. App. at 214, 747 S.E.2d at 341 (alterations

from internal quotation omitted))). This Court has even held that a superior court

may err by making its own findings of fact after a de novo review of an agency

decision. See Hampton, 256 N.C. App. at 668, 808 S.E.2d at 772; Carroll, 358 N.C. at

660–61, 599 S.E.2d at 895.

¶ 19 Because the Superior Court’s order is sufficient to allow this Court to identify

the scope and standards of review applied by the court below, and findings of fact

according to Rule 52 are not required when the Superior Court sits as an appellate

court, Appellants’ argument is overruled.

B. Application of Standards of Review by the Superior Court

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¶ 20 This Court’s second task is determining if the Superior Court correctly applied

the appropriate standards of review. See Overton, 155 N.C. App. at 393–94, 574

S.E.2d at 160. This Court reviews alleged errors of law de novo. See Westminster

Homes, Inc. v. Town of Cary Zoning Bd. of Adjustment, 140 N.C. App. 99, 102–03, 535

S.E.2d 415, 417 (2000).

¶ 21 Appellants contend the Superior Court did not apply the standard of review

properly because (1) the 2014 UDO is unenforceable against Appellants’ property,

and (2) the UDO should not have been applied to the property because the statutes

of limitations in North Carolina General Statutes §§ 1-49(3) and 1-51(5) both prohibit

the assessment of the civil penalty and the issuance of the Notices of Violation.

Because Appellants failed to raise the statute of limitations defense before the Board

of Adjustment and first raised the defense in their Petition for Writ of Certiorari

before the Superior Court, while the court sat as an appellate court, this defense was

waived. N.C. Gen. Stat. § 1A-1, Rule 8(c); Gragg v. W.M. Harris & Son, 54 N.C. App.

607, 609, 284 S.E.2d 183, 185 (1981) (“[T]he statute of limitations is a technical

defense, and must be timely pleaded or it is deemed waived.”); Delp v. Delp, 53 N.C.

App. 72, 76, 280 S.E.2d 27, 30 (1981) (“Where a defendant does not raise an

affirmative defense in his pleadings or [before the BOA], he cannot present it on

appeal.”). We therefore only address Appellants’ arguments that their property was

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exempted from the 2014 UDO or the 2014 UDO was otherwise inapplicable to the

Appellants’ property.

¶ 22 Appellants assert the Superior Court’s decision was erroneous because

Appellants’ residence and garage predate the enactment of the 2014 UDO. The

residence was constructed in 2004, the garage in 2009, and the 2014 UDO did not

become effective until 6 October 2014. The County did not issue a citation under the

2014 UDO to the Appellants until September 2018. Appellants identify three errors

of law and bases for reversal of the lower court’s decision: (1) their property was

exempted from enforcement by the plain language of the 2014 UDO, (2) Appellants

have a vested right under North Carolina General Statute § 153A-344 to maintain

their structures where currently located, and (3) it was error to affirm the retroactive

application of the UDO to Appellants’ property.

1. Application of the 2014 UDO under UDO § 1.120-A(1) and UDO § 1.120-

B

¶ 23 Appellants challenge several of the BOA’s findings of fact, but before we

address the findings, we must first determine the ordinances applicable to analysis

of the issues on appeal. The interpretation of an ordinance is reviewed de novo. See

Westminster Homes, 140 N.C. App. at 102–03, 535 S.E.2d at 417.

¶ 24 The residence and garage on the property were constructed prior to the

adoption of the 2014 UDO, and the land use ordinance in effect prior to 2014 is not in

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the record. Appellants argue the plain language of the 2014 UDO exempts their

property from enforcement under Section 1.120-A(1), but this Section is also not in

the record and we cannot take notice of municipal ordinances not in the record. High

Point Surplus Co. v. Pleasants, 263 N.C. 587, 591, 139 S.E.2d 892, 895 (1965);

Fulghum v. Town of Selma, 238 N.C. 100, 105, 76 S.E.2d 368, 371 (1953) (“We cannot

take judicial notice of municipal ordinances.”). Appellants quote Section 1.120-A(1)

to us in their brief as:

Any building, development or structure for which a

building permit was issued . . . before the effective date

specified in Section 1.030 may be completed in

comformance [sic] with the issued building permit . . . even

if such building, development or structure does not comply

with the provisions of this ordinance.

(Alterations in original.)

¶ 25 Appellants contend a permit was issued for construction of the residence and

garages prior to “the effective date specified in Section 1.030,” 6 October 2014, and

the structures were “completed in comformance [sic] with the issued building permit

. . . .” Thus, even if the residence and garages do not comply with the setback

provisions of the 2014 UDO, they comply with this provision of the 2014 UDO and

are not in violation of the ordinance. Appellee contends the purported Section 1.120-

A(1) applies only to the narrow scenario in which a permit was issued prior to

enactment of the ordinance, but construction was incomplete or had not started by

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the time of enactment. Appellee contends Section 1.120-A(1) does not apply to this

case because the structures were both completed long before the effective date of the

2014 UDO.

¶ 26 Appellee instead argues that Section 1.120-B, entitled “Violations Continue,”

is applicable to Appellant’s structures and cites Section 1.120-B to us as: “[A]ny

violation of the previous land use ordinance will continue to be a violation under this

ordinance and be subject to penalties and enforcement under Article 95.” Appellee

asserts the setbacks in the prior land use ordinance are the same as the 2014 UDO,

and therefore the encroachment by the garage and the residence are both continuing

violations. Additionally, because the garage encroaches on not only the setback, but

the right-of-way, regardless of the setback distance under the previous land use

ordinance the garage is a continuing violation punishable under the 2014 UDO.

Appellee contends neither structure could have been constructed “in conformance

with [an] issued building permit” as asserted by Appellants. However, the actual

permits, if any, no longer exist since Appellee purged its records. Additionally,

Appellee’s argument suffers the same fatal flaw as the Appellants’ argument, since

Section 1.120-B is not in the record before us and we cannot take notice of it. High

Point Surplus Co., 263 N.C. at 591, 139 S.E.2d at 895; Fulghum, 238 N.C. at 105, 76

S.E.2d at 371.

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¶ 27 For purposes of appellate review, we must consider only the evidence and

ordinances in the record. High Point Surplus Co., 263 N.C. at 591, 139 S.E.2d at 895;

Fulghum, 238 N.C. at 105, 76 S.E.2d at 371. The burden of proof to show the

existence of a violation of the ordinance is upon the Appellee. See Shearl v. Town of

Highlands, 236 N.C. App. 113, 116–17, 762 S.E.2d 877, 881 (2014) (“As to the first

question, the burden of proving the existence of an operation in violation of the local

zoning ordinance is on Respondent. Thus, it was Respondent’s responsibility to

present evidence that Petitioner’s commercial use of his storage building was in

violation of Respondent’s zoning ordinance when the notice of violation was issued on

19 August 2009.” (citation omitted)).

Ordinarily, once a town meets its burden to establish the

existence of a current zoning violation, the burden of proof

shifts to the landowner to establish the existence of a legal

nonconforming use or other affirmative defense. See City of

Winston–Salem [v. Hoots Concrete Co., Inc.], 47 N.C. App.

[405,] 414, 267 S.E.2d [569,] 575 [(1980)] (“The defendant,

of course, has the burden of establishing all affirmative

defenses, whether they relate to the whole case or only to

certain issues in the case. As to such defenses, he is the

actor and has the laboring oar. The city had the burden of

proving the existence of an operation in violation of its

zoning ordinance. It was defendant’s burden to prove the

city had already made a determination that the operation

was permissible and did not violate the zoning ordinance.”

(internal quotation marks and citation omitted)). Here,

however, Respondent has seriously handicapped

Petitioner’s ability to prove the location of the zoning line

in 1993 because Respondent has lost the Official Zoning

Map adopted with the 1990 zoning ordinance.

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Shearl, 236 N.C. App. at 118, 762 S.E.2d at 882.

¶ 28 The plain language of Section 1.120-A(1) and Section 1.120-B as quoted to us

appears to support Appellee’s argument that Section 1.120-B applies to this situation,

since the residence and garage were completed long before adoption of the 2014 UDO.

But Appellee failed to carry its burden of proving the residence and garage were in

violation of the ordinance in effect when they were built since they produced neither

the permits nor the applicable ordinance from the time of the construction.

Additionally, Section 1.120-B is not in the record, and we cannot determine whether

Section 1.120-B is applicable and whether Appellants’ property is a continuing

violation under the 2014 UDO. Appellee’s argument that the residence and garage

are in violation of Section 1.120-B is based upon assumptions unsupported by the

record. Appellee’s arguments as to Section 1.120-B are based upon its

representations as to the provisions of the ordinance in effect at the time Appellants’

residence and garages were built, but that ordinance is not in our record and was not

presented to the Superior Court either; our record includes only the portion of the

2014 UDO providing for setbacks in residential districts. In addition, Appellee

acknowledged it had purged the records of the permits and thus has no evidence of

the permits or any specific requirements of the permits.

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¶ 29 Appellee asks us to assume the residence was not constructed in compliance

with its permit and both structures were in violation of the prior land use ordinance

when constructed in 2004 and 2009 and thus are continuing violations under Section

1.120-B, but there is no legal or evidentiary basis for this assumption. In Shearl, this

Court addressed a similar situation where the Town had lost the zoning maps which

would purportedly show the location of a zoning line at issue in that case. 236 N.C.

App. at 118, 762 S.E.2d at 882. The Shearl Court noted, “Respondent has seriously

handicapped Petitioner’s ability to prove the location of the zoning line in 1993

because Respondent has lost the Official Zoning Map adopted with the 1990 zoning

ordinance.” Id. The Court also noted that the parties conceded some of the relevant

maps and other evidence were not in the record, but this deficiency was not the fault

of the appellant in that case. Id. at 117, 762 S.E.2d at 881. The case was remanded

for further proceedings where all the relevant maps and evidence could be considered,

with the burden upon the Town to prove the zoning violation.

We believe that where, as here, a town fails to comply with

its obligations under local ordinances and state law by

failing to keep official zoning maps on record for public

inspection, the appropriate remedy is to place the burden

back on the town to establish the location and classification

of zoning districts when the landowner began his or her

nonconforming use. Because the BOA placed the burden

on Petitioner to establish the location of the zoning line

when he began his nonconforming use in 1993, the

Superior Court’s order affirming that allocation of proof

must be vacated and the matter remanded for a new

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hearing. At the new hearing, Respondent must: (1) present

evidence establishing the existence of a current zoning

violation, and (2) present evidence that the 1990 zoning

ordinance moved the zoning line on the subject property

from 230 feet to 150 feet from the centerline of Highway 28.

Petitioner must be allowed to offer additional evidence in

rebuttal.

Id. at 119, 762 S.E.2d at 882.

¶ 30 As in Shearl, Appellee failed to carry its burden of proving a violation of the

ordinance in effect at the time the residence and garage were constructed because it

failed to present evidence of the permits (or lack thereof) and the applicable ordinance

at the time of construction. With no evidence of terms of the permits or of the

ordinance in effect when the residence and garage were constructed, the BOA and

Superior Court had no factual or legal basis upon which to find that the structures

were not in compliance with any permits and applicable provisions of the ordinance

in effect when the structures were built. There is no dispute the structures were all

completed long before adoption of the 2014 UDO and the first Notice of Violation was

not issued until 1 June 2018.

¶ 31 We must thus consider whether remand is proper in this case. In Shearl, the

parties conceded that certain maps and evidence were missing from the record, but

this Court determined the deficiency was not the fault of the appellant. Id. at 117,

762 S.E.2d at 881. In addition, in Shearl, the town had “lost” the maps, apparently

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inadvertently, id. at 118, 762 S.E.2d at 882, but here the Appellee had intentionally

purged its records of permits more than 6 years old. Because the issue was the lack

of information in the record, the Shearl Court remanded for a new hearing. Here,

Appellee conceded it had purged its records of permits and permit applications more

than 6 years old and presumed that a permit was issued for the residence, so remand

for further consideration as to the residence would be futile. As to the residence, we

will not hold Appellee’s unilateral decision to purge its records as to permits after 6

years against the Appellants. Appellee had the burden of proving Appellants were in

violation of the 2014 UDO but did not produce evidence of any applicable permits

issued for the residence and did not provide the ordinance in effect at the time of the

residence’s construction to the Superior Court.

¶ 32 As to the garage, Appellants acknowledged it was constructed without a

permit, so the garage could potentially be in violation under Section 1.120-B. But

Section 1.120-B is not in the record before us and the BOA failed to make findings of

fact regarding the garage and the prior ordinance. However, there may be relevant

evidence available regarding the garage on remand. The survey and testimony in

evidence address the requirements of the 2014 UDO but do not purport to show

whether the garage violated the ordinance in effect at the time of the structure’s

construction and whether the garage is consequently a continuing violation under the

2014 UDO.

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¶ 33 Because there was no basis to apply the 2014 UDO to Appellants’ pre-existing

residence and garage, the Superior Court erred in affirming the BOA decision finding

the structures in violation of the 2014 UDO. However, Appellant conceded at the

BOA hearing the garage was constructed without a permit, so we remand for further

proceedings with respect to Appellants’ garage.

2. Vested Rights under North Carolina General Statute § 153A-344

¶ 34 Appellants next challenge the Superior Court’s affirmation of the BOA decision

because the BOA decision directly conflicts with former North Carolina General

Statute § 153A-344, which provided that:

Amendments in zoning ordinances shall not be applicable

or enforceable without consent of the owner with regard to

buildings and uses for which either (i) building permits

have been issued pursuant to G.S. 153A-357 prior to the

enactment of the ordinance making the change or changes

so long as the permits remain valid and unexpired

pursuant to G.S. 153A-358 and unrevoked pursuant to G.S.

153A-362 . . . .

N.C. Gen. Stat. § 153A-344(b) (2017)1 (repealed by S.L. 2019-111, § 2.2, as amended

by S.L. 2020-25, § 51(b), eff. June 19, 2020) (recodified at N.C. Gen. Stat. § 160D-

108(c) (2021)).

1 While this case was ongoing, the statute changed in July 2019. N.C. Gen. Stat. § 153A-

344(b) (2019). The changes in the statute do not make a substantive difference, but we use

the version of the statute in effect in 2018 because that is when the citations that started this

case were issued.

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¶ 35 Appellants argue the property’s development was authorized by the County

via building permits, inspections, and occupancy certificates, so North Carolina

General Statute § 153A-344 provides Appellants with a vested right to maintain their

residence and garage where currently located. The County was consequently barred

from enforcing the UDO against Appellants without their written consent. As a

result, it was erroneous for the Superior Court to affirm the Board’s retroactive

application of the UDO to structures completed 5 to 10 years prior to the enactment

of the UDO. We agree in part.

¶ 36 North Carolina law provides a statutory vested right to maintain buildings

constructed in conformity with a building permit, and the County presumed

Appellants’ residence was properly permitted since it had purged its records.

Appellee had an opportunity to prove Appellants’ property was not constructed in

conformity with a building permit or the applicable ordinances, but instead chose to

presume a permit was issued and only pursued setback violations under the 2014

UDO. The absence of evidence of a permit should be held against the County, not the

property owner. See Shearl, 236 N.C. App. at 118, 762 S.E.2d at 882. As to

Appellants’ garage, Appellant Earlene testified before the BOA that the garage was

unpermitted. Therefore, there was no permit that may grant Appellants a vested

right to maintain their garage where located.

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¶ 37 Vested rights in a zoning ordinance can be established through one of two

means. See Browning-Ferris Industries of South Atlantic, Inc. v. Guilford County Bd.

of Adjustment, 126 N.C. App. 168, 171, 484 S.E.2d 411, 414 (1997). Vested rights

may be created by qualification with certain statutes or by qualification under the

common law. See id. Appellants only assert a statutory vested right, and we

consequently limit our discussion.

¶ 38 Issuance of a building permit is a necessary prerequisite to the creation of a

vested statutory right under North Carolina General Statute § 153A-344. See § 153A-

344(b); see also Sandy Mush Properties, Inc. v. Rutherford County ex rel. Rutherford

County Bd. of Com’rs, 181 N.C. App. 224, 233, 638 S.E.2d 557, 563 (2007)

(interpreting § 153A-344 as applied to an office building with a valid permit).

Additionally, any such right created under North Carolina General Statute § 153A-

344 may be limited by the precise language of the permit. See Sandy Mush Properties,

181 N.C. App. at 235–36, 638 S.E.2d at 564. Should a permit contain language such

as “all work will comply with the State Building Code and all other applicable State

and Local laws and ordinances,” then any rights created under North Carolina

General Statute § 153A-344 would be limited to rights to construct buildings in

conformity with North Carolina law, including local zoning ordinances. See id.

¶ 39 Appellee argues, based upon the testimony of the Union County Zoning

Administrator, that any permit issued to Appellants to construct their residence

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would have included similar language. The BOA also appears to have considered the

likelihood that any permit issued to Appellants would have declared setback

requirements and that construction must comply with those requirements.

¶ 40 However, as to Appellants’ residence, no evidence of the specific requirements

of a building permit was presented. The only evidence regarding the permit was the

statement by Mr. King that:

we cannot verify whether or not a permit was issued

because we purge our records after 6 years. . . . . It has been

destroyed, so we don’t know if there’s a permit or not. We’re

going to assume for the benefit of the resident that the

permit was issued and we’re just going to go with that.

(Emphasis added.) The rest of the testimony before the BOA appears to focus on the

2 January 2018 survey, but the evidence does not address whether the residence’s

construction complied with a building permit or what the prior ordinance required in

2004. Additionally, the BOA made no findings as to the existence or nonexistence of

a permit for Appellants’ residence. According to the evidence and the County’s

concession it had purged its records and assumption that a permit was issued, we

must also assume a permit was issued. Based upon the permit, Appellants have a

vested right to maintain the residence where currently located. Appellee did not use

its opportunity before the BOA to prove the absence of a permit for the residence,

failure to comply with a permit, or that a permit was issued and expired but instead

chose to assume a valid permit was issued to Appellants. Appellants have a vested

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right under North Carolina General Statute § 153A-344 to maintain the residence

where currently located. But since no permit was issued for the garage, Appellants

have no vested right under North Carolina General Statute § 153A-344 to maintain

the garage where it is located.

C. Application of the Standard of Review to Findings of Fact

¶ 41 This Court must next determine if the Superior Court correctly applied the

whole record test to challenged findings of fact. See Dellinger, 248 N.C. App. at 323,

789 S.E.2d at 26. Our duty is to determine, after a review of the whole record, if there

was substantial evidence to support the BOA decision. Id. “The whole record test

does not allow the reviewing court to replace the Board’s judgment as between two

reasonably conflicting views, even though the court could justifiably have reached a

different result had the matter been before it de novo.” Turik v. Town of Surf City,

182 N.C. App. 427, 430, 642 S.E.2d 251, 253 (2007) (alterations and quotation

omitted). But any “[f]acts found under misapprehension of the law will be set aside

on the theory that the evidence should be considered in its true legal light . . . .” State

v. Moir, 369 N.C. 370, 389, 794 S.E.2d 685, 698 (2016) (alteration in original) (quoting

Helms v. Rea, 282 N.C. 610, 620, 194 S.E.2d 1, 8 (1973)). The BOA’s sole conclusion

of law is reviewed de novo. Westminster Homes, 140 N.C. App. at 102, 535 S.E.2d at

417.

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Opinion of the Court

¶ 42 Appellant assigns error to three specific findings of fact, and the BOA’s sole

conclusion of law.

1. Board of Adjustment Finding of Fact No. 4

¶ 43 The BOA Finding of Fact No. 4 states: “A portion of the principal residential

structure is located in the 20-foot side yard setback. The date that the encroachment

first occurred is unknown.” Appellant argues there was no competent evidence

presented at either BOA hearing to support this finding, and that the testimony by

the Union County Zoning Administrator indicates the County did not have sufficient

information to conclusively determine if the house encroached upon the setback line.

This finding is accurate in that the survey does show an encroachment, and the

Zoning Administrator testified that an encroachment is evidenced by the survey, but

it is the extent of the encroachment that is unknown. Regardless, the survey and

testimony were based upon the 2014 UDO and thus this finding is not relevant to the

issue of setback violations for the reasons stated above. This finding only shows that

the property would be in violation of the 2014 UDO if the residence was built after

the effective date of the UDO, not that Appellants’ property is a continuing violation

of the prior ordinance.

2. Board of Adjustment Finding of Fact No. 8

¶ 44 The BOA Finding of Fact No. 8 states: “At the time Thompson purchased the

Thompson Residence, she was aware of both violations of the side yard setbacks.”

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Appellants argue this finding is at odds with Appellant Earlene’s testimony at the

hearing, and that Appellants were only aware of a potential permitting issue with

the garage. After a review of the evidence available to the BOA, we agree with

Appellants’ arguments for the reasons set forth in the prior section. Appellee had the

burden of proving a violation of the 2014 UDO and failed to produce evidence to carry

that burden. The BOA should not have applied the 2014 UDO against Appellants’

property, and Appellants’ knowledge of a survey showing an encroachment based

upon the 2014 UDO has no bearing on whether either structure was in violation of

the ordinance in effect when the structures were built. Ultimately, Appellants’

knowledge of a potential violation of the 2014 UDO is not relevant.

3. Board of Adjustment Finding of Fact No. 12

¶ 45 The BOA Finding of Fact No. 12 states: “The various depictions and testimony

of the location of the Thompson Residence and the accessory detached garage all show

both buildings encroach into the required side yard setbacks.” Appellants argue this

finding is erroneous for the same reasons that Finding No. 4 is erroneous; there is no

competent evidence to support the finding. Again, this finding is accurate because

the survey does show an encroachment, but the survey was based upon the 2014 UDO

and thus this finding is not relevant to the issue of violation for the reasons stated

above. For the same reasons as Finding No. 4, we conclude it was error for the

Superior Court to affirm the BOA’s findings applying the UDO when it was not shown

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that Appellants’ property violated the prior ordinance in effect when the structures

were built.

4. Board of Adjustment Conclusion of Law

¶ 46 Appellants also challenge the Board of Adjustment’s sole conclusion of law.

The BOA concluded that “both the Thompson Residence and the accessory detached

garage encroach into the side yard setbacks and are thus in violation of the Union

County Development Ordinance.” As discussed above, this conclusion of law is based

upon application of the 2014 UDO, but Appellee failed to show that the structures

were in violation of the ordinance in effect when they were built. The Superior Court

erred in affirming the BOA’s conclusion of law.

IV. CONCLUSION

¶ 47 We conclude Appellants waived the defense of the statutes of limitations in

North Carolina General Statutes §§ 1-49(3) and 1-51(5) as to the civil penalty and

Notices of Violation by failure to raise this defense before the BOA. We conclude the

Superior Court erred by affirming the BOA’s decision because Appellee failed to carry

its burden of proving the residence and garage were in violation of the 2014 UDO. As

to Appellants’ residence, the trial court’s order is reversed. As to Appellants’ garage,

the trial court’s order is vacated and remanded with instructions to remand to the

BOA for further proceedings consistent with this opinion, with the burden upon

Appellee to prove a zoning violation based upon the applicable ordinances.

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Opinion of the Court

REVERSED IN PART; VACATED AND REMANDED IN PART.

Judges ARROWOOD and JACKSON concur.