Deffet Rentals, Inc. v. City of Burlington

219 S.E.2d 223 (1975)

27 N.C. App. 361

DEFFET RENTALS, INC., Petitioner, v. The CITY OF BURLINGTON, North Carolina, a body politic incorporated in the State of North Carolina, and Jack D. Childers, Building Inspector, for the City of Burlington, North Carolina, Respondents.

No. 7515SC383.

Court of Appeals of North Carolina.

November 5, 1975.

*225 Allen, Allen & Bateman by Robert J. Wishart, Burlington, for petitioner-appellee.

Robert M. Ward, Burlington, for respondents-appellants.

MARTIN, Judge.

In their first assignment of error respondents contend the court failed to follow proper procedure for reviewing an administrative decision pursuant to certiorari. The assignment has merit.

It is noted that instead of petitioning the superior court for a writ of certiorari, *226 petitioner instituted an action by filing a complaint and having summons issued. While the procedure appears to be unusual, we do not think it was fatal in this case in view of the stipulation providing that the court might hear the matter and the court's proceeding to do so. By proceeding to pass upon the controversy, the court, in effect, allowed a petition for certiorari and we will treat the cause as though it had entered the superior court by way of certiorari.

The decision of a board of adjustment is final as to facts found provided there is evidence to support such facts. The court is empowered to review errors in law but not facts. It can give relief against orders which are arbitrary, oppressive, or attended with manifest abuse of authority and ones which are unsupported by the evidence. In re Campsites Unlimited, 23 N.C.App. 250, 208 S.E.2d 717 (1974), aff., 287 N.C. 493, 215 S.E.2d 73 (1975). See Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128 (1946). It is not the function of the reviewing court, in such proceeding, 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. In re Campsites Unlimited, 287 N.C. 493, 215 S.E.2d 73 (1975).

It follows that in the instant case the trial court was without authority to make findings of fact and conclusions of law thereon. In so doing, it committed error.

Respondents next assign as error the action of the court in granting petitioner's relief based on the doctrine of vested rights. They contend that the Board of Adjustment acted properly in denying petitioner's application for a building permit.

Petitioner basically contends that at the time of the enactment of a zoning ordinance affecting its land it had acquired a vested right to proceed with construction. The respondents contend that petitioner was aware that zoning which might be adverse to the proposed use to which the petitioner was going to put the area in question was being contemplated.

Certiorari is the proper procedure to review proceedings before a board of adjustment when an aggrieved party believes that his application for a building permit has been denied in violation of the "vested rights" doctrine declared in Town of Hillsborough v. Smith, 276 N.C. 48, 170 S.E.2d 904 (1969).

In this case there was evidence which tended to show that petitioner negotiated the purchase of property for the purpose of constructing multifamily apartment dwellings. The land was located outside the corporate limits of the City of Burlington but within the extraterritorial zoning area controlled by the City. No zoning ordinances for this area had been enacted at that time. After entering into a contract to purchase this property and in response to requests by city officials, the petitioner delayed construction of its project until other property owners could be contacted with a view towards including the additional property in the project. The petitioner entered into an option contract to purchase this additional land and undertook substantial expenditures including major revisions in its preconstruction planning. Thereafter, on 6 February 1973 the City zoned the property for single family residences only. Petitioner asserts a legal right to non-conforming use of the land in question. Whether it has such legal right depends upon factual findings.

"[O]ne who, in good faith ... makes expenditures or incurs contractual obligations, substantial in amount, incidental to or as a part of the acquisition of the building site or the construction ... may not be deprived of his right to continue such construction and use ...." Town of Hillsborough v. Smith, supra.

Safeguards against arbitrary action by zoning boards in allowing or denying the application of use permits require the board to state the basic facts on which *227 it relied with sufficient specificity to inform the parties, as well as the court, what induced its decision. See Refining Co. v. Board of Aldermen, 284 N.C. 458, 202 S.E.2d 129 (1974). In this case the findings of fact by the Board of Adjustment are insufficient to enable the reviewing court to determine whether the Board had acted arbitrarily or had committed errors of law in affirming the Building Inspector and denying the permit.

Respondents' contention that petitioner has no standing for the reason that petitioner is an optionee has no merit. The record is clear that petitioner was bound by contract to purchase the land in question.

For the reasons stated, the judgment of the superior court is vacated; and the cause is remanded for entry of an order setting aside the findings of fact and conclusions of law made by the Board of Adjustment and directing that a further hearing be held by the Board for a determination, on competent and substantial evidence, of petitioner's asserted rights.

Error and remanded.

BRITT and HEDRICK, JJ., concur.