Annotate this Case

128 S.E.2d 879 (1963)

258 N.C. 476


No. 597.

Supreme Court of North Carolina.

January 11, 1963.

*882 Harriss H. Jarrell, High Point, for petitioner appellant.

J. W. Clontz, High Point, and W. Edmund Lowe, for respondent appellee.

BOBBITT, Justice.

We cannot determine to what extent, if any, a provision identifiable as "Section 22.58(n)" of a zoning ordinance is relevant. No ordinance provision so identified appears in the record.

The record contains references to the "original Zoning Ordinance" of March 18, 1926, and to the Zoning Ordinance of November 18, 1947; but these ordinances, with the exception hereafter noted, do not appear in the record. The only ordinance provisions in the record are two excerpts, each relating solely to "nonconforming uses," one apparently from an ordinance adopted in November, 1947, and the other apparently from an ordinance adopted October 7, 1958.

It may be implied that an ordinance prohibits a duplex or two-family residence in the area designated therein as "Residence A-2 District" unless permitted as "a nonconforming use." However, no such ordinance provision appears in the record. Absent evidence of its exact terms, it would be inappropriate to base decision on such ordinance provision.

The Board found as a fact that petitioner's property was being used and occupied as a single-family unit in a single-family area by E. N. Collins "when the present Zoning Ordinance was enacted on 18 November 1947 and was so occupied during the years 1946, 1947 and 1948"; and the Board's decision is based wholly on said finding of fact. In the petition for writ of certiorari, and also by exceptions to the court's judgment, petitioner has challenged and now challenges said finding of fact as unsupported by competent evidence.

It is noted that the court recognized that the evidence offered in her behalf, if accepted, would have supported a finding of fact in favor of petitioner.

"The duties of the building inspector being administrative, appeals from him to the Board of Adjustment present controverted questions of factnot issues of fact. Hence it is that the findings of the board, when made in good faith and supported by evidence, are final. Little v. Board of Adjustment of [City of] Raleigh, 195 N.C. 793, 143 S.E. 827. Such findings of fact are not subject to review by the courts." In re Pine Hill Cemeteries, Inc., 219 N.C. 735, 15 S.E.2d 1; In re Appeal of Hasting, 252 N.C. 327, 113 S.E.2d 433.

G.S. § 160-178, in part, provides: "Every decision of such board shall, however, be subject to review by proceedings in the nature of certiorari." "The writ of certiorari, as permitted by the zoning ordinance, statute, is a writ to bring the matter before the court, upon the evidence presented by the record itself." In re Pine Hill Cemeteries, supra; Chambers v. Zoning Board of Adjustment of Winston-Salem, 250 N.C. 194, 199, 108 S.E.2d 211.

G.S. § 143-307, in part, provides: "Any person who is aggrieved by a final administrative decision, and who has exhausted *883 all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of such decision under this article, unless adequate procedure for judicial review is provided by some other statute, in which case the review shall be under such other statute." While G.S. § 160-178 provides expressly for a review "by proceedings in the nature of certiorari," this is an "adequate procedure for judicial review" only if the scope of review is equal to that under GS Chapter 143, Article 33, § 143-306 et seq.

The Board based its decision solely upon its finding that Collins used and occupied the property as a single family unit during 1946, 1947 and 1948. Our inquiry is to ascertain the evidential basis, if any, for this finding.

Whether the pertinent High Point Zoning Ordinance prescribes the procedure for the conduct of hearings by the Board does not appear. If not, the hearings must be governed by established rules of procedure applicable generally to administrative tribunals. Flick v. Gately (328 Ill.App. 81), 65 N.E.2d 137.

The persons who made statements at meetings of the Board were not sworn. References in the unsworn statements of certain of these persons as to when and under what circumstances the property was occupied by Collins are brief and vague. However, the Board considered the following: (1) An affidavit that Collins was listed in the High Point City Directory for the years 1944-1948, inclusive, as residing at 709 Centennial Avenue; (2) an affidavit of Mr. Clontz, counsel for protestants, to the effect that Mr. and Mrs. Collins had advised him by telephone that some other people lived with them at 709 Centennial Avenue "at various times from 1941 until 1946, but that during the years 1946, 1947, and through May of 1948, they were the only family in said dwelling house"; and (3) a letter dated January 1, 1962, from Collins to W. Edmund Lowe, counsel for protestants, which was read by the Chairman of the Board at the January 25, 1962, meeting. Petitioner excepted to the admission and consideration of the Clontz affidavit and the Collins letter.

"While a hearing of this nature may be more or less informal, and technical legal rules of evidence and procedure may be disregarded, no essential element of a fair trial can be dispensed with. The party whose rights are being determined must be given the opportunity to crossexamine witnesses, inspect documents and offer evidence in explanation and rebuttal." Branche v. Board of Trustees of Incorporated Village of Great Neck, Sup., 141 N.Y.S.2d 477; 101 C.J.S. Zoning § 213.

The conclusion reached is that the finding of fact upon which the Board based its decision is "(u)nsupported by competent, material, and substantial evidence in view of the entire record as submitted." (Our italics) G.S. § 143-315(5). Obviously, the Clontz affidavit and the Collins letter were incompetent. Moreover, mindful that "(t)he right to a nonconforming use is a property right," Brown v. Gerhardt (5 Ill.2d 106), 125 N.E.2d 53, 56, it is our opinion, and we so hold, that, absent stipulation or waiver, a board of adjustment may not base critical findings of fact as to the existence or nonexistence of a nonconforming use on unsworn statements. Flick v. Gately, supra.

We are not presently concerned with questions as to what procedures are appropriate or essential at a hearing for consideration of a petition addressed to the discretion of a board of adjustment. Here, petitioner asserts a legal right to a nonconforming use. Whether she has such legal right depends upon factual findings. In our view, in the determination of such factual findings unsworn statements may not be considered either competent or substantial. Absent statutory provision authorizing the chairman or other official of a board of adjustment to administer oaths to witnesses, this must be done by an authorized official.

*884 As to the form and contents of administrative findings, see 42 Am.Jur., Public Administrative Law § 151.

For the reasons stated, the judgment of the court below 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 at its January 25, 1962, meeting 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.