NO. COA14-113
NORTH CAROLINA COURT OF APPEALS
Filed: 2 September 2014
JOHN SHEARL,
Petitioner,
v. Macon County
No. 12 CVS 653
TOWN OF HIGHLANDS,
Respondent.
Appeal by petitioner from order entered 5 September 2013 by
Judge James U. Downs in Macon County Superior Court. Heard in
the Court of Appeals 22 May 2014.
Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Craig
D. Justus, for petitioner-appellant.
Coward, Hicks, & Siler, P.A., by Bonnie J. Claxton, for
respondent-appellee.
HUNTER, JR., Robert N., Judge.
John Shearl (“Petitioner”) appeals from an order of the
Macon County Superior Court affirming a zoning decision by the
Town of Highlands Zoning Board of Adjustment (“the BOA”). The
BOA’s decision concluded that Petitioner was making commercial
use of property located in a residential zone in violation of
the local zoning ordinance. On appeal to this Court, Petitioner
contends that the Superior Court erred by concluding that the
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evidence established the existence of a zoning violation when
the notice of violation was issued. In the alternative,
Petitioner contends that the Superior Court erred by determining
that he had the burden of proving that his nonconforming use was
grandfathered in under the terms of the zoning ordinance given
that the Town of Highlands (“Respondent”) has lost an official
zoning map crucial to his defense. Given the unique factual
circumstances presented here, we hold that Respondent bears the
burden of proving that Petitioner’s zoning violation dates back
to Petitioner’s purchase of the property. Because the burden
was inappropriately placed on Petitioner, we vacate the superior
court’s order and remand this matter for a new hearing
consistent with this opinion.
I. Factual & Procedural History
Petitioner owns property directly off Highway 28 in
Highlands, on which he operates a business entitled, “J&J Lawn
and Landscape.” On 19 August 2009, Respondent issued a zoning
violation notice to Petitioner, which stated that he was making
commercial use of property zoned for residential use.
Petitioner promptly appealed to the BOA, which heard
Petitioner’s case at two separate hearings on 14 October 2009
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and 4 November 2009. Evidence presented at the hearings tended
to show the following.
Petitioner purchased the subject property in November of
1993. Prior to Petitioner’s purchase, in 1983, Respondent
split-zoned the property for commercial and residential use.
The front portion of the property, which measured 230 feet from
the centerline of Highway 28, was zoned for business or
commercial use. The rear of the property, i.e., 230 feet and
beyond, was zoned for residential use. An official zoning map,
current through 1988, was admitted at the BOA hearings and
reflects the 230-foot line demarcating the two zones.
In 1990, Respondent made comprehensive changes to the
town’s zoning ordinance for the purpose of reducing strip
commercial development. As a result, zoning categories changed
and a new zoning map was adopted. Respondent contended that at
this time, the demarcation line between the commercial and
residential zone on the subject property was moved from 230 feet
to 150 feet from the centerline of Highway 28. However, the
official map adopted in connection with the 1990 zoning changes
was not admitted into evidence and, by Respondent’s own
admission, the map and all copies have been lost. The only
evidence in the record supporting the existence of the 150-foot
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line as of the date of Petitioner’s purchase of the property is
a subdivision plat map drawn up and recorded in connection with
Petitioner’s land transaction. The plat map shows the
demarcation line between the two zones at 150 feet from the
centerline of Highway 28.
With respect to the location of the line when the notice of
violation was issued on 19 August 2009, the BOA minutes refer to
two additional maps that were admitted into evidence. The first
map, a 1996 zoning map described as being “current,” appears in
the list of exhibits but has been omitted from the record on
appeal. Testimony from Respondent’s Zoning Administrator,
recounted in the BOA hearing minutes, indicated that the 1996
map showed a 150-foot demarcation line. The second map referred
to is a Geographic Information System (“GIS”) printout entitled
“Current Zoning Map,” which has been attached at the end of the
BOA hearing minutes. The map tends to indicate that the
property is split-zoned but reveals little more. There are no
references to zoning categories on the map and there is no
measurement scale.
Further evidence presented at the BOA hearings revealed
that since Petitioner’s purchase of the subject property in
November 1993, Petitioner has operated his business using two
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structures. The first structure is a shop building near Highway
28 that falls in the commercial zone under either a 230-foot or
a 150-foot demarcation line. The second structure is a storage
building towards the rear of the property that falls in the
commercial zone under a 230-foot demarcation line, but in the
residential zone under a 150-foot demarcation line. Thus, the
location of the demarcation line, whether at 230 feet or at 150
feet from the centerline of Highway 28, was of paramount
importance to the validity of Petitioner’s appeal before the
BOA.
Upon hearing the foregoing evidence, the BOA emphasized
that the burden to establish a nonconforming use was with
Petitioner and unanimously voted to deny Petitioner’s appeal.
On 11 November 2009, the BOA issued a written decision upholding
the zoning violation.
Thereafter, Petitioner filed a petition for the issuance of
a writ of certiorari to the Macon County Superior Court pursuant
to N.C. Gen. Stat. §§ 160A-388(e2), -393 (2013) on 24 November
2009. The petition was dismissed without prejudice. On 5
October 2012, Petitioner re-filed the petition, which was
granted. Upon review of the administrative record, the Superior
Court affirmed the BOA’s ruling on 5 September 2013, concluding
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that the BOA’s decision was “supported by substantial and
competent evidence.” The Superior Court also concluded that
“the Board did not err in failing to require the Town to prove
the actions of the Town Board in 1990” and concluded that
“Petitioner’s use of his property was not ‘grandfathered[.]’”
Petitioner filed a timely notice of appeal to this Court on 2
October 2013.
II. Jurisdiction & Standard of Review
Petitioner’s appeal from a final order of the Superior
Court lies of right to this Court pursuant to N.C. Gen. Stat. §
7A-27(b) (2013).
In reviewing a decision from a local board of adjustment, a
superior court should:
(1) review the record for errors of law; (2)
ensure that procedures specified by law in
both statute and ordinance are followed; (3)
ensure that appropriate due process rights
of the petitioner are protected, including
the right to offer evidence, cross-examine
witnesses, and inspect documents; (4) ensure
that the decision is supported by competent,
material, and substantial evidence in the
whole record; and (5) ensure that the
decision is not arbitrary and capricious.
Lamar Outdoor Adver., Inc. v. City of Hendersonville Zoning Bd.
of Adjustment, 155 N.C. App. 516, 517–18, 573 S.E.2d 637, 640
(2002) (quotation marks and citation omitted). “This court, on
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review of the superior court’s order must determine whether the
trial court correctly applied the proper standard of review.”
Id. at 518, 573 S.E.2d at 640. Accordingly,
[t]his court applies the whole record test
when reviewing the sufficiency of the
evidence to support the findings of fact
and, in turn, conclusions of law based
thereon. To do so, we must determine
whether the Board’s findings are supported
by substantial evidence contained in the
whole record. Substantial evidence is that
which a reasonable mind might accept as
adequate to support a conclusion. Where the
petitioner alleges that a board decision is
based on error of law, the reviewing court
must examine the record de novo, as though
the issue had not yet been determined.
Id. (internal quotation marks and citations omitted).
Here, the proper application of the burden of proof at the
BOA hearing is a question of law that this Court reviews de
novo. The BOA’s decision concerning the location of the zoning
line on the subject property is reviewed to see if it is
supported by substantial evidence in view of the whole record.
III. Analysis
Petitioner’s appeal presents two questions for this Court’s
review: (1) whether the BOA’s determination concerning the
existence of a zoning violation on 19 August 2009 was supported
by substantial evidence in view of the whole record, and (2) if
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so, whether Petitioner’s commercial activity on the rear portion
of the property constituted a legal nonconforming use.
As to the first question, the burden of proving the
existence of an operation in violation of the local zoning
ordinance is on Respondent. City of Winston-Salem v. Hoots
Concrete Co., Inc., 47 N.C. App. 405, 414, 267 S.E.2d 569, 575
(1980). 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.
Respondent contends that the 1993 Plat Map, the 1996 Zoning
Map, and the GIS printout entitled “Current Zoning Map”
constitutes competent, material, and substantial evidence that
the current zoning line on Petitioner’s property runs 150 feet
parallel from the centerline of Highway 28. As previously
noted, testimony concerning the 1996 Zoning Map tended to
support the location of the zoning line at 150 feet, but the
1996 Zoning Map is not in the record on appeal.
Ordinarily, “[i]t is the duty of the appellant to ensure
that the record is complete.” First Gaston Bank of N.C. v. City
of Hickory, 203 N.C. App. 195, 198, 691 S.E.2d 715, 718 (2010);
see also N.C. R. App. P. 9 (discussing the procedural rules
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concerning the record on appeal). However, in granting the
petition for a writ of certiorari, the Superior Court ordered
Respondent to prepare and certify to the court the record of the
BOA proceedings. See N.C. Gen. Stat. § 160A-393(f) (“The writ
shall direct the respondent city . . . to prepare and certify to
the court the record of proceedings below within a specified
date.”). Both parties concede that the record on appeal to this
Court is incomplete and does not have all the exhibits
considered by the BOA, including the 1996 Zoning Map.
Given the incomplete record available to this Court, we
cannot properly determine if the BOA’s decision to find
Petitioner in violation of the current zoning ordinance was
supported by competent, material, and substantial evidence in
view of the whole record. However, as explained in detail
below, we do not need to answer this question in order to
resolve the issues raised by Petitioner’s appeal. Because the
burden of proof was inappropriately placed on Petitioner to
establish the location of the zoning line when he began his
nonconforming use, the Superior Court’s order must be vacated.
On remand, Respondent should reintroduce evidence that
Petitioner’s commercial use of his storage building was in
violation of the zoning ordinance on 19 August 2009, the BOA
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should make a new determination with respect to this issue, and
both parties should ensure that all evidence presented at the
hearing is properly included in the record.
Petitioner contended before the BOA that his commercial use
of the storage building toward the rear of his property
constituted a legal nonconforming use under Section 110 of
Respondent’s zoning ordinance. Section 110(A) of the ordinance,
entitled, “Non-conforming uses,” provides that “[t]he lawful use
of any building or premises at the time of the enactment of this
Ordinance, or immediately preceding any applicable amendment
thereto, may be continued even though the use does not conform
with the provision of this Ordinance . . . .” Consistent with
this provision, Petitioner contended that at the time that he
purchased the subject property in 1993, the zoning line
demarcating the commercial and residential zones ran 230 feet
parallel from the centerline of Highway 28, making his use of
the storage building legal. Thus, Petitioner contended that
even if the zoning line was subsequently changed, his ongoing
commercial use of the storage building is valid under Section
110(A).
Ordinarily, once a town meets its burden to establish the
existence of a current zoning violation, the burden of proof
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shifts to the landowner to establish the existence of a legal
nonconforming use or other affirmative defense. See City of
Winston-Salem, 47 N.C. App. at 414, 267 S.E.2d at 575 (“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.
Section 103 of Respondent’s zoning ordinance states that
“[t]he Zoning Map and all explanatory matter thereon accompanies
and is hereby made a part of this Ordinance and, together with a
copy of this Ordinance, shall be permanently kept on file in the
office of the Town Clerk.” Thus, Respondent violated its own
ordinance by failing to keep official zoning maps available for
public inspection. See N.C. Gen. Stat. § 160A-77 (2013)
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(stating that the governing board of a town “may provide that
[ordinances establishing or amending the boundaries of zoning
districts] shall be codified by appropriate entries upon
official map books to be retained permanently in the office of
the city clerk or some other city office generally accessible to
the public.”); see also N.C. Gen. Stat. § 160A-78 (2013)
(stating that “each city shall file a true copy of each
ordinance adopted on or after January 1, 1972, in an ordinance
book separate and apart from the council’s minute book. The
ordinance book shall be appropriately indexed and maintained for
public inspection in the office of the city clerk.”). These
record keeping requirements represent a recognition by
Respondent and by the General Assembly that the public must be
placed on constructive notice of past and present amendments to
zoning ordinances in order to safeguard property and procedural
due process rights.
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
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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 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.
Furthermore, with respect to the type of evidence that may
be presented on remand, we note that N.C. Gen. Stat. § 160A-79,
entitled, “Pleading and proving city ordinances,” provides that
“[c]opies of any part of an official map book” maintained in
accordance with the statute “shall be admitted in evidence in
all actions or proceedings before courts or administrative
bodies and shall have the same force and effect as would an
original ordinance[.]” N.C. Gen. Stat. § 160A-79(b)(2) (2013).
While we do not hold that the plain meaning of this statute
forecloses other methods of proof, we do agree that the official
1990 map or a copy thereof is the best evidence of the line’s
location when Petitioner began his nonconforming use.
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The 1988 Zoning Map admitted into evidence below shows the
zoning line at 230 feet. The only evidence in the current
record tending to support Respondent’s argument that the line
moved to 150 feet in 1990 is the subdivision plat map approved
and recorded in connection with Petitioner’s land transaction.
This plat map is not an official zoning map duly enacted with
the 1990 zoning ordinance. Nor is it a copy. While we believe
that the plat map has some evidentiary value concerning the
location of the line, it must be weighed against the evidentiary
value of the 230-foot line depicted on the official 1988 Zoning
Map. A factual determination concerning the location of the
line that is not supported by competent, material, and
substantial evidence in view of the whole record will not be
sustained on appeal. Respondent must produce such evidence on
remand establishing that the line was at 150 feet when
Petitioner began his commercial use of the storage building.
Otherwise, it must be presumed that Petitioner has a legal
nonconforming use given the absence of any evidence tending to
show that Petitioner’s building is within the earlier 230-foot
demarcation line.
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IV. Conclusion
For the foregoing reasons, the Superior Court’s order is
vacated and this matter is remanded to the Superior Court with
instructions to order further proceedings before the BOA
consistent with this opinion.
VACATED AND REMANDED.
Judges ERVIN and DAVIS concur.