Petitions for Discretionary Review

16 Citing cases

  1. Ward v. Inscoe

    603 S.E.2d 393 (N.C. Ct. App. 2004)   Cited 8 times
    Observing this Court's previous remand to the Superior Court for remand to Board of Adjustment for appropriate findings of fact and finding no due process violation where Board reheard evidence on remand to make ordered findings

    Guideline five requires the Board's decision not to be arbitrary and capricious. An administrative ruling is deemed arbitrary and capricious when it is "whimsical," "willful[,] and [an] unreasonable action without consideration or in disregard of facts or law or without determining principle." Lenoir Mem. Hosp. v. N.C. Dep't of Human Resources, 98 N.C. App. 178, 181, 309 S.E.2d 448, 450 (quoting Board of Education [of Blount County] v. Phillips, 264 Ala. 603, 89 So.2d 96 (1956)), disc. rev. denied, 327 N.C. 430, 395 S.E.2d 682 (1990); see also Tate Terrace Realty Investors v. Currituck County, 127 N.C. App. 212, 222-23, 488 S.E.2d 845, 851 (quoting Black's Law Dictionary 105 (6th ed. 1990)), disc. rev. denied, 347 N.C. 409, 496 S.E.2d 394, appeal dismissed, 347 N.C. 409, 496 S.E.2d 386 (1997). The Board conducted a careful and thorough investigation of the evidence supporting and opposing the special use permit.

  2. Lanvale Properties, LLC v. County of Cabarrus

    366 N.C. 142 (N.C. 2012)   Cited 43 times   5 Legal Analyses
    Holding that an ordinance requiring residential property developers to pay a fee to subsidize new school construction was a mechanism for generating revenue, rather than a land-use regulation

    Our Court of Appeals has previously upheld a county's denial of a development application because of school capacity concerns. Tate Terrace Realty Investors, Inc. v. Currituck County, 127 N.C.App. 212, 223, 488 S.E.2d 845, 851 (upholding the Board of Commissioners' decision to deny development permit for 601–lot subdivision when, inter alia, “substantial competent evidence in the record supported the Board's ... conclusion that petitioner's proposed development ‘fail[ed] to meet the provision of Section 1402(2)(e) of the [County's Unified Development Ordinance] because it exceeds the county's ability to provide adequate public school facilities' ” (first set of brackets in original)), disc. rev. denied,347 N.C. 409, 496 S.E.2d 394 (1997). If a county may deny development applications outright based on school capacity concerns, surely it can insist on reasonable delays of development to allow for new school construction as well.

  3. Innovative 55, LLC v. Robeson Cnty.

    253 N.C. App. 714 (N.C. Ct. App. 2017)   Cited 10 times

    In reviewing the Commissioners’ decision, "the superior court sits as an appellate court, and not as a trier of facts." Tate Terrace Realty Inv'rs, Inc. v. Currituck Cty. , 127 N.C.App. 212, 217, 488 S.E.2d 845, 848 (citation omitted), disc. review denied , 347 N.C. 409, 496 S.E.2d 394 (1997). The role of the superior court in reviewing the decision of a Board of Commissioners, sitting as a quasi-judicial body, is as follows:

  4. Dellinger v. Lincoln Cnty.

    248 N.C. App. 317 (N.C. Ct. App. 2016)   Cited 12 times

    The Board's decisions "shall be subject to review of the superior court in the nature of certiorari[,]" N.C. Gen.Stat. § 160A–381(c) (2015), in which "the superior court sits as an appellate court, and not as a trier of facts." Tate Terrace Realty Inv'rs, Inc. v. Currituck Cty., 127 N.C.App. 212, 217, 488 S.E.2d 845, 848 (citation omitted), disc. review denied, 347 N.C. 409, 496 S.E.2d 394 (1997). The role of the superior court in reviewing the decision of a Board of Commissioners, sitting as a quasi-judicial body, has been defined as follows:

  5. Livingston v. Robeson Cnty.

    729 S.E.2d 129 (N.C. Ct. App. 2012)

    “ ‘Upon further appeal to this Court, we must examine the trial court's order for error of law just as with any other civil case.’ “ Sun Suites Holdings, LLC v. Bd. of Aldermen of Garner, 139 N.C.App. 269, 272, 533 S.E.2d 525, 528 (quoting Tate Terrace Realty Investors, Inc. v. Currituck Cty., 127 N.C.App. 212, 219, 488 S.E.2d 845, 849, disc. review denied, 347 N.C. 409, 496 S.E.2d 394 (1997)), supersedeas and disc. review denied, 353 N.C. 280, 546 S.E.2d 397 (2000). “ ‘The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.’ “ Id. at 273, 533 S.E.2d at 528 (quoting Amanini v. N.C. Dep't of Human Res., 114 N.C.App. 668, 675, 443 S.E.2d 114, 118–19 (1994)).

  6. Wilson v. Wilson

    690 S.E.2d 710 (N.C. Ct. App. 2010)   3 Legal Analyses

    We therefore reverse the trial court's grant of summary judgment and award of costs to Defendants. See Tate Terrace Realty Investors, Inc. v. Currituck County, 127 N.C. App. 212, 224, 488 S.E.2d 845, 852, disc. review denied, 347 N.C. 409, 496 S.E.2d 394 (1997) (reversing the taxing of costs to respondents where costs were imposed in consequence of the trial court's erroneous decision on the merits). Reversed.

  7. Bailey Assoc., Inc. v. Wilmington Bd. of Adjust

    202 N.C. App. 177 (N.C. Ct. App. 2010)   Cited 22 times
    Finding intervenors were entitled to intervene under Rule 24, where facts showed numerous ways in which "they and their property would be injured" if a particular party prevailed in the lawsuit

    Overton, 155 N.C. App. at 393, 574 S.E.2d at 159-60 (quoting Westminster Homes, Inc. v. Town of Gary Zoning Bd. of Adjust, 140 N.C. App. 99, 102, 535 S.E.2d 415, 417 (2000), aff'd, 354 N.C. 298, 554 S.E.2d 634 (2001)). The findings of the board of adjustment "are binding if supported by substantial competent evidence presented at the hearing[,]" Tate Terrace Realty Investors, Inc. v. Currituck County, 127 N.C. App. 212, 218, 488 S.E.2d 845, 849 (1997), disc. review denied, 347 N.C. 409, 496 S.E.2d 394 (1997) (citing Capricorn Equity Corp. v. Town of Chapel Hill, 334 N.C. 132, 135-36, 431 S.E.2d 183, 186 (1993)), and "[t]he reviewing court may not substitute its own judgment for that of the body when the record contains competent and substantial evidence supporting the findings[,] . . . even though conflicting evidence in the record would have allowed the court to reach a contrary finding if proceeding de novo." Tate Terrace, 127 N.C. App. at 218, 488 S.E.2d at 849 (citing CG T Corp. v. Bd. of Adjust, of Wilmington, 105 N.C. App. 32, 40, 411 S.E.2d 655, 660 (1992)). If the board's decision is challenged as resting on an error of law, de novo review is proper.

  8. In re Totsland Preschool

    636 S.E.2d 292 (N.C. Ct. App. 2006)   Cited 5 times
    Noting that an entity should not be precluded from being considered "charitable" simply because it is primarily supported through government funding

    We find no merit in the County's argument, and further we hold the County has waived this argument on appeal since the County failed to raise this issue before the Commission prior to this appeal. "This Court has long held that issues and theories of a case not raised below will not be considered on appeal." Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjust., 354 N.C. 298, 309, 554 S.E.2d 634, 641 (2001); see also Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934) (where theory argued on appeal was not raised before the trial court, "the law does not permit parties to swap horses between courts in order to get a better mount" before an appellate court); Tate Terrace Realty Investors, Inc. v. Currituck County, 127 N.C. App. 212, 224, 488 S.E.2d 845, 852, disc. review denied, 347 N.C. 409, 496 S.E.2d 394 (1997). In the instant case, Beaufort County failed to argue to the Commission the issue of whether or not Totsland made charitable use of the subject property prior to 1 January 2003, as it now argues on appeal. Therefore, this assignment of error is dismissed.

  9. Cullowhee v. Forest Hills Brd. of Adjustment

    635 S.E.2d 73 (N.C. Ct. App. 2006)

    In evaluating whether the findings of fact by the Board of Adjustment are supported by the evidence or are abritrary and capricious, the trial court is charged with applying the "whole record test." See Tate Terrace Realty Investors, Inc. v. Currituck County, 127 N.C. App. 212, 218, 488 S.E.2d 845, 849, appeal dismissed and disc. rev. denied, 347 N.C. 409, 496 S.E.2d 394 (1997). Under this standard of review, "[t]he [superior] court must examine all competent evidence to determine if the record supports the board's findings and conclusions.'"

  10. Jirtle v. Bd. Adjust. Town of Biscoe

    175 N.C. App. 178 (N.C. Ct. App. 2005)   Cited 7 times
    Holding that a church did not need a special permit to operate a food pantry because it constituted an accessory use

    A decision of a board of adjustment may be reviewed by a trial court upon the issuance of a writ of certiorari, in which case the trial court sits as an appellate court. Tate Terrace Realty Investors, Inc. v. Currituck County, 127 N.C.App. 212, 217, 488 S.E.2d 845, 848, disc. review denied, 347 N.C. 409, 496 S.E.2d 394 (1997). On appeal of a trial court judgment considering a decision of a board of adjustment, our Court reviews the trial court's order for errors of law.