Opinion
No. COA10-1220
Filed 7 June 2011 This case not for publication
Appeal by Petitioner from order entered 21 June 2010 by Judge Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 23 February 2011.
Joseph L. Ledford, for Petitioner. City of Charlotte and City of Charlotte Zoning Board of Adjustment, by Terrie Hagler-Gray, for Respondents.
Mecklenburg County No. 10-CVS-5401.
STB of Charlotte, Inc. d/b/a Babydolls ("Petitioner") appeals from judgment and order affirming the decision of a zoning board of adjustment to deny its request for a zoning variance. Because the trial court correctly determined that the decision of the zoning board was not arbitrary and capricious, we affirm the trial court's judgment and order.
Petitioner operates an adult entertainment establishment in Charlotte, North Carolina. At times relevant to this appeal, Petitioner's operation of the establishment was in violation of Charlotte, N.C., City of Charlotte Zoning Ordinance ("Charlotte Zoning Ordinance") § 12.518(b) (effective July 1, 1994). The ordinance provides that: "Any structure in which an adult establishment, other than an adult bookstore or adult mini motion picture theater, is the principal or accessory use shall be separated by a distance of at least 1000 feet from any residential district, school, church, child care center, park or playground." Charlotte Zoning Ordinance § 12.518(b). Before granting a variance from the distance requirement provided in § 12.518(b), the board of adjustment must find that "thoroughfares, traffic circulation patterns, structures or other natural or man-made geographic or topographic features are likely to provide an adequate measure of protection for the protected zoning or use from any secondary effects of the adult establishment." Charlotte Zoning Ordinance § 12.518(g). Also, the board must find that the variance must comply with the general requirements listed in Charlotte Zoning Ordinance § 5.108(1).
On 23 December 2009, Petitioner filed a request with the Zoning Board of Adjustment for the City of Charlotte ("Respondent"), seeking "[a] variance from the separation requirement" of the city ordinance. Following a hearing on 26 January 2010, Respondent denied Petitioner's request for a variance. In its decision, Respondent found that the current use of the subject premises was a non-conforming use and failed to comply with the requirements for finding a variance set forth in § 12.518(g). Based on its findings, Respondent concluded that Petitioner's request for a variance "does not meet the general intent and spirit of the Zoning Ordinance and is not in harmony with the neighborhood."
Following the decision of the zoning board, Petitioner filed a petition for a writ of certiorari with Mecklenburg County Superior Court. In its petition, Petitioner asserted that "[the] decision of the Board of Adjustment is erroneous as a matter of law, contains errors of law, inconsistent with the prior decisions of the board and is arbitrary, oppressive, and attended with manifest abuse of authority." On 21 June 2010, the trial court issued an order in which it affirmed the zoning board's decision to deny Petitioner's request for a variance. Most pertinent to the case at bar, the trial court found that "[t]he Charlotte Zoning Board of Adjustment's decision is not arbitrary, oppressive, or attended with manifest abuse of authority[.]" On 9 July 2010, Petitioner filed notice of appeal from the trial court's judgment and order.
In its sole argument on appeal, Petitioner contends that "the trial court erred by affirming the decision of the zoning board of adjustment." Specifically, Petitioner tends to argue that the trial court erroneously failed to determine that the decision of the board was arbitrary and capricious. We disagree.
"When a superior court grants certiorari to review the decision of a board of adjustment, the superior court sits as an appellate court, and not as a trier of facts." Overton v. Camden Cty., 155 N.C. App. 391, 393, 574 S.E.2d 157, 159 (2002) (internal quotation marks omitted). On review, the trial court is tasked with determining whether: "1) the [b]oard committed any errors in law; 2) the [b]oard followed lawful procedure; 3) the petitioner was afforded appropriate due process; 4) the [b]oard's decision was supported by competent evidence in the whole record; and 5) . . . the [b]oard's decision was arbitrary and capricious." Capital Outdoor, Inc. v. Guilford Cty. Bd. of Adjust., 152 N.C. App. 474, 475, 567 S.E.2d 440, 441 (2002) (quoting Capital Outdoor, Inc. v. Guilford Cty. Bd. of Adjust., 146 N.C. App. 388, 390, 552 S.E.2d 265, 267 (2001), rev'd per curiam on other grounds, 355 N.C. 269, 559 S.E.2d 547 (2002)). "This Court's task when reviewing a superior court's order reviewing an administrative decision is simply to `consider those grounds for reversal or modification raised by the petitioner before the superior court and properly assigned as error and argued on appeal to this Court.'" Bernold v. Bd. of Governors of UNC, 200 N.C. App.295, 298, 683 S.E.2d 428, 430 (2009) (quoting Shackleford-Moten v. Lenoir County Dep't of Soc. Servs., 155 N.C. App. 568, 572, 573 S.E.2d 767, 770 (2002)).
Superior courts reviewing whether the decision of a zoning board was arbitrary and capricious, apply the whole record test. Overton, 155 N.C. App. at 393, 574 S.E.2d at 393-94. "Under the whole record test, the trial court examines the entire record to determine whether it contains substantial evidence to support the agency's decision." Bellsouth Carolinas PCS, L.P. v. Henderson Cty. Bd. of Adjust., 174 N.C. App. 574, 576, 621 S.E.2d 270, 272 (2005). "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." Northwest Property Group, LLC v. Town of Carrboro, ___ N.C. App. ___, ___, 687 S.E.2d 1, 6 (2009) (quoting Thompson v. Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977)).
In the case sub judice, applying the whole record test, it is apparent that the trial court appropriately determined that the decision of the board of adjustment was not made arbitrarily or capriciously. "Decisions will be reversed as arbitrary or capricious if they are patently in bad faith, or whimsical in the sense that they indicate a lack of fair and careful consideration or fail to indicate any course of reasoning and the exercise of judgment." McDonald v. City of Concord, 188 N.C. App. 278, 285, 655 S.E.2d 455, 459-60 (2008) (internal quotation marks and brackets omitted).
During the 26 January 2010 hearing, Respondent reviewed various forms of both documentary and testimonial evidence. Additionally, the board of adjustment received arguments from both Petitioner's and Respondent's counsel. Citing two prior instances in which the zoning board granted a variance under similar circumstances, Petitioner argues that the decision to grant a variance in some cases and not others is evidence of arbitrariness. While similar, each case cited by Petitioner is factually distinguishable from the case at bar. In each case cited by Respondent, the zoning board determined that "certain natural features provid[ed] an adequate measure of protection for the protected uses from any secondary effects of the adult establishment." In this case, no natural barrier separated Petitioner from at least two of the residential properties and Petitioner would require a rather significant variance. Petitioner also presented evidence that at least two of the neighboring residential property owners did not oppose the variance. However, Respondent countered and presented evidence that a number of surrounding property owners were opposed to the variance.
After a review of the whole record, it is apparent that Respondents considered the unique facts and circumstances presented in this action before concluding that a variance was not appropriate. Though Petitioner presented some evidence to support its contention that its request for a variance should be granted, the mere existence of contrary evidence does not entitle the superior court to replace the judgment of the zoning board. Northwest Property Group, ___ N.C. App. at ___, 687 S.E.2d at 6. Accordingly, we affirm the trial court's decision.
Affirmed.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).