Municipal – Zoning – Board of Adjustment – Area Variance – Doctor’s Sign

Premier Plastic Surgery Center, PLLC v. Board of Adjustment (Lawyers Weekly No. 11-07-0721, 18 pp.) (Robert N. Hunter Jr., J.) Appealed from Mecklenburg County Superior Court. (James W. Morgan, J.) N.C. App. Click here for the full-text opinion.

Holding: Even though the respondent-town’s zoning code prohibits more than one sign for multi-tenant commercial properties, a board of adjustment’s principal function is to issue variance permits so as to prevent injustice by the strict application of an ordinance. The superior court erred in finding that the respondent-board of adjustment had no authority to grant the variance requested by petitioner.

Reversed in part and remanded.

Background

The petitioner-medical practice is situated beside the second driveway of a multi-tenant commercial development. There is no sign at the second driveway, and petitioners’ patients routinely have trouble finding it the first time they visit the practice. The petitioner-surgeon performs outpatient surgery at the practice, and he worries that paramedics responding to surgery-related emergencies would also have trouble finding the unmarked driveway.

Although the respondent-town’s zoning code does not allow for a second sign at a multi-tenant property, petitioners obtained a sign permit from the Mecklenburg County Land Use and Environmental Services Agency (MCLUESA), which administers permits for the town.

The practice constructed a sign outside the practice. A week later, MCLUESA revoked the permit, explaining that the sign permit had been issued in error because the sign violated the town’s zoning code.

Petitioners unsuccessfully sought a variance from the respondent-board of adjustment. The superior court upheld the denial of the petition.

Discussion

The superior court erred in finding that the board of adjustment had no authority to grant petitioners the requested variance.

As this court noted in Donnelly v. Board of Adjustment, 99 N.C. App. 702, 394 S.E.2d 246 (1990), in limited circumstances, a board of adjustment may grant a variance to an ordinance. G.S. ¤ 160A-388 provides in part, “When practical difficulties or unnecessary hardships would result from carrying out the strict letter of a zoning ordinance, the board of adjustment shall have the power, in passing on appeals, to vary or modify any of the regulations or provisions of the ordinance … so that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done.”

While a board of adjustment has the power to grant a variance, its power is limited such that the variance may not violate the spirit of the ordinance.

A reading of the respondent-town’s zoning code reveals that it is intended to protect the general appearance of commercial properties and to prevent hazards and nuisances. The ordinance was also intended to provide means for adequate and effective signage, to prevent driver confusion, and to allow for flexibility to meet individual needs for business identification — the very problems of which petitioners complain. Given the ordinance’s purpose, we cannot agree with the superior court that petitioners’ sign is, as a matter of law, contrary to the zoning ordinance.

Section 153.144(A) of the town’s zoning code prohibits more than one sign for multi-tenant properties. The board of adjustment’s power to deviate from this mandate was expressly provided by the General Assembly in G.S. ¤ 160A-388. A board of adjustment’s principal function is to issue variance permits so as to prevent injustice by a strict application of an ordinance.

An “area variance” is one which does not involve a use prohibited by the zoning ordinance; generally speaking, it involves no change in the essential character of the zoned district, nor does it seek to change the essential use of the land.

On the other hand, a “use variance” generally permits a land use other than the uses permitted in the particular zoning ordinance; it essentially is a license to use property in a way not permitted under an ordinance.

Despite respondents’ suggestion otherwise, we conclude the variance petitioners seek is not a use variance, seeking permission for a nonconforming use; instead, it is an area variance, by which they seek to deviate from the ordinance for construction and placement of their sign.

As the superior court erred in concluding the variance was directly contrary to the ordinance, it also erred in concluding the board had no duty to make sufficient findings.

Our de novo review of the board’s findings of fact leads us to conclude they are insufficient.

The only record of the board’s findings of fact is the minutes to the board’s July 10, 2008 meeting. The minutes, introduced with the notation “Vice Chairman Lee discussed the findings of fact,” provide no indication these minutes were intended to be the sole record of the findings. Significantly, the board’s discussion of the findings occurs after the board members voted to deny petitioners’ application for a variance.

Several of the findings are conclusory statements and thus insufficient to support the board’s decision. Other findings are not supported by any evidence in the record, are mere conjecture, and cannot support the board’s decision. The only remaining conclusion (that the variance “would not secure the health and welfare of the public”) is supported solely by the opinion of the board’s vice-chairman and provides no reasoning for how the board came to this conclusion. As such, it is not sufficient to support the board’s finding.

The board’s findings of fact lack the specificity necessary for this court to determine whether the board has acted arbitrarily or has committed errors of law.

Finally, petitioners are bound by the decisions of the board from which they did not appeal: (1) the board’s determination that the sign permit was issued in error and was properly revoked and (2) the denial of petitioners’ appeal of MCLUESA’s revocation of the sign permit.

Reversed and remanded in part.