Thompson v. Town of White Lake
797 S.E.2d 346
N.C. Ct. App.2017Background
- Petitioner Noel Thompson obtained a zoning permit to build a 24'x40' accessory storage building in an R-1 residential zone; permit showed 4 exterior doors and no interior dividing wall.
- Thompson built a metal building with eight exterior doors and an interior dividing wall creating eight 10'x12' compartments.
- The Town’s zoning inspector issued a stop-work order and notice of intent to revoke the permit, alleging (1) the structure was a commercial structure inconsistent with R-1, (2) failure to follow approved plans, and (3) the structure was not behind the front building line.
- The Town of White Lake Board of Adjustment (Board) unanimously rejected allegations (2) and (3), but unanimously found the allegation that the building would be used for commercial purposes was valid and affirmed the stop-work/notice of intent on that ground alone.
- Superior court reviewed the Board’s decision, applied de novo review, made its own contrary factual findings (that the building deviated from the permit and was a commercial structure), and affirmed; Thompson appealed to the Court of Appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to dismiss as interlocutory | Thompson argued superior court order was final and appealable | Town argued notice of intent was not revocation and appeal was interlocutory | Court held superior court order was final for appeal because it resolved merits and left only ministerial remand matters |
| Standard of review applied by superior court | Board’s factual findings required whole-record review; legal conclusions require de novo | Town argued de novo review appropriate for interpretation and consistency with R-1 | Court held superior court erred: it applied de novo review to factual findings and substituted its own factual findings; whole-record review should have governed Board’s fact/findings |
| Sufficiency of evidence that building was "commercial" | Thompson: no competent evidence showed intended commercial use; Board’s factual finding lacked support | Town conceded record contains no evidence of intended commercial use but attempted to recast issue as legal/interpretive | Court held parties agree critical factual finding (commercial use) lacked evidentiary support; Board’s decision cannot stand on that ground |
| Remedy / disposition | Thompson sought reversal of Board decision | Town requested affirmance or remand | Court reversed both the superior court and the Board; remand to superior court unnecessary because Town conceded lack of evidentiary support for Board’s factual basis |
Key Cases Cited
- Veazey v. City of Durham, 231 N.C. 357 (1950) (defines final judgment for appeal purposes)
- Duncan v. Duncan, 366 N.C. 544 (2013) (final judgment disposes of cause as to all parties)
- Overton v. Camden Cnty., 155 N.C. App. 391 (2002) (scope of superior court review of board of adjustment)
- Mann Media, Inc. v. Randolph Cnty. Planning Bd., 356 N.C. 1 (2002) (distinguishes de novo and whole-record review and directs separate application)
- Thompson v. Wake Cnty. Bd. of Educ., 292 N.C. 406 (1977) (reviewing court cannot substitute its judgment for board where evidence supports board)
- Sun Suites Holdings, LLC v. Bd. of Alderman of Town of Garner, 139 N.C. App. 269 (2000) (superior court sits as an appellate court in zoning board appeals)