                              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
                                              -2-
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
                                             -3-
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
                                          -4-
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
                                            -5-
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
                                           -6-
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
                                      -7-
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
                                               -8-
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
                                               -9-
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
                                    -10-
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
                                       -11-
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)
                                      -12-
(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
                                       -13-
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.
                                       -14-
       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.
                                  -15-
                            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.
