An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1123
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 15 July 2014


HUGH OSBORNE AND TERESA OSBORNE,

      Petitioners,

      v.                                        Dare County
                                                No. 12 CVS 402
TOWN OF NAGS HEAD, et al.,

      Respondents.


      Appeal by petitioners from order entered 16 April 2013 by

Judge J. Richard Parker in Dare County Superior Court.                    Heard in

the Court of Appeals 18 March 2014.


      Vandeventer Black LLP, by Norman W. Shearin and Wyatt M.
      Booth, for petitioner-appellants.

      Hornthal, Riley, Ellis & Maland, L.L.P., by Benjamin M.
      Gallop and John D. Leidy, for respondent-appellee.


      STEELMAN, Judge.


      Where    there    was   evidence     in    the   record   to   support    the

findings of fact made by the Board of Adjustment, and these

findings    supported     its   denial    of    petitioners’     request     for   a

variance, the Board did not err in denying the variance, and the

trial court did not err in affirming the Board of Adjustment.
                                 -2-



               I. Factual and Procedural Background

    The factual and procedural background in this case is set

forth in our opinion in the case of Osborne v. Nags Head, COA

13-1122.

                    II. 17 April 2012 Decision

    In their sole argument on appeal, the Osbornes contend that

the trial court erred in affirming the 17 April 2012 decision of

the Board of Adjustment (BOA).    We disagree.

                      A. Standard of Review

           The proper standard for the superior court’s
           judicial review depends upon the particular
           issues   presented   on  appeal.  When   the
           petitioner   questions   (1)   whether   the
           agency’s decision was supported by the
           evidence or (2) whether the decision was
           arbitrary or capricious, then the reviewing
           court must apply the whole record test.
           However, [i]f a petitioner contends the
           [b]oard’s decision was based on an error of
           law, de novo review is proper. Moreover,
           [t]he trial court, when sitting as an
           appellate court to review a [decision of a
           quasi-judicial   body],   must   set   forth
           sufficient information in its order to
           reveal the scope of review utilized and the
           application of that review.

Mann Media, Inc. v. Randolph Cnty. Planning Bd., 356 N.C. 1, 13,

565 S.E.2d 9, 17 (2002) (citations and quotation marks omitted).
                                -3-
    “When utilizing the whole record test, . . . the reviewing

court must examine all competent evidence (the whole record) in

order to determine whether the agency decision is supported by

substantial evidence.” Id. at 14, 565 S.E.2d at 17 (citations

and quotation marks omitted).

                           B. Analysis

    In its order dated 24 April 2012, BOA concluded that:

         It   is    the    Board's    CONCLUSION    that
         enforcement of the strict letter of the
         ordinance, specifically Town Code Section
         48-442(f)(2)(c),    Dimensional    Requirements
         for Single-family Detached Dwellings within
         in the SED-80 District, Setback from Ridge
         Line   Forest,    Town    Code   Section    48-
         442(g)(2)(b), Special Development Standards,
         Site Design within the SED-80 District and
         the   requested   deviations    in   from   the
         November 13, 1997 variance as it pertains to
         driveway   length    and   footprint   of   the
         proposed home does not create unnecessary
         hardship for the applicant.

    (R p. 7)   In support of this conclusion, BOA found that:

         A.   On November 13, 1997 the following
         variances were granted for the subject
         property: (1) reduce the ridge line forest
         eastern boundary setback from 130 feet west
         of the ridge line forest to approximately 5
         feet west of the ridge line forest; (2)
         reduce   the  ridge   line   forest  eastern
         boundary vegetation removal restriction from
         100 feet west of the ridge line forest to 0
         feet at the ridge line forest; (3) allow
         grading and alteration of a dune with a
         slope of 42 percent and a height of 35 feet;
         and (4) increase the four-inch caliper tree
                                         -4-
              removal limit from five feet along driveways
              to approximately 60 feet.


              B.   In consideration of all the facts the
              Board of Adjustment determined by a vote of
              3-2 that the applicant can secure reasonable
              use of the property without the granting of
              the requested variance as variances already
              exist for the placement of a single-family
              dwelling and the necessary access upon this
              lot (Lot 30).

              . . .

              D.   The Board found that applicant provided
              no evidence that the practical difficulty or
              unnecessary hardship of which he complains
              is suffered by his property directly and not
              others, based upon the fact that variances
              are already in place for development of this
              lot (Lot 30) and the adjoining lot (Lot 29),
              of the Hills at Nags Head Subdivision. The
              Board further found that any deviation from
              the originally approved variance of 1997 for
              Lot 30 could subsequently result in a need
              for additional variances for Lot 29 as
              access is shared.

       (R p. 7)       Pursuant to the whole record test, even in the

presence of conflicting evidence and findings, we must affirm if

there was substantial evidence supporting BOA’s findings.                         We

hold   that    there     was    such   evidence   in   the   record,    that    this

evidence      supports    the    findings      cited   above,   and    that    those

findings in turn support BOA’s conclusion that the Osbornes are

not subject to unnecessary hardship in their use of Lot 30.                       We

hold that BOA did not err in denying the Osbornes’ request for a
                              -5-
variance, and that the trial court did not err in its 16 April

2013 order affirming BOA.

    AFFIRMED.

    Judges HUNTER, Robert C., and BRYANT concur.

    Report per Rule 30(e).
