                             NO. COA13-1122

                   NORTH CAROLINA COURT OF APPEALS

                         Filed: 15 July 2014


HUGH OSBORNE AND TERESA OSBORNE,

    Petitioners,

    v.                                Dare County
                                      No. 12 CVS 661
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, Wyatt         M.
    Booth, and Ashley P. Holmes for petitioner-appellants.

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


    STEELMAN, Judge.


    Where the Board of Adjustment voted to deny petitioners’

motion to reconsider, it lacked jurisdiction to consider the

merits of that motion.

              I. Factual and Procedural Background

    In 1997, the owner of Lot 30 of the Hills of Nags Head

subdivision in the Town of Nags Head requested a variance from
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the Town of Nags Head Board of Adjustment (BOA), which would

permit the use of a shared driveway with an adjoining lot in the

subdivision, Lot 29.            At the time, the two lots were owned by

the same entity.          The owner contended that the topography of the

land made it impossible to construct a single family residence

on   the     property       within       the     setback     requirements           of   the

ordinance, and proposed the variance as a solution.                            BOA found

that the zoning restrictions created an unnecessary hardship and

granted     the    variance.         After      the    granting   of    the    variance,

neither lot was developed.               Subsequently, the lots were acquired

by different owners.

     In     2012,    Hugh    and     Teresa       Osborne    (Osbornes)       sought       to

purchase Lot 30 from Gateway Bank.                    The contract to purchase the

property was contingent upon receiving a variance from BOA for

their development plan, which would include a single driveway

entirely on Lot 30, a shorter driveway than that proposed in

1997, and a smaller size dwelling than was proposed in 1997.

     On     13    March    2012,     the       Osbornes     applied    to     BOA    for    a

variance     to     eliminate      the     shared      driveway       under    the       1997

variance.        On 24 April 2012, BOA denied this request and refused

to modify the terms of the 1997 variance.                       BOA concluded that,

while      the    ordinance     did        create      an    unnecessary       hardship,
                                     -3-
reasonable use of the property could still be had pursuant to

the   1997   variance.    The    Osbornes   appealed   this   order   in    a

separate appeal that is pending before this Court.             Osborne v.

Nags Head, COA 13-1123.

      Subsequently, the Osbornes sought a cross-easement from the

owners of Lot 29 to proceed with construction of the shared

driveway, pursuant to the 1997 variance.          The owners of Lot 29

refused to grant the necessary cross-easement, and provided an

affidavit documenting their refusal.

      On 11 June 2012, the Osbornes filed a motion to reconsider

before BOA, citing a change in circumstances and new evidence.

On 12 July 2012, BOA held a meeting regarding the Osbornes’

motion to reconsider.       A motion was made to deny the         motion,

based   upon    a    failure    to   show   a   substantial    change      in

circumstances.      The members of BOA voted 3-2 in favor of denying

the motion to reconsider.        However, BOA then determined that a

4/5 supermajority vote was required, and therefore the motion to

deny reconsideration failed.

      BOA then conducted a hearing upon the motion to reconsider.

After hearing arguments, BOA determined that the Osbornes still

had a reasonable use for the property, and in an order dated 13

September 2012, denied the Osbornes’ request for a variance.
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The Osbornes appealed      to the Superior Court of Dare County,

which, on 16 April 2013, affirmed BOA’s decision to deny the

Osbornes’ request.

    The Osbornes appeal.

                         II. 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).

    “Under a de novo review, the superior court consider[s] the

matter anew[] and freely substitut[es] its own judgment for the

agency’s    judgment.”      Id.   (citations   and   quotation   marks

omitted).

                     III. Denial of the Variance
                                        -5-
    On appeal, the Osbornes contend that BOA erred in denying

their variance request on 13 September 2012, and that the trial

court erred in affirming BOA’s decision.             We disagree.

    When BOA considered the Osbornes’ motion to reconsider, its

members    “voted     three   in    favor     of   denying     the    Motion    to

Reconsider     and    two   against     denying    it.”        The   Chair     then

“announced that the Motion to Reconsider failed as it did not

pass by the needed 4/5 vote.”

    The Chair misconstrued the applicable law.                       The General

Statutes provide that “[t]he concurring vote of four-fifths of

the board shall be necessary to grant a variance. A majority of

the members shall be required to decide any other quasi-judicial

matter    or   to    determine     an   appeal     made   in   the    nature    of

certiorari.”        N.C. Gen. Stat. § 160A-388(e)(1) (2013) (emphasis

added); see also Nags Head Town Code § 48-595 (2013).                          The

language of the statute is quite clear; a four-fifths majority

is required to grant a variance, but an ordinary majority is

sufficient to conduct other business.                 In the instant case,

three fifths of BOA voted to deny the motion to reconsider.

Under both the North Carolina General Statutes and the Nags Head

Town Code, this was a sufficient vote to deny the motion to

reconsider.
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    The failure to deny a negative proposition is not the same

as adopting a positive proposition.                BOA was not voting on a

motion to grant a variance, but rather on a motion to deny a

motion to reconsider.

    Because the chair of BOA mistakenly ruled that the motion

to reconsider had passed, BOA was without authority to consider

the merits of the motion.             Boards of Adjustments, and other

local    government   boards,     perform    vital     services      within    our

governmental structure.          It is as important that they follow

proper   procedures   as   it    is   for   city    councils   and    boards    of

county   commissioners.         Procedures   for    the   operation     of    such

boards are in place to ensure fair treatment for all persons who

come before them for rulings.           We cannot ignore the violation,

in the instant case, of procedures set forth in N.C. Gen. Stat.

§ 160A-388(e) and the Town Code of Nags Head.

    BOA’s order dated 12 July 2012 as to the merits of the

Osbornes’ application for a variance is vacated.                  The order of

the trial court dated 16 April 2013 is also vacated.                          This

matter is remanded to the Superior Court of Dare County for

further remand to the Board of Adjustment of the Town of Nags

Head.    BOA is directed to enter an order denying the Osbornes’

motion to reconsider, dated 11 June 2012.
                          -7-
VACATED AND REMANDED.

Judges HUNTER, Robert C., and BRYANT concur.
