A superior court is not to make findings of fact when conducting a certiorari review of a board of adjustment decision.

In 1990, petitioner applied for building permits to construct duplexes in the Town of Chapel Hill that would be rented to graduate students, permits which, after certain modifications were made, were issued. On July 27, 1990, after the duplexes were constructed, the town issued certificates of occupancy for the structures. On September 14, 1990, petitioner applied for permits authorizing the construction of three substantially similar structures at a different location. Each unit of the two unit structures was proposed to contain approximately 3,000 square feet, six bedrooms, three bathrooms and a kitchen and common eating area. Upon reviewing the plans, the town planning director determined that the proposed structures were "rooming houses" and not "duplexes" and, therefore, the permits were denied since the project did not comply with the applicable regulations for "rooming houses."

Petitioner appealed the denial to the board of adjustment, which voted 6-4 that the structures were duplexes and thus permits should issue. However, the 6-4 vote was not sufficient to meet the four-fifth's vote requirement necessary under G.S. 160A-388 to reverse an administrative decision. In addition, nineteen days after the administrative decision, the Town Council amended the ordinance to provide, in part, that "[a] duplex structure with more than three (3) bedrooms within either dwelling unit shall be classified as a Rooming House...." On certiorari review, the superior court reversed, finding that the proposed structures were duplexes and directing that the requested permits be issued. The Court of Appeals reversed on the grounds that the superior court had failed to set forth findings of fact to support its conclusion or tending to show that the decision was an arbitrary, oppressive or an abuse of authority.

Noting that the review of a board of adjustment decision is on certiorari, the N.C. Supreme Court indicated that the superior court sits as an appellate court with review limited to a determination of whether there was sufficient evidence presented to the board of adjustment and whether the record reveals error of law. As an appellate court, the superior court does not make findings of fact and the Court of Appeals erred in remanding for such purpose. Turning to the record, the Supreme Court conducted a de novo review of the relevant ordinance provisions and concluded that the proposed units are duplexes and not rooming houses and are, therefore, permitted under the ordinance. Thus the board of adjustment should have reversed the administrative decision.

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[Land Use; Certiorari; Ordinance Interpretation]