Quadrant Corporation v. City of Kinston

205 S.E.2d 324 (1974)

22 N.C. App. 31

The QUADRANT CORPORATION v. CITY OF KINSTON, a municipal corporation, and C. Ross Hill, Building Inspector of the City of Kinston.

No. 748SC215.

Court of Appeals of North Carolina.

June 5, 1974.

*325 Barden, Stith, McCotter & Stith by Laurence A. Stith, New Bern, for plaintiff appellee.

Vernon H. Rochelle, Kinston, for defendants appellants.

VAUGHN, Judge.

Defendants except to the entry of the judgment and argue, in effect, that the judgment is based on erroneous conclusions of law. With respect to defendant Hill, the court determined that "the Building Inspector should have issued such permit forthwith upon the application made to him. . . ." This conclusion is supported by the facts found and admitted. Manufacturing Co. v. Clayton, Acting Comr. of Revenue, 265 N.C. 165, 143 S.E.2d 113; Insurance Co. v. Motors, 264 N.C. 444, 142 S.E.2d 13. The court found and defendants admitted that applicable zoning restrictions permitted the construction of multiple dwellings on plaintiff's property. The court further found and defendants also admitted the plans and specifications for the proposed structures indicated that the apartments complied with the lot size and other space requirements embodied in the zoning laws. From these findings it follows that as a matter of law, Hill had no discretion to withhold the requested building permit. See In re Application of Construction Co., 272 N.C. 715, 158 S.E.2d 887; Mitchell v. Barfield, 232 N.C. 325, 59 S.E.2d 810.

So far as the Board of Adjustment of the City of Kinston is concerned, the court concluded that the Board determined plaintiff was entitled to a permit, that no aggrieved party appealed the decision, and that that decision is final. We note that again the court's conclusions of law are supported by facts found and admitted. Manufacturing Co. v. Clayton, Acting Comr. of Revenue, supra; Insurance Co. v. Motors, supra. Numerous decisions support the legal proposition that ordinarily Board of Adjustment decisions are final. E. g., Yancey v. Heafner, 268 N.C. 263, 150 S.E.2d 440; Durham County v. Addison, 262 N.C. 280, 136 S.E.2d 600.

In addition to concluding that the Board's decision was final, the court also concluded that "the Board of Adjustment did have before it [when it made its decision] all pertinent facts and circumstances and that it did make a full and impartial inquiry into all matters and things which it should have considered. . . ." Although this conclusion was apparently designed to answer defendants' argument that the Board considered insufficient evidence and failed to comply with the terms of its statutory charter, it is extraneous to plaintiff's right to mandamus. Defendants were not in a position, within the context of this action, to challenge the validity and propriety of the Board's decision. G.S. §160A-388(e) provides that all decisions of a board of adjustment are subject to review by the superior court by proceedings *326 in the nature of certiorari. The Code of the City of Kinston includes the following.

"Sec. 24-41. Appeals from decision of board. Any person or persons, jointly or severally, aggrieved by any decision of the board, or any taxpayer, or any officer, department, board, or bureau of the city may, within thirty (30) days after the filing of the decision in the office of the board, but not thereafter, present to a court of competent jurisdiction a petition duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of illegality, whereupon such decision of said board shall be subject to review as provided by law. (Ord. of 5-1-50, § 12)"

Defendants have complied with neither G.S. § 160A-388 nor Section 24-41. The judgment from which defendants appealed is affirmed.

Affirmed.

CAMPBELL and MORRIS, JJ., concur.