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, 
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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
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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.
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VACATED AND REMANDED.

Judges HUNTER, Robert C., and BRYANT concur.