Municipal Corporations 30 — application for special use permit — absence of findings — remand for de novo hearing Application for a special use permit to construct multi-family dwellings is remanded to the board of adjustment for a hearing de novo where the board's denial of the permit was not supported by findings of fact and the record does not contain substantial competent evidence supporting the superior court's order that the permit must be issued and directing the imposition of special conditions to be attached to the issuance of the permit.
Plaintiffs' application for a special use permit was denied by defendant, Board of Adjustment. Plaintiffs' petition for certiorari to the Superior Court was granted.
Plaintiffs seek a special use permit for the construction of multi-family dwellings on their property. The property is zoned R-4, and local zoning ordinances authorize multi-family dwellings in an R-4 zone if a special use permit is obtained.
The Superior Court reversed and ordered the Board of Adjustment to issue a special use permit subject to:
"those reasonable conditions recommended by the Winston-Salem/Forsyth County Planning Board; that is, that petitioners begin no construction on the property in question until Sandersted Road is dedicated and until said road is paved up to petitioners' property line, and any other reasonable conditions that said Board feels should attach."
Defendants appealed.
VAUGHN, Judge.
A board of adjustment's denial of a special use permit should be based on findings of fact supported by competent, material and substantial evidence. Refining Co. v. Board of Aldermen, 284 N.C. 458, 202 S.E.2d 129, and cases cited therein. The Board made no findings of fact. After two hearings, where apparently none of the evidence was given under oath, the Board's findings in their entirety were as follows:
". . . Mr. Palmer stated that in his opinion the Planning Board and others who had reviewed the site plan had erred in judgment by not determining that the proposed development would create a traffic hazard. He read from the ordinance the following site requirement relating to planned residential developments:
`Streets or highways, both within and in the vicinity of the planned residential development, shall be of such design and traffic-carrying capacity that the construction of a planned residential development would not create a traffic hazard.'
Based on the above, Mr. Palmer made a motion to deny the application. Mr. Meletis seconded the motion, and the vote was unanimous in favor of denial."
Assuming that the foregoing could be treated as a finding of fact, it is not supported by substantial competent evidence in the record before us. Neither does the record contain such substantial competent evidence as to allow the court to hold, as a matter of law, that the permit must be issued and specifically direct the imposition of special conditions to be attached to the issuance of the permit.
The judgment of the Superior Court is vacated. The cause is remanded to the Superior Court of Forsyth County for entry of a judgment (1) vacating the purported findings of fact and order of the Board of Adjustment, and (2) directing the Board to consider the application de novo and to make findings of fact based on competent evidence.
Vacated and remanded.
Judges CAMPBELL and MORRIS concur.