1. Zoning_adult bookstore_variance
The trial court did not err by affirming the Board of Adjustment's denial of a zoning
variance to an adult bookstore because the store was too close to a residential area and a public
park. Although petitioner contended that the trial court should have considered evidence of the
lack of secondary effects from the bookstore, the ordinance conditions the variance on whether
specified buffers are present to protect against secondary effects rather considering whether those
effects were in fact present.
2. Zoning_variance_constitutionality of ordinance_not considered
Neither the Board of Adjustment, the superior court, nor the Court of Appeals could
consider the constitutionality of a zoning ordinance when deciding whether to grant a variance.
The Board had only the authority to grant or deny the variance, and the superior court and Court
of Appeals had only the authority to consider whether the variance was properly granted or
denied. This is so even if the constitutional argument appears under some other label.
Joseph L. Ledford for petitioner-appellant.
Office of the Gastonia City Attorney, by Assistant City
Attorneys Melissa A. Magee and L. Ashley Smith, for
respondent-appellee.
STEELMAN, Judge.
Petitioner, 321 News & Video, Inc., operates an adult
bookstore located in Gastonia, North Carolina. On 19 July 1994,
respondent, the City of Gastonia (City), adopted an adult
establishment zoning ordinance, Section 17-92(61)(d), which imposed
a 500-foot separation requirement between adult establishments andcertain enumerated uses. These uses included: schools, public
parks, playgrounds, libraries, daycare centers, churches or houses
of worship, or any residential zoning district. The ordinance also
included an eight-year amortization period for non-conforming adult
establishments to either comply with the ordinance or cease
operation. Pursuant to N.C. Gen. Stat. § 160A-388 and the
provisions of the City's zoning ordinance, the Zoning Board of
Adjustment (Board) was given authority to grant a variance from
the separation requirements. The Board could grant a variance if
it found that certain buffers were present that were likely to
provide adequate means of protection from the secondary effects of
an adult establishment. Gastonia Code Section 17-92(61)(k).
Petitioner has operated an adult bookstore at the same
location in Gastonia since 1992. It was required to comply with
the separation requirement by 2002, as it is located within 500
feet of a residential zone and a public park. On 14 March 2002,
the City notified petitioner that its continued operation as an
adult bookstore would be a violation of Section 17-92(61) and
advised the bookstore that it was required to either comply with
the zoning ordinance or cease operating within the Gastonia city
limits. Petitioner filed a petition for a variance from the
separation requirements of the zoning ordinance. The Board held a
hearing on the matter and denied petitioner's request for a
variance. Petitioner filed a petition for writ of certiorari to
the Gaston County Superior Court seeking review of the Board'sdenial of its variance request. The trial court affirmed the
Board's ruling. Petitioner appeals.
[1] In petitioner's sole assignment of error it contends the
trial court erred in affirming the Board's denial of its request
for a variance. We disagree.
Petitioner stipulated before the trial court that there was
substantial, competent, and material evidence in the record to
support the Board's findings of fact, as well as its decision to
deny it a variance. Rather, petitioner's contention is that by not
considering evidence of the lack of secondary effects associated
with its adult establishment before denying its application for a
variance, the Board's decision was arbitrary and capricious.
The Board's “'findings of fact and decisions based thereon are
final, subject to the right of the courts to review the record for
errors in law and to give relief against its orders which are
arbitrary, oppressive or attended with manifest abuse of
authority.'” Mann Media, Inc. v. Randolph Cty. Planning Bd., 356
N.C. 1, 12, 565 S.E.2d 9, 17 (2002) (citations omitted). Since the
Board operates as the fact finder, the superior court sits as a
court of appellate review. Id. As such, the trial court does not
review the sufficiency of evidence presented to it, but rather
reviews that evidence presented to the Board. Id.
The applicable standard of review when the trial court sits in
the posture of an appellate court depends on the type of error
assigned. Id. at 13, 565 S.E.2d at 17. The trial court conducts
de novo review when considering allegations that the board'sdecision was affected by error of law. Id. If the petitioner
asserts the board's decision is not supported by the evidence or is
arbitrary and capricious, the trial court must apply the whole
record test. Id. Under the whole record test, the trial court
examines the entire record to determine whether it contains
substantial evidence to support the agency's decision. Id. at 14,
565 S.E.2d at 17. In doing so, the trial court may not weigh the
evidence presented to the agency or substitute its own judgment for
that of the agency. Id. at 14, 565 S.E.2d at 17-18. Finally, the
trial court “must set forth sufficient information in its order to
reveal the scope of review utilized and the application of that
review.” Id. at 13, 565 S.E.2d at 17.
When this Court reviews the trial court's order concerning a
board's decision, we examine the order to: (1) determine whether
the trial court exercised the appropriate standard of review and,
if so, (2) decide whether the court did so properly. Id. at 14,
565 S.E.2d at 18.
Here, the trial court's order states it applied the whole
record test. This is the appropriate standard of review since
petitioner contends the Board's denial of a variance was arbitrary
and capricious in light of its failure to consider evidence of the
absence of secondary effects associated with its adult
establishment despite the lack of buffers. Petitioner concedes it
is an adult establishment within the meaning of the ordinance and
is subject to the separation requirement. Petitioner further
concedes it is located within 500 feet of a residential zone and apublic park, both protected uses enumerated in the zoning
ordinance. Therefore, before the Board could grant a variance from
the separation requirement it had to find there was a “freeway or
Interstate-type highway, traffic circulation patterns, structures,
or other natural or man-made geographic or topographic features .
. . likely to provide an adequate means of protection for the
protected zoning or use from any secondary effects of the adult
establishment.” Gastonia Code Section 17-92(61)(k).
Petitioner challenges this limitation in the ordinance that
conditions the issuance of a variance on whether certain specified
buffers are present to protect against secondary effects, rather
than considering whether the secondary effects were in fact
present, regardless of whether the specified buffers were in place.
It is clear from the record in this matter that the Board did allow
petitioner to present evidence of the lack of actual secondary
effects. However, in drafting its decision, the Board is not
required to recite all of the evidence presented at the hearing.
Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982). It
need only recite “those material and ultimate facts from which it
can be determined whether the findings are supported by the
evidence and whether they support the conclusions of law reached.”
Id. The test, as recited above, is whether the findings of fact
are supported by the evidence, and whether those findings, in turn,
support the conclusion of law. Mann, 356 N.C. at 13, 565 S.E.2d at
17. Here, petitioner so stipulated. We hold that the trial court correctly determined that the
Board properly denied the petitioner's request for a variance based
upon the express terms and conditions set forth in the ordinance.
The fact that petitioner does not agree with the City's decision to
limit the criteria to be considered at a variance hearing does not
render a decision by its Board of Adjustment arbitrary and
capricious. This argument is without merit.
[2] Petitioner contends in the alternative that the zoning
ordinance is unconstitutional as applied because the Board's
failure to consider the evidence of the lack of secondary effects
violates its First Amendment right to free speech and expression.
Petitioner concedes the Board, as well as the superior court and
this Court are precluded from considering the constitutionality of
the applicable zoning ordinance when determining whether to grant
a variance.
In Sherrill v. Town of Wrightsville Beach, this Court held the
constitutionality of an ordinance was not properly before the board
of adjustment or the reviewing courts stating:
The board of aldermen, sitting in their
quasi-judicial capacity as the board of
adjustment in this case, only had the
authority to grant or deny a variance under
the zoning ordinance. G.S. 160A-388(d). The
Board's decision was to deny the variance.
Under G.S. 160A-388(e) the superior court, and
hence this Court through our derivative
appellate jurisdiction, had the statutory
power to review only the issue of whether the
variance was properly denied. The
constitutionality of the zoning ordinance is a
separate issue not properly a part of these
proceedings since the denial of the variance
request never addressed the validity of the
zoning ordinance. Furthermore, the superiorcourt sat in the posture of an appellate
court, so it was not in a position to address
constitutional issues that were not before the
board.
76 N.C. App. 646, 649, 334 S.E.2d 103, 105 (1985) (internal
citations omitted). See also Godfrey v. Zoning Bd. of Adjustment,
317 N.C. 51, 62-63, 344 S.E.2d 272, 279 (1986) (noting this Court
in Sherrill properly refused to address the petitioner's challenge
to the constitutionality of a particular zoning ordinance where the
previous courts had not ruled on that issue); Dobo v. Zoning Bd. of
Adjust. Of Wilmington, 149 N.C. App. 701, 706-07, 562 S.E.2d 108,
111-12 (2002), rev'd in part on other grounds, 356 N.C. 656, 576
S.E.2d 324 (2003). The Board only had the authority to grant or
deny the variance under the zoning ordinance. Sherrill, 76 N.C.
App. at 649, 334 S.E.2d at 105; Simpson v. City of Charlotte, 115
N.C. App. 51, 55, 443 S.E.2d 772, 775 (1994). The superior court,
sitting as an appellate court and acting pursuant to a writ of
certiorari under N.C. Gen. Stat. § 160A-388(e), only had the power
to consider whether the variance was properly granted or denied.
Simpson, 115 N.C. App. at 55, 443 S.E.2d at 775. Likewise, this
Court's review is limited to a determination of whether the
variance was properly denied under the existing ordinance.
Sherrill, 76 N.C. App. at 649, 334 S.E.2d at 105.
Petitioner asserts that although the issues raised in its
appeal include constitutional considerations regarding the absence
of secondary effects surrounding the area where the adult bookstore
is located, its constitutional arguments are not being offered as
a constitutional attack. Rather, petitioner contends that sinceadult uses are entitled to a variance from separation requirements
contained in an adult zoning ordinance upon a showing that there
are sufficient buffers that lessen the likelihood of adverse
secondary effects, the Board's decision to deny it the variance was
arbitrary and capricious because it failed to consider evidence of
the lack of secondary effects associated with its adult bookstore.
No matter the label petitioner places on its argument, the effect
is the same; it challenges the constitutionality of the ordinance
as applied to it. Therefore, it was not a proper consideration for
the Board, the superior court, or this Court.
For the reasons discussed herein, we affirm the trial court's
ruling in which it affirmed the Board's denial of petitioner's
request for a variance.
AFFIRMED.
Judges HUDSON and JACKSON concur.
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