Bessemer City Express v Kings Mountain, (04-1050) 08/16/2005

Appeal by plaintiffs from judgment entered 19 December 2003 by Judge Forrest Donald Bridges in Cleveland County Superior Court. Heard in the Court of Appeals 23 March 2005.

Daughtry, Woodard, Lawrence & Starling, by C. Jason Humphrey, for plaintiffs-appellants.

Stott, Hollowell, Palmer & Windham, L.L.P., by D. Kevin Joyce and Martha Raymond Thompson, and Corry & Luptak, by Clayward C. Corry, Jr., for defendant-appellee.

    STEELMAN, Judge.

    On 25 July 2000 the City of Kings Mountain (defendant) amended its zoning ordinances to more strictly regulate the location, design and use of “Amusement Video Game Arcades”. Plaintiffs were operating video gaming machines (video poker) on several properties in Kings Mountain on the effective date of the amended zoning ordinance, and their establishments came under the definition of “Amusement Video Game Arcades” as defined in the amendments. One feature of the amendments is the requirement that every amusement video game arcade operating video gaming machines obtain aconditional use permit, which would only be issued after the applicant demonstrated compliance with all zoning requirements, including special requirements regulating such things as maximum number of machines, and minimum distances from schools, churches and residential areas. Plaintiffs were allowed to continue in operation until 31 January 2001. If they did not obtain a conditional use permit prior to that date, they would be required to cease operation.
    Plaintiffs filed a complaint for declaratory judgment on 25 September 2000, requesting that the trial court invalidate the zoning amendments. Plaintiffs contended that the amendments were unlawful, and sought an injunction prohibiting enforcement of the new zoning laws. The request for a preliminary injunction was denied by order filed 4 June 2001. By judgment filed 19 December 2003 the trial court determined that the amended zoning ordinance was constitutional, and denied plaintiffs' request for injunctive relief. From this judgment plaintiffs appeal.
    The standard of review of a judgment rendered under the Declaratory Judgment Act is the same as in other cases. N.C. Gen. Stat. § 1-258 (1996); First Union Nat'l Bank v. Ingold, 136 N.C. App. 262, 264, 523 S.E.2d 725, 727 (1999). “The rule thus applicable is that the court's findings of fact are conclusive if supported by any competent evidence; and a judgment supported by such findings will be affirmed, even though there is evidence which might sustain findings to the contrary, and even though incompetent evidence may have been admitted.” Nationwide Mut. Ins. Co. v.Allison, 51 N.C. App. 654, 657, 277 S.E.2d 473, 475 (1981)(citations omitted). “Therefore, a judgment supported by findings based on any competent evidence must be affirmed.” Ingold, 136 N.C. App. at 264, 523 S.E.2d at 727.
    Plaintiffs have made three assignments of error in this case, based upon the trial court's first three conclusions of law. Plaintiffs do not assign as error any of the trial court's findings of fact, and they are binding on appeal. In re Beasley, 147 N.C. App. 399, 405, 555 S.E.2d 643, 647 (2001).
    In their first assignment of error, plaintiffs argue that the trial court erred in concluding that the amendments to defendant's zoning ordinance were not arbitrary and capricious. We disagree.
    Plaintiffs do not argue that the trial court's findings of fact do not support its conclusions of law. Rather, they assert that the amendments were adopted for improper motives, and that there was insufficient evidence presented at a hearing before defendant's Board of Adjustments. As noted above, our review is limited to whether the trial court's findings of fact support its first conclusion of law.
    In its eighth finding of fact, the trial court found:
        A motivation for the zoning ordinance amendment at issue was a concern of the influx of Video Gaming Machines from South Carolina into Kings Mountain, in response to the South Carolina ban on machines .... The City established Video Gaming Machines use in General Business and Central Business Zoning zoning designations with setbacks from churches, schools, residences and other arcades, to create buffers as to safety and property value concerns.
This finding of fact supports the trial court's first conclusion of law:
        The Adoption of Zoning Ordinance at issue, Z- 3-6-00, by Kings Mountain was a reasonable and legitimate exercise of the legislative function of the City of Kings Mountain. The City of Kings Mountain was neither arbitrary nor capricious in its drafting or application of the Ordinance. Therefore, plaintiffs' general constitutionality attack fails.

This assignment of error is without merit.
    In their second assignment of error, plaintiffs argue that “the trial court erred in concluding that there were findings of fact which support the conclusion that ordinance Z-3-6-00 contains an unreasonably short amortization period.” Reading this in the context of plaintiff's argument, it is clear that plaintiffs intended to state that the ordinance does not contain an unreasonably short amortization period, and treat the assignment of error as such. We disagree.
    The trial court made detailed findings of fact in both the section of its order labeled “findings of fact” and in the section labeled “conclusions of law.” We treat findings of fact as findings of fact, no matter how they are labeled. State ex rel. Utilities Com. v. Eddleman, 320 N.C. 344, 352, 358 S.E.2d 339, 346 (1987); Carpenter v. Brooks, 139 N.C. App. 745, 752, 534 S.E.2d 641, 646,(2000) .
    The trial court concluded that plaintiff Mike's Food Stores, Inc. lacked standing to challenge the constitutionality of the amortization period because all evidence tended to show that plaintiff Mike's did not own the machines or the business where themachines were located. The trial court further determined that of plaintiff Bessemer City's locations, only the machines at their KM Games location were properly before it on this issue. Plaintiffs have not challenged these conclusions, and they are therefore binding upon appeal.
    The trial court then found that plaintiff Bessemer City's KM Games purchased its machines for $6,000.00 each, and that when averaged out, each machine made a net profit of $1,300.00 per month, or $7,800.00 per machine over the six month amortization period. The trial court further found that when the residual value of the machines was factored in, KM Games could recoup a minimum of $9,300.00 per machine over the six month period, or $3,300.00 more than the purchase price. The trial court further found as a fact that though the machines are easily moveable, plaintiffs have not made any attempts to relocate the machines to sites allowed under the amendments to the ordinance. These factual findings support the trial court's conclusion of law that the amortization period was not unreasonably short. This assignment of error is without merit.
    In their third assignment of error, plaintiffs argue the trial court erred in concluding that there were findings of fact supporting its conclusion of law that plaintiffs did not have a vested right and that the enactment of ordinance Z-3-6-00 was not to their detriment. We disagree.    After reciting the applicable law on vested rights, plaintiff's entire argument on this assignment of error is as follows:
        Evidence presented by the Plaintiff-Appellants showed substantial expenditures made prior to 25 July 2000 and based upon reliance on the then-existing zoning regulations and testimony demonstrated that conversion to other business purposes would be extremely burdensome, if not impossible, for the Plaintiff-Appellants.

As noted above, the only question to be decided by this Court is whether the findings of the trial court supported this conclusion of law. Since plaintiffs failed to assign as error any of the trial court's findings of fact, what the evidence presented by plaintiffs showed is irrelevant on appeal. Plaintiffs having failed to argue that the trial court's findings of fact do not support this conclusion of law, this assignment of error is dismissed. N.C. R. App. P. Rule 28(B)(6); Strader v. Sunstates Corp., 129 N.C. App. 562, 567-68, 500 S.E.2d 752, 755 (1998).
    AFFIRMED.
    Judges McGEE and HUNTER concur.
    Report per Rule 30(e).

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