Petitioner Gastonia Video & News, Inc. has been operating a
retail business since 1987 on property located at 414 West Main
Avenue in Gastonia, North Carolina. Petitioner's business includes
(1) a bookstore that sells books, magazines, and novelties, and
also rents and sells films; and (2) a theater containing private
viewing booths for films. Many of the products offered in the
bookstore and the theater are adult in nature.
On 19 July 1994, the City of Gastonia adopted a municipal
zoning ordinance providing, in part, that "[n]o more than one adult
establishment shall be located within the same structure or portion
thereof." The ordinance also stated that "[a]ll existing adult
establishments shall comply with the provisions of this section,
originally adopted on July 19, 1994, within eight years on July 19,
2002."
On 21 November 1996, the Gastonia Board of Adjustment (the
"Board") entered an order finding that petitioner's business
qualified as both an adult bookstore and an adult mini-motion
picture theater. Petitioner did not appeal that order.
Approximately five and a half years later, on 20 May 2002,
petitioner received a letter from Drew Pearson, a Gastonia Zoning
Code Enforcement Officer. The letter listed several zoning
violations and then stated that petitioner was required to bring
its establishment into compliance by the 19 July 2002 deadline inthe zoning ordinance or cease operation. Petitioner filed an
appeal to the Board. On 12 August 2002, while the appeal was
pending, petitioner received another letter from Pearson. The
letter stated that petitioner was in violation of the zoning
ordinance due to its operation of an adult bookstore and an adult
mini-motion picture theater within the same structure.
Between 14 and 18 August 2002, James Hathaway, the President
of petitioner, "reconfigured" both the bookstore and the theater
portions of his business. Hathaway testified before the Board that
the "reconfiguration" involved adding more non-adult books and
videos to the bookstore inventory and rearranging the displays in
the bookstore to feature the non-adult products more prominently.
With respect to the mini-motion picture theater, Hathaway testified
that he removed the adult displays that advertised films and
reduced the number of channels on which patrons of the theater
could view adult material. An inventory taken after the
reconfiguration indicated that the bookstore contained 4,727 non-
adult items and 1,751 adult items. In the theater, the number of
channels offering adult content was reduced from 16 to 7.
The Board met on 31 October 2002, heard testimony, and
examined diagrams and photographs of petitioner's premises. On 21
November 2002, the Board issued an order upholding the zoning
administrator's determination that the petitioner's business was
both an adult bookstore and an adult mini-motion picture theater,
and, therefore, violated the municipal zoning ordinance prohibiting
the operation of two adult businesses on the same premises. TheBoard concluded that the reconfiguration instituted by Hathaway in
August 2002 was not sufficient to warrant an alteration in the
Board's 1996 determination that the premises contained both an
adult bookstore and an adult mini-motion picture theater. The
Board specified that petitioner was required to cease operation of
either the bookstore or the theater within 15 days.
On 27 December 2002, petitioner filed a petition for writ of
certiorari with the superior court, seeking review of the Board's
order. The superior court filed an order on 15 April 2004
concluding that a writ of certiorari should issue and affirming the
Board's order. Petitioner timely appealed to this Court.
In reviewing the decision of a board of adjustment, a superior
court functions in an appellate capacity.
Mann Media, Inc. v.
Randolph County Planning Bd., 356 N.C. 1, 12, 565 S.E.2d 9, 17
(2002) ("While the county board operates as the finder of fact, a
reviewing superior court 'sits in the posture of an appellate
court' and 'does not review the sufficiency of evidence presented
to it but reviews that evidence presented to the town board.'"
(quoting
Coastal Ready-Mix Concrete Co. v. Bd. of Comm'rs, 299 N.C.
620, 626_27, 265 S.E.2d 379, 383 (1980))). In doing so, the
superior court is required to:
(1) Review the record for errors in law;
(2) Insure that procedures specified by law in
both statute and ordinance are followed;
(3) Insure that appropriate due process rights
of a petitioner are protected including theright to offer evidence, cross-examine
witnesses, and inspect documents;
(4) Insure that decisions of town boards are
supported by competent, material and
substantial evidence in the whole record; and
(5) Insure that decisions are not arbitrary
and capricious.
Ward v. Inscoe, 166 N.C. App. 586, 592, 603 S.E.2d 393, 398 (2004).
The first three inquiries involve questions of law to which
the superior court applies a
de novo standard, while the fourth and
fifth inquiries are questions of fact requiring review under the
whole record test.
Id. at 593, 603 S.E.2d at 398. As our Supreme
Court has explained:
When the trial court applies the whole record
test, however, it may not substitute its
judgment for the agency's as between two
conflicting views, even though it could
reasonably have reached a different result had
it reviewed the matter
de novo. Rather, a
court must examine all the record evidence _
that which detracts from the agency's findings
and conclusions as well as that which tends to
support them _ to determine whether there is
substantial evidence to justify the agency's
decision. Substantial evidence is relevant
evidence a reasonable mind might accept as
adequate to support a conclusion.
N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 660,
599 S.E.2d 888, 895 (2004)
(internal quotation marks and citations
omitted);
see also Coastal Ready-Mix Concrete, 299 N.C. at 626_27,
265 S.E.2d at 383 ("In reviewing the sufficiency and competency of
the evidence at the appellate level, the question is not whether
the evidence before the superior court supported that court's order
but whether the evidence before the town board was supportive ofits action. In proceedings of this nature, the superior court is
not the trier of fact. Such is the function of the town board.").
In this case, the Board's order contains 29 detailed findings
of fact regarding petitioner's inventory and display space, the
changes made in August 2002, and the operation of the mini-motion
picture theater. The order also contains six conclusions of law
applying the pertinent terms of the city zoning ordinance and the
North Carolina General Statutes to petitioner's business, in light
of the facts found. In addressing the petition for writ of
certiorari, although the superior court acknowledged that the
proper standard of review as to the sufficiency of the evidence was
"review of the whole record to determine if there is substantial
competent and material evidence to support the decision of the
Respondent [Board]," the court proceeded to make its own 25
findings of fact regarding the issues before the Board and the
evidence presented by the parties as to those issues. The superior
court's nine conclusions of law also include mixed findings of fact
and conclusions of law:
6. At all times relevant to the hearing
before the [Board], Gastonia Video was an
adult bookstore as defined by §17-61(92)
and N.C.G.S. 14-202.10 in that a
preponderance in terms of weight and
importance of the material of its
publications (including books, magazines,
other periodicals, videotapes, compact
discs, other photographic, electronic
magnetic, digital, or other imaging
medium) are distinguished or
characterized by their emphasis on matter
depicting, describing, or relating to
specified sexual activities or specified
anatomical areas.
7. At all times relevant to the hearing
before the [Board], Gastonia Video was an
adult mini-motion picture theater as
defined by §17-61(92) and N.C.G.S. 14-
202.10 in that it is an enclosed building
with viewing booths designed to hold
patrons which is used for presenting
motion pictures, a preponderance of which
are distinguished or characterized by
their emphasis on matter depicting,
describing, or relating to specified
sexual activities or specified anatomical
areas.
8. That both the adult book store and the
adult mini motion picture theater are
being operated in one structure in
violation of the zoning ordinance of the
City of Gastonia.
Thus, rather than applying the whole record test, the superior
court entered separate findings of fact, which differed in number
and, in some cases, in substance from the findings of fact entered
by the Board.
The independent fact finding in which the superior court
engaged in this case does not comply with the standard of review.
As our Supreme Court stated in
Carroll, "where the findings of fact
of an administrative agency are supported by substantial competent
evidence in view of the entire record, they are binding on the
reviewing court, and
that court lacks authority to make alternative
findings at variance with the agency's."
Id. at 663, 599 S.E.2d at
897 (emphases added).
See also id. at 661, 599 S.E.2d at 895
("This Court has never stated that a trial court should issue new
findings of fact in a contested case when conducting
de novo review
of a question of law."). Even though we have concluded that the trial court failed to
apply the proper standard of review, the Supreme Court has held
that a trial court's erroneous application of the standard of
review does not necessarily require a remand.
Id. at 665, 599
S.E.2d at 898. It is appropriate for this Court to address the
merits of an appeal if "the trial court's erroneous articulation
and application of the
de novo standard of review in no way
interferes with our ability to assess how that standard [of review]
should have been applied to the particular facts of this case."
Id.
In this case, however, petitioner's 13 assignments of error
and its brief refer only to the superior court's findings of fact
and conclusions of law. Respondents' brief in turn responds to
those arguments. As a result, in order to apply the proper
standard of review to the Board's order, we would have to engage in
conjecture as to what the parties would argue in support of and
against the Board's order. Such an exercise is not a proper
function for an appellate court and would be manifestly unfair to
both parties, in whose mouths we would be forced to put words. For
this reason, we vacate the superior court's order and remand to
that court for a review of the Board's order in accordance with the
standards set forth in
Ward and
Carroll.
Vacated and remanded.
Judges HUNTER and HUDSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***