An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04_1421


Filed: 18 October 2005


    v .                         Gaston County
                                No. 02 CVS 4700

    Appeal by petitioner from judgment entered 15 April 2004 by Judge Timothy L. Patti in Gaston County Superior Court. Heard in the Court of Appeals 18 May 2005.

    Thomas F. Loflin III for petitioner-appellant.

    Melissa A. Magee and L. Ashley Smith for respondents- appellees.

    GEER, Judge.

    Petitioner Gastonia Video & News, Inc., appeals from a superior court judgment affirming an order by respondent Gastonia Board of Adjustment, which in turn affirmed a decision by the Gastonia Zoning Administrator finding petitioner in violation of a municipal zoning ordinance prohibiting the operation of more than one adult establishment in the same structure. The superior court, rather than applying the correct standard of review, erroneously entered de novo findings of fact that differed from the Board of Adjustment's findings. Because the parties' arguments on appeal focus on the superior court's findings of fact, we are unable to effectively perform our appellate function. Accordingly, we vacatethe superior court's order and remand for further proceedings consistent with this opinion.

    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).

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