An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA05-345

NORTH CAROLINA COURT OF APPEALS

Filed: 06 December 2005

321 NEWS & VIDEO, INC.,
    Petitioner,

v .                         Gaston County
                            No. 04 CVS 359
THE ZONING BOARD OF
ADJUSTMENT FOR THE CITY OF
GASTONIA and THE CITY OF
GASTONIA, NORTH CAROLINA,
    Respondents.

    Appeal by petitioner from judgment entered 3 September 2004 by Judge Forrest D. Bridges in Gaston County Superior Court. Heard in the Court of Appeals 15 November 2005.

    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 & Videos, Inc., operates an adult establishment 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). This ordinance prohibited more than one type of adult use within the same structure, imposed a 500-foot separation requirement between adult establishments and certain enumerated uses, and prohibited any adult establishments from being within 1000 feet of each other. The ordinance included an eight-year amortization period for non-conforming adult establishments to either comply with the ordinance or close. In October 2003, the City amended the zoning ordinance to exempt from compliance adult establishments located within 1000 feet of each other. The City did not amend the portion of the zoning ordinance prohibiting more than one type of adult use in the same structure.
    In a separate but related matter, petitioner appealed the denial of its petition for a variance from the setback requirement to this Court. The opinion in that case can be found at 321 News & Video, Inc. v. City of Gastonia Bd. of Adjustment, ___ N.C. App. ___, ___ S.E.2d ___ (2005) (filed October 18, 2005) (COA04-1521).
    Petitioner has been in operation at the same location in Gastonia since 1992. At this location, petitioner operates both an adult bookstore and mini-motion picture theater. On 13 August 2002, the zoning administrator notified petitioner its continued operation of more than one adult establishment in the same structure constituted a violation of Section 17-92(61)(f) and advised petitioner it was required to either comply with the zoning ordinance or cease operating within the Gastonia city limits. Petitioner appealed this notice to the Gastonia Zoning Board of Adjustment (Board). The Board held a hearing on 27 February 2003, and by order signed 29 May 2003, it denied petitioner's appeal. Petitioner filed a petition for writ of certiorari to the Gaston County Superior Court seeking review. The trial court affirmed the Board's ruling that petitioner was operating two adultestablishments in one structure in violation of the zoning ordinance. Petitioner appeals.
    In petitioner's sole assignment of error, it contends the trial court erred in affirming the Board's decision denying its appeal. We disagree.
    Petitioner concedes there was substantial evidence in the record to support the Board's findings of fact, as well as its conclusions of law that it was operating two adult uses in the same structure in violation of the city ordinance. Rather, petitioner's contention is that since the City amended its ordinance in October 2003 to allow existing adult establishments located within 1000 feet of one another to be exempted from the zoning ordinance separation requirement, it should be allowed to continue to operate two adult uses in one establishment, and the Board's failure to apply this ordinance provision 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 County 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 sat 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 the evidence presented to the Board. Id.     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.
    The trial court's order states it is applying the whole record test, which is appropriate since petitioner contends the Board's denial of its appeal was arbitrary and capricious. Id. at 13, 565 S.E.2d at 17. Under the whole record test, the trial court examines the entire record to determine whether it contains substantial evidence to support the agency's conclusions. Id. On appeal, the reviewing court may only consider the evidence before the Board at the time it made its decision. As of 29 May 2003, when the Board made its ruling, the City had not amended the zoning ordinance to exempt existing adult establishments located within 1000 feet of each other from compliance with the ordinance. In fact, the City did not amend the ordinance until five months after the Board's decision. Petitioner cannot argue on appeal that the Board erred in failing to apply an amendment to an ordinance that was not in effect at the time the Board ruled. Since petitioner concedes it is in violation of the zoning ordinance, the Board did not err in denying its appeal. This argument is without merit.
    Petitioner contends in the alternative that the zoning ordinance is unconstitutional as applied to it because the Board's failure to consider the evidence of the lack of secondary effects associated with its business violates its First Amendment right tofree speech and expression. This is the same argument petitioner advanced in its previous appeal, 321 News, ___ N.C. App. at ___, ___ S.E.2d at ___, which we rejected. For the same reasons stated in that opinion, this is not a proper consideration for the Board, the superior court, or this Court. See also Godfrey v. Zoning Bd. of Adjustment, 317 N.C. 51, 62-63, 344 S.E.2d 272, 279 (1986); Sherill v. Town of Wrightsville Beach, 76 N.C. App. 646, 649, 334 S.E.2d 103, 105 (1985).
    For the reasons discussed herein, we affirm the trial court.
    AFFIRMED.
    Judges WYNN and JOHN concur.
    Report per Rule 30(e).

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