Appeal by respondents from order entered 26 April 2006 by
Judge Michael E. Helms in Ashe County Superior Court. This case
was originally heard in the Court of Appeals on 21 February 2007.
See Blevins v. Town of W. Jefferson
, ___ N.C. App. ___, 643 S.E.2d
465 (2007). Upon remand by order from the North Carolina Supreme
Court, filed 12 October 2007 to this Court to address the merits of
the appeal. See Blevins v. Town of W. Jefferson
, No. 210A07 (N.C.
Oct. 12, 2007).
Kilby & Hurley Attorneys, by John T. Kilby, for petitioner-
Vannoy & Reeves, PLLC, by Jimmy D. Reeves and John Benjamin
Jak Reeves, for respondents-appellants.
This Court initially reviewed the Town of West Jefferson's and
Town of West Jefferson Board of Adjustment's (collectively,
respondents) appeal from an order entered, which reversed
respondents' decision. A divided panel of this Court dismissedrespondents' appeal based on respondents': (1) failure to include
in the record on appeal a notice of appeal from the superior
court's order; (2) failure to show the purported notice of appeal
was either filed with or stamped by the clerk of superior court;
and (3) failure to include in the record on appeal any
certification to show respondents served a copy of the purported
notice of appeal on Mark Blevins d/b/a Rainbow Recycling
(petitioner). Blevins v. Town of W. Jefferson, ___ N.C. App.
___, 643 S.E.2d 465 (2007).
Respondents appealed pursuant to N.C. Gen. Stat. § 7A-30(2)
(2005). Our Supreme Court remanded this case to this Court to
address the merits of respondents' appeal. Blevins v. Town of W.
Jefferson, No. 210A07 (N.C. Oct. 12, 2007). See also In re C.T. &
B.T., No. 175A07 (N.C. Oct. 12, 2007). After careful review of the
merits of respondents' appeal, we affirm.
On 26 April 2006, the superior court entered an order
reversing the decision of the Town of West Jefferson Board of
Adjustment. The superior court concluded: (1) petitioner's
business activity whether a 'junkyard' or 'recycling facility' is
an activity that is both expressly and implicitly allowed under
Sections 40.7 and 55.1 of the Town Zoning Ordinance on property
that is zoned as M-1 (Manufacturing/Industrial)
; and (2) [i]n
light of this ruling the [superior] [c]ourt does not find it
necessary to address the other issues raised by the [p]etitioner.
Respondents argue the superior court erred by overruling their
prior decision affirming the decision of the town manager.
III. Standard of Review
When the superior court reviews the decision
of a town council, the court should:
(1) review the record for errors of law, (2)
ensure that procedures specified by law in
both statute and ordinance are followed, (3)
ensure that appropriate due process rights of
the petitioner are protected, including the
right to offer evidence, cross-examine
witnesses, and inspect documents; (4) ensure
that the decision is supported by competent,
material, and substantial evidence in the
whole record; and (5) ensure that the decision
is not arbitrary and capricious.
The task of this Court in reviewing a superior
court order is (1) to determine whether the
trial court exercised the proper scope of
review, and (2) to review whether the trial
court correctly applied this scope of review.
Humane Soc'y of Moore Cty., Inc. v. Town of Southern Pines
N.C. App. 625, 628-29, 589 S.E.2d 162, 165 (2003) (internal
In its 26 April 2006 order, the superior court made findings
of fact [a]fter consideration of the entire record . . . . The
superior court exercised the proper scope of review . . . . by
analyzing the whole record. Id
. at 629, 589 S.E.2d at 165. We
must now determine whether the superior court correctly applied
this scope of review. Id
In its 26 April 2006 order, the superior court concluded: 1. That the Petitioner's business activity
whether a junkyard or recycling
facility is an activity that is both
expressly and implicitly allowed under
Sections 40.7 and 55.1 of the Town Zoning
Ordinance on property that is zoned as M-
Here, the superior court's factual findings are not challenged
on appeal and are therefore conclusive. See
N.C.R. App. P. 10(a)
(2008) (Except as otherwise provided herein, the scope of review
on appeal is confined to a consideration of those assignments of
error set out in the record on appeal in accordance with this Rule
10.); see also Parkwood Assn., Inc. v. City of Durham
, 124 N.C.
App. 603, 609, 478 S.E.2d 204, 208 (1996) (Since petitioners did
not except or assign error to these findings, they are presumed to
be correct and supported by the evidence.), disc. review denied
345 N.C. 345, 483 S.E.2d 175 (1997). The superior court's
conclusion of law and order is supported by its finding of fact
numbered 5, which states:
Section 40.7 of the Town Zoning Ordinance
specifically states the existence of a
junkyard in any zoning district, except M_1
, shall be deemed a
nonconforming use and shall be eliminated not
later than three (3) years from the date of
Section 55 of the Town Zoning Ordinance lists
various uses allowed on M_1
zoned property and
while neither a junkyard or recycling
facility is expressly listed in Section 55,
that Section does enumerate several allowable
uses in M_1
districts that would, by their
very nature, involve the storage of scrap
metal; also, the Petitioner is in the
wholesale and warehousing business of recycled
materials, which is a type of business that is
expressly allowed as a use in an M_1
District . . . .
(Emphasis in original).
The superior court's unchallenged findings of fact support its
conclusions of law. The superior court correctly applied its whole
record scope of review and rendered a decision that is supported by
the facts and the applicable law. Humane Soc'y of Moore Cty.,
, 161 N.C. App. at 629, 589 S.E.2d at 165. This assignment of
error is overruled.
The superior court exercised the proper scope of review and
correctly applied this scope of review. Id
. The superior
court's order is affirmed.
Judges ELMORE and GEER concur.
Report per Rule 30(e).
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