{ "id": 12127274, "name": "DOCKSIDE DISCOTHEQUE, INC. v. BOARD OF ADJUSTMENT OF THE TOWN OF SOUTHERN PINES", "name_abbreviation": "Dockside Discotheque, Inc. v. Board of Adjustment", "decision_date": "1994-06-21", "docket_number": "No. 9320SC1032", "first_page": "303", "last_page": "310", "citations": [ { "type": "official", "cite": "115 N.C. App. 303" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "378 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "no cessation of nonconforming use where owner made effort to continue nonconforming use of property" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528129 ], "year": 1989, "pin_cites": [ { "parenthetical": "no cessation of nonconforming use where owner made effort to continue nonconforming use of property" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0483-01" ] }, { "cite": "421 U.S. 35", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 541084 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "45", "parenthetical": "remand for findings and conclusions not ordered where it was unlikely to \"add anything essential to the determination of the merits\"" }, { "page": "722", "parenthetical": "remand for findings and conclusions not ordered where it was unlikely to \"add anything essential to the determination of the merits\"" } ], "opinion_index": 0, "case_paths": [ "/us/421/0035-01" ] }, { "cite": "240 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "372", "parenthetical": "where \"may\" is used, it will ordinarily be construed as permissive and not mandatory" } ], "opinion_index": 0 }, { "cite": "294 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570942 ], "year": 1978, "pin_cites": [ { "page": "97", "parenthetical": "where \"may\" is used, it will ordinarily be construed as permissive and not mandatory" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0090-01" ] }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "832", "parenthetical": "in equitable distribution action, party desiring unequal division bears burden of producing evidence concerning one or more of the twelve factors listed in Section 50-20" }, { "page": "833" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "776", "parenthetical": "in equitable distribution action, party desiring unequal division bears burden of producing evidence concerning one or more of the twelve factors listed in Section 50-20" }, { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-318.11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 645, "char_count": 16373, "ocr_confidence": 0.743, "pagerank": { "raw": 2.421510533756136e-07, "percentile": 0.8010662011569014 }, "sha256": "28ba5b052a63f874e32a0fdfcb75cc98267eb0060e0bb67c0e1711bf0c9966ec", "simhash": "1:8fcfd406852f9ec3", "word_count": 2665 }, "last_updated": "2023-07-14T22:58:18.676868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHN and McCRODDEN concur." ], "parties": [ "DOCKSIDE DISCOTHEQUE, INC. v. BOARD OF ADJUSTMENT OF THE TOWN OF SOUTHERN PINES" ], "opinions": [ { "text": "GREENE, Judge.\nDockside Discotheque, Inc. (Dockside) appeals from a judgment signed 14 June 1993 in Moore County Superior Court, affirming the Board of Adjustment of the Town of Southern Pines\u2019 (the Board) decision to affirm the Land Use Administrator\u2019s (the Administrator) decision, that \u201cthe use of [Dockside]\u2019s premises for special entertainment is in violation of Section 179 of the Town of Southern Pines Unified Development Ordinance.\u201d\nThe uncontradicted evidence presented in the record is that Dockside, which is located in the Town of Southern Pines\u2019 (the Town) central business district, began providing topless entertainment in 1983 on a semi-regular basis until early December 1989. On 13 November 1990, the Town amended its Unified Development Ordinance (the Ordinance), which was enacted in December 1989, to forbid under Section 179 \u201cspecial use entertainment\u201d such as topless entertainment in the Town\u2019s central business district and to allow such use only in the Town\u2019s general business district.\nJerry Reid (Reid) bought Dockside in March 1991 from David Talbert (Talbert) with the intention of operating a topless entertainment club. Talbert, whose privileged license expired in July 1990, last provided topless entertainment in December of 1989. On 22 March 1991, Dockside held its first adult entertainment show since Decern-ber 1989. By letter dated 22 March 1991, the Administrator informed Reid that the use of Dockside for topless entertainment is violative of Section 179 of the Town\u2019s Ordinance, and if the violation were not corrected, he would subject Reid \u201cto the maximum civil penalty allowed by law.\u201d\nDockside appealed the Administrator\u2019s decision to the Board on the grounds that Dockside is a nonconforming use as defined by Section 121(8) of the Ordinance and that topless entertainment at Dockside is permitted pursuant to Section 127(d) of the Ordinance \u201cbecause the use was reinstated within 180 days of the effective date of the adoption of Section 179, which was November 13, 1990.\u201d After the Board heard from Dockside, the Town, and various witnesses, the following exchange took place:\nChairman: Are there other questions? Is the Board ready to make a motion?\nMr. Boles: Is there any such thing as executive session?\nChairman: Okay; we will go into executive session for five or ten minutes. (Whereupon, the Board of Adjustment went into Executive Session at 7:10 p.m. and reconvened the regular session at 7:46 p.m.)[.]\nChairman: The Board of Adjustment is now back in session. Are we ready to make a motion?\nMr. Campbell: Mr. Chairman, I would like to make a motion that the appeal of Dockside, Incorporated be denied, and that the determination by the Administrative Officer be upheld.\nThis motion was then unanimously carried and the hearing was concluded. Subsequently, Dockside received a letter dated 14 June 1991 regarding its appeal from the Administrator\u2019s decision that Dockside was operating a special entertainment use in violation of the Ordinance and its request that Dockside be considered a nonconforming use. The letter stated that \u201c[b]ased upon the evaluation of your request and staff\u2019s recommendations, the Board voted to deny the above mentioned requests.\u201d\nIn accordance with N.C. Gen. Stat. \u00a7 160A-388(e) (1993), Dockside petitioned the Moore County Superior Court on 12 July 1991 for judicial review of the Board\u2019s decision. In the petition, Dockside contended that topless entertainment at its business was a \u201cnonconforming situation\u201d within the meaning of the ordinance and therefore did not violate the ordinance. Dockside argued in the alternative that the decision of the Board was affected by several procedural errors: (1) the Board \u201cwent into an executive session\u201d in violation of Article 33C of Chapter 143 of the North Carolina General Statutes; (2) the motion to deny its appeal from the Administrator did not comply with Section 97(a) of the Ordinance in that it failed to state any reasons to support the motion to deny Dockside\u2019s appeal; and (3) the decision of the Board did not state any findings or conclusions as required by Section 106(b) of the Ordinance. The trial court, in affirming the decision of the Board, concluded that (1) because the facts were uncontroverted, the failure of the Board to make findings and conclusions did not require reversal; (2) there was no evidence that an executive session was used to deliberate the matter at issue; (3) if the open meetings law was violated because it affected \u201cthe substance of the challenged action,\u201d it did not require that the decision be declared null and void; (4) on the merits, the Board correctly determined that Dockside\u2019s use of the property was \u201cnot a nonconforming situation\u201d within the meaning of the Ordinance.\nThe issues presented are whether (I) the Board\u2019s actions violated Article 33C of Chapter 143 of the North Carolina General Statutes relating to open meetings of public bodies so that its actions are null and void; (II) the Board had to set out specific findings of fact and conclusions where the facts are uncontroverted; and (III) Dockside was a nonconforming situation, entitling Dockside to be exempted from the provisions of Section 179.\nI\nN.C. Gen. Stat. \u00a7 143-318.11(a) provides that a \u201cpublic body,\u201d like the Board in this case, N.C.G.S. \u00a7 143-318.10(b) (1993), \u201cmay hold an executive session and exclude the public\u201d for only twenty permitted purposes which are listed in Section 143-318.11. N.C.G.S. \u00a7 143-318.11(a) (1993). An executive session may be held \u201conly upon a motion made and adopted at an open meeting. The motion shall state the general purpose of the executive session and must be approved by the vote of a majority of those present and voting.\u201d N.C.G.S. \u00a7 143-318.11(c) (1993). If a public body violates Section 143-318.11, the court, after considering evidence offered on any of six factors listed in Section 143-318.16A(c), \u201cmay declare any such action null and void.\u201d N.C.G.S. \u00a7 143-318.16A(a) (1993). The party seeking to rescind the actions taken in executive session has the burden of producing evidence concerning one or more of the six factors. Cf. White v. White, 312 N.C. 770, 776, 324 S.E.2d 829, 832 (1985) (in equitable distribution action, party desiring unequal division bears burden of producing evidence concerning one or more of the twelve factors listed in Section 50-20). Whether to declare a board\u2019s action null and void is within the discretion of the trial court, see In re Hardy, 294 N.C. 90, 97, 240 S.E.2d 367, 372 (1978) (where \u201cmay\u201d is used, it will ordinarily be construed as permissive and not mandatory), and can be reversed on appeal only if the decision is \u201cmanifestly unsupported by reason\u201d and \u201cso arbitrary that it could not have been the result of a reasoned decision.\u201d White, 312 N.C. at 777, 324 S.E.2d at 833.\nDockside, in support of its motion to have the decision declared null and void, contends that the \u201csecret meeting\u201d of the Board prevented it from having \u201cknowledge of the basis of the Board\u2019s denial of the current appeal; therefore, the \u2018substance of the challenged action\u2019 is affected in that a meaningful appellate review is now not possible.\u201d This allegation is apparently based on the first of the six factors listed in Section 143-318.16A(c), which provides that the court is to consider \u201c[t]he extent to which the violation affected the substance of the challenged action.\u201d N.C.G.S. \u00a7 143-318.16A(c)(l) (1993). The trial court concluded that the alleged executive session \u201chad little effect upon the substance of the challenged action,\u201d and we are unable to hold on this record that this determination is manifestly unsupported by reason. Therefore, assuming the \u201cexecutive session\u201d of the Board was held in violation of Section 143-318.11, Judge Seay did not abuse his discretion in refusing to declare the decision of the Board null and void.\nII\nSection 106(b) of the Ordinance provides that the Board\u2019s \u201cwritten decision shall state the board\u2019s findings and conclusions, as well as supporting reasons or facts.\u201d Southern Pines, N.C., Unified Development Ordinance \u00a7 106(b) (Dec. 1989) [Ordinance]. Dockside argues that the Board\u2019s failure to follow this procedure requires remand. We disagree.\nAs a general rule, when findings and conclusions are required and not entered, the appellate court \u201cmay vacate the judgment and remand the case for findings.\u201d 9 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure \u00a7 2577, at 697 (1971) (discussing civil procedure Rule 52(a)) [Wright], Because, however, \u201cfindings are not jurisdictional,... the appellate court may decide the appeal without further findings if it feels that it is in a position to do so.\u201d Wright at 699-700. For example, \u201cthe appellate court will determine the appeal without more if the record sufficiently informs it of the basis of decision of the material issues ... or if the facts are undisputed [and different inferences are not permissible].\u201d Id. at 700-02; see Withrow v. Larkin, 421 U.S. 35, 45, 43 L. Ed. 2d 712, 722 (1975) (remand for findings and conclusions not ordered where it was unlikely to \u201cadd anything essential to the determination of the merits\u201d).\nIn this case, although the Board did not make any findings or conclusions, the record presents no genuine issues of material fact, and a complete understanding of the issues presented can be had from the record on appeal. Accordingly, remand is not necessary. Dockside also argues in its brief that Mr. Campbell\u2019s motion to deny its appeal was defective because it failed to include any \u201cspecific reasons\u201d in support of the motion as required by Section 97(a) of the Ordinance. We do not address this argument because it was not the subject of an assignment of error. N.C. R. App. R 10(a) (1994).\nIll\nDockside contends that because it meets the definition of a \u201cnonconforming situation\u201d and because \u201cthe activity was conducted on the premises within 180 days of the effective date of the adoption of Section 179\u201d and has never discontinued adult entertainment \u201cwithout a present intention of resuming that activity,\u201d it can continue to provide adult entertainment under Section 122 of the Ordinance. We disagree.\nSection 122 of the Ordinance provides that \u201csubject to the restrictions and qualifications set forth in Sections 123 through 128, nonconforming situations that were otherwise lawful on the effective date of this chapter may be continued.\u201d Ordinance \u00a7 122(a). Section 127(b) of the Ordinance provides in pertinent part:\n(b) If the principal activity on property where a nonconforming situation . . . exists is (i) discontinued for a consecutive period of 180 days, or (ii) discontinued for any period of time without a present intention of resuming that activity, then that property may thereafter be used only in conformity with all of the regulations applicable to the preexisting use unless the board of adjustment issues a special use permit to allow the property to be used for this purpose without correcting the nonconforming situations.\n(d) When a structure or operation made nonconforming by this chapter is vacant or discontinued at the effective date of this chapter, the 180-day period for purposes of this section begins to run on the effective date of this chapter.\nOrdinance \u00a7 127(b), (d). First, there must be a determination that a nonconforming situation exists so that these provisions apply. A nonconforming situation is \u201c[a] situation that occurs when, on the effective date of this chapter, an existing lot or structure or use of an existing lot or structures does not conform to one or more of the regulations applicable to the district in which the lot or structure is located. . . .\u201d Ordinance \u00a7 121(8).\nEven accepting Dockside\u2019s argument that the \u201ceffective date of this chapter\u201d is 13 November 1990, the date the Ordinance was amended to add Section 179 forbidding \u201cspecial use entertainment\u201d in Dockside\u2019s district rather than December 1989 when the Ordinance itself was enacted, Dockside does not meet the definition of a nonconforming situation. There was no topless entertainment provided at Dockside on 13 November 1990 and no evidence that the property on that date was regularly used for that purpose. The record does reveal that between 1983 and December 1989, topless entertainment was provided on this property at intervals of anywhere from once a week to every two or three months. There was no topless entertainment on the. property from December 1989 until 22 March 1991. Thus, on 13 November 1990, the property had not been used for topless entertainment in eleven months, and there is no evidence that its nonuse was beyond the control of Dockside. See Flowerree v. City of Concord, 93 N.C. App. 483, 378 S.E.2d 188 (1989) (no cessation of nonconforming use where owner made effort to continue nonconforming use of property). Therefore, on 13 November 1990, there was not at Dockside\u2019s locale \u201can existing lot or structure or use of an existing lot or structures\u201d which did not conform \u201cto one or more of the regulations applicable to the district in which the lot or structure is located.\u201d Because Dockside cannot meet the definition of a nonconforming situation, neither Section 122 nor Section 127 applies, and the Board was correct in determining that Dockside was not entitled to be exempted from the provisions of Section 179 prohibiting adult entertainment in Dockside\u2019s district. For these reasons, the decision of the trial court is\nAffirmed.\nJudges JOHN and McCRODDEN concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Hatch, Little, & Bunn, by Clyde Holt, III, for petitioner-appellant.", "Gill & Dow, by Douglas R. Gill, for respondent-appellee." ], "corrections": "", "head_matter": "DOCKSIDE DISCOTHEQUE, INC. v. BOARD OF ADJUSTMENT OF THE TOWN OF SOUTHERN PINES\nNo. 9320SC1032\n(Filed 21 June 1994)\n1. State \u00a7 10 (NCI4th)\u2014 board of adjustment \u2014 violation of open meetings law \u2014 decision not declared void\nAssuming that an \u201cexecutive session\u201d was held by a board of adjustment in violation of N.C.G.S. \u00a7 143-318.11, the trial court did not abuse its discretion in refusing to declare the decision of the board null and void where the court concluded that the alleged executive session had little effect upon the substance of the challenged action, and the record fails to show that this determination is manifestly unsupported by reason.\nAm Jur 2d, Administrative Law \u00a7 101.\n2. Zoning \u00a7 110 (NCI4th)\u2014 board of adjustment decision\u2014 absence of findings and conclusions \u2014 remand not required\nAlthough a board of adjustment failed to make findings and conclusions as required by the town\u2019s unified development ordinance in its decision that the use of petitioner\u2019s premises for topless entertainment violated the ordinance, remand for findings was not necessary where the record presented no genuine issues of material fact, and a complete understanding of the issues presented could be had from the record on appeal.\nAm Jur 2d, Zoning and Planning \u00a7\u00a7 799 et seq.\n3. Zoning \u00a7 47 (NCI4th)\u2014 amendment of ordinance \u2014 prohibition of topless entertainment in central business district\u2014 property not nonconforming use\nPetitioner was not entitled to use its property in a town\u2019s central business district for topless entertainment as a \u201cnonconforming situation\u201d allowed by the town\u2019s unified development ordinance where the ordinance was amended on 13 November 1990 to prohibit \u201cspecial use entertainment\u201d such as topless entertainment in the central business district; topless entertainment had been provided on petitioner\u2019s property at intervals of once a week to once every two to three months between 1983 and December 1989; there was no topless entertainment on the property from December 1989 until 22 March 1991; on 13 November 1990, the date the ordinance was amended, the property had not been used for topless entertainment in eleven months; and, therefore, petitioner\u2019s property did not meet the requirement for a nonconforming use that there be an \u201cexisting lot or structure or use of an existing lot or structure\u201d at petitioner\u2019s locale on the date of the amendment which did not conform \u201cto one or more of the regulations applicable to the district in which the lot or structure is located.\u201d\nAm Jur 2d, Zoning and Planning \u00a7\u00a7 624 et seq.\nAppeal by petitioner from judgment entered 14 June 1993 in Moore County Superior Court by Judge Thomas W. Seay. Heard in the Court of Appeals 24 May 1994.\nHatch, Little, & Bunn, by Clyde Holt, III, for petitioner-appellant.\nGill & Dow, by Douglas R. Gill, for respondent-appellee." }, "file_name": "0303-01", "first_page_order": 335, "last_page_order": 342 }