{ "id": 8955953, "name": "ALLEN WELTER and wife, BARBARA WELTER, Petitioners-Appellants v. ROWAN COUNTY BOARD OF COMMISSIONERS; ROWAN COUNTY ZONING BOARD OF ADJUSTMENT; and MARION LYTLE, Individually, Respondents-Appellees", "name_abbreviation": "Welter v. Rowan County Board of Commissioners", "decision_date": "2003-09-16", "docket_number": "No. COA02-1048", "first_page": "358", "last_page": "366", "citations": [ { "type": "official", "cite": "160 N.C. App. 358" } ], "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": "158 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "272 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574599 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/272/0731-01" ] }, { "cite": "375 S.E.2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "174", "parenthetical": "\"Findings of fact that merely restate a party's contentions or testimony without finding the facts in dispute are not adequate. It is the duty of the fact finder to resolve conflicting evidence.\"" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 581", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527403 ], "year": 1989, "pin_cites": [ { "page": "584", "parenthetical": "\"Findings of fact that merely restate a party's contentions or testimony without finding the facts in dispute are not adequate. It is the duty of the fact finder to resolve conflicting evidence.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0581-01" ] }, { "cite": "536 S.E.2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "339", "parenthetical": "noting that \"mere recitations of the evidence\" are not the ultimate findings required, and \"do not reflect the processes of logical reasoning\" required" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 362", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127310 ], "year": 2000, "pin_cites": [ { "page": "364", "parenthetical": "noting that \"mere recitations of the evidence\" are not the ultimate findings required, and \"do not reflect the processes of logical reasoning\" required" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0362-01" ] }, { "cite": "574 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "127-28" }, { "page": "127-28", "parenthetical": "\" '[w]e do not believe a remand is necessary, however, because . . . the entire record of the hearing is before us.' \"" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 484", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250779 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "492" }, { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0484-01" ] }, { "cite": "582 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 252", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491584, 491789, 491662, 491790, 491411, 491804, 491478, 491836, 491807 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0252-02", "/nc/357/0252-09", "/nc/357/0252-07", "/nc/357/0252-04", "/nc/357/0252-03", "/nc/357/0252-08", "/nc/357/0252-06", "/nc/357/0252-05", "/nc/357/0252-01" ] }, { "cite": "573 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "770" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 568", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251107 ], "year": 2002, "pin_cites": [ { "page": "572-73" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0568-01" ] }, { "cite": "576 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "690-91" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 260", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9190363 ], "year": 2003, "pin_cites": [ { "page": "262-63" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0260-01" ] }, { "cite": "559 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220028 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0269-01" ] }, { "cite": "552 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "268", "parenthetical": "Greene, J. dissenting" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 388", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11357914 ], "year": 2001, "pin_cites": [ { "page": "392", "parenthetical": "Greene, J. dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0388-01" ] }, { "cite": "577 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "356 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511626, 1511405, 1511218, 1511607, 1511609 ], "year": 2003, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0670-04", "/nc/356/0670-02", "/nc/356/0670-05", "/nc/356/0670-03", "/nc/356/0670-01" ] }, { "cite": "564 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "80-81" }, { "page": "80-81" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 516", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081861 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "519" }, { "page": "519" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0516-01" ] }, { "cite": "431 S.E.2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "186-87" } ], "opinion_index": 0 }, { "cite": "334 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2528575 ], "year": 1993, "pin_cites": [ { "page": "136-37" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0132-01" ] }, { "cite": "546 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "quoting Sutton, 132 N.C. App. at 389, 511 S.E.2d at 342" } ], "opinion_index": 0 }, { "cite": "353 N.C. 280", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135960, 135680, 135707, 135879 ], "year": 2000, "pin_cites": [ { "parenthetical": "quoting Sutton, 132 N.C. App. at 389, 511 S.E.2d at 342" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0280-01", "/nc/353/0280-03", "/nc/353/0280-04", "/nc/353/0280-02" ] }, { "cite": "533 S.E.2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "528", "parenthetical": "quoting Sutton, 132 N.C. App. at 389, 511 S.E.2d at 342" }, { "page": "528" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 269", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9496549 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "272", "parenthetical": "quoting Sutton, 132 N.C. App. at 389, 511 S.E.2d at 342" }, { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0269-01" ] }, { "cite": "511 S.E.2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "341" }, { "page": "342" }, { "page": "342" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238269 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "389" }, { "page": "389" }, { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0387-01" ] }, { "cite": "565 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "17", "parenthetical": "quoting Sutton v. N.C. Dep't of Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 341 (1999)" }, { "page": "18", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "356 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511222 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "13", "parenthetical": "quoting Sutton v. N.C. Dep't of Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 341 (1999)" }, { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0001-01" ] }, { "cite": "233 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "541", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "292 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569880 ], "year": 1977, "pin_cites": [ { "page": "410", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0406-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "118", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527936 ], "year": 1994, "pin_cites": [ { "page": "674", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0668-01" ] }, { "cite": "500 S.E.2d 723", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "725", "parenthetical": "citations omitted" }, { "page": "725", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651162 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "501", "parenthetical": "citations omitted" }, { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0499-01" ] }, { "cite": "265 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "299 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575681 ], "year": 1980, "pin_cites": [ { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0620-01" ] } ], "analysis": { "cardinality": 844, "char_count": 19580, "ocr_confidence": 0.773, "pagerank": { "raw": 1.44706261551851e-07, "percentile": 0.6543099617004698 }, "sha256": "6174226aad587ba5fa31e16370e8c25086a600caa7d0e03bc3d23caebae9be78", "simhash": "1:7d61f08a222c6c0e", "word_count": 3185 }, "last_updated": "2023-07-14T16:12:23.823025+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCCULLOUGH and LEVINSON concur." ], "parties": [ "ALLEN WELTER and wife, BARBARA WELTER, Petitioners-Appellants v. ROWAN COUNTY BOARD OF COMMISSIONERS; ROWAN COUNTY ZONING BOARD OF ADJUSTMENT; and MARION LYTLE, Individually, Respondents-Appellees" ], "opinions": [ { "text": "McGEE, Judge.\nThe Rowan County Board of Commissioners (Commissioners) adopted the Rowan County Zoning Ordinance (the zoning ordinance) on 19 January 1998, covering the unincorporated areas in Rowan County. Allen and Barbara Welter (petitioners) bought an existing go-cart track, known as Millbridge Speedway (the speedway), as an investment in 1989. The speedway was built prior to the adoption of the zoning ordinance. Under the zoning ordinance, the speedway location was zoned rural agricultural. The speedway, therefore, became a nonconforming use under the zoning ordinance. Go-cart tracks are not specifically defined under the zoning ordinance but are covered under \u201camusement and recreational services\u201d in the zoning ordinance. Article VII, Section 8, of the zoning ordinance provides that nonconforming uses \u201cleft vacant, abandoned or discontinued for a period of 360 days shall only be re-established as a conforming use.\u201d \u201cDiscontinue\u201d is defined in the zoning ordinance as \u201cto stop or cease the use of a property.\u201d\nIn the spring of 1999, a tenant of the speedway left the premises damaged and unoccupied. Petitioners could not find an acceptable tenant for the summer of 1999. In the fall, a tenant agreed to lease the speedway if it was repaired. A lease was prepared covering the term from September 1999 to August 2002. The damage to the track was extensive and between December 1999 and the fall of 2000 petitioners paid for equipment, floodlights, cement work, scales, a new 7,000 gallon water tank, fencing, a public address system and plumbing, welding, and electrical services. Petitioner Allen Welter and others worked on weekends making the necessary repairs, which totaled approximately $30,000.00. Petitioner Allen Welter and the tenant testified that while the speedway was being repaired, the tenant, his family and about thirty friends, as well as petitioners and petitioners\u2019 grandchildren, practiced racing on the speedway. The two further testified that they held private races and \u201cplayed\u201d around on the speedway with go-carts. These were not public events. No other events, for which tickets were sold and which were open to the public, were held during this period. The tenant paid rent until it became clear the speedway would not be ready for the summer 2000 season.\nResidents living near the speedway contacted the zoning administrator, Marion Lytle (Lytle), in 2000 to discuss prohibiting reopening of the speedway. These residents sent letters to Lytle stating that the last races at the speedway were in 1999. Petitioner Barbara Welter met with Lytle on 30 January 2001. She agreed no races were held in the summer of 2000, but she presented numerous receipts for work done on the speedway during 2000. Lytle sent a letter to petitioners on 26 February 2001, stating that race tracks, including go-cart race tracks, were not a permitted use in a residential agricultural district. Lytle concluded in the letter that \u201cthe property discontinued its regular use as a public go-kart speedway for a period of greater than 360 days\u201d and could no longer be used as a \u201cpublic speedway.\u201d (emphasis added).\nPetitioners appealed Lytle\u2019s decision to the Rowan County Zoning Board of Adjustment (Board of Adjustment). Following a hearing, the Board of Adjustment upheld Lytle\u2019s decision. Petitioners filed a petition for a writ of certiorari with the superior court dated 21 May 2001. The superior court entered an amended order dated 5 November 2001 finding that the Board of Adjustment\u2019s decision lacked sufficient findings of fact for the court to review. The superior court remanded the matter to the Board of Adjustment and allowed petitioners to amend their pleadings. The Board of Adjustment made findings of fact that there was conflicting evidence about whether racing had occurred at the speedway since 1999 and entered a new order upholding Lytle\u2019s decision on 19 November 2001. The Board of Adjustment based its decision on the fact that no admission fees had been collected for more than 360 days. Petitioners filed an amended petition for writ of certiorari dated 14 February 2002 and respondents filed an amended answer on 20 February 2002. The superior court entered an order dated 2 May 2002 affirming the Board of Adjustment\u2019s decision.\nPetitioners first argue that the superior court did not employ the appropriate standard of review of the Board of Adjustment\u2019s decision. Specifically, petitioners argue the Board of Adjustment considered only collection of admission fees by petitioners to determine whether petitioners had discontinued their use of the speedway.\nOur Supreme Court has stated that\nthe task of a court reviewing a decision on an application for a conditional use permit made by a town board sitting as a quasi-judicial body includes:\n(1) Reviewing the record for errors in law,\n(2) Insuring that procedures specified by law in both statute and ordinance are followed,\n(3) Insuring that appropriate due process rights of a petitioner are protected including the right to offer evidence, cross-examine witnesses, and inspect documents,\n(4) Insuring that decisions of town boards are supported by competent, material and substantial evidence in the whole record, and\n(5) Insuring that decisions are not arbitrary and capricious.\nConcrete Co. v. Board of Commissioners, 299 N.C. 620, 626, 265 S.E.2d 379, 383 (1980).\nWhere the appealing party contends that the decision was unsupported by the evidence or was arbitrary and capricious, the trial court applies the \u201c \u2018whole record\u2019 \u201d test. In re Appeal of Willis, 129 N.C. App. 499, 501, 500 S.E.2d 723, 725 (1998) (citations omitted). \u201cThe \u2018whole record\u2019 test requires the reviewing court to examine all competent evidence (the \u2018whole record\u2019) in order to determine whether the agency decision is supported by \u2018substantial evidence.\u2019 \u201d Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994) (citation omitted). \u201cThe \u2018whole record\u2019 test does not allow the reviewing court to replace the Board\u2019s judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo.\u201d Thompson v. Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977) (citation omitted).\nHowever, if the appealing party contends the decision was based on an error of law, the trial court employs a de novo review. Willis, 129 N.C. App. at 501, 500 S.E.2d at 725 (citations omitted). \u201cUnder a de novo review, the superior court \u2018considers] the matter anew[] and freely substitutes] its own judgment for the agency\u2019s judgment.\u2019 \u201d Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002) (quoting Sutton v. N.C. Dep\u2019t of Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 341 (1999)). \u201cMoreover, \u2018[t]he trial court, when sitting as an appellate court to review a [decision of a quasi-judicial body], must set forth sufficient information in its order to reveal the scope of review utilized and the application of that review.\u2019 \u201d Sun Suites Holdings, LLC v. Board of Aldermen of Town of Garner, 139 N.C. App. 269, 272, 533 S.E.2d 525, 528, disc. review denied, 353 N.C. 280, 546 S.E.2d 397 (2000) (quoting Sutton, 132 N.C. App. at 389, 511 S.E.2d at 342).\nWhen our Court reviews the decision of a trial court reviewing an agency decision,\n\u201cthe appellate court examines the trial court\u2019s order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.\u201d\nMann Media, Inc., 356 N.C. at 14, 565 S.E.2d at 18 (citations omitted).\nWe now consider whether the superior court employed the appropriate standard of review and, if so, whether it applied that standard properly. Questions involving the interpretation of an ordinance are questions of law. Capricorn Equity Corp. v. Town of Chapel Hill, 334 N.C. 132, 136-37, 431 S.E.2d 183, 186-87 (1993). Thus, the superior court should have applied de novo review to the Board of Adjustment\u2019s alleged misinterpretation of the ordinance. Id. As discussed above, the superior court \u201c \u2018must set forth sufficient information in its order to reveal the scope of review utilized and the application of that review.\u2019 \u201d Sun Suites Holdings, LLC, 139 N.C. App. at 272, 533 S.E.2d at 528 (quoting Sutton, 132 N.C. App. at 389, 511 S.E.2d at 342). The superior court, in affirming the Board of Adjustment\u2019s decision, made the following pertinent findings:\n2) That the Rowan County Zoning Board of Adjustment made findings of fact pursuant to said Order, finding that the Petitioner\u2019s facility in question, to wit; Millbridge Speedway, was discontinued as public speedway for a period of more than 360 days, further finding that th.e term \u201cdiscontinue\u201d is defined in Article II, of the Rowan County Zoning Ordinance as \u201cto stop or cease the regular use of the property\u201d, citing supporting testimony by various individuals who lived in the vicinity of Millbridge Speedway; . . .\n4) That the Rowan County Zoning Board of Adjustment further concurred with the ruling of Zoning Administrator that Millbridge Speedway had discontinued its regular use as a public speedway for greater than 360 days and that its use as a speedway is not permitted unless the property is rezoned to a classification which allows this use.\n5) That this Court finds that the findings of fact and decisions of the Rowan County Zoning Board of Adjustment as above set forth were fully supported by competent, material and substantial evidence in the record filed with this Court pursuant to the Writ of Certiorari.\nReview of the superior court\u2019s order shows the superior court did not employ the required de novo review of the Board of Adjustment\u2019s interpretation of the zoning ordinance, specifically in determining the meaning of the terms \u201cdiscontinued use\u201d and \u201cuse\u201d in the ordinance as they relate to the present proceedings.\nBased on a recent line of cases, instead of remanding such a case to the superior court for exercise of the proper de novo review of the zoning ordinance\u2019s interpretation, \u201can appellate court\u2019s obligation to review a superior court order for errors of law . . . can be accomplished by addressing the dispositive issue(s) before the agency and the superior court without examining the scope of review utilized by the superior court.\u201d Eastern Outdoor, Inc. v. Board of Adjust. of Johnston Cty., 150 N.C. App. 516, 519, 564 S.E.2d 78, 80-81 (2002), appeal dismissed, 356 N.C. 670, 577 S.E.2d 116 (2003) (emphasis added) (quoting Capital Outdoor, Inc. v. Guilford Cty. Bd. of Adjust., 146 N.C. App. 388, 392, 552 S.E.2d 265, 268 (2001) (Greene, J. dissenting)). Since our Supreme Court reversed this Court\u2019s decision in Capital Outdoor, Inc., adopting Judge Greene\u2019s dissent in a per curiam decision, 355 N.C. 269, 559 S.E.2d 547 (2002), our Court has addressed the dispositive issues before our Court in several recent opinions, despite the failure of the superior court to conduct the appropriate review or specify the review it was conducting of the administrative board\u2019s decision. See, e.g., N.C. Dep\u2019t of Health & Human Servs. v. Maxwell, 156 N.C. App. 260, 262-63, 576 S.E.2d 688, 690-91 (2003); Shackleford-Moten v. Lenoir Cty. DSS, 155 N.C. App. 568, 572-73, 573 S.E.2d 767, 770 (2002), disc. review denied, 357 N.C. 252, 582 S.E.2d 609 (2003); Sack v. N.C. State Univ., 155 N.C. App. 484, 492, 574 S.E.2d 120, 127-28 (2002); and Eastern Outdoor, Inc., 150 N.C. App. at 519, 564 S.E.2d at 80-81.\nHowever, in the present case there are two problems with taking such an approach. First, it is not clear that all of the sections of the zoning ordinance necessary for a proper interpretation of the relevant portions of the ordinance are included in the record. Second, interpretation by our Court of the portions of the zoning ordinance at issue in this case would not necessarily be dispositive of the case given the need for further findings of fact. In each of the cases cited above, our Court only addressed the underlying issue when all of the necessary facts and evidence were before us, and when by doing so, we would dispose of the case. See, e.g., Sack, 155 N.C. App. at 493, 574 S.E.2d at 127-28 (\u201c \u2018[w]e do not believe a remand is necessary, however, because . . . the entire record of the hearing is before us.\u2019 \u201d) (citation omitted).\nFirst, as noted above, our Court has only engaged in the review announced in Capital Outdoor, Inc. when all of the necessary facts and evidence were before us. We note that in the present case, while the parties have included some sections of the zoning ordinance in the record, other sections which may impact the proper interpretation of the zoning ordinance are not included. The sections of the zoning ordinance included in the record do not provide guidance on the zoning ordinance\u2019s specific application to race tracks. While it is not necessary that an entire zoning ordinance be in the record if all relevant portions are present, the piecemeal fashion in which the zoning ordinance is included in the record before us, with no method for determining whether the omitted portions are relevant for our interpretation, dissuades this Court from interpreting the ordinance at this stage.\nSecond, even if we interpreted the meaning of the terms \u201cuse\u201d and \u201cdiscontinued use\u201d in the context of the speedway in the present case, without having the benefit of possibly relevant sections of the zoning ordinance in the record, such interpretation would not necessarily be dispositive of the case. In Lytle\u2019s letter to petitioners, he concluded that the \u201cuse\u201d in this particular case was for a \u201cpublic speedway.\u201d (emphasis added). However, Lytle\u2019s letter begins with a different definition of \u201cuse\u201d in the present case, stating that go-cart racing in general is \u201cnot a permitted use in the RA district and therefore the speedway is a non-conforming situation.\u201d This statement focuses on racing of go-carts on the track, while Lytle\u2019s conclusion in the letter that the speedway had ceased to be used as a \u201cpublic go-kart speedway\u201d focused on the fact that the track had not been open to the public and there had been no selling of tickets. The Board of Adjustment upheld Lytle\u2019s decision, focusing on the fact that the speedway \u201cwas not operated as a commercial operation, i.e., no money was collected for admission fees, etc.,\u201d and that the speedway was not open to the public for 360 days, \u201cconstitut[ing] activities at the track as a private, not a commercial operation.\u201d This basis for the Board of Adjustment\u2019s decision could result in the speedway\u2019s continued use for racing go-carts, as long as there was no payment by the public for tickets to enter and watch such races.\nAnother possible interpretation of the word \u201cuse\u201d as it applies to the speedway, which was indicated in Lytle\u2019s letter to petitioners, focuses on the racing of go-carts on the track, regardless of whether or not tickets are sold. If this latter interpretation were adopted, the case would not be disposed of because there is still an issue of fact as to whether any go-cart racing occurred during the 360 days preceding Lytle\u2019s original decision. Although the superior court previously remanded the case to the Board of Adjustment for findings of fact to support its first decision, the findings submitted by the Board of Adjustment in response to this request do not include sufficient findings of fact on this issue. In response to the superior court\u2019s instructions, the Board of Adjustment stated, in pertinent part, as follows:\nSubstantial evidence presented in support of the zoning administrator\u2019s ruling includes the following:\n(a) Testimony by Jackie and Danny Shaw who reside approximately 1/8 of a mile from the track that the last race held at the track was prior to May 1999.\n(b) Testimony by Mr. O.L. Beaver.. . that no racing had occurred since spring of 1999.\n(c) Testimony by Mr. Allen Welter that no racing occurred in the Summer of 1999 and a year was spent upgrading the track.\n(d) Testimony by Mr. Glen Chapman that racing occurred in March 2000 and occurred while the trac[k] was closed.\n(e) Testimony by Marion Lytle that the track had discontinued use as a public go-cart track because it was not operated as a commercial operation, i.e., no money was collected for admission fees, etc.\nNone of these statements are proper findings of fact in that they merely recite that there was testimony as to each of the above contentions, but do not find the facts. Williamson v. Williamson, 140 N.C. App. 362, 364, 536 S.E.2d 337, 339 (2000) (noting that \u201cmere recitations of the evidence\u201d are not the ultimate findings required, and \u201cdo not reflect the processes of logical reasoning\u201d required) (citation omitted); Dunlap v. Clarke Checks, Inc., 92 N.C. App. 581, 584, 375 S.E.2d 171, 174 (1989) (\u201cFindings of fact that merely restate a party\u2019s contentions or testimony without finding the facts in dispute are not adequate. It is the duty of the fact finder to resolve conflicting evidence.\u201d) (citing Wall v. Timberlake, 272 N.C. 731, 158 S.E.2d 780 (1968)). Secondly, even if each statement was considered an appropriate finding of fact, there is a direct contradiction between a finding (1) that there were no races run at the track and (2) that there was racing conducted at the track. That contradiction must be resolved by the Board of Adjustment.\nIn the present case, where the superior court failed to exercise the appropriate standard of review of an administrative board\u2019s decision and where we cannot dispose of the case by resolving the issue ourselves, we appropriately remand the case to the trial court. We therefore remand this case to the superior court for proper review of the Board of Adjustment\u2019s interpretation of the zoning ordinance. We thus need not address petitioners\u2019 remaining assignments of error.\nReversed and remanded.\nJudges MCCULLOUGH and LEVINSON concur.\n. We note that in several of the documents in the record, both the Board of Acjjustment and the zoning administrator defined \u201cdiscontinue\u201d as to \u201cstop or cease the regular use of the property.\u201d However, the clear terms of the zoning ordinance do not include the modifier \u201cregular\u201d in its definition of \u201cdiscontinue.\u201d\n. We note that the record does not include the section of the zoning ordinance that may provide the definition for the term \u201cnon-conforming situation.\u201d", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Jonathan S. Williams; and Ketner & Associates, by John W. (Jay) Dees, II, for petitioners-appellants.", "The Holshouser Law Firm, by John L. Holshouser, Jr., for respondents-appellees." ], "corrections": "", "head_matter": "ALLEN WELTER and wife, BARBARA WELTER, Petitioners-Appellants v. ROWAN COUNTY BOARD OF COMMISSIONERS; ROWAN COUNTY ZONING BOARD OF ADJUSTMENT; and MARION LYTLE, Individually, Respondents-Appellees\nNo. COA02-1048\n(Filed 16 September 2003)\nZoning\u2014 non-conforming use \u2014 meaning of discontinued use\u2014 judicial review\nWhether a non-conforming go-cart track discontinued the non-conforming use during a lengthy period of repairs was remanded to the superior court for further review. The superior court should have exercised a de novo review of the ordinance\u2019s meaning of \u201cdiscontinued use,\u201d and the case could not be disposed of by the Court of Appeals because the record was incomplete and further findings were required.\nAppeal by petitioners from order dated 2 May 2002 by Judge Larry G. Ford in Superior Court, Rowan County. Heard in the Court of Appeals 17 April 2003.\nJonathan S. Williams; and Ketner & Associates, by John W. (Jay) Dees, II, for petitioners-appellants.\nThe Holshouser Law Firm, by John L. Holshouser, Jr., for respondents-appellees." }, "file_name": "0358-01", "first_page_order": 388, "last_page_order": 396 }