“In this case, the superior court did not substitute its own judgment for that of the Board’s, but essentially repeated the Board’s findings and summarized the procedural history of the case.”
How later courts described this case
- “In this case, the superior court did not substitute its own judgment for that of the Board’s, but essentially repeated the Board’s findings and summarized the procedural history of the case.”
Written by the judges who cited it.
The opinion
JACKSON, Judge
concurring in a separate opinion.
I concur with the majority’s decision to affirm the instant case. However, with respect to issue I, I believe that we must reiterate to the court below that when a trial court reviews a decision of a municipal board, it does so in the role of an appellate court and may not make additional findings of fact. See 321 News & Video, Inc. v. Zoning Bd. of Adjust. of Gastonia, 174 N.C. App. 186, 188 , 619 S.E.2d 885, 886 (2005). In the instant case, the trial court made several additional findings of fact which were not contained in the Board’s decision, including:'
4. That Charles F. Riggs & Associates, Inc. is a licensed professional land surveyor.
10. That Tucker submitted to the Town of Surf City a survey which was prepared in 1993 by a licensed professional land surveyor John Pierce, which survey conflicted with the recent survey submitted by the Hunters with their application for a building permit. 1
13. That there are three different surveys done by two different licensed professional land surveyors which each show a different property line between the subject property and the *437 adjoining property, and the exact location of the property line cannot be determined.
15. That the cantilever of the residence located on the adjoining property owned by Tucker encroaches two (2) feet within the sideline setback for the subject property.
Although these additional findings of fact are not contrary to the findings of the Board, nor do they alter the outcome of this case, they still are improper. However, as our task is to review the Board’s decision, not that of the superior court, I would hold that the additional findings of fact, while improper, do not affect the ultimate result. See Piney Mt. Neighborhood Assoc. v. Town of Chapel Hill, 63 N.C. App. 244, 257 , 304 S.E.2d 251, 259 (1983) (Court affirmed action made by Town Council even when trial court made additional findings of fact which may have been contrary to those made by the Council, but did not substitute its judgment for that of the Council); cf. Batch v. Town of Chapel Hill, 326 N.C. 1 , 387 S.E.2d 655 (1990) (Court reversed decision of trial court where it made additional findings which were contrary to that of the town council). Therefore, I concur in the majority’s decision to affirm the Order of the Board.
. Bolded text indicates portion of finding that is in addition to findings of the Board.