Ad/Mor v. Town of Southern Pines

Court of Appeals of North Carolina

Ad/Mor v. Town of Southern Pines

363 S.E.2d 220, 88 N.C. App. 400, 1988 N.C. App. LEXIS 1

CourtCourt of Appeals of North Carolina

DecidedJanuary 5, 1988

DocketNo. 8720SC465

StatusPublished

Cited by1 cases

This text of 363 S.E.2d 220 (Ad/Mor v. Town of Southern Pines) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ad/Mor v. Town of Southern Pines, 363 S.E.2d 220, 88 N.C. App. 400, 1988 N.C. App. LEXIS 1 (N.C. Ct. App. 1988).

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Opinion

EAGLES, Judge.

The sole issue here is whether the trial court erred in dismissing the petition for writ of certiorari as being untimely filed. G.S. 160A-388(e) provides, in relevant part, that “[e]very decision of the board [of adjustment] shall be subject to review by the superior court by proceedings in the nature of certiorari.” The statute, however, requires that petitions for certiorari be filed in superior court “within 30 days after the decision of the board is filed in such office as the ordinance specifies, or after a written copy thereof is delivered to every aggrieved party . . . whichever is later.” Id. While the trial court found that the notice of the board’s decision was received over 30 days before the petition for writ of certiorari was filed, it did not address the question of when the decision was filed with the office specified in the ordinance. Consequently, we must remand this case for additional findings.

Where the trial court makes findings of fact, they must be sufficient to support the judgment. Rock v. Ballou, 286 N.C. 99, [402]*402209 S.E. 2d 476 (1974). When findings on matters material to the dispute are not made, the case must be remanded for those findings. Id. G.S. 160A-388(e) clearly gives the petitioners 30 days after the later of delivery of the board’s decision to petitioners or the filing of the decision with the office specified in the ordinance, within which to petition for certiorari. When the decision was filed in the appropriate office is a question of fact, the resolution of which is essential to determine whether petitioners are entitled to judicial review. Although petitioners presented some evidence that the decision was not properly filed until, or after, 31 July 1986, the trial court made no findings addressing the issue of when the decision was filed. Therefore, we must remand for findings on that question and any appropriate modification of the order denying the petition for certiorari.

Reversed and remanded.

Judges Martin and Parker concur. Judge Martin concurred in this opinion prior to 31 December 1987.

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EAGLES, Judge.

The sole issue here is whether the trial court erred in dismissing the petition for writ of certiorari as being untimely filed. G.S. 160A-388(e) provides, in relevant part, that “[e]very decision of the board [of adjustment] shall be subject to review by the superior court by proceedings in the nature of certiorari.” The statute, however, requires that petitions for certiorari be filed in superior court “within 30 days after the decision of the board is filed in such office as the ordinance specifies, or after a written copy thereof is delivered to every aggrieved party . . . whichever is later.” Id. While the trial court found that the notice of the board’s decision was received over 30 days before the petition for writ of certiorari was filed, it did not address the question of when the decision was filed with the office specified in the ordinance. Consequently, we must remand this case for additional findings.

Where the trial court makes findings of fact, they must be sufficient to support the judgment. Rock v. Ballou, 286 N.C. 99, [402]*402209 S.E. 2d 476 (1974). When findings on matters material to the dispute are not made, the case must be remanded for those findings. Id. G.S. 160A-388(e) clearly gives the petitioners 30 days after the later of delivery of the board’s decision to petitioners or the filing of the decision with the office specified in the ordinance, within which to petition for certiorari. When the decision was filed in the appropriate office is a question of fact, the resolution of which is essential to determine whether petitioners are entitled to judicial review. Although petitioners presented some evidence that the decision was not properly filed until, or after, 31 July 1986, the trial court made no findings addressing the issue of when the decision was filed. Therefore, we must remand for findings on that question and any appropriate modification of the order denying the petition for certiorari.

Reversed and remanded.

Judges Martin and Parker concur. Judge Martin concurred in this opinion prior to 31 December 1987.

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363 S.E.2d 220, 88 N.C. App. 400, 1988 N.C. App. LEXIS 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/admor-v-town-of-southern-pines-ncctapp-1988.

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