Please ensure Javascript is enabled for purposes of website accessibility
Home / Courts / Real Property – Zoning – Variance – Riparian Buffer – Scope of Review

Real Property – Zoning – Variance – Riparian Buffer – Scope of Review

Cary Creek Limited Partnership v. Town of Cary. (Lawyers Weekly 10-07-0952, 11 pp.) (John C. Martin, C.J.) Appealed from Wake County Superior Court (Howard E. Manning, J.). N.C. App. Click here for the full text of the opinion.

Holding: Although the trial court was without authority to make independent findings of fact under G.S. § 160A-388(2), in doing so it largely recited uncontroverted evidence, so the error was not prejudicial. The town’s denial of the plaintiff’s variance request was supported by competent, material and substantial evidence.


Cary Creek sought a variance from an ordinance enacted by the town establishing a riparian buffer within which no development could occur. Cary Creek’s tract included two drainage areas that flowed only during wet seasons. The town’s ordinances required 100-foot-wide buffers on either side of all perennial and intermittent streams and 50-foot-wide buffers adjacent to other surface waters.

Cary Creek requested a variance in order to fill the two drainage areas. It had already received approval from the U.S. Army Corps of Engineers and the N.C. Dept. of Environment and Natural Resources. The town voted to deny the variance. The superior court entered a judgment affirming the town’s decision.


Cary Creek argued that the superior court erred by making findings of fact. It also challenged the findings as unsupported by the evidence.

We agree with petitioner that while sitting as an appellate court, the superior court was without authority to make additional findings of fact under G.S. § 160A-388(e2). However, a recitation of largely uncontroverted evidence by a superior court in reviewing a local decision is not prejudicial error.

Here the superior court’s findings recite the council’s findings of fact and synthesize the evidence before the council. The superior court’s inclusion of such findings within its order was not prejudicial error.

Cary Creek argued that the town’s denial of the variance from the riparian buffer requirement was not supported on the record by competent, material and substantial evidence. However, Cary Creek failed to challenge any of the council’s findings as unsupported by competent evidence or to direct the court to relevant pages in the record supporting its contention. It is not the duty of this court to supplement an appellant’s brief with legal authority or arguments not contained therein.

The town’s findings, which served as the basis for its denial of Cary Creek’s variance request, were sufficient to inform this court what induced the town’s decision. Cary Creek’s contention that the town considered matters outside of the evidence and beyond the criteria of the ordinance is also without merit.


Leave a Reply

Your email address will not be published. Required fields are marked *