In re Incorporation of Indian Hills , 8 N.C. App. 564 ( 1970 )

BrocK, J.

G.S. 160-196 (in effect at the time this proceeding was heard) provides that the area proposed to be incorporated “shall not be a part of nor within three miles of the area included in the limits of any city, town, or incorporated village. . . .”

Although there was pertinent evidence before the Municipal Board of Control, it failed absolutely to make any finding of fact with respect to whether the above quoted portion of the statute was or was not being complied with. One of the crucial contentions and arguments advanced by the Eastern Band of Cherokee Indians before the Board and before the Superior Court was that the area proposed to be incorporated was in fact less than three miles from the community known as “Cherokee”.

Whether “Cherokee” is a city, town, or incorporated village is not sufficiently presented to us upon this record because the Municipal Board of Control failed to make appropriate findings of fact. Also, whether the area proposed to be incorporated lies within three miles of the limits of any city, town, or incorporated village is likewise not sufficiently presented to us upon this record because the Municipal Board of Control failed to make appropriate findings of fact.

The act repealing Article 17, Chapter 160 confers upon the Municipal Board of Control “the power and authority to hear and make a determination of any petition or other matter filed or pending with the Municipal Board of Control prior to June 2, 1969.”

The judgment of the Superior Court is reversed and this cause is remanded with directions that the Order of the Municipal Board of Control be vacated and that the cause be remanded to the Municipal Board of Control for further proceedings according to law.

Reversed and remanded.

BRitt and Graham, JJ., concur.