The petitioner’s sketch plan for a residential subdivision of 102 homes on 52.43 acres was approved by the planning board.  The preliminary plan was then submitted and revised twice in response to staff comments, after which the planning board unanimously denied the application.  On appeal to the Town Council, the application was also denied based on concerns over traffic and overcrowding in the schools. The Council also noted that the applicant failed to show that additional students would not adversely affect the stability, environment, health and character of the neighboring area.  On appeal to the trial court, the Council’s decision was reversed and the Court remanded for a new hearing finding that the applicant complied with the objective technical and engineering standards set forth by the Town and that the denial was based on subjective requirements which did not provide the applicant with sufficient notice of what the Town expected.  The Court also ordered the Town to provide the applicant with any plans in existence at the time the application was filed for public facilities required for the subdivision as well as specific criteria regarding the environmental, health, and character of neighboring areas considered by the Council. 

The Appeals Court agreed with the trial court, finding that substantial and competent evidence did not support either the Council’s determination that the subdivision application did not conform with the school-impact provision of the Town’s subdivision ordinance, nor that the design of the proposed subdivision did not encourage safer and easier flow of traffic. The Court noted with respect to the school impact, that there did not appear to be a policy on file regarding such assessment and that the ordinance did not specifically require a school impact study. Therefore, the Court concluded that the Town Council was without authority to deny a permit on grounds not expressly stated in the ordinance, and its finding that the application did not conform with the ordinance on the basis of school impact was not supported by substantial and competent evidence.  With respect to the traffic concerns, the Court noted that the testimony of the traffic consultant, hired by the planning board, indicated that the additional trips generated by the proposed subdivision would not create any “undue safety problems.”  The Court also commented that the concerns raised by neighbors seemed to be more about potential noise than about safety. 

Addressing the language of the zoning ordinance which provides in part that, “All proposed subdivisions should be planned to facilitate the most advantageous development of the entire neighboring area. In areas with existing development, new subdivisions shall be planned so as to protect and enhance the stability, environment, health and character of the neighboring area…,” the Court found that the criteria “most advantageous development” is vague. Since the Town’s Land Use Plan expressly encourages the development of single family homes in the Town, noting there exists a low percentage of such development, the Court noted that it appears as though a “nearby subdivision” would be advantageous development. The Court also disagreed with the Town’s finding that the Nearby Subdivision did not comport with the existing plan and policies for subdivisions as outlined in the Town’s Land Use Plan, concluding that the applicant complied with the general and technical requirements of the ordinance. 

Blue Ridge Co., L.L.C. v. Town of Pineville, 2008 WL 302309 (N.C. App. 2/5/2008). 

The opinion can also be accessed at: http://www.aoc.state.nc.us/www/public/coa/opinions/2008/070206-1.htm