American Towers sought to construct a communication tower in the industrial management zone district. In this zone district, communication towers are permitted by way of special use permit. To obtain a special use permit, the party must submit an application and satisfy six general requirements and twenty additional tower related requirements. Upon review, Morrisville denied the application, finding the applicant did not meet three of the general requirements and one of the additional requirements. Specifically, Morrisville found the applicant failed to demonstrate that it was in harmony with the neighborhood, conformed to the comprehensive plan, and would not substantially devalue adjacent lots. Furthermore, Morrisville found the tower failed for aesthetic concerns.
Upon appeal, the petitioner alleged that Morrisville erred in finding the application did not provide “competent, material, and substantial evidence” in support of the requirements. The court provided that this type of challenge required a de novo review of the evidence, as this appeal concerned a question of law. If the court finds the petitioner satisfied the “competent, material, and substantial evidence” standard, the petitioner is prima facie entitled to the permit.
The court first addressed the in harmony with the neighborhood requirement. The court provided that if a use is permitted as conditional within a zone district, this satisfies the prima facie showing that it is in harmony. Since a tower is permitted as a special use in the industrial management district, the court found the tower was in harmony with the neighborhood. Similarly, the court provided that where a zone district is created, and a use is permissible in that district, whether by permit or not, there has been a prima facie showing that the use conforms to the comprehensive plan. Thus, the court found the tower was in conformity with the comprehensive plan, as the industrial management district was created and permits the use. Morrisville contended that the tower did not conform to the comprehensive plan because the subject parcel may be rezoned to residential in the future. The court disagreed with Morrisville, stating that the zoning designation at the time of the application is what matters.
Next, the Court of Appeals addressed the third general requirement leading to denial, whether the special use permit would substantially devalue adjacent properties. The petitioner had submitted an expert’s analysis, which provided there would be not substantial devaluing. Morrisville found the expert’s submission deficient on four fronts: “1) the report was not benchmarked against other developments or against the market in general, 2) in the two subdivisions studied by Mr. Smith the cell tower was in place before the neighboring homes were built. (as opposed to the case at hand here), 3) the report did not attempt to study the effect of possible devaluation of property, and 4) the report did not take into account any potential loss of value due to the loss of ‘curb appeal’ with the tower rising above the adjoining residential neighborhood.” Based upon prior precedent, the court was bound to find these methodology deficiencies sufficient for Morrisville to base their denial. Given the failure of the petitioner to meet this general requirement for approval, the Court of Appeals of North Carolina found the petitioner did not meet their burden, and affirmed the denial of the special use permit.
American Towers v. Morrisville, 2012 WL 3791396 (N.C. Ct. App., Sept. 4, 2012)
The opinion is available here.