Posted by: Patricia Salkin | February 1, 2014

NC Appeals Court Reverses Special Use Permit Denial for Cell Tower Finding Board Did Not Base Denial on Substantial, Competent and Factual Evidence

Blair Investors, LLC, (“petitioner”), leased a site in the City of Roanoke Rapids (“Roanoke Rapids” “respondent”), North Carolina, to U.S. Cellular, which planned to install a cell phone tower. The property was zoned I-1 Industrial, a zoning category that allowed placement of a cellular phone tower upon granting of a special use permit. Petitioner had submitted an application to the Planning and Development Department (“planning department”) for a permit for construction. The planning department submitted a report to the City Council (“council”) recommending approval. The council held a public hearing where testimony was offered by the planning department and by several residents. The council denied the permit on the grounds that “more probably than not” the tower would “endanger the public health or safety” and would “not be in harmony with the surrounding area. Petitioner appealed, the trial court affirmed and petitioner appealed again.

On appeal, petitioner contended that the relevant evidence did not support the ruling. The court agreed stating, that when an applicant for a conditional use permit produces competent, material, and substantial evidence of compliance with all ordinance requirements, the applicant has made a prima facie showing of entitlement to a permit. Substantial, competent, material evidence is evidence that is admissible, relevant to the issues in dispute, and sufficient to support the decision of a reasonable fact-finder. Here, the planning department’s report concluded that if completed as proposed the tower “more probably than not”
(a) Would not materially endanger the public health or safety.
(b) Would not substantially injure the value of the adjoining or abutting property.
(c) Would be in harmony with the area in which it is to be located.
(d) The use will be in general conformity with the Comprehensive Development Plan, Thoroughfare Plan, or other plan officially adopted by the City Council.

Also, petitioner’s application included an affidavit of a radiofrequency engineer averring that the tower would “comply with FCC and FAA rules concerning construction requirements, safety standards, interference protection, power and height limitations, and radio frequency standards,” and that it would “not interfere with any other radio devices and would “not interfere with any household products. It was also established that the tower met the requirements of the National Environmental Policy Act in that it would not adversely affect any endangered species, critical habitats, or historic properties; would not affect American Indian religious sites; would not involve any significant change in wetland fill, deforestation, or water diversion; was not located in a 100 year flood plain; and would not threaten human exposure to levels of radiofrequency radiation.

The court agreed with the petitioner that it made a prima facie showing that it was entitled to a special use permit and that the report in conjunction with testimony, constituted competent, material, and substantial evidence tending to establish the existence of the facts and conditions which the ordinance required for the issuance of a special use permit. Once an applicant makes a prima facie showing the burden of establishing that the approval of a conditional use permit would endanger the public health, safety, and welfare falls upon those who oppose the issuance of the permit. Denial must be based upon findings, which are supported by competent, material, and substantial evidence appearing in the record. The denial of a conditional use permit may not be based on conclusions, which are speculative, sentimental, personal, vague, or merely an excuse to prohibit the requested use. Here, the only evidence offered in opposition to issuance of the special use permit consisted of comments by several residents, which were entirely of speculative opinions, unsupported by any documentary or testimonial evidence, or of statements informing the council that the speaker had a question or a “concern” about a particular issue.

Petitioner’s application was denied on the grounds that the tower would more probably than not “materially endanger the public health or safety” and that it was “not in harmony with the area in which it is to be located.” However, no evidence was introduced that was competent or material on either the health and safety implications of the tower or whether it would be in harmony with the surrounding area. Therefore, the court held that the denial of the application was not supported by substantial, material, and competent evidence. The court concluded that petitioner made a prima facie case that it was entitled to a special use permit and the council’s denial of the application was not supported by competent, material, and substantial evidence, the trial court erred by affirming the city council’s decision. Therefore, the court reversed and remanded to the council with instructions to grant petitioner’s application for a special use permit.

Blair Invs., LLC v. Roanoke Rapids City Council, 2013 WL 6623348 (NC App. 12/ 17/2013)

The opinion can be accessed at: http://scholar.google.com/scholar_case?case=1914618199337357772&hl=en&as_sdt=6&as_vis=1&oi=scholarr


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