Posted by: Patricia Salkin | August 5, 2014

NC Court Of Appeals Finds Trial Court Improperly Acted As Trier of Fact By Concluding That Board Considered the Wrong Area for Medical Clinic

Developer sought judicial review of decision of town’s Board of Adjustment denying developer’s application for special use permit to build medical clinic on parcel zoned for single-family residential use. On remand, the Board again denied Templeton’s application for a special use permit. The Board made twenty-one findings of fact relating to the proposed clinic’s lack of harmony within the order. On 6 November 2012, Templeton appealed the denial of its application to the Watauga County Superior Court, which entered an order reversing the Board’s denial of Templeton’s application.

The superior court found the Board’s findings on lack of harmony generally and impermissibly cite impacts that are inherent in the nature of the proposed use. The court discussed that, as matter of law, a board of adjustment cannot deny an application for lack of harmony on the basis that a use deemed conditionally permissible by the local legislative body would produce impacts common to all such uses. The court held that to allow such a decision would empower the board to substitute its judgment for that of the elected governing body. The court further found that all of the Board’s findings in this case were of that nature, and as a matter of law do not support the Board’s conclusion that the proposed use would not be in harmony with the area in which it is to be located.

The appeals court found that court below improperly acted as a finder of fact on review and imposed its own view of what the bounded “area” should be, rather than reviewing whether the Board’s findings of fact concerning the area were supported by competent evidence and not arbitrary and capricious. The superior court held that the fact-specific definition of “area” as used by the Board should have included “similarly situated” properties that are “in reasonable proximity to the subject site.” “In proceedings of this nature, the superior court is not the trier of fact. Such is the function of the town board.” Coastal Ready–Mix Concrete Co., Inc., 299 N.C. at 626, 265 S.E.2d at 383. Thus, the Court of Appeals held that if findings of fact about the “area” affected here were supported by evidence, they must stand even if conflicting evidence may have allowed the superior court to reach a different result under de novo review. By improperly acting as a trier of fact, the superior court erred and was therefore reversed.

Templeton Properties, LP v Town of Boone, 759 S.E. 2d 311 (NC App. 6/3/2014)

The opinion can be accessed at:

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