Posted by: Patricia Salkin | December 6, 2019

NC Appeals Court Grant of Conditional Use Permit to Carolina Beach Development Company Permit Without Interconnectivity

This post was authored by Matthew Loeser, Esq.

This case arose from a zoning decision by the Town of Carolina Beach, which approved a conditional use permit for respondent Carolina Beach Development Company, LLC (“CBDC”) to develop a Publix grocery store in a shopping center owned by respondent Wilmington Holding Company (“WHC”). This decision affected the adjacent commercial parcel owned by petitioner Jubilee Carolina, LLC, which had been granted a conditional use permit to construct a Harris Teeter grocery store on its property. The Town Council approved Jubilee’s site plan with interconnectivity to common access points between WHC’s property and Jubilee’s property for vehicular traffic; however, the Town Council approved CBDC’s conditional use permit but did not adopt the recommendation to include interconnectivity to Jubilee’s property (“CBDC Permit”). Specifically, the CBDC found that interconnectivity was not required under the Town’s ordinance.

Following the Town Council’s decision, Jubilee filed a petition for writ of certiorari before the New Hanover County Superior Court seeking review of the decision to grant the CBDC Permit. In its petition, Jubilee asserted that the Town acted arbitrarily and capriciously, that the decision was not supported by substantial evidence, and that Jubilee had a statutory vested right to interconnectivity in its conditional use permit. The Superior Court held that Jubilee’s vested rights argument was not properly before it, and upheld the decision to grant the CBDC Permit without interconnectivity.

On appeal, the court first found that since the decision to grant the CBDC Permit never addressed whether Jubilee acquired a statutory vested right, it was improper for Jubilee to assert the issue for the first time before the superior court, as the review was limited to errors of law.

Jubilee contended that the superior court erred in affirming the Town’s decision to grant the CBDC Permit because the findings of fact were not supported by substantial evidence and the Town Council’s decision was arbitrary and capricious. Here, the record reflected in both the transcript and in the video recording of these proceedings that the decision of the board was the result of a deliberative process and that consideration was given to the arguments made by Jubilee regarding interconnectivity. As such, the decision was not found to be arbitrary or capricious. Furthermore, there was no evidence presented that any member had a fixed opinion prior to the hearing that was not susceptible to change. Accordingly, the court affirmed the holding of the superior court.

Jubilee Carolina, LLC v Town of Carolina Beach, 2019 WL 5206274 (NC App. 10/15/2019)

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