Law is not unlike archery.  You can hit the bullseye, the third ring, or miss the target altogether.  In my recent post on the Morrisville cell tower case (American Tower v. Town of Morrisville) I thought I had hit the bullseye.

             Subsequently, comments from and discussion with members of the land use bar suggest that my arrow hit close to center but not as close as I had thought.  Allow me to revise my comments.

             The American Tower case offered excellent commentary on an applicant’s duty to make a prima facie case on each standard where the applicant has the burden of proof.  Once an applicant has made a prima facie case on a standard, the burden then shifts to opponents to demonstrate through competent, material and substantial evidence how the applicant has failed to meet the standard.  The Court of Appeals upheld the town council’s finding that American Tower failed to make a prima facie case that the tower would not substantially injure the value of adjoining properties.

            The court relied on a 12 year-old case (SBA v. Asheville) to support the council’s position.  I demurred, arguing 1) that G.S. 160A-393(k) is a statutory override of SBA because itproclaims that opinions of lay witnesses are not competent evidence on how a particular use of land affects the value of adjoining properties, and 2) evidence from an appraiser with MAI credentials should, as a matter of law, constitute a prima facie case.

             Comments on the post from other attorneys have been varied, but none as spirited as my law firm colleague, Dave Neill, who argues that the Board always retains power to decide whether an expert’s evidence is competent, material or substantial.  For example, in this case, the appraiser could have studied stealth towers imperceptible to passersby rather than 200 foot monopoles or lattice towers seen from two neighborhoods away. In such cases the board could have found that his study did not meet basic materiality (relevancy) standards.  And there are other examples, but you get the drift.

             I agree with Dave.  An appraiser’s study should not be considered the establishment of a prima facie case as a matter of law.

             However, as Dave and I agree, a board must be able to identify and articulate with a degree of specificity why such expert’s report is not competent, material or substantial.  If it cannot, then its decision can be challenged as arbitrary and capricious.

             In the present case, I still arrive at the same conclusion as to this appraisal.  An appraiser with MAI credentials is analogous to a chemistry professor with a PhD or a board-certified physician giving his or her opinion on a matter within their field of expertise.

             In SBA, the appraiser studied subdivisions across town, but the city council concluded – based upon what, we don’t know – that a study of a tower closer to the subject property might have produced a different result.  The case provides no reasons cited by the council for concluding that sales of homes adjacent to cell towers are different in one part of town than another.

             The American Tower appraiser studied sales in subdivisions surrounding two other towers within the same county and concluded that the tower had no appreciable impact on values.  An appraiser need not look separately at issues such as curb appeal or whether the tower was there first because home buyers themselves are presumed to consider such factors.  If they did consider such factors, and the factors weighed negatively, comparable sales would reflect those facts.

             To gain better insight, I reached out to my colleagues at Nexsen Pruet who represented American Tower.  Assuming that their recollections are accurate (a point I do not doubt) the council asked the appraiser whether he had considered “curb appeal” as a factor, and his answer was that no appraiser could do that because curb appeal is too subjective to quantify other than through an objective study of comparable sales in neighborhoods with and without towers.

             Thus, the only evidence before the board on that technical point was that curb appeal was not a factor which could have been isolated. 

             As to whether it could be relevant that a tower was built before or after a subdivision was constructed, I’ll give you the answer since they could not recall for sure if the question was asked by the board.  And the answer is that it makes zero difference.  Why?  Because in both cases the question is narrowed to sales after a tower has been constructed.

             I’m reminded of the common retort I heard around the house during my sons’ teenage years: “Well DUH!!”

             The town council also dismissed the appraiser’s report because he “did not attempt to study the effect of possible devaluation of property” (whatever that means) and because he did not benchmark it against the market in general.

             The “effect of possible devaluation of property” is a non-starter because it is not within the standard listed in the zoning ordinance.  And if an MAI appraiser says that his study is sufficient to enable to him draw the conclusion that the use will not substantially injure the value of adjoining properties, it makes no difference if the board wants more or different analyses.  The board should be able to point to evidence from another expert that such factors should have been considered in order for the original appraisal to be deemed insufficient.  The board’s own personal preferences should not be sufficient.

             Was there such expertise available to the town council?  No.  Were there other experts providing testimony? Yes. 

             The city’s own consultant, Rick Edwards, of CityScapes, recommended that the tower be approved. I’ve been in several hearings where Rick was advising the government on my client’s request.  I found him to be reasonable and professional in every case.

 Sorry for the Blog’s Absence!

             This past Thursday I was a guest speaker at the annual meeting of the NC Institute of Transportation Engineers (it might sound boring to you, but it’s a great group with interesting topics) where I bumped into several friends and professional acquaintances.  I was hardly in the door when someone asked why I had not posted on my blog in a while.

             Trust me.  There’s no question that can be taken as a kinder compliment.

             I explained that I’ve been in some pretty intense litigation since August on various matters across the state, and my energy reserves have been shallow.

            So, coming up: A short post on the election’s impact on the telecommunications industry, another post on the prima facie case, and “Lanvale,” one of the most important land use cases this year.  And if another case comes out of the Court of Appeals in the meantime I’ll try to slip it in.  I have three of my own cases pending now.  Win or lose, I’ll comment and interpret.

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