Just before Christmas the N.C. Court of Appeals issued an opinion that illustrates the necessity of presenting facts to support your case when the board is considering a special or conditional use permit.  Opinions, speculations, conjectures and surmises, the Court properly reminds us, are not evidence.

In Blair Investments, LLC v. Roanoke Rapids, the city council denied a petition from U.S. Cellular to place a cell tower on the petitioner’s property based on findings that the tower would endanger public health and safety and not be in harmony with the area.

The record of proceedings contained the following evidentiary basis for these findings: (1) the leased lot has, in the past, been unkempt, smelled bad, is filled with garbage, and supports a run-down building; (2) one neighbor merely inquired about the “possible negative health and environmental side effects;” (3) another neighbor did not believe there was a need for a cell tower at this location; and (4) yet another neighbor stated that while she is not opposed to cell towers, she didn’t want to be able to see them.

Judge Steelman’s opinion is a concise treatise on the structure of quasi-judicial proceedings and the requirement that findings supporting or denying a special use permit must be based on competent, material, and substantial evidence appearing in the record.

On appeal, the trial court upheld the town’s denial despite the fact that there was nothing in the record to support the council’s findings.  The Court of Appeals reversed.

This opinion reminds me of a case from 2011 (Premier Plastic Surgery v. Town of Matthews) in which Judge Robert N. Hunter  showed limited patience with a Board of Adjustment that wanted to reach a certain result but didn’t have evidence to support it.  The Board’s findings, Judge Hunter correctly observed,  were “presented with no reasoning,” “merely conclusory,” “mere conjecture,” and based in “opinion.” [Disclosure: The COA remanded that case to the Board, which ignored Judge Hunter’s opinion in its second decision and order.  I represented the the petitioners in the appeal of the second decision, which has now been remanded to the Board for a third chance to get it right.  Among the superior court judge’s findings is that the Board ignored Judge Hunter’s opinion.]

Other Issues

My first question was “where were the lawyers?” and I start with U.S. Cellular.  Granted, there could have been much more legal involvement at the board level than meets the eye, but the opinion doesn’t suggest it.

It doesn’t appear from the opinion that an attorney at the board level or Court of Appeals level reminded the board or informed the court that three of the opposing neighbors’ opinions were legally irrelevant.  The Telecommunications Act of 1996 and N.C.’s Wireless Telecommunications Facilities Act of 2007 prohibit local governments from (1) basing health and safety decisions on the effect of radio frequency emissions and (2) from considering whether a tower is needed based on demand (N.C. G.S. 160A-400.52).

Second, it is the role of the town attorney to make sure a board does not base its findings on speculative comments and opinions (the common term is “generalized fears”).

My second observation is that the applicant’s evidence on whether the tower would harm adjoining property values was quite weak.  The Court determined, however, that the applicant provided the minimum evidence necessary to establish a prima facie case that it had met its burden of proof on each ordinance requirement, thus shifting the burden to the opponents.

G.S. 160A-393(k)(3) states that the opinion testimony of a lay person is not competent evidence to prove that a proposed use will harm the value of other properties.  What is missing from the statute – but which I argue is a compelling interpretation – is that the reciprocal situation would also be true: an applicant’s use of opinion testimony that a use will not harm adjoining or nearby properties is equally incompetent.  I’ve never seen a local ordinance that establishes a presumption of no harm, thus shifting the burden to opponents as a matter of law. The burden initially rests with the applicant to make the case that a use will not harm property values.  It appears that the lack of evidence on this issue was not raised by either side and therefore was not before the court.

Finally, this appears to be a classic case of an elected body having discomfort with (or contempt for) its quasi-judicial function.  Elected bodies are accustomed to making decisions in a legislative manner where council members’ feelings and opinions and even biases can be the sole basis for how they vote.  It is common that elected bodies are reluctant to give up the practically unbridled power that comes with legislative decision-making so that facts and procedures (and lawyers for the parties) control how they must vote.

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Tom Terrell

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes…

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes parts of Virginia and South Carolina. His many clients are involved in commercial and residential real estate, solid waste hauling and disposal, telecommunications, quarries/asphalt and miscellaneous litigation related to permit denials, vested rights and rezonings.

He has published numerous articles and speaks regularly to legal, governmental and business groups on a variety of issues related to land use and zoning.

Mr. Terrell has served as a leader in numerous civic and legal endeavors, including Chairman of the Board of Trustees of the N.C. State Health Plan, Chairman of the Board of Trustees of Winston-Salem State University, and service on the Board of Directors of the UNC-CH General Alumni Association, Board of Directors of the High Point Chamber of Commerce, Board of Visitors of Guilford College and Board of Center Associates of the Center for Creative Leadership, and as a founding member of the N.C. Bar Association Zoning, Planning and Land Use Section.

More information can be found at https://www.foxrothschild.com/thomas-e-terrell-jr/.

Mr. Terrell can be contacted at mailto:tterrell@foxrothschild.com.