Templeton Properties LP v. Town of Boone

NO. COA13-1274

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

TEMPLETON PROPERTIES LP,
Petitioner,

v. Watauga County
No. 12 CVS 665
TOWN OF BOONE,
Respondent.

Appeal by respondent from order entered 7 August 2013 by

Judge Shannon R. Joseph in Watauga County Superior Court. Heard

in the Court of Appeals 20 March 2014.

The Brough Law Firm, by Michael B. Brough; and di Santi
Watson Capua & Wilson, by Anthony S. di Santi and Chelsea
B. Garrett, for Petitioner-appellee.

Parker Poe Adams & Bernstein, LLP, by Anthony Fox and
Benjamin R. Sullivan, for Respondent-appellant.

HUNTER, JR., Robert N., Judge.

The Town of Boone (“Boone”) appeals the superior court’s 7

August 2013 order reversing a decision of the Town of Boone’s

Board of Adjustment (“Board”) that denied Templeton Properties

L.P.’s (“Templeton”) application for a zoning permit. We

reverse the superior court’s order.

I. Facts & Procedural History

This is the third time this Court has reviewed this case.
 -2-
See Templeton Properties, L.P. v. Town of Boone, ___ N.C. App.

___, ___, 724 S.E.2d 604, 605 (2012) (“Templeton II”); Templeton

Properties LP v. Town of Boone, 198 N.C. App. 406, 681 S.E.2d

566, 2009 WL 2180620 (2009) (unpublished) (“Templeton I”).

The dispute centers around Templeton’s 2.9 acre lot (“the

Parcel”) in Boone at 315 State Farm Road. The Parcel is zoned

for single-family residential use (“R-1”), but has historically

been used as a church under a special use permit. Templeton I,

2009 WL 2180620 at *1. The church is 2,250 square feet and is

located between State Farm Road and VFW Drive in Boone, which

provide routes of access to the Parcel. Id. The surrounding

neighborhood is “composed of mostly single-family residences,”

except for a non-residential VFW hall located near the Parcel.

Id. Under section 165 of Boone’s then-existing unified

development ordinance (“UDO”), medical clinics over 10,000

square feet were allowed in R-1 zoning with a valid special use

permit. Applications for special use permits may be denied by

the Board upon showing of at least one of four reasons set forth

in UDO § 69(c), namely that the development

(1) Will materially endanger the public
health or safety, or

(2) Will substantially injure the value of
adjoining or abutting property, or
 -3-
(3) Will not be in harmony with the area in
which it is to be located, or

(4) Will not be in general conformity with
the comprehensive plan, thoroughfare plan,
or other plan officially adopted by the
council.

On 28 September 2006, Templeton submitted an application to

Boone to obtain a special use permit to place a 13,050 square

foot medical clinic on the Parcel. Id. The Board denied the

application as incomplete. Id. Templeton modified its

application and resubmitted it on 2 March 2007 to address the

Board’s concerns, including decreasing the clinic’s size to

10,010 square feet, the current proposed size of the clinic.

Id.

On 1 May 2007 the Board rejected Templeton’s application.

Templeton II, ___ N.C. App. at ___, 724 S.E.2d at 606. The

Watauga County Superior Court granted a writ of certiorari and

then entered an order on 7 July 2008 reversing the Board’s

denial of Templeton’s application for the special use permit.

Id. Boone appealed to this Court and we remanded to the Board

to issue reviewable findings of fact in Templeton I. Id. at

___, 724 S.E.2d at 606–07.

On 2 September 2010, the Board met to make findings of fact

relating to the special use permit after the remand. Id. After
 -4-
taking testimony from residents and Templeton’s counsel, the

Board made findings of fact and approved them via a written

decision on 29 September 2010. Id. On 27 October 2010,

Templeton appealed the Board’s decision to the superior court by

petition for writ of certiorari, which was granted the same day.

Id. On 21 February 2011, the superior court affirmed the

Board’s decision. Id. Templeton then appealed the superior

court’s decision to this Court, resulting in Templeton II. Id.

This Court remanded in Templeton II and required the Board to

“make reviewable findings of fact . . . based only upon the

testimony and evidence presented at the hearings held on 5 April

and 1 May 2007” due to defects in additional testimony taken by

the Board after the first remand. Id. at ___, 724 S.E.2d at

614. We adopt the remaining statements of fact and procedural

history in Templeton I and Templeton II.

On remand, the Board again denied Templeton’s application

for a special use permit on 4 October 2012 via an identical

order as we considered in Templeton II. The Board made twenty-

one findings of fact relating to the proposed clinic’s lack of

harmony within the order:

3. Templeton’s proposed clinic would be
10,010 square feet in size and would have 67
parking spaces distributed among four
different parking lots.
 -5-

4. The clinic and its parking lots would
have 23 light poles. These light poles
would produce a glow at night visible from
neighborhood residents’ homes and yards.
Further, some people in the surrounding
neighborhood live on properties that are at
a higher elevation than the Lot, and those
people would look down on the well-lit
clinic. The shields that Templeton proposed
for the poles’ light bulbs would not prevent
light from bleeding into the neighborhood.

5. Templeton plans for employees and
patients to access the clinic from State
Farm Road, and Templeton plans to add a
left-turn lane from State Farm Road into the
clinic.

6. The clinic would have a large dumpster
pad, though Templeton did not specify how
many dumpsters would be on this pad.

7. Templeton had not found a tenant for the
clinic and did not know what kind of medical
procedures would be performed there or what
types of medical wastes might be produced.
Templeton did acknowledge, however, that
some wastes produced at the clinic could be
hazardous.

8. The only development currently on the Lot
is a 2,250 square-foot church. The church
has few lights, and it generally has traffic
only on weekends.

9. The area surrounding the Lot is
predominantly zoned R-1 Single Family
Residential. The surrounding area has been
almost uniformly zoned R-1 Single Family
Residential since the Town first adopted
zoning for the area in 1979.

10. The area surrounding the Lot is a
 -6-
residential neighborhood, one of [the]
oldest in Boone. It is more consistently
residential, with fewer non-residential
developments, than other residential
neighborhoods in Town. The Lot’s
surrounding area also has more preserved
trees and vegetation than other areas in
Boone.

11. Next door to the Lot is a VFW hall.
Although the VFW hall is non-residential, it
is grandfathered because it was built before
Boone adopted zoning in 1979.

12. Except for the VFW hall, properties in
the Lot’s surrounding area are almost all
single-family homes.

13. During the hearing, Templeton offered
the results of a survey that it had
conducted of development along a stretch of
State Farm Road. Some properties in this
survey were non-residential.

14. However, Templeton’s survey was not
limited to the area where the clinic would
be located. Instead, Templeton’s survey
extended almost a mile away from the Lot,
into other areas of Town. The survey also
focused on properties fronting State Farm
Road, which caused it to exclude many
properties that, although not fronting on
the road, were still part of the area where
the clinic would be located.

15. Templeton’s survey did not accurately
reflect the character of the area in which
the clinic would be located.

16. The Lot’s surrounding area is separated
from less residential parts of Boone,
including those less residential parts
covered in Templeton’s survey, by distance,
topography, and the curves in State Farm
 -7-
Road. As a result, the Lot’s surrounding
area is a distinct and separate residential
neighborhood.

17. Templeton’s appraiser, in describing the
Lot’s surrounding area, also concluded that
the only developments in the surrounding
area were the VFW hall and single-family
homes.

18. The Lot’s surrounding area has no
medical buildings, offices, or commercial
developments.

19. The clinic would introduce a busy
commercial operation into an area that is
overwhelmingly residential in character.

20. At 10,010 square feet, the clinic would
be much larger than the single family homes
that predominate in the surrounding area.

21. The clinic would produce far more
traffic than other properties in the Lot’s
surrounding area and would produce a level
of traffic out-of-character for that area.

22. No properties in the Lot’s surrounding
area produce as much light as the clinic
would produce. The clinic’s lighting would
not be in keeping with the type and level of
lighting currently found in the surrounding
area.

23. Templeton’s proposed clinic would not be
in harmony with the area in which it would
be located.

On 6 November 2012, Templeton appealed the denial of its

application to the Watauga County Superior Court. On 7 November

2012, the superior court issued an ex parte writ of certiorari.
 -8-
On 7 August 2013, the superior court entered an order reversing

the Board’s denial of Templeton’s application. In its third

conclusion of law, the superior court found

3. The Board’s determination that
Petitioner’s proposed use is not in harmony
with the area rests on an overly-restrictive
application of the term “area,” which
amounts to a misinterpretation of the
applicable standard. In this case, the
relevant “area” within the meaning of the
ordinance is not limited to the residences
that lie north of the subject site and that
do not front State Farm Road but includes
similarly situated properties along State
Farm Road that are in reasonable proximity
to the subject site. The undisputed
evidence in the record is that most of those
properties are used for office,
institutional, and commercial — not
residential — purposes. Therefore, the
Board’s conclusion that the proposed use is
not in harmony with the area in which it is
to be located is not supported by the
evidence.

Also, the Board’s findings on lack of
harmony generally and impermissibly cite
impacts that are inherent in the nature of
the proposed use. 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 — for to allow such
a decision would be to empower the board to
substitute its judgment for that of the
elected governing body. All of the Board’s
findings in this case are 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
 -9-
which it is to be located.

The superior court’s order also found that Finding of Fact 10

was not supported by competent evidence.

In its fourth conclusion of law, the superior court found

the Board’s determination that Templeton’s proposed use would

not be in conformity with the town’s comprehensive plan was

based on “general policy statements in the comprehensive plan”

and was not a sufficient basis to deny Templeton’s application.

The superior court also found the Board erred in finding that

the proposed use would materially endanger public safety, as

“there was not competent, material and substantial evidence to

support such a conclusion.” Boone filed notice of appeal on 26

August 2013 and a second notice of appeal on 5 September 2013 to

correct the filing number listed on the initial notice of

appeal.

II. Jurisdiction & Standard of Review

Jurisdiction in this Court is proper pursuant to N.C. Gen.

Stat. § 7A-27(b)(1) (2013) (stating a right of appeal lies with

this Court from the final judgment of a superior court “entered

upon review of a decision of an administrative agency”).

Boone first argues that the superior court erred by

improperly acting as a fact-finder in its determination of the
 -10-
“area” considered by the Board’s harmony analysis. “[T]his

Court examines the trial court’s order for error[s] of law by

determining whether the superior court: (1) exercised the proper

scope of review, and (2) correctly applied this scope of

review.” Turik v. Town of Surf City, 182 N.C. App. 427, 429,

642 S.E.2d 251, 253 (2007) (second alteration in original)

(internal quotation marks omitted) (quoting Tucker v.

Mecklenburg Cnty. Zoning Bd. of Adjustment, 148 N.C. App. 52,

55, 557 S.E.2d 631, 634 (2001)).

Here, the superior court erred when it concluded as a

matter of law that the Board considered the wrong “area” when

assessing the clinic’s harmony with the adjacent community.

This issue is more properly construed as a mixed question of

fact and law. See Farm Bureau v. Cully’s Motorcross Park, 366

N.C. 505, 512, 742 S.E.2d 781, 786 (2013) (finding a trial court

mislabeled a mixed question of fact and law as a finding of

fact); Morris Commc’ns Corp. v. City of Bessemer City Zoning Bd.

of Adjustment, 202 N.C. App. 631, 636, 689 S.E.2d 880, 883

(2010), rev’d on other grounds, 365 N.C. 152, 712 S.E.2d 868

(2011).

In Morris, this Court held (i) that interpretation of a

term in a zoning ordinance was a question of law and (ii) that
 -11-
determining whether the specific actions of a petitioner fit

within that interpretation was a question of fact reviewable

under the whole record test. Morris, 202 N.C. App. at 636, 689

S.E.2d at 883. This Court relied on Whiteco Outdoor Adver. v.

Johnston Cnty. Bd. of Adjust., 132 N.C. App. 465, 513 S.E.2d 70

(1999), which prescribed de novo review of a petitioner’s

alleged error of law, but also provided deference to a board of

adjustment’s interpretation of its own ordinance under that de

novo review. Id. at 470, 513 S.E.2d at 74. The Supreme Court

rejected this Court’s application of a deferential de novo

standard, stating that “[u]nder de novo review a reviewing court

considers the case anew and may freely substitute its own

interpretation of an ordinance for a board of adjustment’s

conclusions of law.” Morris, 365 N.C. at 156, 712 S.E.2d at

871. The Supreme Court did not reverse this Court’s finding

that interpreting “work” was properly considered a mixed

question of law and fact. Id.

Thus, we review the superior court’s determination that the

Board erred in its definition of “area” in two parts: (i)

whether the Board’s interpretation of the ordinance’s use of

“area” prescribed was an error of law under de novo review and
 -12-
(ii) whether the specific findings of fact used to define the

area were supported under the whole record test.

Under de novo review, we examine the case with new eyes.

“[D]e novo means fresh or anew; for a second time, and an appeal

de novo is an appeal in which the appellate court uses the trial

court’s record but reviews the evidence and law without

deference to the trial court’s rulings.” Parker v. Glosson, 182

N.C. App. 229, 231, 641 S.E.2d 735, 737 (2007) (quotation marks

and citations omitted).

“When utilizing the whole record test, . . . the reviewing

court must examine all competent evidence (the whole record) in

order to determine whether the agency decision is supported by

substantial evidence.” Mann Media, Inc. v. Randolph Cnty.

Planning Bd., 356 N.C. 1, 14, 565 S.E.2d 9, 17 (2002) (quotation

marks and citation omitted). “The ‘whole record’ test does not

allow the reviewing court to replace the Board’s judgment as

between two reasonably conflicting views, even though the court

could justifiably have reached a different result had the matter

been before it de novo.” Thompson v. Wake Cnty. Bd. of Educ.,

292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977).

III. Analysis

A. Defining Area in the Ordinance
 -13-
As discussed supra in Section II, the definition of “area”

in the ordinance is a mixed question of law and fact subject to

de novo review. “[O]ne of the functions of a Board of

Adjustment is to interpret local zoning ordinances.” CG & T

Corp. v. Bd. of Adjustment of Wilmington, 105 N.C. App. 32, 39,

411 S.E.2d 655, 659 (1992). “[R]eviewing courts may make

independent assessments of the underlying merits of board of

adjustment ordinance interpretations. This proposition

emphasizes the obvious corollary that courts consider, but are

not bound by, the interpretations of administrative agencies and

boards.” Morris, 365 N.C. at 156, 712 S.E.2d at 871 (quotation

marks and citation omitted).

In Morris, the Supreme Court compared a board of

adjustment’s interpretation of the term “work” to the actual

ordinance:

[W]e find the BOA’s interpretation of the
term “work” unpersuasive. The ordinance
provides that:

“If the work described in any compliance or
sign permit has not begun within six months
from the date of issuance thereof, the
permit shall expire. Upon beginning a
project, work must be diligently continued
until completion with some progress being
apparent every three months. If such
continuance or work is not shown, the permit
will expire.”
 -14-
City of Bessemer City, N.C., Ordinance
§ 155.207.

Bessemer City’s zoning administrator
testified at the BOA hearing that he
interpreted the term “work” to mean
“actually something moving on the
ground . . . . [c]onstruction.” In his
view, Fairway failed to commence “work”
within the time period prescribed in the
sign permit because he did not observe
construction-like activities occurring on
the property. He therefore concluded the
sign was relocated without a valid sign
permit.

In contrast, Fairway argues the term “work”
encompasses the broader range of activities
necessary to complete the sign relocation.
Fairway contends its negotiations with DOT
and Dixon, as well as its acquisition of a
county building permit, constitute “work”
under the ordinance. We agree with Fairway
that the term “work” has a broader meaning
than mere visible evidence of construction.

Id. at 156–57, 712 S.E.2d at 871.

We consider the phrase “area” here and the Board’s

interpretation of it. The ordinance provides the Board with the

ability to deny a special use permit if the application “[w]ill

not be in harmony with the area in which it is located.” A

fact-specific inquiry is necessarily required to define “area”

in this context, as each individual application for a special

use permit will have different surrounding areas the Board will

need to consider when determining whether the property would be
 -15-
harmonious with its surroundings. This scenario is much like

our Supreme Court’s interpretation of the phrase a “reasonable

time”:

If, from the admitted facts, the court can
draw the conclusion as to whether the time
is reasonable or unreasonable by applying to
them a legal principle or a rule of law,
then the question is one of law. But if
different inferences may be drawn, or the
circumstances are numerous and complicated
and such that a definite legal rule cannot
be applied to them, then the matter should
be submitted to the jury. It is only when
the facts are undisputed and different
inferences cannot be reasonably drawn from
them that the question ever becomes one of
law.

Claus-Shear Co. v. E. Lee Hard Ware House, 140 N.C. 552, 555, 53

S.E. 433, 435 (1906). Conversely, if the Board made a

determination of what “area” generally meant within the

ordinance and there was no disagreement about the area in

question,1 a trial court’s de novo analysis of the Board’s

conclusion of law, that being an interpretation of “area” within

the ordinance, would be appropriate.

Here, the Board used the term “area” as it related to

specific findings of fact, which was the proper application

under UDO § 69(d). Finding of fact #13 considered Templeton’s

1
For example, if the Board made a finding that “area”
categorically included all adjacent properties within the R-1
zoning area.
 -16-
offered survey, which included non-residential developments

further down State Farm Road. Finding of fact #14 noted that

Templeton’s evidence “extended almost a mile away” from the

Parcel and that Templeton’s survey excluded several properties

fronting State Farm Road that the Board considered part of the

“area.” Finding of fact #16 stated that “distance, topography,

and the curves in State Farm Road” separated the Parcel from the

commercial properties cited by Templeton as being part of the

“area.” Finding of fact #17 noted that Templeton’s appraiser

concluded “that the only developments in the surrounding area

were the VFW hall and single-family homes.” These findings,

amongst others, are a proper contextual usage of “area” as laid

forth in the ordinance and are inherently fact specific.

Beyond reviewing the Board’s actions, this Court reviews

whether the superior court correctly performed its several tasks

in its reviewing capacity:

[T]he task of a court reviewing a decision
on an application for a conditional use
permit made by a town board sitting as a
quasi-judicial body includes:

(1) Reviewing the record for errors in law,

(2) Insuring that procedures specified by
law in both statute and ordinance are
followed,

(3) Insuring that appropriate due process
 -17-
rights of a petitioner are protected
including the right to offer evidence,
cross-examine witnesses, and inspect
documents,

(4) Insuring that decisions of town boards
are supported by competent, material and
substantial evidence in the whole record,
and

(5) Insuring that decisions are not
arbitrary and capricious.

Coastal Ready-Mix Concrete Co., Inc. v. Bd. of Comm’rs of Nags

Head, 299 N.C. 620, 626, 265 S.E.2d 379, 383 (1980).

“When the petitioner correctly contends that the agency’s

decision was either unsupported by the evidence or arbitrary and

capricious, the appropriate standard of review for the initial

reviewing court is ‘whole record’ review. If, however,

petitioner properly alleges that the agency’s decision was based

on error of law, de novo review is required.” Tucker, 148 N.C.

App. at 55, 557 S.E.2d at 634. As such, the superior court

conducts a de novo review under the first three tasks and a

“whole record” review for the final two tasks.

Here, the superior court 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
 -18-
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. 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. Tate Terrace Realty

Investors, Inc. v. Currituck County, 127 N.C. App. 212, 218, 488

S.E.2d 845, 849 (1997). By improperly acting as a trier of

fact, the superior court erred and we reverse its order.

B. Rebuttal of a Presumed Legislative Finding

Templeton also contends that because Boone’s R-1 zoning

allowed construction of its clinic under a special use permit,

Boone’s legislative determination that clinics are entitled to

receive special use permits should have been enforced.

Templeton cites a number of cases in support of this

proposition. See Woodhouse v. Bd. of Comm’rs of Nags Head, 299

N.C. 211, 216, 261 S.E.2d 882, 886 (1980) (“Where an applicant

for a conditional use permit produces competent, material, and
 -19-
substantial evidence tending to establish the existence of the

facts and conditions which the ordinance requires for the

issuance of a special use permit, prima facie he is entitled to

it.” (citation and quotation marks omitted)); Blair Investments,

LLC v. Roanoke Rapids City Council, ___ N.C. App. ___, ___, 752

S.E.2d 524, 527 (2013); Habitat for Humanity of Moore Cnty.,

Inc. v. Bd. of Comm’rs of Pinebluff, 187 N.C. App. 764, 768, 653

S.E.2d 886, 888 (2007); MCC Outdoor, LLC v. Franklinton Bd. of

Comm’rs, 169 N.C. App. 809, 814, 610 S.E.2d 794, 797 (2005);

Clark v. City of Asheboro, 136 N.C. App. 114, 122, 524 S.E.2d

46, 52 (1999); Vulcan Materials Co. v. Guilford Cnty. Bd. of

Cnty. Comm’rs, 115 N.C. App. 319, 324, 444 S.E.2d 639, 643

(1994) (“The inclusion of a use as a conditional use in a

particular zoning district establishes a prima facie case that

the permitted use is in harmony with the general zoning plan.”).

Of the preceding cases, Templeton argues that Woodhouse

uses a “legislative finding” rule and that Vulcan is a “less-

restrictive” formulation of the Woodhouse test. We do not see

conflict between the two cases, which both allow the presumption

of granting the special use permit to be rebutted by the party

opposing its issuance. See Blair, ___ N.C. App. at ___, 752

S.E.2d at 528–29 (citing Woodhouse and holding that after a
 -20-
petitioner “makes a prima facie showing of entitlement to a

special use permit, 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” so long as denial is “based upon findings which are

supported by competent, material, and substantial evidence

appearing in the record” (citation and quotation marks

omitted)). Thus, while showing that entitlement to a

conditional or special use permit creates a prima facie case

that a petitioner is entitled to a special use permit, the prima

facie case may be rebutted by “competent, material, and

substantial evidence [showing the] use contemplated is not in

fact in harmony with the area in which it is to be located.”

Vulcan, 115 N.C. App. at 324, 444 S.E.2d at 643 (citations and

quotation marks omitted).

Accordingly, we must consult the record to determine

whether “competent, material, and substantial” evidence existed

to support the Board’s harmony analysis. Id.

C. Findings of Fact Supporting Board’s Decision to Deny the
Special Use Permit
As noted supra in Section II, we now review whether the

Board’s findings of fact were supported by competent evidence

under the whole record test. At the outset, we note that
 -21-
[A] city council’s denial of a conditional
use permit based solely upon the generalized
objections and concerns of neighboring
community members is impermissible.
Speculative assertions, mere expression of
opinion, and generalized fears “about the
possible effects of granting a permit are
insufficient to support the findings of a
quasi-judicial body.” In other words, 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.

Blair, ___ N.C. App. at ___, 752 S.E.2d at 529 (quotation marks

and citation omitted). Were the Board’s findings concerning the

area’s characteristics solely based on the testimony of

individuals affected by development of the Parcel, denial of the

permit on those grounds might be impermissible. However,

several findings of fact concern the nature of the Parcel and

the surrounding area which buttress its decision:

 Finding of fact #3 notes that there would be sixty-seven

parking spaces at the clinic.

 Finding of fact #4 describes the twenty-three light poles

on the clinic’s grounds as well as issues with the

shielding on the lights affecting the surrounding

residents.

 Finding of fact #5 describes Templeton’s proposed left-

turn lane to allow access from State Farm Road.
 -22-

 Finding of fact #6 describes the clinic’s proposed “two

large dumpster pads,” and that Templeton could not

estimate how many containers would be placed on the pads.

 Finding of fact #7 noted the uncertainty of the type of

clinic that would locate at the facility.

 Finding of fact #8 noted the size, limited weekend use,

and lack of lighting by the current church structure on

the Parcel.

 Finding of fact #9 noted the historical tendency to zone

the surrounding area as R-1.

 Finding of fact #11 noted that the VFW Hall adjacent to

the Parcel was grandfathered into existence because it

was built before Boone adopted zoning.

 Finding of fact #12 noted that the surrounding area was

primarily comprised of single family homes.

 Findings of fact #13, #14, and #15 found that Templeton’s

survey was not limited to an area that accurately

reflected the character of the area near the Parcel,

extended close to a mile away from the Parcel, and

excluded several properties not fronting State Farm Road.
 -23-

 Finding of fact #16 finds that the Parcel is separated

from the other non-residential parcels cited by Templeton

by topography, distance, and road features.

 Finding of fact #17 notes that Templeton’s appraiser

described the Parcel’s surrounding area as the VFW hall

and single family homes.

 Findings of fact #18 and #19 note the lack of medical

buildings, offices, or other commercial developments in

the surrounding area and found that introducing the

medical clinic would introduce a “busy commercial

operation” into an “overwhelmingly residential” area.

 Findings of fact #20, #21, and #22 note that the clinic

would be “much larger” than the surrounding structures,

would produce additional traffic, and would create more

artificial light than other surrounding structures in the

area.

These findings were based on testimony, photographs of the area,

drawings, topographic surveys, and other data compiled by the

Board prior to its 4 May 2007 denial of Templeton’s application.

The foregoing was ample evidence to support a finding that the

proposed clinic was not harmonious with its surrounding area.

Further, the superior court cited only finding of fact #10 as
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not being supported by evidence in its order. We disagree and

hold that the six residents’ testimony of the area regarding its

contents constituted competent evidence supporting finding of

fact #10.2 Accordingly, there was competent evidence supporting

the Board’s finding that the medical clinic would not be in

harmony with its surrounding area pursuant to UDO § 69(c)(3) and

the superior court erred in overturning the Board’s decision to

deny the special use permit.

Because we hold that the Board’s denial of Templeton’s

special use permit was supported by competent evidence and

proper under its harmony analysis, we do not address Boone’s

remaining arguments concerning conformance with the

comprehensive plan or to provide for the public’s safety.

2
The testimony included statements from Ben Shoemake who said
the Parcel was surrounded by homes and that the commercial
development cited by Templeton was further away from the
neighborhood that he described as “much smaller.” Les
Monkemeyer testified that the neighborhood has trees over a
century old in the surrounding area. Marc Kadyk, a thirty-year
resident of the neighborhood, testified that the area is heavily
wooded. Thirty-four year neighborhood resident and Town Mayor
Loretta Clawson testified that the area was overwhelmingly used
as homes. Thomas and Joan McLaughlin also testified that the
neighborhood was residential in nature, that the area was
heavily wooded, and that the commercial portion of State Farm
Road to the southeast cited by Templeton was dissimilar because
it did not have the same amount of vegetation.
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IV. Conclusion

For the reasons stated above, the decision of the superior

court is

REVERSED.

Judges STROUD and DILLON concur.