Northwest Property Group, LLC v. Town of Carrboro

HUNTER, Robert C., Judge,

concurring in part and dissenting in part.

After careful review, I concur with the Court’s conclusion that the Town of Carrboro (“the Town”) erroneously failed to make the findings of fact required as a prerequisite for imposing the conditions to which Northwest Property Group, LLC (“Northwest”) objects in connection with the approval of the conditional use permit. I respectfully dissent from those portions of the Court’s opinion that conclude that the Town’s Board of Alderman (“the Board”) did not violate the Town’s Land Use Ordinance when it adopted the challenged conditions. This case should be remanded to the trial court with instructions to strike conditions two and fifteen and then remand to the Board to reissue the permit without those conditions.

Analysis

I. Standard of Review

With regard to the standard of review for the trial court upon writ of certiorari:

[I]t is clear that the 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,
*468(3) Insuring that appropriate due process 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. Board of Comm’rs of Nags Head, 299 N.C. 620, 626, 265 S.E.2d 379, 383 (1980) (emphasis added). “The superior court is not the trier of fact but rather sits as an appellate court and may review both (i) sufficiency of the evidence presented to the municipal board and (ii) whether the record reveals error of law.” Capricorn Equity Corp. v. Town of Chapel Hill, 334 N.C. 132, 136, 431 S.E.2d 183, 186 (1993).

This Court’s standard of review of a superior court order upon writ of certiorari is as follows:

(1) to determine whether the trial court exercised the proper scope of review, and (2) to review whether the trial court correctly applied this scope of review. When a party alleges an error of law in the Council’s decision, the reviewing court examines the record de novo, considering the matter anew. However, when the party alleges that the decision is arbitrary and capricious or unsupported by substantial competent evidence, the court reviews the whole record. Denial of a conditional use permit must be based upon findings which are supported by competent, material, and substantial evidence appearing in the record.

Humane Soc’y of Moore Cty., Inc. v. Town of Southern Pines, 161 N.C. App. 625, 629, 589 S.E.2d 162, 165 (2003) (quotation marks and internal citations omitted) (emphasis added). In reviewing the 25 April 2008 Order, I agree with the majority’s determination that the trial court exercised the proper scope of review. The “Applicable Law” section of the order accurately states the role of the trial court. Particularly, with regard to what will be discussed infra, the trial court acknowledged the five factors to be considered by the court. Coastal Ready-Mix Concrete Co., 299 N.C. at 626, 265 S.E.2d at 383. The trial court also recognized that any conditions imposed on a conditional use permit must be reasonable. Overton v. Camden Cty., 155 N.C. App. 100, 104, 574 S.E.2d 150, 153-54 (2002).

*469The general law of zoning indicates that a condition imposed on a conditional use permit is improperly imposed when it is not related to the use of the land, the control, ownership, or transfer of property, it unreasonably affects the way in which business on the property can be conducted, or it conflicts with a zoning ordinance.

Id. (Emphasis added.)

Nevertheless, the trial court did not correctly apply the scope of review as there were procedural errors committed by the Board, in violation of the applicable ordinances, that were not identified by the trial court. See Humble Oil & Refining Co. v. Bd. of Aldermen, 284 N.C. 458, 467, 202 S.E.2d 129, 135 (1974) (“The procedural rules of an administrative agency are binding upon the agency which enacts them as well as upon the public[.]”) (quotation marks and citation omitted).

In addition to the ordinance violations, the trial court incorrectly held that the decision of the Board was supported by competent, material and substantial evidence, and therefore also erred in finding that the decision was not arbitrary and capricious. The majority opinion does not address these two issues; however, I choose to do so in order to demonstrate that there are no issues left to be resolved by the Board and therefore striking the conditions is the most appropriate remedy.

II. Applicable Ordinances — Procedure

A. Interpretation

The three Town ordinances that are applicable in this case with regard to the procedural requirements for approval or denial of a conditional use permit are Sections 15-54, 15-59, and 15-58.3 Authority is granted to cities and towns to create such ordinances regulating conditional use permits via N.C. Gen. Stat. § 160A-381 (2007).4

*470The Town of Carrboro Land Use Ordinance Section 15-54(c) states in pertinent part that a conditional use permit “shall” be issued “unless [the Board] concludes, based upon the information submitted at the hearing” that:

(4) If completed as proposed, the development, more probably than not:
a) Will materially endanger the public health or safety; or
b) Will substantially injure the value of adjoining or abutting property; or
c) Will not be in harmony with the area in which it is to be located; or
d) Will not be in general conformity with the Land Use Plan, Thoroughfare Plan, or other plan officially adopted by the Board.

These factors conform to those sanctioned in Kenan v. Board of Adjustment, 13 N.C. App., 688, 692-93, 187 S.E.2d 496, 499 (1972).

Ordinance Section 15-59(a) states in pertinent part:

[I]n granting a special or conditional use permit, . . . the Board of Aldermen . . . may attach to the permit such reasonable requirements in addition to those specified in this chapter as will ensure that the development in its proposed location:
(1) Will not endanger the public health or safety;
(2) Will not injure the value of adjoining or abutting property;
(3) Will be in harmony with the area in which it is located; and
(4) Will be in conformity with the Carrboro Land Use Plan, Thoroughfare Plan, or other plan officially adopted by the Board.

(Emphasis added.) Accordingly, if the permit application is not in compliance with any one of the terms of Section 15-54(c)(4), the Board may completely deny the permit. The reasonable conditions that may be imposed pursuant to Section 15-59 are meant to put the Conditional Use Permit in compliance with Section 15-54 so the permit can then be approved.

*471Finally, Section 15-58 states in pertinent part:

In considering whether to approve an application for a special or conditional use permit, the board of adjustment or the Board of Alderman shall proceed according to the following format:

(1) The board shall consider whether the application is complete. . . .
(2) The board shall consider whether the application complies with all of the applicable requirements of this chapter. If a motion to this effect passes, the board need not make further findings concerning such requirements. If such a motion fails or is not made then a motion shall be made that the application be found not in compliance with one or more of the requirements of this chapter. Such a motion shall specify the particular requirements the application fails to meet. Separate votes may be taken with respect to each requirement not met by the application. It shall be conclusively presumed that the application complies with all requirements not found by the board to be unsatisfied through this process.
(3) If the board concludes that the application fails to comply with one or more requirements of this chapter, the application shall be denied. If the board concludes that all such requirements are met, it shall issue the permit unless it adopts a motion to deny the application for one or more of the reasons set forth in Subdivision 15-54(c)(4). Such a motion shall propose specific findings, based upon the evidence submitted, justifying such a conclusion.

(Emphasis added.) This ordinance clearly dictates that if all requirements of the Land Use Ordinance are satisfied by the applicant, the Board “shall” issue the permit and need not make further findings. Id. However, if the Board finds that the permit is not in compliance with any of the terms set forth in Section 15-54(c)(4), then specific findings for denial are required, based on the evidence submitted. Id. The statement that “ [i]t shall be conclusively presumed that the application complies with all requirements not found by the board to be unsatisfied through this process” reiterates the requirement that findings be made. Id.

*472In sum, after reviewing these ordinances in pari matera, in order to apply conditions to a conditional use permit, the Board is required to first establish grounds for denying a permit pursuant to Section 15-54(c). Specific findings are required “justifying such a conclusion.” Section 15-58(3). Upon making the appropriate findings, the Board may then apply reasonable conditions to bring the permit back into compliance so that it can be granted.5 Section 15-59(a). However, if the application is complete on its face, complies with the requirements of the Land Use Ordinance, and no information presented at the hearing leads to a denial under the guidelines of Section 15-54, the Board is required to grant the permit without conditions pursuant to the “shall” language contained in the ordinance. Section 15-54(c).6

The majority holds:

“[T]he more appropriate reading of the relevant ordinance provisions is that, once the Board voted that ‘the application complied with all applicable requirements of the land use ordinance,’ it still had the right to either (1) deny the application pursuant to Section 15-54(c)(4) or to (2) adopt conditions pursuant to Section 15-59(a).

The majority’s interpretation overlooks the “shall”, language in the ordinance. Section 15-54(c) clearly states that the permit “shall” be issued unless, inter alia, “the development will not comply with one or more requirements of this chapter” or “if completed as proposed, the development, more probably than not[,]” will violate one of the enumerated factors set out in subsection (4). If the Board concludes, based on the evidence presented, that the permit as proposed violates Section 15-54(c)(4), then it must “adopt a motion to deny the application.” Section 15-58(3). The Board does not even reach the provisions of 15-59(a) governing conditions until it has found a violation of 15-54(c)(4) and made findings regarding the evidence to'sup*473port its determination to deny the permit on that basis. Once this basis for denial is established, then the Board moves on to Section 15-59(a) and may apply conditions. It is not coincidental that the same enumerated factors listed in 15-54(c)(4) are the same factors that serve as a basis for conditions in 15-59(a).

The majority now seeks to remand this case to the Board so it may incorporate findings that were not made and, as discussed infra, would not be supported by competent evidence. I cannot concur with that result.

B. The Board’s Violation of These Ordinances

In reviewing the record, the Board did not make the necessary findings in order to apply conditions to the permit.7 Unlike the majority, I believe that the lack of findings coupled with the Board’s clear proclamation that all aspects of the ordinance had been complied with served to prohibit the addition of the contested conditions.

As Northwest notes in its appellate brief, the Board found that the application was complete and that it complied with the Land Use Ordinance. At that point, the permit should have been issued as proposed. In other words, if the proposed permit did not violate any of the enumerated factors in Section 15-54(c), or any other aspect of the Land Use Ordinance, then the permit should have been issued without the conditions in dispute. Section 15-54(c). Nevertheless, the Board proceeded to approve the permit with conditions, without making appropriate findings with regard to Section 15-54(c)(4). If, in fact, condition fifteen was imposed because the ingress/egress on Barnes Street would “materially endanger the public health or safety” under 15-54(c)(4), the Board was required to make findings to that effect “based upon the evidence submitted.” Section 15-58(3). “A court will normally defer to a board of adjustment so long as a condition is reasonably related to the proposed use, does not conflict with the zoning ordinance, and furthers a legitimate objective of the zoning ordinance.” Overton, 155 N.C. App. at 104, 574 S.E.2d at 153. *474Here, condition fifteen conflicts with the directives of the zoning ordinance as the appropriate findings were not made.

“[I]n passing upon an application for a special permit, a board of aldermen may not violate at will the regulations it has established for its own procedure; it must comply with the provision of the applicable ordinance.” Humble Oil, 284 N.C. at 467, 202 S.E.2d at 135. The Board in this case failed to comply with the requirements of the ordinances when it found that the permit application was complete and in compliance with the Land Use Ordinance, but then proceeded to attach conditions two and fifteen to the permit. The trial court erred in not identifying the Board’s non-compliance with the Town’s ordinances. Because the permit was in compliance with the Land Use Ordinance, as determined by the Board, the conditions imposed were not justified, and thus the trial court should have struck conditions two and fifteen as requested by Northwest.8 Accordingly, this Court should reverse the trial court’s Order as the court did not “[i]nsur[e] that procedures specified by law in both statute and ordinance [were] followed.” Coastal Ready-Mix Concrete Co., 299 N.C. at 626, 265 S.E.2d at 383.9

After carefully reviewing the majority’s interpretation of the ordinances, I acknowledge that the process of Board approval outlined by the majority would be a legally sound and efficient manner of approv*475ing a conditional use permit with reasonable conditions attached; however, the ordinances as written do not support the majority’s interpretation. The Town is not prohibited from modifying the ordinances to set up a process by which it can attach reasonable conditions without first finding grounds to deny the permit.

III. Lack of Competent, Material and Substantial Evidence in the Whole Record

Before addressing the disposition of this case in further detail infra, I first address several of Northwest’s remaining arguments which are not addressed by the majority. My determination on these issues further supports my position that there are no matters left to be resolved by the Board on remand.

Northwest argues that the trial court erred in concluding as a matter of law that there was competent, material, and substantial evidence in the whole record supporting the Board’s imposition of condition fifteen. I agree. Therefore, assuming arguendo that the Board had made the appropriate findings, that the permit as proposed would materially endanger the public health or safety pursuant to Section 15-54(c)(4), I would still find that condition fifteen was not justified as the evidence presented at the hearing would not support such a finding.

Determining whether the decision of a town board was supported by competent, material and substantial evidence requires a whole record review. Coastal Ready-Mix Concrete Co., 299 N.C. at 626, 265 S.E.2d at 383. In reviewing the trial court’s findings of fact, I conclude that “the trial court made its determination ‘based upon the record evidence.’ Accordingly, [I] conclude that the trial court exercised the proper scope of review. Next... [it must be determined] whether the trial court exercised that scope of review correctly.” Howard v. City of Kinston, 148 N.C. App. 238, 241, 558 S.E.2d 221, 225 (2002).

The general rule with regard to the burden of providing competent, material, and substantial evidence is as follows:

When an applicant has produced competent, material, and 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. A denial of the permit should be based upon findings contra which are supported by competent, material, and substantial evidence appearing in the record.

*476Humble Oil, 284 N.C. at 468, 202 S.E.2d at 136. “ ‘Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It must do more than create the suspicion of the existence of the fact to be established ....’” Weaverville Partners, LLC v. Town of Weaverville Zoning Bd. of Adjust., 188 N.C. App. 55, 61, 654 S.E.2d 784, 789 (2008) (quoting Humble Oil, 284 N.C. at 470-71, 202 S.E.2d at 137).

The Town ordinance in this case, which is in accord with the general rule, is clear on the burden of persuasion. Section 15-55 states in pertinent part:

(b) Once a complete application has been submitted, the burden of presenting evidence to the permit-issuing board sufficient to lead it to conclude that the application should be denied for any reasons stated in Subdivisions 15-54(c)(l), (3), or (4) shall be upon the party or parties urging this position, unless the information presented by the applicant in his application and at the public hearing is sufficient to justify a reasonable conclusion that a reason exists for denying the application as provided in Subdivision 15-54(c)(l), (3), or (4).
(a) The burden of persuasion on the issue of whether the development, if completed as proposed, will comply with the requirements of this chapter remains at all times on the applicant. The burden of persuasion on the issue of whether the application should be turned down for any reason set forth in Subdivision 15-54(c)(4) rests on the party or parties urging that the requested permit should be denied.

Thus, Northwest bore the burden of submitting an application that complied with the Land Use Ordinance, and upon doing so was prima facie entitled to approval. Id. Those in opposition to the permit as proposed, i.e. the community members who questioned the safety of the Barnes Street entrance/exit, then had the burden of providing competent, material, and substantial evidence that Northwest’s application violated 15-54(c)(4). Id.; Howard, 148 N.C. App. at 246, 558 S.E.2d at 227 (“[T]he burden of establishing that the approval of a conditional use permit would endanger the public health, safety, and welfare falls upon those who oppose issuance of the permit.”). The Board was then obligated to make findings with regard to the violation of Section 15-54(c)(4), and could then impose reasonable conditions to bring the permit back into compliance so it *477could be granted. Section 15-58; Section 15-59. As noted supra, the Board did not make any findings with regard to 15-54(c)(4), and in fact stated that the permit as proposed complied with all requirements of the Land Use Ordinance. Nevertheless, the trial court, in reviewing the whole record, concluded that there was competent, material, and substantial evidence to support the Board’s imposition of condition fifteen.

In the case sub judice, the community members in their petition demanded that there be “[n]o vehicular access to the Shoppes at Jones Ferry from Barnes St.” The record shows that neither the Planning Board nor any of the advisory boards recommended that the Barnes Street access point be limited to emergency vehicles only, as condition fifteen ultimately dictated. There is no dispute that Northwest’s own “Traffic Impact Analysis” (“TIA”) showed an increase in traffic around the property, but the report concluded that the estimated increase in traffic did not meet North Carolina Department of Transportation (“NCDOT”) warrants for a traffic signal or roundabout, that ten accidents had occurred at the intersection in question in the past five years, and “[t]he traffic analysis indicates that the intersection will operate at an acceptable level of service during both the A.M. and P.M. peak hours.” More specifically, the TIA stated that the Barnes Street access point would operate at “Level of Service ‘A’ ” in the A.M. and P.M. peak hours after development. Level of Service A is described as “little or no delay” caused by traffic volume.

At the hearing, Northwest called Lyle Overcash (“Overcash”), a qualified traffic engineer, to testify regarding the TIA. Overcash testified that the intersection was “pretty far away” from DOT’s standards for installing a traffic signal primarily because there had been so few accidents, on average, over the last five years.

Due to safety concerns, Northwest agreed to move the access point on Barnes Street closer to Jones Ferry Road and to prohibit delivery, service, and trash pick-up vehicles from utilizing that entrance/exit. Furthermore, Northwest agreed to install a traffic light at the intersection if NCDOT would approve it.

At the hearings, community citizens testified regarding their concerns that additional traffic could lead to “traffic problems” in the neighborhood. Several individuals testified that they personally had been involved in accidents at the Jones Ferry Road/Barnes Street *478intersection. However, “[a]n increase in traffic does not necessarily mean an intensification of traffic congestion or a traffic hazard.” Humble Oil, 284 N.C. at 469, 202 S.E.2d at 136. Furthermore, “none of the residents provided any mathematical studies or factual basis for their opinions regarding how the increased traffic generated from the project would significantly impact the surrounding neighborhood. Rather, all of the residents’ testimony consisted of speculative opinions.” Weaverville Partners, 188 N.C. App. at 64, 654 S.E.2d at 791. The trial court noted in its findings of fact that “[n]o scientific data, surveys, reports or other statistical or empirical data was presented in support of the neighbors’ personal observations or involvement.”

A city council may not deny a conditional use permit in their unguided discretion or because, in their view, it would adversely affect the public interest. Moreover, 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.

Howard, 148 N.C. App. at 246, 558 S.E.2d at 227 (quotation marks and internal citations omitted). Accordingly, based on the whole record, there was not competent, material, and substantial evidence to support the imposition of condition fifteen in this case. The trial court consequently erred in its conclusion of law to the contrary.

IV. Arbitrary and Capricious

Northwest further argues that the imposition of conditions two and fifteen were arbitrary and capricious. Again, a whole record review is required. Coastal Ready-Mix Concrete Co., 299 N.C. at 626, 265 S.E.2d at 383. “ ‘When a Board action is unsupported by competent substantial evidence, such action must be set aside for it is arbitrary.’ ” Weaverville Partners, 188 N.C. App. at 67, 654 S.E.2d at 793 (quoting MCC Outdoor, LLC v. Town of Franklinton Bd. of Comm’rs, 169 N.C. App. 809, 811, 610 S.E.2d 794, 796 (2005)). Thus, the Board’s actions in this case were arbitrary and capricious as they were not supported by material, competent, and substantial evidence in the *479record. The trial court erred in determining that the imposition of conditions two and fifteen were not arbitrary and capricious.10

V. Disposition of the Permit

It has been established in this State, that “a court may not properly modify a permit issued by a board of adjustment or board of commissioners unless there are no administrative decisions remaining or it is clear that the same result would occur on remand.” Overton, 155 N.C. App. at 109, 574 S.E.2d at 156. It is my position that there are no administrative decisions remaining in this case that would be properly before the Board on remand. The Board found that the permit complied with all requirements of the Land Use Ordinance and failed to establish any findings contra based on competent, material, and substantial evidence. Furthermore, assuming the Board had found that the increase in traffic presented a material danger to public safety, there was not competent, material, and substantial evidence to support such a finding. Accordingly, there are no additional findings to be made by the Board. Because the Board should have granted the permit without the challenged conditions, the trial court erred in failing to strike conditions two and fifteen as requested by Northwest. Accordingly, I would reverse the trial court’s order and remand with instruction to strike conditions two and fifteen.

Condition fifteen is the primary focus of this appeal; nevertheless, I would also order the trial court to strike condition two because it states that the entire permit will be deemed invalid if any of the other conditions attached to the permit are found to be invalid. I recognize that in Overton a “boilerplate” condition similar to condition two in this case was present in the issued permit; however, it appears that the boilerplate condition was not disputed by the appellant in Overton. Id. at 107-08, 574 S.E.2d at 155-56. Nonetheless, this Court held that the trial court was able to strike the two disputed conditions and require the county board of commissioners to reissue the permit. Id. Overton suggests that condition fifteen alone can be struck without invalidating the permit; however, here, unlike in Overton, appellant Northwest has specifically assigned error to the imposition of condition two, and because the Board found that Northwest complied with all aspects of the Land Use Ordinance, the imposition of both conditions two and fifteen were not justified.

*480Conclusion

In analyzing the relevant ordinances in this case, I would hold that the Board was required to issue Northwest’s requested permit as proposed, absent conditions two and fifteen, because the permit complied with all of the requirements of the Land Use Ordinance. Absent findings that the permit violated one of the provisions of 15-54(c), the Board could not impose conditions, which are meant to bring the permit back into compliance. Furthermore, in reviewing the whole record, there was not competent, material, and substantial evidence to support a finding that the permit, as proposed, would materially endanger the public health or safety. Therefore, the condition was also arbitrary and capricious.

Based on the foregoing, I believe the correct course of action is to reverse the trial court’s decision and remand with instruction for the trial court to strike conditions two and fifteen and order the Town to reissue the permit without these conditions.

. The ordinances in effect at the time of the Board’s decision are applied on appeal. See Carolina Spirits, Inc. v. City of Raleigh, 127 N.C. App. 745, 747, 493 S.E.2d 283, 285 (1997), disc. review denied, 347 N.C. 574, 498 S.E.2d 380 (1998).

. As it relates to this case, N.C. Gen. Stat. § 160A-381(c) states that “reasonable and appropriate conditions” may be applied to conditional use permits; however, the exact terms of the ordinances enacted in each town must govern the approval process and imposition of conditions. See Hewett v. County of Brunswick, 155 N.C. App. 138, 144, 573 S.E.2d 688, 693 (2002) (“[A]ny such conditions [authorized by statute] must be specified in the ordinance.”).

. “The board can impose additional unique, project-specific conditions on special and conditional permits. However, it is very important to note that the board does not have the authority to impose any conditions it wants. Each condition must be related to bringing the project into compliance with the standards for decision already in the zoning ordinance.” David W. Owens, Introduction to Zoning 63-64 (3d ed. 2007) [hereinafter Owens] (emphasis added).

. I recognize that in the case of Ward v. Inscoe, 166 N.C. Ápp. 586, 603 S.E.2d 393 (2004), this Court acknowledged the right of the City of Henderson to impose conditions on a conditional use permit; however, the conditions imposed were not at issue in that case as the appellants were city residents who opposed the issuance of the permit altogether. Moreover, we must focus on the exact language of the ordinances before us in the case sub judice.

. “After taking evidence, the board must make written findings of fact. This is necessary to let the parties-and, if the matter is appealed, the courts-know what the board concluded about the facts of the case. A simple written conclusion that the standards were or were not met is not sufficient, nor is a letter just stating the permit has been issued or denied. The findings need to provide enough detail to let the reader know what the board determined the key facts to be. Proposed factual findings can be drafted ahead of time (by the applicant, the opponents, or the staff) and adopted at the meeting, or findings can be composed at the conclusion of the hearing. . . . The board must also provide a written decision applying these facts to the standards of the ordinance.” Owens, supra, at 56-57.

. The validity of condition fifteen is the crux of this case and we focus primarily on it. However, in order to strike condition fifteen without invalidating the permit as a whole, condition two must also be stricken from the permit.

. Though not dispositive, it is pertinent to note that at the close of the second hearing in this matter, Carrboro Mayor Mark Chilton stated: “WeE . . . the concern I have about some of the comments I’ve heard from the board tonight is that. . . basically this project is ... it’s a commercial project — commercial retail project that’s proposed ... in a zoning district that allows that type of commercial retail project. And— it’s fundamentally about the size of development that the development ordinance contemplates for the site. . . . And I am inclined to think that there are a number of important conditions that need to be applied to before I would be comfortable with issuing a permit for this project. But, basically, fundamentally, I don’t really see a reason — a legally valid reason why the project would be rejected altogether. ... I would like to hear a motion to move out of the public hearing because I think we’re — -we need to get to that point where we consider the application in detail and look at. . . what kind of conditions might be acceptable to the board and acceptable to the applicant because there’s really not a reason to[,] . .. that I can see to say no to this altogether.”

The mayor’s statements mirror the townspeople’s unease with the development and their desire to impose conditions; however, there must be a legally vaEd reason for first denying the permit altogether and then applying conditions. As the Mayor suggests, he did not see a reason for denying the permit at that time and, in fact, no findings were ever made that would justify denying the permit.

. Overton, 155 N.C. App. at 104, 574 S.E.2d at 153-54, sets out the test for determining whether a condition is reasonable, including whether the condition “unreasonably affects the way in which business on the property can be conducted.” However, there is no need to address whether condition fifteen was “reasonable” since the condition should not have been attached at all.