{ "id": 8242763, "name": "CUMULUS BROADCASTING, LLC, Petitioner v. HOKE COUNTY BOARD OF COMMISSIONERS, Respondent", "name_abbreviation": "Cumulus Broadcasting, LLC v. Hoke County Board of Commissioners", "decision_date": "2006-12-05", "docket_number": "No. COA06-182", "first_page": "424", "last_page": "432", "citations": [ { "type": "official", "cite": "180 N.C. App. 424" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "621 S.E.2d 270", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634307 ], "year": 2005, "pin_cites": [ { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/se2d/621/0270-01" ] }, { "cite": "546 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "353 N.C. 280", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135960, 135680, 135707, 135879 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/353/0280-01", "/nc/353/0280-03", "/nc/353/0280-04", "/nc/353/0280-02" ] }, { "cite": "533 S.E.2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "532" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 269", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9496549 ], "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0269-01" ] }, { "cite": "178 S.E.2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "81", "parenthetical": "\"The judgment... is reversed, and the cause is remanded to the Superior Court for entry of judgment directing the commissioners to issue the special-exception permit for which appellants applied.\"" } ], "opinion_index": 0 }, { "cite": "277 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565670 ], "year": 1970, "pin_cites": [ { "page": "426", "parenthetical": "\"The judgment... is reversed, and the cause is remanded to the Superior Court for entry of judgment directing the commissioners to issue the special-exception permit for which appellants applied.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0419-01" ] }, { "cite": "558 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "opinion_index": 0 }, { "cite": "558 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "227" }, { "page": "228" }, { "page": "246-47" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 238", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9365184 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "246" }, { "page": "247" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0238-01" ] }, { "cite": "202 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "136", "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "284 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562793 ], "year": 1974, "pin_cites": [ { "page": "468", "parenthetical": "emphasis supplied" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0458-01" ] }, { "cite": "72 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "840" } ], "opinion_index": 0 }, { "cite": "236 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625384 ], "year": 1952, "pin_cites": [ { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0321-01" ] }, { "cite": "150 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "443", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0 }, { "cite": "268 N.C. 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561227 ], "year": 1966, "pin_cites": [ { "page": "266", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0263-01" ] }, { "cite": "174 N.C. App. 574", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352668 ], "year": 2005, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0574-01" ] }, { "cite": "565 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "17" } ], "opinion_index": 0 }, { "cite": "356 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511222 ], "year": 2002, "pin_cites": [ { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0001-01" ] }, { "cite": "578 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "691", "parenthetical": "\"The whole record test applies to findings of fact and compels a determination of whether the findings of fact of the Board are supported by competent evidence in the record.\"" }, { "page": "691", "parenthetical": "\"Zoning ordinances derogate common law property rights and must be strictly construed in favor of the free use of property.\"" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 349", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186679 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "353", "parenthetical": "\"The whole record test applies to findings of fact and compels a determination of whether the findings of fact of the Board are supported by competent evidence in the record.\"" }, { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0349-01" ] }, { "cite": "215 S.E.2d 73", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "76" } ], "opinion_index": 0 }, { "cite": "287 N.C. 493", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564022 ], "year": 1975, "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0493-01" ] }, { "cite": "431 S.E.2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "186" }, { "page": "187" } ], "opinion_index": 0 }, { "cite": "334 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2528575 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "136" }, { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0132-01" ] }, { "cite": "589 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2003, "pin_cites": [ { "page": "165", "parenthetical": "internal citation omitted" }, { "page": "165", "parenthetical": "emphasis supplied" }, { "page": "165" }, { "page": "167" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 625", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8959579 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "628-29", "parenthetical": "internal citation omitted" }, { "page": "629" }, { "page": "629" }, { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0625-01" ] } ], "analysis": { "cardinality": 755, "char_count": 19046, "ocr_confidence": 0.748, "pagerank": { "raw": 1.5352219490138655e-07, "percentile": 0.6718548069790942 }, "sha256": "478f8513d71c509f60860227438ec5fc413166d6fbffbe72af11f995acb06f15", "simhash": "1:9503d40a357e4e7b", "word_count": 3020 }, "last_updated": "2023-07-14T16:41:00.069129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and LEVINSON concur." ], "parties": [ "CUMULUS BROADCASTING, LLC, Petitioner v. HOKE COUNTY BOARD OF COMMISSIONERS, Respondent" ], "opinions": [ { "text": "TYSON, Judge.\nThe Hoke County Board of Commissioners (the \u201cCommission\u201d) appeals from order entered reversing its decision to deny Cumulus Broadcasting, LLC (\u201cCumulus\u201d) a conditional use permit to construct a 499-foot radio tower. We affirm.\nI. Background\nJimmy and Carol Bunce (\u201cthe Bunces\u201d) own approximately 250 acres of real property located in Hoke County. The Bunces leased twenty-three acres of their property to Cumulus. Cumulus leased the property with the intent to construct a 499-foot radio tower on the leasehold. Cumulus applied to Hoke County\u2019s Planning Department for a conditional use permit to construct a radio tower.\nBunce\u2019s property is zoned RA-20 Residential-Agricultural District. The Hoke County Zoning Ordinance \u00a7 8.6(C) RA-20 Residential-Agricultural District includes as a conditional use: \u201cCommunications; Broadcasting, and Receiving Towers; Radio, Television, and Radar; with setbacks from all property lines of at least one (1) foot for every foot of structure height.\u201d\nOn 9 June 2005, the Planning Board heard Cumulus\u2019s application and voted to deny the permit. On 5 July 2005, the Commission held a public hearing and voted three-to-two to deny Cumulus\u2019s application for a conditional use permit.\nCumulus timely filed a \u201cPetition for Certiorari\u201d with the superior court asserting the Commission: (1) arbitrarily and capriciously denied the permit; (2) improperly determined that the permit should not be granted; (3) improperly determined that it was within its legal authority to deny the permit for a variance; (4) failed to follow the proper procedure in making findings; (5) acted without sufficient evi-dentiary basis; and (6) applied rules that violated due process.\nAfter a hearing on 3 October 2005, the superior court reversed the Commission\u2019s decision. The superior court remanded the matter to the Commission for approval of the application and issuance of a conditional use permit. The Commission appeals.\nII. Issues\nThe Commission argues the trial court: (1) applied an improper standard of review to the Commission\u2019s decision; (2) erred in finding insufficient evidence in the record to support the Commission\u2019s decision; (3) erred in reaching conclusion of law numbered 1; (4) erred in reaching conclusion of law numbered 2; and (5) erred by remanding this matter to the Commission with a mandate to approve and issue a conditional use permit.\nIII. Standard of Review\nIn reviewing a commission\u2019s decision to deny an application for a conditional use permit, a superior court must: (1) review the record for errors in law; (2) insure that procedures specified by law in both statute and ordinance are followed; (3) insure that the appropriate due process rights of the petitioner are protected, including the right to offer evidence, cross-examine witnesses and inspect documents; (4) insure decisions of boards of adjustment are supported by competent, material and substantial evidence in the whole record; and (5) insure decisions are not arbitrary and capricious. Humane Soc\u2019y of Moore Cty., Inc. v. Town of Southern Pines, 161 N.C. App. 625, 628-29, 589 S.E.2d 162, 165 (2003) (internal citation omitted).\n\u201cThe 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.\u201d Capricorn Equity Corp. v. Town of Chapel Hill, 334 N.C. 132, 136, 431 S.E.2d 183, 186 (1993). \u201cIt is not the function of the reviewing court, in such a proceeding, to find the facts but to determine whether the findings of fact made by the Board are supported by the evidence before the Board.\u201d In re Campsites Unlimited, 287 N.C. 493, 498, 215 S.E.2d 73, 76 (1975); see Lambeth v. Town of Kure Beach, 157 N.C. App. 349, 353, 578 S.E.2d 688, 691 (2003) (\u201cThe whole record test applies to findings of fact and compels a determination of whether the findings of fact of the Board are supported by competent evidence in the record.\u201d).\nThe trial court examines the whole record to determine whether the agency\u2019s decision is supported by competent, material, and substantial evidence. Mann Media, Inc. v. Randolph County Planning Board, 356 N.C. 1, 14, 565 S.E.2d 9, 17 (2002). In applying the whole record test, \u201cthe trial court may not weigh the evidence presented to the agency or substitute its own judgment for that of the agency.\u201d BellSouth Carolinas PCS v. Henderson County Zoning Bd. of Adjustment, 174 N.C. App. 574, 576, 621 S.E.2d 270, 272 (2005). Questions of law are reviewable de novo. Capricorn Equity Corp., 334 N.C. at 137, 431 S.E.2d at 187.\nThis Court has stated our standard of review:\nThe task of this Court in reviewing a superior court order is (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\u2019s 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.\nHumane Soc\u2019y of Moore Cty., Inc., 161 N.C. App. at 629, 589 S.E.2d at 165 (emphasis supplied) (internal citations and quotations omitted).\nThe Commission contends the superior court erred in its application of the appropriate standard of review to the Commission\u2019s decision denying Cumulus\u2019s conditional use permit. We disagree.\nOur Supreme Court has stated:\nZoning regulations are in derogation of common law rights and they cannot be construed to include or exclude by implication that which is not clearly their express terms. It has been h\u00e9ld that well-founded doubts.as to the meaning of obscure provisions of a Zoning Ordinance should be resolved in favor of the free use of property.\nYancey v. Heafner, 268 N.C. 263, 266, 150 S.E.2d 440, 443 (1966) (citation and quotation omitted); see Lambeth, 157 N.C. App. at 354, 578 S.E.2d at 691 (\u201cZoning ordinances derogate common law property rights and must be strictly construed in favor of the free use of property.\u201d). \u201cEvery person owning property has the right to make any lawful use of it he sees fit, and restrictions sought to be imposed on that right must be carefully examined . . . .\u201d Harrington & Co. v. Renner, 236 N.C. 321, 324, 72 S.E.2d 838, 840 (1952).\nOur Supreme Court has stated:\nWhen 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.\nRefining Co. v. Board of Aldermen, 284 N.C. 458, 468, 202 S.E.2d 129, 136 (1974) (emphasis supplied). This Court has more recently stated, \u201cDenial of a conditional use permit must be based upon findings which are supported by competent, material, and substantial evidence appearing in the record.\u201d Howard v. City of Kinston, 148 N.C. App. 238, 246, 558 S.E.2d 221, 227 (2002).\nThe superior court reviewed the record before the Commission and concluded: (1) Cumulus presented sufficient material and competent evidence to satisfy its prima facie burden of entitlement to a conditional use permit; (2) insufficient competent and material evidence was presented before the Commission to rebut Cumulus\u2019s prima facie case; and (3) the Commission erred in voting to deny Cumulus\u2019s application for a conditional use permit.\nThe superior court held the Commission\u2019s decision to deny the permit was not supported by competent, material, and substantial evidence in the record. In reaching this conclusion, the superior court neither re-weighed the evidence nor substituted its judgment for that of the Commission. The superior court reviewing the evidence presented in opposition to the conditional use permit and ruled it was \u201canecdotal, conclusory, and without a demonstrated factual basis.\u201d The superior court properly reviewed the quantum and not the credibility of the evidence and found it insufficient to rebut Cumulus\u2019s prima facie case. The superior court properly applied the whole record review by examining all the evidence to determine if substantial evidence supported the Commission\u2019s findings and conclusions. This assignment of error is overruled.\nIV. Sufficiency of the Evidence\nThe Commission contends the trial court erred in finding as fact that the evidence presented to the Commission in opposition to the permit was \u201canecdotal, conclusory, and without a demonstrated factual basis.\u201d We disagree.\nWhen a party alleges that a decision of the superior court is arbitrary and capricious or unsupported by substantial evidence, this Court reviews the whole record. Humane Soc\u2019y of Moore Cty., Inc., 161 N.C. App. at 629, 589 S.E.2d at 165. Here, we examine the whole record to determine if the evidence presented to the Commission in opposition to the permit was \u201canecdotal, conclusory, and without a demonstrated factual basis.\u201d\nGene Thacker (\u201cThacker\u201d), Mary Ann Baker (\u201cBaker\u201d), Julian Johnson, Margaret Johnson, and Will Wright testified in opposition to the issuance of the conditional use permit. Thacker owns a private airport near the location of the proposed tower and testified the proposed tower would interfere with aircraft instrument approaches. No evidence in the record shows the basis for Thacker\u2019s other than his ownership of the airstrip.\nBaker testified she \u201cwas the [former] AOPA [Aircraft Owners and Pilots Association] safety representative\u201d in that area of Hoke County. Baker testified not approving the tower at this location was \u201cjust a matter of common sense and safety.\u201d Baker also testified the tower would affect \u201c90 percent of all air traffic in Hoke County.\u201d Baker\u2019s statements and opinions were conclusory statements and unsupported by any other evidence.\nJulian Johnson testified the Federal Aviation Administration and the United States Military would not object to the tower. The proposed location for the tower was out of their jurisdictions. Margaret Johnson and Will Wright testified to their opinions about safety concerns that the proposed tower would pose to air traffic in the area.\nNo testimony in opposition was presented to show that approval of the conditional use permit would violate any factors in the ordinance to approve the permit or to rebut Cumulus\u2019s prima facie case. Further, the record on appeal contains a letter of approval for the tower issued by the Federal Aviation Administration and the Federal Communications Commission.\nIn Howard v. City of Kinston, this Court held that testimony based upon \u201cpersonal knowledge and observations\u201d is not \u201cspeculative assertions, mere expression^] of opinion, or [] generalized fears.\u201d 148 N.C. App. 238, 247, 558 S.E.2d 221, 228 (2002). This Court stated:\n[T]he City concluded that \u201c[t]he proposed subdivision will create from [300] to [800] additional daily trips on existing streets which will materially endanger the public health or safety of the residents, including children, in the adjacent subdivision].\u201d In reaching this conclusion, the City relied on the testimony of Ed Lynch, a member of the City\u2019s Planning Department, and Phyllis Gay, a Westwood resident testifying in opposition to petitioner\u2019s application.\nAt the public hearing, Mr. Lynch provided a presentation on the impact of petitioner\u2019s proposal on existing traffic in the area. In sum, Mr. Lynch concluded that the proposed subdivision would significantly increase vehicular activity in the area by approximately 300 to 800 trips a day. Ms. Gay also testified during the public hearing. During her testimony, Ms. Gay testified that approximately 100 children lived in Westwood, that existing traffic has caused near accidents involving children while they were walking and riding their bicycles, and increased traffic would endanger the health and safety of the children.\nWe note that Ms. Gay based her testimony about the adverse effects of the proposed subdivision on traffic congestion and safety upon her personal knowledge and observations. Thus, unlike Gregory, Sun Suites, and Woodhouse, cited above, we conclude that Ms. Gay\u2019s concerns were valid and not the result of speculative assertions, mere expression of opinion, or her generalized fears.\nId. at 246-47, 558 S.E.2d 227-28.\nSeveral of the witnesses who testified in opposition to Cumulus\u2019s application for a conditional use permit are involved in aerial activities in the area (pilots, airstrip owners). Under Howard, their testimony might not be considered \u201cspeculative assertions, mere expressions of opinion, or . . . generalized fears.\u201d Id.\nThe facts in Howard are distinguishable from the facts at bar. In Howard, an expert testified on the potential traffic impact if the conditional use permit was granted. Id. This expert testimony quantitatively supported the health and safety concerns based upon the personal knowledge of Ms. Gay and upon which the City relied in denying Cumulus\u2019s application for a conditional use permit. Id.\nHere, the testimony in opposition to the granting of the conditional use permit was from witnesses relying solely upon their personal' knowledge and observations. No witnesses rebutted Cumulus\u2019s quantitative data and other evidence in support of the conditional use permit.\nThe trial court\u2019s finding of fact that the evidence presented to the Commission to rebut Cumulus\u2019s prima facie entitlement to the permit was \u201canecdotal, conclusory, and without a demonstrated factual basis\u201d is supported by the lack of material and factual evidence in the whole record to overcome Cumulus\u2019s prima facie entitlement to the permit.\nThe trial court conducted the proper review of the Commission\u2019s decision and did not err by concluding Cumulus was entitled to a conditional use permit. The evidence presented in opposition did not rebut Cumulus\u2019s prima facie showing. This assignment of error is overruled.\nV. Conclusions of Law Numbered 1 and 2\nThe Commission contends the trial court erred in forming its conclusion of law numbered 1 and 2 by reviewing the facts inappropriately and making conclusions of law that are not supported by evidence in the record or by the court\u2019s findings of fact. The Commission argues the trial court employed the wrong factual analysis in reaching subpart b and c of conclusion of law numbered 1. The Commission also argues the trial court erred by employing a de novo approach in reaching conclusion of law numbered 2 that Cumulus \u201chas satisfied its burden and has made a prima facie case that it is entitled to a conditional use permit.\u201d\nThis argument is a reiteration of the Commission\u2019s argument above that the trial court applied an improper standard of review to the Commission\u2019s decision. For the reasons stated above, these assignments of error are overruled.\nVI. Remanding with a Mandate to Issue a Conditional Use Permit\nThe Commission contends the trial court erred by remanding this matter to the Commission with a mandate for the Commission to approve and issue Cumulus a conditional use permit. The Commission argues \u201cthe common remedy would be to remand the matter back to [the Commission] for more detailed findings of fact and conclusions of law.\u201d We disagree.\nThis Court has regularly upheld trial court rulings that remanded a case to the town or county commission for issuance of a conditional use permit. See In re Application of Ellis, 277 N.C. 419, 426, 178 S.E.2d 77, 81 (1970) (\u201cThe judgment... is reversed, and the cause is remanded to the Superior Court for entry of judgment directing the commissioners to issue the special-exception permit for which appellants applied.\u201d); Humane Soc\u2019y of Moore Cty., Inc., 161 N.C. App. at 633, 589 S.E.2d at 167 (\u201cDecisions by the North Carolina Court of Appeals have regularly upheld rulings of the trial court that remanded a case to the town for issuance of a conditional use permit\u201d); Sun Suites Holdings, LLC v. Board of Aldermen of Town of Garner, 139 N.C. App. 269, 280, 533 S.E.2d 525, 532 (\u201c[R]emand to the Board with direction to issue the requested conditional use permit to petitioners.\u201d), disc. rev. denied, 353 N.C. 280, 546 S.E.2d 397 (2000). The Commission failed to offer any controlling authority to support its contention. This assignment of error is overruled.\nVII. Conclusion\nThe trial court applied the proper standard of review to the Commission\u2019s decision. The trial court did not err in finding insufficient material and factual evidence in the whole record to rebut Cumulus\u2019s prima facie entitlement to the permit or to support the Commission\u2019s decision. The trial court did not err by remanding this matter to the Commission with a mandate to approve and issue Cumulus a conditional use permit. The superior court\u2019s order is affirmed.\nAffirmed.\nJudges BRYANT and LEVINSON concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Derek J. Allen and Katherine A. Murphy, for petitioner-appellee.", "Garris Neil Yarborough, for respondent-appellant." ], "corrections": "", "head_matter": "CUMULUS BROADCASTING, LLC, Petitioner v. HOKE COUNTY BOARD OF COMMISSIONERS, Respondent\nNo. COA06-182\n(Filed 5 December 2006)\n1. Zoning\u2014 conditional use permit \u2014 denial of conditional use permit \u2014 whole record test \u2014 properly applied\nThe superior court properly applied the whole record test in a case arising from the denial of a conditional use permit for a radio tower where the court examined all of the evidence to determine whether substantial evidence supported the Commission\u2019s findings and conclusions. The court neither reweighed the evidence nor substituted its judgment for that of the Board of Commissioners.\n2. Zoning\u2014 conditional use permit \u2014 evaluation of evidence\nThe trial court did not err by finding that the evidence presented to the Board of Commissioners in opposition to a conditional use permit was anecdotal, conclusory, and without a demonstrated factual basis. The testimony came from witnesses relying solely on their personal knowledge and observations; no witnesses rebutted the quantitative data and other evidence supporting the permit.\n3. Zoning\u2014 conditional use permit \u2014 wrongly denied \u2014 remedy\nThe trial court did not err by remanding the denial of a conditional use permit to the Board of Commissioners for issuance of the permit. Trial court rulings that have remanded such cases for the issuance of the permit have been upheld regularly, and the Board offered no controlling authority for its contention that the common remedy would be remand for more detailed findings and conclusions.\nAppeal by respondent from order entered 18 October 2005 by Judge B. Craig Ellis in Hoke County Superior Court. Heard in the Court of Appeals 11 October 2006.\nBrooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Derek J. Allen and Katherine A. Murphy, for petitioner-appellee.\nGarris Neil Yarborough, for respondent-appellant." }, "file_name": "0424-01", "first_page_order": 454, "last_page_order": 462 }