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  "name_abbreviation": "Blair Investments, LLC v. Roanoke Rapids City Council",
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    "judges": [
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    "parties": [
      "BLAIR INVESTMENTS, LLC, Petitioner v. ROANOKE RAPIDS CITY COUNCIL and CITY OF ROANOKE RAPIDS, Respondents"
    ],
    "opinions": [
      {
        "text": "STEELMAN, Judge.\nWhere petitioner made aprima facie case that it was entitled to a special use permit to construct a cell tower and the city council\u2019s denial of petitioner\u2019s application was not supported by competent, material, and substantial evidence, the trial court erred by affirming the city council\u2019s decision.\nI. Factual and Procedural Background\nBlair Investors, LLC, (petitioner), a North Carolina limited liability corporation, leased a 100 square foot site in Roanoke Rapids to U.S. Cellular, which planned to install a cell phone tower. The property is zoned 1-1 Industrial by the City of Roanoke Rapids, a zoning category that allows placement of a cellular phone tower upon granting of a special use permit.\nPetitioner submitted an application to the Roanoke Rapids Planning and Development Department (the planning department) for a special use permit to construct the cell tower, and on 8 August 2012 the planning department submitted a report to the mayor of Roanoke Rapids and to the Roanoke Rapids City Council (the council) (respondent, with City of Roanoke Rapids, respondents) recommending approval of the application. On 14 August 2012 the council held a public hearing on petitioner\u2019s application. Sworn testimony was offered by the director of the planning department, who introduced the department\u2019s report, and by several area residents who commented on petitioner\u2019s application. At a subsequent meeting on 9 October 2012 the council denied the special use permit on the grounds that \u201cmore probably than not\u201d the proposed tower would \u201cendanger the public health or safety\u201d and would \u201cnot be in harmony with the surrounding area.\u201d\nOn 14 November 2012, petitioner filed a petition for writ of certio-rari in Superior Court, seeking review of respondent\u2019s decision. On 25 February 2012, the trial court entered an order affirming respondent\u2019s denial of petitioner\u2019s application for a special use permit.\nPetitioner appealed.\nII. Evidentiary Support for Denial of Special Use Permit\nIn its first argument, petitioner contends that the trial court erred in affirming the decision of the council, on the grounds that the council\u2019s ruling was \u201cnot supported by any relevant evidence.\u201d We agree.\nA. Standard of Review\n\u201c[T]he terms \u2018special use\u2019 and \u2018conditional use\u2019 are used interchangeably[.] ... [A] conditional use or a special use permit \u2018is one issued for a use which the ordinance expressly permits in a designated zone upon proof that certain facts and conditions detailed in the ordinance exist.\u2019 \u201d Concrete Co. v. Board of Commissioners, 299 N.C. 620, 623, 265 S.E.2d 379, 381 (1980) (quoting Refining Co. v. Board of Aldermen, 284 N.C. 458, 467, 202 S.E. 2d 129, 135 (1974) (other citation omitted).\n\u201cA particular standard of review applies at each of the three levels of this proceeding - the [council], the superior court, and this Court. First, the [council] is the finder of fact in its consideration of the application for a special use permit. The [council] is required, as the finder of fact, to\n\u201cfollow a two-step decision-making process in granting or denying an application for a special use permit. If 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. If a prima facie case is established, [a] denial of the permit [then] should be based upon findings contra which are supported by competent, material, and substantial evidence appearing in the record.\u201d\nDavidson Cty. Broadcasting Inc. v. Rowan Cty. Bd. of Comm\u2019rs, 186 N.C. App. 81, 86, 649 S.E.2d 904, 909 (2007) (quoting Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 12, 565 S.E.2d 9, 16-17 (2002) (internal quotation omitted), disc. review denied, 362 N.C. 470, 666 S.E.2d 119 (2008).\n\u201cJudicial review of town decisions to grant or deny conditional use permits is provided for in G.S. 160A-388(e) which states, inter alia, \u2018Every decision of the board shall be subject to review by the superior court by proceedings in the nature of certiorari' \u201d Concrete Co., 299 N.C. at 623, 265 S.E.2d at 381. \u201c[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) [i]nsuring that procedures specified by law in both statute and ordinance are followed, (3) [i]nsuring that appropriate due process rights of a petitioner are protected including the right to offer evidence, cross-examine witnesses, and inspect documents, (4) [i]nsuiing that decisions of town boards are supported by competent, material and substantial evidence in the whole record, and (5) [ijnsuring that decisions are not arbitrary and capricious.\u201d Concrete Co. at 626, 265 S.E.2d at 383.\n\u201cWhen this Court reviews a superior court\u2019s order regarding a zoning decision by a Board of Commissioners, we examine the order to: \u2018(1) determine] whether the [superior] court exercised the appropriate scope of review and, if appropriate, (2) decid[e] whether the court did so properly.\u2019 \u201d Davidson Cty., 186 N.C. App. at 87, 649 S.E.2d at 910 (quoting Mann Media, 356 N.C. at 14, 565 S.E.2d at 18 (citations and quotations omitted).\n\u201cThere are two standards of review that may apply to special use permit decisions. Whole record review, a deferential standard, applies where we must determine if a decision was supported by the evidence or if it was arbitrary or capricious. However, errors of law are reviewed de novo.\u201d American Towers v. Town of Morrisville, N.C. App. _, _, 731 S.E.2d 698, 701 (2012) (citing Mann Media at 13, 565 S.E.2d at 17), disc. review denied, _ N.C. _, 743 S.E.2d 189 (2013)).\nB. Analysis\n\u201cWhen an applicant for a conditional use permit \u2018produces competent, material, and substantial evidence of compliance with all ordinance requirements, the applicant has made a prima facie showing of entitlement to a permit.\u2019 \u201d Howard v. City of Kinston, 148 N.C. App. 238, 246, 558 S.E.2d 221, 227 (2002) (quoting SBA, Inc. v. City of Asheville City Council, 141 N.C. App. 19, 27, 539 S.E.2d 18, 22 (2000) (internal citation omitted). \u201cSubstantial evidence is defined as \u2018that which a reasonable mind would regard as sufficiently supporting a specific result.\u2019 \u201d Baker v. Town of Rose Hill, 126 N.C. App. 338, 341, 485 S.E.2d 78, 80 (1997) (quoting CG&T Corp. v. Bd. of Adjustment of Wilmington, 105 N.C. App. 32, 40, 411 S.E.2d 655, 660 (1992) (internal citation omitted). Material evidence is evidence \u201c[h]aving some logical connection with the consequential facts,\u201d Black\u2019s Law DICTIONARY 998 (8th ed. 2004), and competent evidence is generally defined as synonymous with admissible evidence, Black\u2019s Law Dictionaey 595 (8th ed. 2004). Thus, substantial, competent, material evidence is evidence that is admissible, relevant to the issues in dispute, and sufficient to support the decision of a reasonable fact-finder. \u201c[W]e review de novo the initial issue of whether the evidence presented by petitioner met the requirement of being competent, material, and substantial.\u201d American Towers, _ N.C. App. at _, 731 S.E.2d at 701 (citing SBA, 141 _ N.C. App. at _, 23-29, 539 S.E.2d at 20-24).\nWe first consider whether petitioner made a prima facie case of entitlement to a special use permit. According to the minutes of the public hearing, the director of the planning department, Ms. Lasky, offered sworn testimony and introduced the planning department\u2019s report finding in part that (1) a wireless communication tower is \u201ca use that is permitted with the approval of a Special Use Permit\u201d; (2) the tower had been \u201cdesigned by a North Carolina Professional Engineer\u201d and its design and construction \u201cwill comply with all applicable structural engineering requirements\u201d; (3) the permit was within the planning department\u2019s jurisdiction; (4) the application was complete; and (5) the tower would \u201ccomply with all of the requirements of The Land Use Ordinance if completed as proposed in the application.\u201d\nThe planning department\u2019s report also concluded that it was \u201cprobably true\u201d that ingress and egress, to the lot was safe and convenient; that the effect of signs, lights, parking, noise, and refuse disposal on neighboring properties would be similar to other uses permitted in the zoning district; that utilities were available; and that the tower would be appropriately screened and would preserve the natural features of the property.\nPetitioner\u2019s application for a special use permit, which is over 100 pages, included the sworn affidavit of radiofrequency engineer Xiyang Liu averring that the tower would \u201ccomply with FCC and FAA rules concerning construction requirements, safety standards, interference protection, power and height limitations, and radio frequency standards,\u201d and that it would \u201cnot interfere with any other radio devices such as TV\u2019s, radios or other cellular phones\u201d and would \u201cnot interfere with any household products such as microwave ovens.\u201d Other documents in the application established that the tower met the requirements of the National Environmental Policy Act in that it would not adversely affect any endangered species, critical habitats, or historic properties; would not affect American Indian religious sites; would not involve any significant change in wetland fill, deforestation, or water diversion; was not located in a 100 year flood plain; and would not threaten human exposure to levels of radiofrequency radiation. Based on its assessment of these and other relevant factors, the planning department\u2019s report concluded that if completed as proposed the tower \u201cmore probably than not\u201d\n(a) Will not materially endanger the public health or safety [.]\nThe staff has determined that this is probably true: the proposed use will be located within an existing industrial facility [and]... will be required to meet all governmental and industry safety guidelines. ... An assessment of the previously referenced seven items . . . indicates no specific endangerment to the public health or safety that is not adequately addressed.\n(b) Will not substantially injure the value of the adjoining or abutting property[.]\nThe staff has determined that this is probably true....\n(c) Will be in harmony with the area in which it is to be located[.J\nThe staff has determined that this is probably true: its use as proposed will be in harmony with the existing surrounding uses in the area based on [the] previously referenced seven items[.]...\n(d) The use will be in general conformity with the Comprehensive Development Plan, Thoroughfare Plan, or other plan officially adopted by the City Council.\nThe staff has determined that this is probably true.\nThe planning department\u2019s report also stated that petitioner had \u201caddressed the requisite questions, which must be answered by the City Council in the application\u201d and that \u201cit is the Staffs opinion that the request satisfactorily meets the requirements of . . . [the] Land Use Ordinance.\u201d\nWe hold that the information in the planning department\u2019s report in conjunction with the director\u2019s testimony, constituted \u201ccompetent, 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.\u201d Mann Media, 356 N.C. at 12, 565 S.E.2d at 16. We agree with petitioner that it made aprima facie showing that it was entitled to a special use permit.\nOnce an applicant makes a prima facie showing of entitlement to a special use permit, \u201cthe 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. Denial 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, 148 N.C. App. at 246, 558 S.E.2d at 227 (citing Woodhouse v. Board of Commissioners, 299 N.C. 211, 219, 261 S.E.2d 882, 888 (1980) (internal quotation omitted).\nMoreover, a city council\u2019s 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 \u201cabout the possible effects of granting a permit are insufficient to support the findings of a quasi-judicial body.\u201d 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.\nHoward at 246, 558 S.E.2d at 227 (citing Gregory v. County of Harnett, 128 N.C. App. 161, 165, 493 S.E.2d 786, 789 (1997), quoting Sun Suites Holdings, LLC v. Board of Aldermen of Town of Garner, 139 N.C. App. 269, 276, 533 S.E.2d 525, 530 (internal citation omitted), disc. review denied, 353 N.C. 280, 546 S.E.2d 397 (2000), and citing Woodhouse, 299 N.C. at 220, 261 S.E.2d at 888).\nWe next consider whether the record contains substantial, competent, and material evidence to support denial of petitioner\u2019s application for a permit. The only evidence offered in opposition to issuance of the special use permit consisted of comments by several local residents:\n1. Mr. Steve Hill stated that his \u201cmain concerns\u201d were with David King\u2019s maintenance of the lot which, in his opinion, had. been \u201can eyesore to the City and neighborhood for many years[.] He said that the tower would be visible from his house and that he did \u201cnot believe this would be good for his property value.\u201d\n2. Mrs. Connie Hill stated that her \u201cconcerns\u201d were \u201cthe same as her husband\u2019s\u201d and that when she looked outside she saw \u201ca building falling down[.]\u201d Mrs. Hill said that she is not opposed to a cell tower but \u201cdoes not want to look at one.\u201d\n3. Mr. Jessie Bass stated \u201cone of his major concerns is whether or not the cell tower will interfere with the wireless devices he has in his home\u201d and that the city should have taken action to address maintenance of the property before now.\n4. Dr. Hashmat Chaudhry stated his office was \u201cacross the street from this property,\u201d that some of his patients had complained about an unpleasant smell from the lot, and that \u201cMr. King\u2019s garbage blows onto his property during storms.\u201d He asked whether items stored on the property constituted a fire hazard, and stated that he was \u201cconcerned about the danger to the public\u201d from the property. He also said that he did \u201cnot see a need for the cell tower.\u201d\n5. Mr. Craig Moseley \u201cstated this proposed tower will almost be in his backyard\u201d and \u201casked if Mr. King would maintain the tower as he does the rest of the property.\u201d\n6. Mr. Dennis Blackmon \u201cstated his main concern is with the existing building.\u201d\n7. Ms. Evelyn Dawson \u201cstated she would like to know the possible negative health and environmental side effects of such a structure\u201d and that \u201cshe feels the tower might be a blight on a well-traveled area of the conununity.\u201d\nThe comments from area residents were primarily concerned with the condition of a building on the property. To the extent that these speakers addressed the cell tower, their comments consisted entirely of speculative opinions, unsupported by any documentary or testimonial evidence, or of statements informing the council that the speaker had a question or a \u201cconcern\u201d about a particular issue.\nRespondent denied petitioner\u2019s application for a special use permit on the grounds that the tower would more probably than not \u201cmaterially endanger the public health or safety\u201d and that it was \u201cnot in harmony with the area in which it is to be located.\u201d However, no evidence was introduced that was competent or material on either the health and safety implications of the tower or whether it would be in harmony with the surrounding area. \u201cThe inclusion of the particular use in the ordinance as one which is permitted under certain conditions, is equivalent to a legislative finding that the prescribed use is one which is in harmony with the other uses permitted in the district.\u201d Woodhouse, 299 N.C. at 216, 261 S.E.2d at 886. Respondents cite no evidence that the tower would not be in harmony with the area, nor any evidence about health or safety issues. We hold that respondents\u2019 denial of petitioner\u2019s application was not supported by substantial, material, and competent evidence.\nRespondents allege on appeal that the \u201cconcerns\u201d of local residents constituted substantial, material, and competent evidence. However, respondents neither acknowledge nor attempt to distinguish precedent holding that a board\u2019s decision to deny a permit request may not be based on speculative opinions:\nThe evidence relied upon by the respondent Board to support its finding is incompetent as opinion testimony and is highly speculative in nature. \u201cThe denial of a special exception permit may not be founded upon conclusions which are speculative, sentimental, personal, vague or merely an excuse to prohibit the use requested.\u201d\nWoodhouse, 299 N.C. at 220-21, 261 S.E.2d at 888 (quoting Baxter v. Gillispie, 60 Misc. 2d 349, 354, 303 N.Y.S. 2d 290, 296 (1969).\nWe hold that the council\u2019s denial of petitioner\u2019s application for a special use permit was not supported by substantial, competent, and material evidence. \u201cWhen a Board action is unsupported by competent substantial evidence, such action must be set aside for it is arbitrary.\u201d MCC Outdoor, LLC v. Town of Franklinton Bd. of Comm\u2019rs, 169 N.C. App. 809, 811, 610 S.E.2d 794, 796 (citing Refining Co., 284 N.C. at 468, 202 S.E.2d at 135-36), disc. review denied, 359 N.C. 634, 616 S.E.2d 540 (2005). Where the trial court affirms the denial of a permit application when the denial was not based on sufficient evidence, the trial court must be reversed. MCC Outdoor, 169 N.C. App. at 815, 610 S.E.2d at 798. We hold that the trial court\u2019s order must be reversed.\nPetitioner has also argued that the trial court\u2019s order should be reversed on the grounds that the council\u2019s decision was internally inconsistent because it found both that the proposed cell tower complied with the town\u2019s planning ordinance and also that it was not in harmony with the surrounding area, and because the council\u2019s ruling violated the federal Telecommunications Act. However, having reversed the trial court on the grounds discussed above, we need not address these alternative bases for reversal.\nConclusion\nWe conclude that the trial court erred by affirming the decision of the council to deny petitioner\u2019s application for a special use permit and that its order should be reversed and the case remanded to Halifax County Superior Court for remand to the city council with instructions to grant petitioner\u2019s application for a special use permit.\nREVERSED.\nChief Judge MARTIN and Judge DILLON concur.\n. According to the minutes of the public hearing, these comments constitute the entire extent of evidence in opposition to the proposed cell tower. No transcript was made of the hearing.",
        "type": "majority",
        "author": "STEELMAN, Judge."
      }
    ],
    "attorneys": [
      "Richard E. Jester for petitioner-appellant.",
      "Chichester Law Office, by Geoffrey R Davis, and Gilbert W. Chichester, for respondent-appellees."
    ],
    "corrections": "",
    "head_matter": "BLAIR INVESTMENTS, LLC, Petitioner v. ROANOKE RAPIDS CITY COUNCIL and CITY OF ROANOKE RAPIDS, Respondents\nNo. COA13-690\nFiled 17 December 2013\nZoning \u2014 erroneous denial of special use permit \u2014 cell tower\nThe trial court erred by affirming the city council\u2019s decision to deny petitioner\u2019s application for a special use permit. Petitioner made a prima facie case that it was entitled to a special use permit to construct a cell tower and the city council\u2019s denial of petitioner\u2019s application was not supported by competent, material, and substantial evidence.\nAppeal by Petitioner from order entered 25 February 2012 by Judge Alma L. Hinton in Halifax County Superior Court. Heard in the Court of Appeals 4 November 2013.\nRichard E. Jester for petitioner-appellant.\nChichester Law Office, by Geoffrey R Davis, and Gilbert W. Chichester, for respondent-appellees."
  },
  "file_name": "0318-01",
  "first_page_order": 328,
  "last_page_order": 336
}
