{ "id": 12168799, "name": "TEMPLETON PROPERTIES LP, Petitioner v. TOWN OF BOONE, Respondent", "name_abbreviation": "Templeton Properties LP v. Town of Boone", "decision_date": "2014-06-03", "docket_number": "No. COA13-1274", "first_page": "303", "last_page": "317", "citations": [ { "type": "official", "cite": "234 N.C. App. 303" } ], "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": "653 S.E.2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639997 ], "year": 2007, "pin_cites": [ { "page": "888" } ], "opinion_index": 0, "case_paths": [ "/se2d/653/0886-01" ] }, { "cite": "641 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637929 ], "year": 2007, "pin_cites": [ { "page": "737", "parenthetical": "quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/641/0735-01" ] }, { "cite": "444 S.E.2d 639", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "643", "parenthetical": "\"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.\"" }, { "page": "643", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 319", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127556 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "324", "parenthetical": "\"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.\"" }, { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0319-01" ] }, { "cite": "524 S.E.2d 46", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "52" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 114", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238496 ], "year": 1999, "pin_cites": [ { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0114-01" ] }, { "cite": "610 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "797" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 809", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8473946 ], "year": 2005, "pin_cites": [ { "page": "814" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0809-01" ] }, { "cite": "187 N.C. App. 764", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8376193 ], "year": 2007, "pin_cites": [ { "page": "768" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0764-01" ] }, { "cite": "752 S.E.2d 524", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2013, "pin_cites": [ { "page": "527" }, { "page": "529", "parenthetical": "quotation marks and citation omitted" } ], "opinion_index": 0 }, { "cite": "261 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "886" } ], "opinion_index": 0 }, { "cite": "299 N.C. 211", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574205 ], "year": 1980, "pin_cites": [ { "page": "216" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0211-01" ] }, { "cite": "488 S.E.2d 845", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "849" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 212", "category": "reporters:state", "reporter": "N.C. 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App. 32", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520953 ], "year": 1992, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0032-01" ] }, { "cite": "233 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "541" } ], "opinion_index": 0 }, { "cite": "292 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569880 ], "year": 1977, "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0406-01" ] }, { "cite": "565 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "17", "parenthetical": "quotation marks and citation omitted" } ], "opinion_index": 0 }, { "cite": "356 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511222 ], "year": 2002, "pin_cites": [ { "page": "14", "parenthetical": "quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0001-01" ] }, { "cite": "182 N.C. 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App.", "case_ids": [ 11238567 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/132/0465-01" ] }, { "cite": "712 S.E.2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2011, "pin_cites": [ { "page": "871" }, { "page": "871", "parenthetical": "quotation marks and citation omitted" }, { "page": "871" } ], "opinion_index": 0 }, { "cite": "365 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4153654 ], "weight": 3, "year": 2011, "pin_cites": [ { "page": "156" }, { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/nc/365/0152-01" ] }, { "cite": "689 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "883" }, { "page": "883" } ], "opinion_index": 0 }, { "cite": "202 N.C. App. 631", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4175363 ], "weight": 2, "year": 2010, "pin_cites": [ { "page": "636" }, { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/nc-app/202/0631-01" ] }, { "cite": "742 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "pin_cites": [ { "page": "786", "parenthetical": "finding a trial court mislabeled a mixed question of fact and law as a finding of fact" } ], "opinion_index": 0 }, { "cite": "366 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4360829 ], "year": 2013, "pin_cites": [ { "page": "512", "parenthetical": "finding a trial court mislabeled a mixed question of fact and law as a finding of fact" } ], "opinion_index": 0, "case_paths": [ "/nc/366/0505-01" ] }, { "cite": "557 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "634" }, { "page": "634" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9363630 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "55" }, { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0052-01" ] }, { "cite": "642 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2007, "pin_cites": [ { "page": "253", "parenthetical": "second alteration in original" } ], "opinion_index": 0 }, { "cite": "182 N.C. App. 427", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8172752 ], "year": 2007, "pin_cites": [ { "page": "429", "parenthetical": "second alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0427-01" ] }, { "cite": "2009 WL 2180620", "category": "reporters:specialty_west", "reporter": "WL", "weight": 7, "year": 2009, "pin_cites": [ { "parenthetical": "unpublished" }, { "page": "*1" } ], "opinion_index": 0 }, { "cite": "681 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "198 N.C. App. 406", "category": "reporters:state", "reporter": "N.C. App.", "year": 2009, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "724 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 12, "year": 2012, "pin_cites": [ { "page": "605", "parenthetical": "\"Templeton II\"" }, { "page": "606" }, { "page": "606-07" }, { "page": "614" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1214, "char_count": 33072, "ocr_confidence": 0.731, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24686149655829356 }, "sha256": "b601637630452008c41ed9e00b4c30a07bd3e94328c2c66ad1d1d9b324bc61e5", "simhash": "1:13bfd3da81852c7e", "word_count": 5419 }, "last_updated": "2023-07-14T22:30:06.319137+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STROUD and DILLON concur." ], "parties": [ "TEMPLETON PROPERTIES LP, Petitioner v. TOWN OF BOONE, Respondent" ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nThe Town of Boone (\u201cBoone\u201d) appeals the superior court\u2019s 7 August 2013 order reversing a decision of the Town of Boone\u2019s Board of Adjustment (\u201cBoard\u201d) that denied Templeton Properties L.P.\u2019s (\u201cTempleton\u201d) application for a zoning permit. We reverse the superior court\u2019s order.\nI. Facts & Procedural History\nThis is the third time this Court has reviewed this case. See Templeton Properties, L.P. v. Town of Boone, _ N.C. App. _, _, 724 S.E.2d 604, 605 (2012) (\u201cTempleton II\"); Templeton Properties LP v. Town of Boone, 198 N.C. App. 406, 681 S.E.2d 566, 2009 WL 2180620 (2009) (unpublished) (\u201cTempleton I\").\nThe dispute centers around Templeton\u2019s 2.9 acre lot (\u201cthe Parcel\u201d) in Boone at 315 State Farm Road. The Parcel is zoned for single-family residential use (\u201cR-l\u201d), 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 \u201ccomposed of mostly single-family residences,\u201d except for a non-residential VFW hall located near the Parcel. Id. Under section 165 of Boone\u2019s then-existing unified development ordinance (\u201cUDO\u201d), medical clinics over 10,000 square feet were allowed in R-l 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 \u00a7 69(c), namely that the development\n(1) Will materially endanger the public health or safety, or\n(2) Will substantially injure the value of adjoining or abutting property, or\n(3) Will not be in harmony with the area in which it is to be located,' or\n(4) Will not be in general conformity with the comprehensive plan, thoroughfare plan, or other plan officially adopted by the council.\nOn 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\u2019s concerns, including decreasing the clinic\u2019s size to 10,010 square feet, the current proposed size of the clinic. Id.\nOn 1 May 2007 the Board rejected Templeton\u2019s 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\u2019s denial of Templeton\u2019s 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.\nOn 2 September 2010, the Board met to make findings of fact relating to the special use permit after the remand. Id. After taking testimony from residents and Templeton\u2019s 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\u2019s 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\u2019s decision. Id. Templeton then appealed the superior court\u2019s decision to this Court, resulting in Templeton II. Id. This Court remanded in Templeton II and required the Board to \u201cmake reviewable findings of fact. . . based only upon the testimony and evidence presented at the hearings held on 5 April and 1 May 2007\u201d 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.\nOn remand, the Board again denied Templeton\u2019s 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\u2019s lack of harmony within the order:\n3. Templeton\u2019s proposed clinic would be 10,010 square feet in size and would have 67 parking spaces distributed among four different parking lots.\n4. The clinic and its parking lots would have 23 light poles. These light poles would produce a glow at night visible from neighborhood residents\u2019 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\u2019 light bulbs would not prevent light from bleeding into the neighborhood.\n5. 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.\n6. The clinic would have a large dumpster pad, though Templeton did not specify how many dumpsters would be on this pad.\n7. 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.\n8. 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.\n9. The area surrounding the Lot is predominantly zoned R-l Single Family Residential. The surrounding area has been almost uniformly zoned R-l Single Family Residential since the Town first adopted zoning for the area in 1979.\n10. The area surrounding the Lot is a 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\u2019s surrounding area also has more preserved trees and vegetation than other areas in Boone.\n11. 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.\n12. Except for the VFW hall, properties in the Lot\u2019s surrounding area are almost all single-family homes.\n13. 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.\n14. However, Templeton\u2019s survey was not limited to the area where the clinic would be located. Instead, Templeton\u2019s 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.\n15. Templeton\u2019s survey did not accurately reflect the character of the area in which the clinic would be located.\n16. The Lot\u2019s surrounding area is separated from less residential parts of Boone, including those less residential parts covered in Templeton\u2019s survey, by distance, topography, and the curves in State Farm Road. As a result, the Lot\u2019s surrounding area is a distinct and separate residential neighborhood.\n17. Templeton\u2019s appraiser, in describing the Lot\u2019s surrounding area, also concluded that the only developments in the surrounding area were the VFW hall and single-family homes.\n18. The Lot\u2019s surrounding area has no medical buildings, offices, or commercial developments.\n19. The clinic would introduce a busy commercial operation into an area that is overwhelmingly residential in character.\n20. At 10,010 square feet, the clinic would be much larger than the single family homes that predominate in the surrounding area.\n21. The clinic would produce far more traffic than other properties in the Lot\u2019s surrounding area and would produce a level of traffic out-of-character for that area.\n22. No properties in the Lot\u2019s surrounding area produce as much fight as the clinic would produce. The clinic\u2019s lighting .would not be in keeping with the type and level of lighting currently found in the surrounding area.\n23. Templeton\u2019s proposed clinic would not be in harmony with the area in which it would be located.\nOn 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. On 7 August 2013, the superior court entered an order reversing the Board\u2019s denial of Templeton\u2019s application. In its third conclusion of law, the superior court found\n3. The Board\u2019s determination that Petitioner\u2019s proposed use is not in harmony with the area rests on an overly-restrictive application of the term \u201carea,\u201d which amounts to a misinterpretation of the applicable standard. In this case, the relevant \u201carea\u201d 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 \u2014 not residential \u2014 purposes. Therefore, the Board\u2019s 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.\nAlso, the Board\u2019s 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 \u2014 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\u2019s findings in this case are of that nature, and as a matter of law do not support the Board\u2019s conclusion that the proposed use would not be in harmony with the area in which it is to be located.\nThe superior court\u2019s order also found that Finding of Fact 10 was not supported by competent evidence.\nIn its fourth conclusion of law, the superior court found the Board\u2019s determination that Templeton\u2019s proposed use would not be in conformity with the town\u2019s comprehensive plan was based on \u201cgeneral policy statements in the comprehensive plan\u201d and was not a sufficient basis to deny Templeton\u2019s application. The superior court also found the Board erred in finding that the proposed use would materially endanger public safety, as \u201cthere was not competent, material and substantial evidence to support such a conclusion.\u201d 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.\nII. Jurisdiction & Standard of Review\nJurisdiction in this Court is proper pursuant to N.C. Gen. Stat. \u00a7 7A-27(b)(l) (2013) (stating a right of appeal lies with this Court from the final judgment of a superior court \u201centered upon review of a decision of an administrative agency\u201d).\nBoone first argues that the superior court erred by improperly acting as a fact-finder in its determination of the \u201carea\u201d considered by the Board\u2019s harmony analysis. \u201c[T]his Court examines the trial court\u2019s 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.\u201d 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)).\nHere, the superior court erred when it concluded as a matter of law that the Board considered the wrong \u201carea\u201d when assessing the clime\u2019s harmony with the adjacent community. This issue is more properly construed as a mixed question of fact and law. See Farm Bureau v. Cully\u2019s 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\u2019ns Corp. v. City of Bessemer City Zoning Bd. of Adjustment, 202 N.C. App. 631, 636, 689 S.E.2d 880, 883 (2010), rev\u2019d on other grounds, 365 N.C. 152, 712 S.E.2d 868 (2011).\nIn Morris, this Court held (i) that interpretation of a term in a zoning ordinance was a question of law and (ii) that 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\u2019s alleged error of law, but also provided deference to a board of adjustment\u2019s 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\u2019s application of a deferential de novo standard, stating that \u201c[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\u2019s conclusions of law.\u201d Morris, 365 N.C. at 156, 712 S.E.2d at 871. The Supreme Court did not reverse this Court\u2019s finding that interpreting \u201cwork\u201d was properly considered a mixed question of law and fact. Id.\nThus, we review the superior court\u2019s determination that the Board erred in its definition of \u201carea\u201d in two parts: (i) whether the Board\u2019s interpretation of the ordinance\u2019s use of \u201carea\u201d prescribed was an error of law under de novo review and (ii) whether the specific findings of fact used to define the area were supported under the whole record test.\nUnder de novo review, we examine the case with new eyes. \u201c[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\u2019s record but reviews the evidence and law without deference to the trial court\u2019s rulings.\u201d Parker v. Glosson, 182 N.C. App. 229, 231, 641 S.E.2d 735, 737 (2007) (quotation marks and citations omitted).\n\u201cWhen 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.\u201d 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). \u201cThe \u2018whole record\u2019 test does not allow the reviewing court to replace the Board\u2019s 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.\u201d Thompson v. Wake Cnty. Bd. of Educ., 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977).\nIII. Analysis\nA. Defining Area in the Ordinance\nAs discussed supra in Section II, the definition of \u201carea\u201d in the ordinance is a mixed question of law and fact subject to de novo review. \u201c[O]ne of the functions of a Board of Adjustment is to interpret local zoning ordinances.\u201d CG & T Corp. v. Bd. of Adjustment of Wilmington, 105 N.C. App. 32, 39, 411 S.E.2d 655, 659 (1992). \u201c[Reviewing 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.\u201d Morris, 365 N.C. at 156, 712 S.E.2d at 871 (quotation marks and citation omitted).\nIn Morris, the Supreme Court compared a board of adjustment\u2019s interpretation of the term \u201cwork\u201d to the actual ordinance:\n[W]e find the BOA\u2019s interpretation of the term \u201cwork\u201d unpersuasive. The ordinance provides that:\n\u201cIf 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.\u201d\nCity of Bessemer City, N.C., Ordinance \u00a7 155.207.\nBessemer City\u2019s zoning administrator testified at the BOA hearing that he interpreted the term \u201cwork\u201d to mean \u201cactually something moving on the ground.... [construction.\u201d In his view, Fairway failed to commence \u201cwork\u201d 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.\nIn contrast, Fairway argues the term \u201cwork\u201d 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 \u201cwork\u201d under the ordinance. We agree with Fairway that the term \u201cwork\u201d has a broader meaning than mere visible evidence of construction.\nId. at 156-57, 712 S.E.2d at 871.\nWe consider the phrase \u201carea\u201d here and the Board\u2019s interpretation of it. The ordinance provides the Board with the ability to deny a special use permit if the application \u201c[w]ill not be in harmony with the area in which it is located.\u201d A fact-specific inquiry is necessarily required to define \u201carea\u201d 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 harmonious with its surroundings. This scenario is much like our Supreme Court\u2019s interpretation of the phrase a \u201creasonable time\u201d:\nIf, 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.\nClaus-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 \u201carea\u201d generally meant within the ordinance and there was no disagreement about the area in question, a trial court\u2019s de novo analysis of the Board\u2019s conclusion of law, that being an interpretation of \u201carea\u201d within the ordinance, would be appropriate.\nHere, the Board used the term \u201carea\u201d as it related to specific findings of fact, which was the proper application under UDO \u00a7 69(d). Finding of fact #13 considered Templeton\u2019s offered survey, which included nonresidential developments farther down State Farm Road. Finding of fact #14 noted that Templeton\u2019s evidence \u201cextended almost a mile away\u201d from the Parcel and that Templeton\u2019s survey excluded several properties fronting State Farm Road that the Board considered part of the \u201carea.\u201d Finding of fact #16 stated that \u201cdistance, topography, and the curves in State Farm Road\u201d separated the Parcel from the commercial properties cited by Templeton as being part of the \u201carea.\u201d Finding of fact #17 noted that Templeton\u2019s appraiser concluded \u201cthat the only developments in the surrounding area were the VFW hall and single-family homes.\u201d These findings, amongst others, are a proper contextual usage of \u201carea\u201d as laid forth in the ordinance and are inherently fact specific.\nBeyond reviewing the Board\u2019s actions, this Court reviews whether the superior court correctly performed its several tasks in its reviewing capacity:\n[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:\n(1) Reviewing the record for errors in law,\n(2) Insuring that procedures specified by law in both statute and ordinance are followed,\n(3) Insuring that appropriate due process rights of a petitioner are protected including the right to offer evidence, cross-examine witnesses, and inspect documents,\n(4) Insuring that decisions of town boards are supported by competent, material and substantial evidence in the whole record, and\n(5) Insuring that decisions are not arbitrary and capricious.\nCoastal Ready-Mix Concrete Co., Inc. v. Bd. of Comm\u2019rs of Nags Head, 299 N.C. 620, 626, 265 S.E.2d 379, 383 (1980).\n\u201cWhen the petitioner correctly contends that the agency\u2019s decision was either unsupported by the evidence or arbitrary and capricious, the appropriate standard of review for the initial reviewing court is \u2018whole record\u2019 review. If, however, petitioner properly alleges that the agency\u2019s decision was based on error of law, de novo review is required.\u201d 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 \u201cwhole record\u201d review for the final two tasks.\nHere, the superior court improperly acted as a finder of fact on review and imposed its own view of what the bounded \u201carea\u201d should be, rather than reviewing whether the Board\u2019s findings of fact concerning the area were supported by competent evidence and not arbitrary and capricious. The superior court held that the fact-specific definition of \u201carea\u201d as used by the Board should have included \u201csimilarly situated\u201d properties that are \u201cin reasonable proximity to the subject site.\u201d \u201cIn proceedings of this nature, the superior court is not the trier of fact. Such is the function of the town board.\u201d Coastal Ready-Mix Concrete Co., Inc., 299 N.C. at 626, 265 S.E.2d at 383. If findings of fact about the \u201carea\u201d 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.\nB. Rebuttal of a Presumed Legislative Finding\nTempleton also contends that because Boone\u2019s R-l zoning allowed construction of its clinic under a special use permit, Boone\u2019s legislative determination that climes 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\u2019rs of Nags Head, 299 N.C. 211, 216, 261 S.E.2d 882, 886 (1980) (\u201cWhere an applicant for a conditional use permit produces 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.\u201d (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\u2019rs of Pinebluff, 187 N.C. App. 764, 768, 653 S.E.2d 886, 888 (2007); MCC Outdoor, LLC v. Franklinton Bd. of Comm\u2019rs, 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\u2019rs, 115 N.C. App. 319, 324, 444 S.E.2d 639, 643 (1994) (\u201cThe 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.\u201d).\nOf the preceding cases, Templeton argues that Woodhouse uses a \u201clegislative finding\u201d rule and that Vulcan is a \u201cless-restrictive\u201d 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 petitioner \u201cmakes 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\u201d so long as denial is \u201cbased upon findings which are supported by competent, material, and substantial evidence appearing in the record\u201d (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 \u201ccompetent, material, and substantial evidence [showing the] use contemplated is not in fact in harmony with the area in which it is to be located.\u201d Vulcan, 115 N.C. App. at 324, 444 S.E.2d at 643 (citations and quotation marks omitted).\nAccordingly, we must consult the record to determine whether \u201ccompetent, material, and substantial\u201d evidence existed to support the Board\u2019s harmony analysis. Id.\nC. Findings of Fact Supporting Board\u2019s Decision to Deny the Special Use Permit\nAs noted supra in Section II, we now review whether the Board\u2019s findings of fact were supported by competent evidence under the whole record test. At the outset, we note that\n[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.\nBlair, _ N.C. App. at _, 752 S.E.2d at 529 (quotation marks and citation omitted). Were the Board\u2019s findings concerning the area\u2019s 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:\n\u2022 Finding of fact #3 notes that there would be sixty-seven parking spaces at the clinic.\n\u2022 Finding of fact #4 describes the twenty-three light poles on the clinic\u2019s grounds as well as issues with the shielding on the lights affecting the surrounding residents.\n\u2022 Finding of fact #5 describes Templeton\u2019s proposed left-turn lane to allow access from State Farm Road.\n\u2022 Finding of fact #6 describes the clinic\u2019s proposed \u201ctwo large dumpster pads,\u201d and that Templeton could not estimate how many containers would be placed on the pads.\n\u2022 Finding of fact #7 noted the uncertainty of the type of clinic that would locate at the facility.\n\u2022 Finding of fact #8 noted the size, limited weekend use, and lack of lighting by the current church structure on the Parcel.\n\u2022 Finding of fact #9 noted the historical tendency to zone the surrounding area as R-l.\n\u2022 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.\n\u2022 Finding of fact #12 noted that the surrounding area was primarily comprised of single family homes.\n\u2022 Findings of fact #13, #14, and #15 found that Templeton\u2019s 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.\n\u2022 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.\n\u2022 Finding of fact #17 notes that Templeton\u2019s appraiser described the Parcel\u2019s surrounding area as the VFW hall and single family homes.\n\u2022 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 \u201cbusy commercial operation\u201d into an \u201coverwhelmingly residential\u201d area.\n\u2022 Findings of fact #20, #21, and #22 note that the clinic would be \u201cmuch larger\u201d than the surrounding structures, would produce additional traffic, and would create more artificial light than other surrounding structures in the area.\nThese 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\u2019s 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 not being supported by evidence in its order. We disagree and hold that the six residents\u2019 testimony of the area regarding its contents constituted competent evidence supporting finding of fact #10. Accordingly, there was competent evidence supporting the Board\u2019s finding that the medical clinic would not be in harmony with its surrounding area pursuant to UDO \u00a7 69(c)(3) and the superior court erred in overturning the Board\u2019s decision to deny the special use permit.\nBecause we hold that the Board\u2019s denial of Templeton\u2019s special use permit was supported by competent evidence and proper under its harmony analysis, we do not address Boone\u2019s remaining arguments concerning conformance with the comprehensive plan or to provide for the public\u2019s safety.\nIV. Conclusion\nFor the reasons stated above, the decision of the superior court is\nREVERSED.\nJudges STROUD and DILLON concur.\n. For example, if the Board made a finding that \u201carea\u201d categorically included all adjacent properties within the R-l zoning area.\n. 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 \u201cmuch smaller.\u201d 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.", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." } ], "attorneys": [ "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." ], "corrections": "", "head_matter": "TEMPLETON PROPERTIES LP, Petitioner v. TOWN OF BOONE, Respondent\nNo. COA13-1274\nFiled 3 June 2014\n1. Zoning\u2014harmony with surrounding area\u2014issue of law and fact\u2014standard of review\nThe issue of whether the superior court erred in a zoning case by concluding as a matter of law that the Boone Board of Adjustment considered the wrong \u201carea\u201d when assessing a proposed clinic\u2019s harmony with the adjacent community was reviewed as a mixed question of fact and law, applying both de novo review and the whole record test.\n2. Zoning\u2014special use permit\u2014harmonious with area\u2014definition of area\u2014fact specific\nWhere a zoning ordinance provided the Boone Board of Adjustment with the ability to deny a special use permit if the application would not be in harmony with the area in which it was located, a fact-specific inquiry was necessarily required to define \u201carea.\u201d The superior court improperly acted as a finder of fact on review and imposed its view of what the bounded \u201carea\u201d should be, rather than reviewing whether the Board\u2019s findings of fact concerning the area were supported by competent evidence and not arbitrary and capricious.\n3. Zoning\u2014special use permit\u2014prima facie case\u2014rebuttal\nAlthough petitioner argued that a Boone zoning ordinance allowed construction of its medical clinic under a special use permit, a prima facie case that a petitioner was entitled to a special use permit could be rebutted by competent, material, and substantial evidence that the use contemplated was not in fact in harmony with the area in which it was to be located.\n4. Zoning\u2014special use permit\u2014harmony with area\u2014evidence sufficient to support findings\nThere was competent evidence in a special use zoning case supporting the Board of Adjustment\u2019s finding that a medical clinic would not be in harmony with its surrounding area and the superior court erred by overturning the Board\u2019s decision to deny the special use permit.\nAppeal 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.\nThe 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.\nParker Poe Adams & Bernstein, LLP, by Anthony Fox and Benjamin R. Sullivan, for Respondent-appellant." }, "file_name": "0303-01", "first_page_order": 313, "last_page_order": 327 }