{ "id": 8527878, "name": "FRANK W. PETERSILIE, II and FRANK W. PETERSILIE, II, Personal Representative for the Estate of BRUCE V. L. SHELTON v. TOWN OF BOONE BOARD OF ADJUSTMENT", "name_abbreviation": "Petersilie v. Town of Boone Board of Adjustment", "decision_date": "1989-08-01", "docket_number": "No. 8824SC1132", "first_page": "764", "last_page": "769", "citations": [ { "type": "official", "cite": "94 N.C. App. 764" } ], "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": "202 S.E. 2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562793 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0458-01" ] }, { "cite": "265 S.E. 2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "299 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575681 ], "year": 1980, "pin_cites": [ { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0620-01" ] }, { "cite": "332 S.E. 2d 503", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "504" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 231", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526963 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/76/0231-01" ] } ], "analysis": { "cardinality": 475, "char_count": 9660, "ocr_confidence": 0.76, "pagerank": { "raw": 5.8073662536290684e-08, "percentile": 0.3616239788497322 }, "sha256": "adbb6e2688c1900d2f61f5ce60ff3de6de04c4fe46697fdfc40ae1269128b9ce", "simhash": "1:8beee5f2e2276ec6", "word_count": 1527 }, "last_updated": "2023-07-14T20:07:12.068465+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and GREENE concur." ], "parties": [ "FRANK W. PETERSILIE, II and FRANK W. PETERSILIE, II, Personal Representative for the Estate of BRUCE V. L. SHELTON v. TOWN OF BOONE BOARD OF ADJUSTMENT" ], "opinions": [ { "text": "JOHNSON, Judge.\nOn or about 14 July 1987 petitioner filed with respondent an application for a special use permit to construct a twenty unit apartment building on a vacant lot adjacent to single family homes. A public hearing on the application was held on 6 August 1987 in accordance with the town\u2019s zoning ordinance. After the hearing, respondent determined that petitioners\u2019 application should be denied. Petitioners appealed this decision to the Watauga County Superior Court which remanded the decision to the Board of Adjustment for a hearing de novo because of its failure to make findings of fact and its failure to compile a complete record of the proceedings.\nA second public hearing was held on 4 February 1988 and on 3 March 1988. Petitioners\u2019 application was again denied in a unanimous vote by the Board of Adjustment. Petitioners appealed this decision to the Superior Court of Watauga County. The court concluded that the respondent\u2019s findings were supported by competent evidence and that its decision was neither arbitrary nor capricious and contained no errors of law.\nFrom this judgment, petitioners appeal.\nOn appeal petitioners contend that the trial court erred by concluding that respondent\u2019s decision to deny their application for a special use permit contained no errors of law and that the decision was not arbitrary or capricious. We disagree and affirm the trial court\u2019s judgment in all respects.\nThe applicable principles of judicial review when considering a municipality\u2019s decision on a special use permit application are distinctly set forth in In re Application of Goforth Properties, 76 N.C. App. 231, 332 S.E. 2d 503 (1985). The question to be considered \u201cis not whether the evidence before the superior court supported that court\u2019s order but whether the evidence before the town board was supportive of its action. In proceedings of this nature, the superior court is not the trier of fact. Such is the function of the town board.\u201d Id. at 233, 332 S.E. 2d at 504, quoting Concrete Co. v. Board of Commissioners, 299 N.C. 620, 626, 265 S.E. 2d 379, 383 (1980).\nPetitioners correctly argue that an applicant who produces competent, material and substantial evidence tending to meet ordinance requirements for the issuance of a special use permit is prima facie entitled to it. Goforth, supra. However, a municipality may deny the permit if it makes contrary findings which are also supported by competent, material and substantial evidence. Id.; Humble Oil & Refining Co. v. Board of Aldermen, 284 N.C. 458, 202 S.E. 2d 129 (1974).\nIn the case sub judice petitioners contend that they met the requirements of section 12.3 of the Town of Boone\u2019s Zoning Ordinance, which provides the following:\nNo Special Use Permit shall be recommended by the Planner or Planning Commission for approval and no Special Use Permit shall be approved by the Board of Adjustment unless each of the following findings is made concerning the proposed special use or planned development.\na. That the use or development is located, designed, and proposed to be operated so as to maintain or promote the public health, safety, and general welfare;\nb. That the use or development complies with all required regulations and standards of this ordinance, including all applicable provisions of Articles 4, 5, 6 and the applicable specific standards contained in Sections 12.7 and 12.8, together with all other applicable regulations;\nc. That the use or development is located, designed and proposed to be operated so as to maintain or enhance the value of contiguous property, or that the use or development is a public necessity. In the event of a dispute of value, the Board of Adjustments, upon notice being given to the involved parties, may require appraisals and appraisal testimony to be submitted for its consideration;\nd. The use or development conforms with the general plans for the physical development of the Town as embodied in this ordinance and in the Comprehensive Plan.\nPetitioners\u2019 expert witnesses in the field of real estate appraisal testified that petitioners\u2019 proposed use would either maintain or enhance the value of contiguous property. They presented further evidence tending to show that over the past seven years the property values for ad valorem tax purposes of vacant lots and single family dwellings located in the same area as the proposed apartment building increased by fifty-one percent. During the same period, the tax valuation for the entire county had increased by forty-nine percent.\nAfter having heard all the arguments and evidence presented at the public hearing, the Board made the following findings of fact and subsequently denied petitioners\u2019 application:\n12.3(a) The proposed development is NOT located, designed, and proposed to be operated so as to maintain or promote the public health, safety and general welfare because (a) it will increase traffic congestion in an area that is already congested due to the College Place Apartments, and (b) it will further aggravate an existing problem with noise from high density use that is bothersome to the single family residences in this area. The proposed development will have a detrimental effect on the health and general welfare of a number of elderly persons living in this area because of the increase in noise likely to be generated by the new development and because of the lack of any effective buffer between the high density use-and the low density use.\n12.3(b) Except as set out in this motion, the proposed development satisfies Section 12.3(b) of the Boone Zoning Ordinance.\n12.3(c) The proposed development is NOT located, designed, and proposed to be operated so as to maintain or enhance the value of contiguous property. This proposed development will have a detrimental effect on the value of contiguous property currently being used for single family residences because of the negative impact associated with the increased traffic congestion and increased noise that will result from this proposed development. The proposed development is Not a public necessity.\n12.3(d) The proposed development does NOT conform with the general plans for the physical development of the Town as embodied in this ordinance and in the Comprehensive Plan because it will increase the high density use to such an extent that it will make single family residences in this area so undesirable that it will effectively eliminate single family residences from a portion of this zoning district.\nThe superior court then reviewed the administrative record and concluded as a matter of law that the Board\u2019s findings were supported by competent evidence.\nWe have carefully considered petitioners\u2019 contentions, following the Goforth directive and hold that the evidence before the board supported its action. Several property owners who opposed the petitioners\u2019 application presented evidence at the hearing. They testified that construction of the multi-family units would compound already existing problems of noise, traffic congestion, and an increase in crime which had been brought about by the construction of multi-family dwellings during the ten years preceding petitioners\u2019 application. Testimony was also received to the effect that the adjoining apartment buildings were occupied by college students who had vandalized some of the homes and had loud parties well into the night. Another complaint concerned property owners\u2019 inability to receive a fair offer for property they attempted to sell in that area. Those persons who testified were property owners and senior citizens who have lived in this area for up to thirty-five years.\nWe believe that this evidence is competent to support the action taken by the Town Board denying petitioners\u2019 application. It is for this reason that we affirm the decision reached by the trial court.\nAffirmed.\nJudges COZORT and GREENE concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Miller and Moseley, by Paul E. Miller, Jr., for petitioner-appellants.", "Paletta, Hedrick & Berndt, by David R. Paletta, for respondent-appellee." ], "corrections": "", "head_matter": "FRANK W. PETERSILIE, II and FRANK W. PETERSILIE, II, Personal Representative for the Estate of BRUCE V. L. SHELTON v. TOWN OF BOONE BOARD OF ADJUSTMENT\nNo. 8824SC1132\n(Filed 1 August 1989)\nMunicipal Corporations \u00a7 30.6\u2014 special use permit \u2014 denial\u2014evidence sufficient\nThere was sufficient evidence to support the Board of Adjustment\u2019s denial of petitioner\u2019s application for a special use permit to build multi-family residential units where property owners who opposed the application presented evidence that construction of the multi-family units would compound already existing problems of noise, traffic, congestion, and crime \u25a0 which had been brought about by the construction of multifamily dwellings during the ten years preceding petitioners\u2019 applications; testimony was also received that adjoining apartment buildings were occupied by college students who had vandalized some homes and had loud parties well into the night; another complaint concerned property owners\u2019 inability to receive a fair offer for property they attempted to sell in the area; and those persons who testified were property owners and senior citizens who had lived in that area for up to thirty-five years.\nAPPEAL by petitioners from Allen, C. Walter, Judge. Judgment entered 1 June 1988 in Superior Court, WATAUGA County. Heard in the Court of Appeals 9 May 1989.\nPetitioners appeal from the superior court\u2019s decision which upheld a decision by the Town of Boone denying their application for a special use permit to construct twenty multi-family residential units. Petitioners contend that the respondent\u2019s decision was arbitrary and capricious.\nMiller and Moseley, by Paul E. Miller, Jr., for petitioner-appellants.\nPaletta, Hedrick & Berndt, by David R. Paletta, for respondent-appellee." }, "file_name": "0764-01", "first_page_order": 794, "last_page_order": 799 }