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Mount Ulla Historical Preservation Soc., Inc. v. Rowan County

Court of Appeals of North Carolina

February 18, 2014

MOUNT ULLA HISTORICAL PRESERVATION SOCIETY, INC., et al., Petitioners
v.
ROWAN COUNTY, Davidson County Broadcasting, Inc., Richard and Dorcas Parker, and Maurice E. and Mary Lee Parker, Respondents.

Heard in the Court of Appeals 23 October 2013.

Page 238

[Copyrighted Material Omitted]

Page 239

Appeal by respondent from order entered 27 September 2012 by Judge W. David Lee in Rowan County Superior Court.

Smith Moore Leatherwood LLP, Greensboro, by Thomas E. Terrell, Jr. and Elizabeth Brooks Scherer; Kluttz, Reamer, Hayes, Randolph, Adkins & Carter, L.L.P., by Richard R. Reamer; and Sherrill and Cameron, PLLC, by Carlyle Sherrill, Salisbury, for petitioner-appellees.

Parker Poe Adams & Bernstein LLP, Charlotte, by Anthony Fox and Benjamin Sullivan, for respondent-appellant Rowan County.

CALABRIA, Judge.

Respondent Rowan County (" the County" ) appeals from the trial court's order reversing the decision of the Rowan County Board of Commissioners (" the Board" ) to issue a conditional use permit (" CUP" ) to respondent Davidson County Broadcasting, Inc. (" DBCI" ) on the basis that the CUP application was barred by the doctrines of res judicata and collateral estoppel. We affirm.

I. Background

On 18 January 2005, DCBI applied to the Board for a CUP (" the 2005 CUP application" ) to construct a 1,350 foot radio tower (" the tower" ) on property owned by respondents Richard and Dorcas Parker (" the Parkers" ). After conducting a public hearing regarding the application, the Board voted to deny the CUP. The written decision denying the application indicated that it was denied because the proposed tower would pose an air safety hazard to Miller Airpark, a nearby private airport.

DCBI and the Parkers then filed a petition for writ of certiorari in Rowan County Superior Court to review the Board's decision. The court granted the petition and affirmed the denial of the CUP. DCBI and the Parkers appealed to this Court, which affirmed the decision of the superior court. Davidson Cty. Broadcasting, Inc. v. Rowan Cty. Bd. of Comm'rs, 186 N.C.App. 81, 649 S.E.2d 904 (2007) (" DCBI I " ).

On 26 May 2010, DCBI applied to the Board for a CUP for a 1,200 foot radio tower (" the 2010 CUP application" ) in substantially the same proposed location as the tower in the 2005 application that had been denied. On 24 March 2011, DCBI filed a supplemental application to include property owned by respondents Maurice E. Parker and Mary Lee Parker as a fall zone. Petitioners [1] moved to dismiss the 2010 CUP application as being barred by the doctrines of res judicata and collateral estoppel. The Board denied the motion on 5 July 2011. Beginning 1 August 2011, the Board held a quasi-judicial hearing to consider the new application. On 6 September 2011, the Board entered a written decision approving the CUP. The Board found, inter alia, that the proposed tower would not create any hazardous safety conditions.

On 3 October 2011, petitioners filed a petition for writ of certiorari in Rowan County Superior Court, seeking review of the Board's CUP approval. Petitioners once again argued that the 2010 CUP application was barred by res judicata and collateral estoppel. Petitioners also alleged that the approved CUP did not conform to the Rowan County Zoning Ordinance.

On 27 September 2012, the superior court entered an order reversing the Board's approval of the 2010 CUP application. The court concluded that the 2010 CUP application was barred by res judicata and collateral estoppel. Respondents appeal.[2]

II. Standard of Review

" Special and conditional use permit decisions are quasi-judicial zoning decisions." County of Lancaster v. Mecklenburg County, 334 N.C. 496, 508, 434 S.E.2d 604, 613 (1993). " Our task, in reviewing a superior court order entered after a ...


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