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Templeton Props. LP v. Town of Boone

Court of Appeals of North Carolina

June 3, 2014

TOWN OF BOONE, Respondent

Heard in the Court of Appeals March 20, 2014.

Page 312

Watauga County. No. 12 CVS 665. Shannon R. Joseph, Judge.

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.

Robert N. HUNTER, JR., Judge. Judges STROUD and DILLON concur.


Page 313

Appeal by respondent from order entered 7 August 2013 by Judge Shannon R. Joseph in Watauga County Superior Court.

Robert N. HUNTER, JR., Judge.

The Town of Boone (" Boone" ) appeals the superior court's 7 August 2013 order reversing a decision of the Town of Boone's Board of Adjustment (" Board" ) that denied Templeton Properties L.P.'s (" Templeton" ) application for a zoning permit. We reverse the superior court's order.

I. Facts & Procedural History

This 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__, 724 S.E.2d 604, 605 (2012) (" Templeton II" ); Templeton Properties LP v. Town of Boone, 2009 WL 2180620 (2009) (unpublished) (" Templeton I" ).

The dispute centers around Templeton's 2.9 acre lot (" the Parcel" ) in Boone at 315 State Farm Road. The Parcel is zoned for single-family residential use (" R-1" ), but has historically been used as a church under a special use permit. Templeton I, 2009 WL 2180620 at *1.

Page 314

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 " composed of mostly single-family residences," except for a non-residential VFW hall located near the Parcel. Id. Under section 165 of Boone's then-existing unified development ordinance (" UDO" ), medical clinics over 10,000 square feet were allowed in R-1 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 § 69(c), namely that the development

(1) Will materially endanger the public health or safety, or

(2) Will substantially injure the value of adjoining or abutting property, or

(3) Will not be in harmony with the area in which it is to be located, or
(4) Will not be in general conformity with the comprehensive plan, thoroughfare plan, or other plan officially adopted by the council.

On 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's concerns, including decreasing the clinic's size to 10,010 square feet, the current proposed size of the clinic. Id.

On 1 May 2007 the Board rejected Templeton's 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's denial of Templeton's 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.

On 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's 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's 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's decision. Id. Templeton then appealed the superior court's decision to this Court, resulting in Templeton II. Id. This Court remanded in Templeton II and required the Board to " make reviewable findings of fact . . . based only upon the testimony and evidence presented at the hearings held on 5 April and 1 May 2007" 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.

On remand, the Board again denied Templeton's 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's lack of harmony within the order:

3. Templeton's proposed clinic would be 10,010 square feet in size and would have 67 parking spaces distributed among four different parking lots.
4. The clinic and its parking lots would have 23 light poles. These light poles would produce a glow at night visible from neighborhood residents' 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' light bulbs would not prevent light from bleeding into the neighborhood.
5. 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.
6. The clinic would have a large dumpster pad, though Templeton did not specify how many dumpsters would be on this pad.

Page 315

7. 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.
8. 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.
9. The area surrounding the Lot is predominantly zoned R-1 Single Family Residential. The surrounding area has been almost uniformly zoned R-1 Single Family Residential since the Town first adopted zoning for the area in 1979.
10. 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's surrounding area also has more preserved trees and vegetation than other areas in Boone.
11. 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.
12. Except for the VFW hall, properties in the Lot's surrounding area are almost all single-family homes.
13. 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.
14. However, Templeton's survey was not limited to the area where the clinic would be located. Instead, Templeton's 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 ...

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