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Little River, LLC v. Lee County

Court of Appeals of North Carolina

December 19, 2017

LITTLE RIVER, LLC, Petitioner,
v.
LEE COUNTY, NORTH CAROLINA, Respondent, and CAROLINA TRACE ASSOCIATION, INC.; SOUTH LANDING PROPERTY OWNERS ASSOCIATION, INC.; VILLAGE AT THE TRACE PROPERTY OWNERS ASSOCIATION; SEDGEMOOR PROPERTY OWNERS ASSOCIATION;ESCALANTE CAROLINA TRACE, LLC; SANDRA WARD; TERRY WARD; LAURA RIDDLE; BOBBY RIDDLE, JR.; DANIEL STANLEY; KAY COLES; FRED BERMAN; C. DAVID TURNER; JOHN BECK; LYONA BECK; GERALD MERRITT; CHERYL MERRITT; KERMIT KEETER; LOUANE KEETER; ALFRED RUSHATZ; SHARWYNNE BLATTERMAN; BARRY MARKOWITZ; MIRIAM MARKOWITZ; TERRI DUSSAULT; and HOMER TODD SPOFFORD, Neighbor-Respondents.

          Heard in the Court of Appeals 1 November 2017.

         Appeal by petitioner from order entered 12 December 2016 by Judge John W. Smith in Lee County, No. 16 CVS 329 Superior Court.

          Smith Moore Leatherwood LLP, by Karen M. Kemerait and M. Gray Styers, Jr., for petitioner-appellant.

          Yarborough, Winters & Neville, P.A., by Garris Neil Yarborough, and Lee County Attorney Whitney Parrish, for respondent-appellee.

          Womble Carlyle Sandridge & Rice, LLP, by Michael C. Thelen, for intervenor-respondent-appellees.

          TYSON, JUDGE.

         Little River, LLC ("Petitioner") appeals from an order affirming the decision of the Lee County Board of Adjustment (the "Board") to deny Petitioner's application for a special use permit. We affirm in part, reverse in part, and remand.

         I. Background

         On 9 September 2015, Petitioner submitted its second application to the Lee County Planning and Community Development Department (the "Department") for a Special Use Permit ("SUP") to establish an aggregate rock quarry to be located at 5500 NC Highway 87, Sanford, North Carolina, on a proposed 48 acre portion of a 377 acre parcel. The property is predominately zoned Residential Agricultural ("RA"), with two Rural Residential ("RR") zoned parcels adjoining NC Highway 87. Quarries are a permitted use of right in the zoning districts under Article 4 of the Sanford-Broadway-Lee County Unified Development Ordinance ("UDO"), subject to a SUP.

         The Department forwarded the application to the Board, which held public, quasi-judicial hearings during five nights over the course of a six-month period. All participants, including the Board, were represented by counsel. Special counsel for the Board, attorneys for Petitioner, and the attorney for Intervenor-Respondent Carolina Trace Association, Inc. ("CTA") all agreed upon procedures to ensure both fairness and expediency throughout the hearing. Petitioner and CTA presented evidence at the hearing.

         At the close of all evidence, the Board denied Petitioner's application based upon fifteen findings of fact, leading to the following four conclusions of law:

1. The applicant failed to demonstrate that the use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved.
2. The applicant failed to demonstrate that the use met all required conditions and specifications.
3. The applicant failed to demonstrate that the use would not substantially injure the value of adjoining or abutting property or that the use is a public necessity.
4. The applicant failed to demonstrate that the location and character of the use, if developed according to the plan submitted and approved, would be in harmony with the area which it is located and in general conformity with all adopted land use plans.

         Petitioner sought certiorari review of the Board's decision in the superior court. CTA and other interested parties (collectively "Respondent-Intervenors") moved to intervene. Petitioner consented to their intervention. After the hearing, in an order dated 12 December 2016, the superior court affirmed the Board's denial of the SUP, and concluded that for the Petitioner's purported errors of law:

10. Applying de novo review, the Court finds and concludes that the Lee County Board of Adjustments did not commit legal error, in that:
a. It is not necessary that Neighbor-Respondent Carolina Trace Association, Inc. demonstrates legal standing to participate in the quasi-judicial proceedings to appear before the Lee County Board of Adjustments . . . . . . .
g. The Lee County Board of Adjustments has the discretion to determine Petitioner did not establish a prima facie case . . . . and . . . has the discretion to require assurances regarding health, safety, and environmental risks . . . .

         The superior court then applied a "whole record review, " and found and concluded: (1) there was "competent, material, and substantial evidence" to support all the findings by the Board; (2) "each and every finding of fact . . . support the Board's conclusions of law; "[n]one of the findings of fact . . . is either arbitrary or capricious"; and, (3) "[a]ll of the Board's conclusions of law support the Board's decision to deny Petitioner Little River, LLC's application for a special use permit[.]" Petitioner appeals.

         II. Jurisdiction

         Jurisdiction lies in this Court from an appeal of right from a final judgment of the superior court. N.C. Gen. Stat. § 7A-27(b) (2015).

         III. Issues

         Petitioner argues: (1) the opponents of the quarry did not have standing in the quasi-judicial proceeding; (2) no competent, substantial, and material evidence supports the Board's denial of its SUP, presuming Petitioner established a prima facie case; (3) the Board's denial of the SUP was arbitrary and capricious; and, (4) its due process rights were violated. Respondent objects to Petitioner's issues on appeal, and asserts the only issue before this Court is whether the superior court properly exercised its scope of review of the Board's decision.

         IV. Standard of Review

         "A legislative body such as the Board, when granting or denying a [special] use permit, sits as a quasi-judicial body." Sun Suites Holdings, LLC v. Bd. of Alderman of Town of Garner, 139 N.C.App. 269, 271, 533 S.E.2d 525, 527, disc. review denied, 353 N.C. 280, 546 S.E.2d 397 (2000).

         "The Board's decisions 'shall be subject to review of the superior court in the nature of certiorari.'" Dellinger v. Lincoln Cty., ___ N.C. App.___, ___, 789 S.E.2d 21, 26, disc. review denied, 369 N.C. 190, 794 S.E.2d 324 (2016) (quoting N.C. Gen. Stat. § 160A-381(c) (2015)). "In reviewing the Commissioners' decision, the superior court sits as an appellate court, and not as a trier of facts." Innovative 55, LLC v. RobesonCty., ___ N.C.App. ___, ___, 801 S.E.2d 671, 675 ...


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