in the Court of Appeals 1 November 2017.
by petitioner from order entered 12 December 2016 by Judge
John W. Smith in Lee County, No. 16 CVS 329 Superior Court.
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
Carlyle Sandridge & Rice, LLP, by Michael C. Thelen, for
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,
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.
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.
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.
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
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
. . . .
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[.]"
lies in this Court from an appeal of right from a final
judgment of the superior court. N.C. Gen. Stat. §
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.
Standard of Review
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
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 ...