in the Court of Appeals 28 January 2019.
by Petitioner from Order entered 18 May 2018 by Judge R.
Gregory Horne in Avery County Superior Court No. 16 CVS 256.
& Johnson, PLLC, by Nathan A. Miller, for
Eggers, Eggers, Eggers & Eggers, PLLC, by Stacy C.
Eggers, IV and Kimberly M. Eggers, for respondent-appellee
Town of Banner Elk.
Pruet, PLLC, by David S. Pokela, for respondent-appellee
American Towers, LLC.
Weishaupt-Smith (Petitioner) appealed from an Order affirming
the decision of the Town of Banner Elk Board of Adjustment
(the Board) to grant a Variance to American Towers, LLC
(American Towers) and issue a Conditional Use Permit to
American Towers to construct a telecommunications tower. Upon
filing Notice of Appeal, Petitioner's counsel also filed
a Motion to Substitute Party on behalf of William Stevenson
(Stevenson), citing N.C. R. App. P. 38 and seeking to
substitute Stevenson for Petitioner. This Motion was granted
by the trial court by a consent order. We, however, determine
Stevenson is not an aggrieved party with standing to appeal
the trial court's Order. Therefore, we dismiss this
and Procedural Background
June 2013, American Towers entered into an agreement to lease
14.26 acres of land, including easement rights, (the
Property) within the extra-territorial jurisdiction of the
Town of Banner Elk (the Town).
June 2013, American Towers submitted an application for a
Conditional Use Permit to construct a 100-foot monopole
telecommunications tower on the Property. At its 19 August
2013 meeting, the Board conducted an initial public hearing
on the Conditional Use Permit. Petitioner and several others,
including Stevenson, sought to intervene as parties in the
quasi-judicial proceeding. The Board allowed Petitioner, who
owned property adjacent to the Property, to intervene as a
party. The Board did not permit Stevenson or other property
owners to intervene as parties in the public
hearing. During this public hearing, it came to
light the advertised notice of the hearing was defective, and
the Board declared "a mistrial." The Board
subsequently held a full public hearing on 18 November 2013.
By written order dated 3 December 2013, the Board granted a
Conditional Use Permit to American Towers.
January 2014, Petitioner filed a Petition for Writ of
Certiorari, seeking review of the Board's decision, in
Avery County Superior Court, which issued its Writ on the
same day. The trial court entered an order on 23 October
2014, remanding the case back to the Board for further
proceedings and to hear and receive additional evidence on
several issues. This included a determination of whether the
Property met the Town's requirements for a right-of-way
to access the Property.
American Towers only had rights in a 20-foot-wide access
easement to the Property, and the Town's zoning ordinance
required a 25-foot-wide right-of-way, American Towers filed a
Variance request on 3 February 2015 with the Town, seeking a
Variance from the 25-foot-wide right-of-way requirement. The
Variance request was heard on 16 March 2015 in conjunction
with the hearing on the Conditional Use Permit application on
remand from the 23 October 2014 order.
16 March 2015 hearing, the Board heard arguments on the
threshold issue of whether American Towers's Variance
request related back to the original Conditional Use Permit
application and whether the Variance request related back to,
and was subject to, the zoning ordinance in effect in June
2013 when American Towers first applied for its Conditional
Use Permit or to a December 2013 revision of the ordinances
governing telecommunications towers passed shortly after the
Town initially approved the Conditional Use Permit. By
written order dated 10 April 2015, the Board found American
Towers's Variance request did not relate back to the
original application and was thus "time barred." As
a result, the Board also ruled that a sufficient right-of-way
did not exist and denied American Towers's application
for a Conditional Use Permit.
April 2015, American Towers filed a Petition for Writ of
Certiorari to the Avery County Superior Court, seeking review
of the Board's orders denying its Variance request and
Conditional Use Permit application. The Writ of Certiorari
issued that same day. Following a hearing, the trial court
entered an order on 8 March 2016, reversing the Board's
orders on the Variance request and Conditional Use Permit
application. Further, the trial court remanded the case back
to the Board with instructions ...