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Weishaupt-Smith v. Town of Banner Elk

Court of Appeals of North Carolina

March 19, 2019

PETRA WEISHAUPT-SMITH, Petitioner
v.
TOWN OF BANNER ELK, TOWN OF BANNER ELK BOARD OF ADJUSTMENT, and AMERICAN TOWERS, LLC, Respondents

          Heard in the Court of Appeals 28 January 2019.

          Appeal by Petitioner from Order entered 18 May 2018 by Judge R. Gregory Horne in Avery County Superior Court No. 16 CVS 256.

          Miller & Johnson, PLLC, by Nathan A. Miller, for petitioner-appellant.

          Eggers, Eggers, Eggers & Eggers, PLLC, by Stacy C. Eggers, IV and Kimberly M. Eggers, for respondent-appellee Town of Banner Elk.

          Nexsen Pruet, PLLC, by David S. Pokela, for respondent-appellee American Towers, LLC.

          HAMPSON, JUDGE.

         Petra 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 appeal.

         Factual and Procedural Background

         On 13 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).

         On 21 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.[1] 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.

         On 4 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.

         Because 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.

         At the 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.

         On 29 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 ...


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