in the Court of Appeals 10 April 2019.
by petitioner from order entered 3 May 2018 by Judge R. Kent
Harrell in New Hanover County No. 18 CVS 429 Superior Court.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by
Daniel F. E. Smith and S. Leigh Rodenbough IV, for
& Fox, PLLC, by Charlotte Noel Fox, for
respondent-appellee Town of Carolina Beach.
Rothschild LLP, by Kip D. Nelson and Thomas E. Terrell, Jr.,
for respondent-appellee Carolina Beach Development Company 1,
and Smith, P.A., by Thomas S. Babel, for respondent-appellee
Wilmington Holding Company.
the superior court properly reviewed and determined that the
Town Council's decision was based on competent, material,
and substantial evidence in the record, we affirm the
superior court's ruling.
matter involves a zoning decision by respondent Town of
Carolina Beach ("the Town"), approving a
conditional use permit for respondent Carolina Beach
Development Company 1, LLC ("CBDC") to develop a
Publix grocery store in a shopping center owned by respondent
Wilmington Holding Company ("WHC") (collectively
referred to as "respondents"), which affected the
adjacent commercial parcel owned by petitioner Jubilee
Carolina, LLC ("Jubilee").
February 2017, Jubilee applied for a conditional use permit
to construct a Harris Teeter grocery store on its property at
Carolina Beach, North Carolina. Jubilee's application
included a proposed site plan with respect to the Harris
Teeter and provided interconnectivity to common access points
between WHC's property and Jubilee's property for
vehicular traffic. A hearing was held on Jubilee's
request for a conditional use permit on 11 April 2017. A
representative of WHC was present and spoke in support of
Jubilee's application. The Town Council approved
Jubilee's site plan with interconnectivity and granted a
conditional use permit ("Jubilee Permit"). As a
condition of the Jubilee Permit, Jubilee entered an easement
agreement with the Town, which allowed the Town to construct
and maintain a storm water facility on Jubilee's
CBDC entered into a contract with WHC to purchase WHC's
property, adjacent to Jubilee's proposed Harris Teeter
site, and redevelop that property for a Publix grocery store.
On 6 November 2017, CBDC applied for a conditional use permit
with a proposed site plan that excluded interconnectivity to
Jubilee's property. The Town's planning and zoning
commission, after reviewing CBDC's application and
proposed site plan in advance of the public hearing,
recommended approval of CBDC's application on the
condition that CBDC provide interconnectivity or a "stub
out" to Jubilee's property once it was developed.
January 2018, the Town Council held a public hearing for
consideration of CBDC's application. At the hearing,
Jubilee stated its approval of CBDC's application for a
conditional use permit provided that interconnectivity was
required to Jubilee's property. However, CBDC indicated
that it did not intend to provide interconnectivity as the
proposed Harris Teeter was "an economic competitor"
and, if such interconnectivity was required, CBDC would
withdraw the application.
Town Council approved CBDC's conditional use permit but
did not adopt the recommendation to include interconnectivity
to Jubilee's property ("CBDC Permit")--finding
that "interconnectivity [was] not required under the
February 2018, Jubilee filed a petition for writ of
certiorari before the New Hanover County Superior Court
seeking review of the decision to grant the CBDC
Permit--specifically, asserting that the Town acted
arbitrarily and capriciously, that the decision was not
supported by substantial evidence, and that ...