IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-919
Filed 3 June 2026
Henderson County, No. 23CVS000288-440
KIRK A. HALL and KONNIE F. HALL, INDIVIDUALLY, and as CO-TRUSTEES OF THE KIRK A. HALL and KONNIE F. HALL JOINT LIVING TRUST DATED MARCH 6, 2015, KIRK A. HALL TRUSTEE OF THE KIRK A. HALL and KONNIE F. HALL JOINT LIVING TRUST, DATED MARCH 6, 2015, HANNAH HALL, LUCINDA A. HEMENWAY, and NANCY ALLISON HULL, Petitioners,
v.
HENDERSON COUNTY and FIRST CONTACT MINISTRIES, INC., Respondents.
Appeal by Respondents from Orders entered 27 February 2024 and 24 April
2024 by Judge Steve Warren in Henderson County Superior Court. Heard in the
Court of Appeals 22 September 2025.
Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Brian D. Gulden and Jonathan H. Dunlap, for Petitioners-Appellees.
Roberts & Stevens, PA, by David Hawisher and John Noor, for Respondent- Appellant First Contact Ministries, Inc.
HAMPSON, Judge.
Factual and Procedural Background
First Contact Ministries, Inc., (Respondent) appeals from an Order of the
Superior Court of Henderson County ordering the Henderson County Board of HALL V. HENDERSON COUNTY
Opinion of the Court
Adjustment (the Board) to deny Respondent’s application for a special use permit.
The Record on Appeal tends to show the following:
In 2022, Respondent applied for a special use permit to operate a residential
addiction-recovery facility (the Facility). The Facility would operate on a 27-acre
parcel of land in a rural residential zoning district of Henderson County, which
includes an existing single-family residential home. Respondent proposed to convert
that home for use by ten to sixteen residents, not counting staff. After consulting with
County staff, Respondent in its application categorized the Facility as an Assisted
Living Residence (ALR), one of the uses recognized by Henderson County’s Land
Development Code (the Code). The County’s Technical Review Committee reviewed
the application and voted to forward it to the Board, subject to conditions related to
various regulatory requirements. The Board held a hearing regarding the application
beginning on 28 September 2022, with additional sessions on 26 October, 21
November, 14 December, and 25 January 2023.
The individual Petitioners—Kirk Hall, Konnie Hall, Hannah Hall, Lucinda
Hemenway, and Nancy Hull (collectively, Petitioners)—each own property adjoining
the Facility parcel. At the first session, the Board hearing was continued by
agreement of the parties to allow Petitioners to retain expert witnesses. Formal
testimony was presented during the next three sessions.
During those sessions, Petitioners testified to their concerns regarding the
Facility, including the possibility of trespass and other behavior by the residents,
2 HALL V. HENDERSON COUNTY
some of whom would have criminal convictions. Petitioners also proffered expert
witnesses. Mark Teague was certified as an expert in traffic engineering. When asked
whether the Facility would have a material adverse effect on public health, safety,
and welfare as regarding traffic concerns, Respondent objected because Mr. Teague
had not created the traffic report upon which his testimony relied. The Board
excluded the portions of his testimony Respondent objected to. Benny Waller is a real
estate appraiser. Respondent objected to Mr. Waller’s certification as an expert in
real estate appraisal because his analysis was not applied specifically to the impact
of the Facility on nearby properties but was general in nature. The Board declined to
certify Mr. Waller as an expert.
Respondent proffered Lynn Carmichael as an expert appraiser, and she
testified regarding the impact of the Facility on the value of nearby properties.
Petitioners objected to her testimony, arguing it was based on insufficient data. The
Board allowed Ms. Carmichael to testify over Petitioners’ objection.
Following the hearings, the Board granted Respondents’ application for special
use permit subject to certain conditions including Respondent’s agreement to enforce
an occupancy limit, drive to Hendersonville any participant in the program who
wishes to leave, and to restrict those with certain types of criminal convictions from
residing at the Facility as either staff or participant.
On 16 March 2023, Petitioners filed a Petition for Writ of Certiorari in
Henderson County Superior Court (the Petition). Petitioners alleged the Board had
3 HALL V. HENDERSON COUNTY
committed numerous errors of law, violated their Constitutional rights, and that its
decision was arbitrary and capricious.
The trial court reversed the decision of the Board on three grounds: (1) the
permit was improperly issued for an Assisted Living Residence rather than a Mental
Health Facility; (2) the Board had erred as a matter of law by excluding testimony of
Mr. Teague and Mr. Waller; and (3) the Board had erred as a matter of law by
admitting Ms. Carmichael’s testimony.
In its first Order, the trial court remanded the case to the Board to process the
application for a Mental Health Facility, rather than an ALR. In a subsequent order
upon Petitioners’ Rule 60(a) Motion it instead instructed the Board to revoke
Respondent’s special use permit and that any future application must classify the
Facility as a Mental Health Facility.
Respondent appeals.
Issues
The issues on appeal are whether: (I) Petitioners lacked standing to file the
Petition; (II) the trial court erred by concluding the Facility should be categorized as
a Mental Health Facility rather than an Assisted Living Residence and ordering the
Board to deny Respondent’s application; (III) the trial court erred by concluding the
Board had erred as a matter of law in admitting the testimony of Lynn Carmichael;
(IV) the trial court erred by concluding the Board had erred as a matter of law in
excluding the testimony of Benny Waller and Mark Teague; and (V) the Petition must
4 HALL V. HENDERSON COUNTY
be dismissed for violating the Fair Housing Act.
Analysis
A local government board, when determining whether to grant or deny a
special use permit, sits as a quasi-judicial body. Humble Oil & Refining Co. v. Bd. of
Aldermen, 284 N.C. 458, 469, 202 S.E.2d 129, 136-37 (1974). The board determines
whether an “applicant has produced competent, material, and substantial evidence
tending to establish the existence of the facts and conditions which the ordinance
requires for the issuance of the requested permit[.]” Id. at 468, 202 S.E.2d at 136. If
the applicant satisfies this burden of production, it makes a prima facie case that the
permit should be issued, and the Board must grant the application unless it makes
contrary findings which are likewise supported. Id.
Appeals of a local board’s quasi-judicial decisions are taken in superior court,
by the filing of a petition for certiorari. Schooldev East, LLC v. Town of Wake Forest,
386 N.C. 775, 784, 909 S.E.2d 181, 189 (2024); N.C. Gen. Stat. § 160D-1402(b) (2025).
When reviewing these decisions, “the superior court does not function as a trial court;
rather, it sits in the posture of an appellate court and reviews the evidence presented
to the local government board.” Id. (cleaned up). The scope of that review is specified
by statute:
(1) When reviewing the decision under the provisions of this section, the court shall ensure the rights of petitioners have not been prejudiced because the decision-making body’s findings, inferences, conclusions, or decisions were:
5 HALL V. HENDERSON COUNTY
a. In violation of constitutional provisions, including those protecting procedural due process rights.
b. In excess of statutory authority conferred upon the local government, including preemption, or the authority conferred upon the decision- making board by ordinance.
c. Inconsistent with applicable procedures specified by statute or ordinance.
d. Affected by other error of law.
e. Unsupported by competent, material, and substantial evidence in view of the entire record.
f. Arbitrary or capricious.
N.C. Gen. Stat. § 160D-1402(j)(1).
The standard of review applied by the superior court depends on the issues
raised by the petitioner. PHG Asheville, LLC v. City of Asheville, 374 N.C. 133, 150,
839 S.E.2d 755, 766 (2020). Alleged errors of law are reviewed de novo. Id. If the
petitioner alleges the board’s decision “was unsupported by competent, material, and
substantial evidence or was arbitrary or capricious, the court undertakes a whole
record review.” Schooldev East, 386 N.C. at 785, 909 S.E.2d at 189. “In conducting a
whole record review, the superior court must examine all competent evidence (the
‘whole record’) in order to determine whether the board’s decision is supported by
substantial evidence.” Id.
“In an appeal from the judgment of the superior court, the Court of Appeals
examines the superior court’s order for errors of law by (1) determining whether the
6 HALL V. HENDERSON COUNTY
superior court exercised the appropriate scope of review and, if so, (2) deciding
whether the superior court did so properly.” Durham Green Flea Mkt. v. City of
Durham, 388 N.C. 543, 548, 923 S.E.2d 524, 528 (2025). We review the decision of the
Board without deferring to the ruling of the trial court: this Court reviews the Board’s
actions, not that of the Superior Court. Turik v. Town of Surf City, 182 N.C. App. 427,
431, 642 S.E.2d 251, 253 (2007).
I. Standing
As a threshold matter, Respondent argues Petitioners do not have standing to
challenge the Board’s decision. We disagree, as each Petitioner has shown special
damages.
The quasi-judicial decisions of local government boards may be appealed by
filing a petition for writ of certiorari with the superior court. N.C. Gen. Stat. § 160D-
1402(b). Only those with standing to challenge the decision may file a petition, and
our statutes enumerate the categories of persons who have standing. Id. § 160D-
1402(c). Most relevant to this case, any person “who will suffer special damages as
the result of the decision being appealed” has standing to file a petition. Id. § 160D-
1402(c)(2).
Special damages are damages “distinct from the rest of the community,” which
must be alleged in the petition. Casper v. Chatham Cnty., 186 N.C. App. 456, 458,
651 S.E.2d 299, 301 (2007). The petitioner must allege “the facts on which the claim
of aggrievement is based.” Kentallen, Inc. v. Hillsborough, 110 NC. App. 767, 769, 431
7 HALL V. HENDERSON COUNTY
S.E.2d 231, 232 (1993). A reduction in property value does not on its own constitute
special damages, though it may be part of the basis for standing. Cherry v. Wiesner,
245 N.C. App. 339, 347, 781 S.E.2d 871, 877 (2016). Likewise, the fact that a
petitioner “owns property ‘immediately adjacent or in close proximity to the subject
property’ also bears some weight on the issue of whether the party will suffer
damages, but status as an adjacent landowner alone is insufficient to confer
standing.” Id. at 349, 781 S.E.2d at 878 (citing Mangum v. Raleigh Bd. of Adjustment,
362 N.C. 640, 644, 669 S.E.2d 279, 283 (2008)). The petitioner must allege “the
manner in which the value or enjoyment of [their] land has been or will be adversely
affected,” and the harm alleged must be distinct from the community at large.
Kentallen, 110 N.C. App. at 769, 431 S.E.2d at 232.
For example, allegations that rezoning ordinances would diminish the value of
a petitioner’s property by increasing traffic and demands on public utilities are
insufficient to show special damages distinct from the rest of the community. See
Davis v. City of Archdale, 81 N.C. App. 505, 508, 344 S.E.2d 369, 371 (1986). But
allegations that construction of an adult establishment would cause “vandalism,
safety concerns, trespass, and parking overflow from the proposed business to
adjacent or nearby lots” owned by the parties were sufficient to confer standing.
Mangum, 362 N.C. at 645, 669 S.E.2d at 284.
Here, each Petitioner owns property adjacent to the Facility. Lucinda
Hemenway and Nancy Allison Hull alleged they would be distinctly affected based on
8 HALL V. HENDERSON COUNTY
increased traffic on the common access road they share with the Facility. Ms. Hull
additionally alleged concerns about noise and flooding resulting from a woodshop
Respondent plans to construct as part of the Facility. She also raised privacy concerns
common to all adjacent landowners resulting from Respondents’ installation of
outdoor security cameras on the property. These concerns are unique to owners of
property adjacent to the Facility and are therefore sufficiently distinct from the rest
of the community to confer standing. See, e.g., Murdock v. Chatham Cty., 198 N.C.
App. 309, 317, 679 S.E.2d 850, 856 (2009) (impact to nearby properties of building
lights, noise, and runoff sufficiently distinct from rest of community to confer
standing).1
II. Use Category
The trial court ruled the Board had erred in processing and considering
Respondent’s application based upon the designation of the Facility as an “Assisted
Living Residence.” It instructed the Board to revoke Respondent’s special use permit
and ordered that any future application must classify the Facility as a Mental Health
Facility. Respondent argues the Facility is properly classified as an ALR.
Petitioners argue the Facility should have been categorized as a Mental Health
1 Petitioners have also alleged special damages based on risks resulting from the character of
residents of the Facility. Respondents argue these concerns are an impermissible basis for standing as they discriminate against persons recovering from addiction, in violation of the Federal and State Fair Housing Acts. Because the other special damages alleged by Petitioners are sufficient to confer standing, we do not reach this issue.
9 HALL V. HENDERSON COUNTY
Facility to better match the specific use proposed by Respondent and that the
application’s categorization of the Facility as an ALR did not raise the required issues
before the Board or provide interested parties with sufficient notice of the purpose of
the Facility. In support of their argument, Petitioners rely on our decision in
Freewood Assocs., Ltd. v. Davie Cnty. Zoning Bd. of Adjustment, 28 N.C. App. 717,
222 S.E.2d 910 (1976). In that case, we affirmed the zoning board’s denial of a
conditional use permit for a “private family campground” when the applicant actually
planned to operate a nudist camp. 28 N.C. App at 721, 222 S.E.2d at 913. The
applicant in that case omitted the true intended use from the application and
concealed it from the public until a representative of the applicant was cross-
examined at a public hearing. Id. at 720, 222 S.E.2d at 912.
We noted the use of a property should be stated truthfully and accurately in a
permit application:
Broadly, the purpose of a zoning is to limit the use of land in the interest of public welfare. It is based on the exercise of police power, and generally may be exercised only after adequate public notice and hearing, and this notice should correctly inform the public and the Board of Adjustment of the use that the applicant proposes to make of the premises.
28 N.C. App. at 720, 222 S.E.2d at 912. We concluded “the designated use was so
inaccurate, and the variance in the designated use and the intended use so
substantial, that the Board of Adjustment could not lawfully grant either a
conditional use or nonconforming use permit for use of the premises as a family
10 HALL V. HENDERSON COUNTY
campground.” Id. at 721, 222 S.E.2d at 913.
A. Board’s Interpretation of Code Provisions
This case is distinguishable from Freewood, primarily because in that case we
deferred to the local board’s interpretation of its local ordinance and affirmed its
decision. Here, Petitioners ask us to reverse the decision of the Board and determine
the Facility should have been categorized as an ALR, thereby substituting our
interpretation of the local ordinance for the Board’s.
Interpretation of a local ordinance presents a question of law. Ayers v. Bd. of
Adjustment for Town of Robersonville, 113 N.C. App. 528, 531, 439 S.E.2d 199, 201
(1994). We review such questions de novo, considering the matter anew. In re Appeal
of Willis, 129 N.C. App. 499, 501, 500 S.E.2d 723, 725 (1998). However, we do not
substitute our judgment for that of the Board, but determine whether the Board’s
interpretation of the ordinance is reasonable:
[O]ne of the functions of a Board of Adjustment is to interpret local zoning ordinances, and [the Board’s] interpretation of its own ordinance is given deference. Therefore, our task on appeal is not to decide whether another interpretation of the ordinance might reasonably have been reached by the Board, but to decide if the Board acted arbitrarily, oppressively, manifestly abused its authority, or committed an error of law in interpreting the ordinance.
Whiteco Outdoor Advert. v. Johnston Cnty. Bd. of Adjustment, 132 N.C. App. 465, 470,
513 S.E.2d 70, 74 (1999) (cleaned up).
Prior to submitting its application, Respondent consulted with the Henderson
11 HALL V. HENDERSON COUNTY
County Zoning Administrator, as directed by the Code. Henderson Cnty. Code Ord. §
42-355(C). The Zoning Administrator, among other duties, is tasked with
determining the meaning of Code provisions. Id. § 42-308. He testified to the Board
that the only option available to Respondents was to categorize the Facility as an
ALR—that Mental Health Facility is a subcategory of ALR but not a use recognized
by the Code, so the application was properly made for an ALR. Accordingly, he
advised Respondent to categorize the Facility on its application as an ALR. The
Board, by granting the special use permit, indicated it concluded this categorization
was proper.
Because the text of the Code designates ALR as an enumerated use but does
not do the same for Mental Health Facility, we cannot say the Board’s interpretation
is a “manifest error of law.” Whiteco, 132 N.C. App. at 470, 513 S.E.2d at 74. The Code
contains a “Table of Permitted and Special Uses” which lists all “uses which may be
permitted in one or more of the various zoning districts established by [the Code].”
Henderson Code §§ 42-61, 42-26. This table enumerates the permissible uses, divided
by category, with indication for each use whether that use is permitted by right or
requires a special use permit in each of the various zoning districts. For instance, an
Assisted Living Residence requires only a zoning permit to operate in any of the five
commercial zoning districts, but a special use permit in the five residential zoning
districts:
12 HALL V. HENDERSON COUNTY
The table also indicates whether there are additional “Supplemental
Requirements” the use must comply with, which “represent the minimum conditions
for issuance of a Zoning Permit or a Special Use Permit.” Henderson Code § 42-26.
The Code lists the supplemental requirements for each individual use in the section
immediately following the Table. An ALR, for instance, must have a site plan, meet
certain lighting and road accessibility standards, must be certified in accordance with
State law, and provide a method of solid waste disposal. Id § 42.62 SR 1.1.
Mental Health Facility does not appear as a use on the Table of Permitted and
Special Uses and has no entry in the section of the Code detailing the supplemental
requirements for each use. In fact, the term “Mental Health Facility” does not appear
anywhere in the Code outside of Article XIV, the “Definitions” portion of the Code.
13 HALL V. HENDERSON COUNTY
ALR, by contrast, is both listed on the Table of Permitted and Special Uses and has
an individual entry in the list of supplemental requirements.
The Code’s Article XIV definitions for each of these terms shed light on this
distinction. ALR and Mental Health Facility are defined both as individual terms and
as two of the eight subcategories of “Extended Care Facilities.” § 42-391. An Extended
Care Facility is defined as: “A licensed care facility that provides continuing services
to residents and which shall include: family care homes, hospice residential care
facilities, assisted living residences, adult care homes, mental health facilities,
multiunit assisted housing with services, nursing homes, and continuing care
retirement communities.” Id. (emphasis added).
“Extended Care Facility” is not enumerated in the Code’s Table of Permitted
and Special Uses. However, three of its eight subcategories are: Assisted Living
Residence, Hospice Residential Care Facility, and Nursing Home are each listed as
individual use types for which a permit or SUP may be obtained. The other five
subcategories, including Mental Health Facility, are not. The definition of ALR as a
subcategory of Extended Care Facility clarifies this, stating: “Extended care facilities
with seven (7) or more residents (excluding hospice residential care facilities and
nursing homes) shall, for the purposes of this Chapter, be included with and
permitted in the same fashion as an assisted living residence[.]” Id. Thus, under the
text of the Code, Hospice Residential Care Facilities and Nursing Homes are
permitted as independent categories, and accordingly, like ALR, have individual
14 HALL V. HENDERSON COUNTY
entries both in the Table of Permitted and Special Uses and the list of supplemental
requirements. All other types of Extended Care Facility, including Mental Health
Facilities, do not have individual entries in the table and are properly permitted as
ALRs. Therefore, under the text of the statute, the Board’s determination the Facility
was properly categorized as an ALR was reasonable.
One reason we affirmed the local board’s decision in Freewood was because a
nudist camp was so distinct from a family campground “the inadequate and improper
designation in the application of the proposed use of the premises does not properly
raise the issues before the Board.” 28 N.C. App. at 721, 222 S.E.2d at 913. Petitioners
argue the same is true for ALR and Mental Health Facility. We disagree.
Where we treated family campgrounds and the proposed nudist campground
in Freewood as separate and distinct categories of use, ALR and Mental Health
Facility under the Code are both subcategories of Extended Care Facility—“a licensed
care facility that provides continuing services to residents.” Henderson Code § 42-
391. An ALR is a facility for seven or more persons which provides housekeeping
services, personal care services, and at least one meal per day. Id. A Mental Health
Facility “provides services to individuals who are mentally ill, developmentally
disabled, or substance abusers.” Id. Neither of these definitions exclude the other,
and we cannot say the Board was unreasonable in determining an application for
ALR sufficiently raised the necessary issues. Additionally, we noted in Freewood a
specific issue which was not raised by the application: it was unclear whether a nudist
15 HALL V. HENDERSON COUNTY
camp was even legal under our General Statutes, and because a permit may only be
granted for a lawful use an application for a family campground did not raise the
necessary issue of legality. Id. at 720, 222 S.E.2d at 913. Petitioners in this case do
not similarly identify any relevant issue which was not raised before the Board.
Because the text of the statute supports the Board’s interpretation and
Respondent’s application properly raised the relevant issues the Board, by
categorizing the Facility as an ALR, did not act “arbitrarily, oppressively, manifestly
abuse its authority, or commit[] an error of law” in interpreting the Code. Whiteco,
132 N.C. App. at 470, 513 S.E.2d at 74. Thus, as in Freewood, we defer to the Board’s
reasonable interpretation of its local ordinance. Id.
B. Due Process
Petitioners additionally argue the categorization as an ALR was misleading
for the purposes of providing notice to the public, implicating due process concerns.
Notice prior to a public hearing “should correctly inform the public and the Board of
Adjustment of the use that the applicant proposes to make of the premises.”
Freewood, 28 N.C. App. at 720, 222 S.E.2d at 912. Given that the Facility is properly
categorized as an ALR, Respondent’s categorizing it as such on its application does
not appear to be misleading. Even assuming this categorization was misleading as to
the intended use such that the application did not provide sufficient notice,
Petitioners in this case do not allege they were prejudiced by a lack of notice, and we
can find no indication of prejudice in the Record. Our review of a local board’s
16 HALL V. HENDERSON COUNTY
proceedings is limited to ensuring the rights of the petitioners have not been
prejudiced. See N.C. Gen. Stat. § 160D-1402(j) (“When reviewing the decision under
the provisions of this section, the court shall ensure that the rights of petitioners have
not been prejudiced . . .”). Respondent distributed informational materials to
community members prior to the hearing, which included an invitation to meet with
a representative of Respondent. The first hearing was held on 28 September 2022, at
which time Petitioners requested a continuance in order to investigate the application
and retain expert witnesses. The hearing was continued to 26 October, and testimony
was heard in monthly sessions in October, November, and December. The testimony
does not indicate that Petitioners, the Board, or any other interested parties were
unaware of the intended use of the Facility for Respondent’s addiction-recovery
program. In Freewood, by contrast, the applicant took deliberate steps to conceal the
actual character of the intended use: there was evidence the owner “had taken every
possible precaution to avoid any publicity or to be identified as a nudist camp and
had falsely denied to a local news reporter that he intended to operate a nudist camp.”
28 N.C. App. at 718, 222 S.E.2d at 911. The intended use was “deliberately concealed
from the public and was not disclosed to the Board of Adjustment until elicited by
cross-examination.” Id. at 720, 222 S.E.2d at 912. There is no evidence of such
concealment in this case or of prejudice to Petitioners due to the Facility being
characterized as an ALR on Respondent’s application.
C. Definition of Assisted Living Residence
17 HALL V. HENDERSON COUNTY
Petitioners finally argue the Facility cannot be categorized as an ALR because
no evidence was provided that it would provide housekeeping or personal care
services, which are included in the Code’s definition of ALR. Henderson Code § 42-
391. But this is not a showing required of Respondent. When determining if it should
grant a special use permit, the Board must find that the specific site standards for
the use, as regulated by the Code, have been met. Id. § 42-255 H. The applicant does
not bear the burden of proof for general considerations such as impact on the value
of nearby property, but it may be required to rebut evidence showing these standards
would not be met. Id; see also Woodhouse v. Bd. of Com’rs of Town of Nags Head, 299
N.C. 211, 219, 261 S.E.2d 882, 887 (1980).
If the applicant makes the required showing, the Board issues a special use
permit. Id. Respondent was not required to affirmatively show the intended use fits
the definition of ALR: the special use permit allows Respondent to use the Facility as
an ALR. If, following the issuance of the special use permit, Respondent put the
property to a prohibited use, Respondent would then be in violation of the Code.
Henderson Code § 42-8. Failing to affirmatively establish during the application
process that each aspect of the definition of ALR is met—a duty not imposed on
applicants by the Code—does not render the “designated use so inaccurate, and the
variance in the designated use and the intended use so substantial” that the Board
could not properly address the issues raised by the intended use. Freewood, 28 N.C.
18 HALL V. HENDERSON COUNTY
App. at 721, 222 S.E.2d at 913.2
III. Admission of Expert Testimony
The trial court concluded the Board erred as a matter of law in allowing Lynn
Carmichael to testify regarding the impact of the Facility on the value of surrounding
property. Ms. Carmichael, a licensed appraiser, was qualified as an expert witness
with no objection by Petitioners. She testified that she had performed a market
impact study on properties surrounding four recovery centers in Western North
Carolina. Her study examined sales data for residential properties within a one-mile
radius, five-mile radius, and within the zip code of each recovery center from 2015
through 2022. She concluded the recovery centers had no impact on the sales volume
or appreciation in value of properties closer to the centers, and that the Facility would
likewise have “no injurious impact on value.”
Petitioners objected to Ms. Carmichael’s testimony during the hearing and
argue her testimony should have been excluded as irrelevant because it was based on
inadequate data. See State v. Crumbley, 135 N.C. App. 59, 65, 519 S.E.2d 94, 98 (1999)
2 We note as well that so strict a reading of the definitions of individual permitted and special
uses could render uses which vary slightly from those definitions permissible without a zoning or special use permit. “Zoning regulation is in derogation of common law property rights and therefore must be strictly construed to limit such derogation to that intended by the regulation.” Coleman v. Town of Hillsborough, 173 N.C. App. 560, 564, 619 S.E.2d 555, 559 (2005). Accordingly, uses which are unregulated by the ordinance do not require a permit, and blanket proscriptions on unenumerated uses are unenforceable. See Land v. Village of Wesley Chapel, 206 N.C. App. 123, 697 S.E.2d 458 (2010) (private shooting range did not fit into any land-use category of ordinance and therefore did not require special use permit). The Board, instead, interpreted the Code to understand the intended use of the Facility as an ALR, which requires a special use permit.
19 HALL V. HENDERSON COUNTY
(“Rule 702 does not, however, allow opinion testimony based on inadequate data.”).
They argued her study should have accounted for when the recovery centers opened,
should have specifically examined the impact on adjacent properties, and that the
licensed recovery centers in her study were not adequately similar to the Facility.
The trial court determined the Board had erred as a matter of law in admitting Ms.
Carmichael’s testimony “without knowing when the considered recovery center
facilities were started business (sic) or opened so as to conduct an analysis of impact
over a certain period of time.” It initially remanded the case to allow the Board to
receive evidence as to when the comparable facilities first started operation.3
In reviewing the appeal of the Board’s decision we first determine whether the
trial court exercised the appropriate scope of review, then decide whether the trial
court did so properly. Durham Green Flea Market, 388 N.C. at 548, 923 S.E.2d at 528.
The scope of that review is provided by statute. The trial court is instructed to:
ensure the rights of petitioners have not been prejudiced because the decision-making body’s findings, inferences, conclusions, or decisions were:
a. In violation of constitutional provisions, including those protecting procedural due process rights.
b. In excess of statutory authority conferred upon the local government, including preemption, or the authority conferred upon the decision-
3 However, the trial court revised its ruling to require the Board to deny the permit rather
than conduct a new hearing.
20 HALL V. HENDERSON COUNTY
making board by ordinance.
c. Inconsistent with applicable procedures specified by statute or ordinance.
e. Unsupported by competent, material, and substantial evidence in view of the entire record.
f. Arbitrary or capricious
N.C. Gen. Stat. § 160D-1402(j)(1)
Here, the trial court found the Board had erred “as a matter of law” in
admitting Ms. Carmichael’s testimony without information regarding when the
comparable facilities began operation. The trial court thus appears to have reviewed
the evidentiary issues in this case to determine if they were “affected by other error
of law.” However, Board proceedings are quasi-judicial in nature, and the Board is
not bound by the Rules of Evidence but may consider all of the evidence offered.
Humble Oil, 284 N.C. at 470, 202 S.E.2d at 137. As the Board is not bound by the
Rules of Evidence, it is unclear what error of law it could have committed by
admitting the testimony.
Instead, when reviewing the admission of evidence at a hearing of a local
board, that review is generally based on our responsibility to ensure the rights of the
petitioners have not been prejudiced because the findings, inferences, conclusions, or
decisions were “unsupported by competent, material, and substantive evidence in
view of the entire record.” N.C. Gen. Stat. § 160D-1402(j)(1)e. See, e.g., Harding v. Bd.
21 HALL V. HENDERSON COUNTY
of Adjustment of Davie Cnty., 170 N.C. App. 392, 397-98, 612 S.E.2d 431, 436 (2005)
(reviewing admission of expert testimony to determine if board’s decision was
supported by competent evidence). Competent evidence can include evidence which
would be inadmissible in a trial court under our Rules of Evidence if that evidence
falls into one of two categories:
The term “competent evidence”, as used in this subsection, does not preclude reliance by the decision-making board on evidence that would not be admissible under the rules of evidence as applied in the trial division of the General Court of Justice if (i) . . . the evidence was admitted without objection or (ii) the evidence appears to be sufficiently trustworthy and was admitted under such circumstances that it was reasonable for the decision-making board to rely upon it.
N.C. Gen. Stat. § 160D-1402(j)(3).
In this case, Petitioners objected to Ms. Carmichael’s testimony, so we address
whether the evidence appears to be sufficiently trustworthy and was admitted under
such circumstances that it was reasonable for the Board to rely upon it. We note that
although the “technical legal rules of evidence and procedure may be disregarded, no
essential element of a fair trial can be dispensed with. The party whose rights are
being determined must be given the opportunity to cross-examine witnesses, inspect
documents and offer evidence in explanation and rebuttal.” Jarrell v. Bd. of
Adjustment for City of High Point, 258 N.C. 476, 481, 128 S.E.2d 879, 883 (1963). Ms.
Carmichael explained her methodology in detail, specifically describing the data that
she used and the conclusions she reached as a result. Petitioners had the opportunity
22 HALL V. HENDERSON COUNTY
to cross-examine her and did so thoroughly, highlighting information her
methodology did not take into account. The limitations of the methodology were
clearly set out, and the Board was given information allowing it to determine the
appropriate weight to give the evidence. Even assuming this evidence was
inadmissible as expert testimony under our Rules of Evidence, it “appears to be
sufficiently trustworthy and was admitted under such circumstances that it was
reasonable for the [Board] to rely upon it.” N.C. Gen. Stat. § 160D-1402(j)(3).
Even if Ms. Carmichael’s testimony were not competent evidence, it does not
appear the Board relied on it in granting the special use permit. Although the Board
found as a fact that, with the conditions imposed in its Order “the Applicant’s
proposed use would not substantially injure the value of property or improvements
in the area,” Respondent had no burden to produce evidence related to the impact of
the Facility on the value of surrounding property. An applicant for a special use
permit “bears the initial burden of showing compliance with the standards and
conditions required by the ordinance for the issuance of a conditional use permit.”
Woodhouse, 299 N.C. at 217, 261 S.E.2d at 887. For general considerations, however,
opponents of the application bear the initial burden of showing the proposed use
would have a negative impact. Id. at 219, 261 S.E.2d at 887-88 (“To hold that an
applicant must first anticipate and then prove or disprove each and every general
consideration would impose an intolerable, if not impossible, burden on an applicant
for a conditional use permit.”). The Henderson Code is consistent with this:
23 HALL V. HENDERSON COUNTY
The applicant will not bear the burden of proving that all of the site standards (as listed below) have been met; however the applicant will be required to produce evidence sufficient to rebut any evidence presented that the site standards would not be met or that a condition is necessary. The applicant may be required, in his/her rebuttal, to show that the proposed use will:
a. Not materially endanger the public health, safety or welfare;
b. Not substantially injure the value of property or improvements in the area; and
c. Be in harmony with the surrounding area.
Henderson Code § 42-355(H)(1). Petitioners did not present any evidence tending to
show the Facility would have a negative impact on the value of surrounding
residential property. Accordingly, Respondent was not required to produce rebuttal
evidence and the Board thus did not rely on Ms. Carmichael’s testimony in making
its decision.
IV. Exclusion of Expert Testimony
The Board excluded the testimony of two witnesses Petitioners called as
experts: Mark Teague, a traffic engineer, and Benny Waller, a property value
appraiser. As with the Board’s admission of Ms. Carmichael’s testimony, the trial
court concluded in its Order that the Board “erred as a matter of law” in excluding
the testimony of these witnesses.
As discussed above, the Board, as a quasi-judicial body, is not bound by the
Rules of Evidence, and its evidentiary rulings at odds with those rules are not “errors
24 HALL V. HENDERSON COUNTY
of law” as such. And while review of the admission of evidence is enabled by our
charge to ensure the decision of the Board was supported by “competent, material,
and substantial evidence in view of the entire record,” N.C. Gen. Stat. § 160D-
1402(j)(1)e, evidence alleged to have been excluded erroneously does not raise a
similar concern. Instead, our review of a local board’s exclusion of evidence stems
from the statutory instruction to ensure petitioners were not prejudiced by a decision
made “in violation of constitutional provisions, including those protecting procedural
due process rights.” N.C. Gen. Stat. § 160D-1402(j)(1)(a). See, e.g., Davidson Cnty.
Broad. Co. Inc. v. Iredell County, 248 N.C. App. 305, 790 S.E.2d 663 (2016)
(determining if exclusion of expert testimony as to issue of harmony with surrounding
area violated petitioners’ right to due process). Although the Board is not bound by
formal rules of evidence or civil procedure, its procedures “can dispense with no
essential element of a fair trial.” In re Application of Raynor, 94 N.C. App. 173, 176,
379 S.E.2d 884, 886 (1989). One essential element of a fair trial is that a “party whose
rights are being determined [is entitled to] offer evidence in support of his position
and in rebuttal of his opponents’ contentions.” Id. at 177, 379 S.E.2d at 887. Thus,
the Board’s exclusion of evidence is properly reviewed to determine whether that
exclusion violated Petitioners’ right to due process.
Petitioners have made no argument and provided no authority relating to due
process concerns raised by this exclusion. Their arguments are instead based in our
25 HALL V. HENDERSON COUNTY
Rules of Evidence, which do not govern the Board’s proceedings.4 We do not now
determine whether Petitioners’ due process rights were violated by the exclusion of
testimony because it is not the role of this Court to “supplement an appellant’s brief
with legal authority or arguments not contained therein.” K2HN Construction NC,
LLC v. Five D Contractors, Inc., 267 N.C. App. 207, 215, 832 S.E.2d 559, 565 (2019).
Likewise, the trial court did not address whether the Board violated Petitioners’ due
process rights, and it therefore erred in determining the Board “erred as a matter of
law” by excluding their expert witnesses.
V. Fair Housing Act
Respondent additionally argues Petitioners’ opposition to its application
violates the Fair Housing Act (FHA) in that the Petition commences litigation which
has an illegal objective. As Respondent concedes, this is a matter of first impression.
The FHA creates a cause of action when a person is denied housing because of their
handicap, and it can be asserted as a defense in certain proceedings that would
deprive the defendant of housing, particularly ejectment actions. See, e.g., United
States v. Wagner, 940 F.Supp. 972, 980 (N.D. Tex. 1996); Newell v. Rolling Hills
Apartments, 134 F.Supp.2d 1026, 1038 (N.D. Iowa 2001). Former and recovering
4 The Petition alleges the Board “committed errors of law by prejudicing Petitioners’ procedural
due process rights when it held their witnesses, includ[ing] expert witnesses, to a standard not required by the rules of evidence and denied Petitioners the right to offer evidence through those expert witnesses.” In their arguments to this Court, however, Petitioners neither raise due process concerns nor identify legal standards by which we may determine whether their right to due process has been violated.
26 HALL V. HENDERSON COUNTY
addicts are considered to have a handicap and may not be discriminated against on
that basis. U.S. v. Southern Management Corp., 955 F.2d 914, 922 (4th Cir. 1992).
The FHA has not previously been applied and interpreted to require dismissal of a
petition appealing a zoning permit decision based on alleged discriminatory animus
of the petitioners.
In this case, no person has been denied housing because we reverse the decision
of the trial court ordering the Board to rescind Respondent’s special use permit. We
therefore do not reach the FHA issue raised by Respondent.
Conclusion
For the foregoing reasons, we hold the trial court erred in: (1) ordering the
Board to deny Respondent’s application for special use permit; (2) concluding the
Board had erred in excluding the testimony of Petitioners’ expert witnesses; and (3)
concluding the Board had erred in admitting the testimony of Lynn Carmichael. We
reverse the Order of the trial court.
REVERSED.
Judges ZACHARY concurs.
Judge MURRY concurs in part and dissents in part by separate opinion.
27 No. COA24-919 – Hall v. Henderson County
MURRY, Judge, concurring in part, dissenting in part.
I agree with the majority that Petitioners have adequate standing to
bring their claims and that the FHA does not apply in this case. However, I disagree
that the trial court erred by ordering the Board to deny Respondent’s special-use
permit application and with reversing their decision to admit the testimony of traffic
engineer Mark Teague. I write separately to dissent solely on these evidentiary
issues.
The majority’s determination that the trial court erred by denying
Respondents’ application misinterprets the Code, which provides that a special-use
permit applicant “will not bear the burden of proving that all of the site standards . . .
have been met.” Henderson Code § 42-355. While the applicant does not bear the
burden of proving that they have met these general considerations, there are specific
requirements that the applicant must prove by substantial evidence for the Board to
determine whether a site will qualify as an ALR or Mental Health facility. Id. § 42-
391; see Humble Oil & Refining Co. v. Bd. of Alderman of Town of Chapel Hill, 284
N.C. 458, 468 (1974) (italics added) (“When an applicant has produced competent,
material, and substantial evidence . . . of the facts and conditions which the ordinance
requires for the issuance of a special use permit, [p]rima facie he is entitled to it.”).
Without this showing, we cannot determine whether “substantial evidence” supports
the Board’s decision under the whole-record test. Mann Media, Inc. v. Randolph Cnty.
Planning Bd., 356 N.C. 1, 13–14 (2002) (quotations omitted). In the present case, HALL V. HENDERSON COUNTY
Murry, J., concurring in part, dissenting in part
Respondents must prove that their facility meets the statutory requirement of
personal care services and at least one meal per day for the Board to determine
whether the facility qualifies as an ALR. See id. I would remand to the Board for the
limited purpose of allowing Respondent to present evidence of planned compliance
with the regulatory requirements.
Regarding the exclusion of Mr. Teague’s testimony, I agree with the majority
that the proper standard of review to apply is whether the exclusion violated
Petitioners’ procedural due process rights under the United States Constitution.
N.C.G.S. § 160D-1402(j)(1)(a); U.S. Const. amend. XIV, § 1. However, I disagree that
with the decision to reverse the ruling of the trial court. Instead, the proper remedy
for the trial court’s error is to remand the case for reconsideration of Mr. Teague’s
testimony in a manner consistent with the proper standard. See, e.g., Edgecomb
County Dept. of Social Services v. Hickman, 211 N.C. App. 176, 182 (2011) (“As the
trial court failed to apply the correct standard of review, we vacate the order and
remand . . . .”) The Rules of Evidence may assist in quasi-judicial proceedings as “a
guideline to reliability and relevance,” even where they are not binding or strictly
applied. State v. Davis, 353 N.C. 1, 18 (2000). Applying the due process standard, the
trial court should determine whether the Board misapplied the Rules, even if applied
broadly, by excluding Mr. Teague’s testimony for non-authorship of the traffic report
that formed the basis of his conclusions. The Rules of Evidence do not require a
-2- HALL V. HENDERSON COUNTY
testifying expert to prepare the supporting data himself but only that such data
consist “of a type reasonably relied upon by experts in the particular field.” N.C. R.
Evid. 703. Originally, the trial court mistakenly ruled that this misapplication was
an error of law upon “view of the entire record.” N.C.G.S. § 160D-1402(j)(1)(e). On
remand, the trial court should consider whether a violation of the Rules of Evidence
occurred, and if so, whether it constitutes a subsequent violation of Petitioners’
procedural due process rights.
-3-