Mann Media, Inc. v. Randolph County Planning Board

542 S.E.2d 253, 142 N.C. App. 137, 2001 N.C. App. LEXIS 44
CourtCourt of Appeals of North Carolina
DecidedFebruary 6, 2001
DocketNo. COA99-1478
StatusPublished
Cited by5 cases

This text of 542 S.E.2d 253 (Mann Media, Inc. v. Randolph County Planning Board) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mann Media, Inc. v. Randolph County Planning Board, 542 S.E.2d 253, 142 N.C. App. 137, 2001 N.C. App. LEXIS 44 (N.C. Ct. App. 2001).

Opinions

McGEE, Judge.

Petitioners applied for a special use permit to locate a broadcast tower on certain land located in Randolph County. Following proceedings held on 10 November 1998, respondent denied petitioners’ application. Pursuant to a writ of certiorari, the Randolph County Superior Court vacated and remanded the matter for a hearing de novo, because respondent had not specified its reason for the denial in the minutes of the meeting at which the action was taken.

Petitioners’ application for a special use permit was heard on 10 June 1999 and was again denied by respondent in an order dated 24 June 1999. Petitioners’ request for a writ of certiorari from the Randolph County Superior Court was granted, and a hearing was held on 2 August 1999. On 17 August 1999, the trial court vacated respondent’s 24 June 1999 order denying petitioners’ application for a special use permit and remanded the matter to respondent for entry of an order allowing petitioners’ application. Respondent appeals.

The scope of the trial court’s judicial review of respondent’s denial of petitioners’ application includes “[ijnsuring that decisions of town boards are supported by competent, material and substantial evidence in the whole record, and . . . that decisions are not arbitrary and capricious.” Concrete Co. v. Board of Commissioners, 299 N.C. 620, 626, 265 S.E.2d 379, 383 (1980). Respondent contends that the trial court improperly reversed respondent’s conclusions that petitioners’ “proposed use will substantially injure the value of adjoining or abutting property” and that “[t]he location and character of the use . . . will not be in harmony with the area in which it is to be located.” As in Concrete Co., the question on appeal before this Court “is not whether the evidence before the superior court supported that court’s order but whether the evidence before the [county planning] board was supportive of its action.” Id.

[139]*139I.

Respondent assigns error to the trial court’s conclusion of law that “[b]ecause Petitioners’ proposed use is a permitted use within the zoning district in which it is proposed to be located, it is in harmony with the area in which it is to be located as a matter of law.” As our Court has stated with respect to special and conditional use permits:

The inclusion of a use as a conditional use in a particular zoning district establishes a prima facie case that the permitted use is in harmony with the general zoning plan. If, however, competent, material, and substantial evidence reveals that the use contemplated is not in fact in “harmony with the area in which it is to be located” the Board may so find.

Vulcan Materials Co. v. Guilford County Bd. of County Comrs., 115 N.C. App. 319, 324, 444 S.E.2d 639, 643 (1994) (citations omitted). The trial court must assess whether competent, material and substantial evidence supported respondent’s conclusion that petitioners’ proposed use was not in harmony with the area in which it was to be located.

“In civil cases, ‘[t]he burden is on the appellant not only to show error but to enable the court to see that he was prejudiced[.]’ ” Hajmm Co. v. House of Raeford Farms, 328 N.C. 578, 589, 403 S.E.2d 483, 490 (1991) (citation omitted). In order to overcome petitioners’ prima facie showing of harmony, respondent must show that its conclusion of lack of harmony is supported by competent, material and substantial evidence. In Vulcan, we found competent, material and substantial evidence of lack of harmony in a proposed quarry where (1) the area surrounding the proposed quarry was entirely residential and agricultural; (2) the nearest non-residential use to the proposed quarry was a commercial facility over two miles away; and (3) the Guilford County Comprehensive Plan adopted in 1986 reserved the area of the site for residential use. See Vulcan, 115 N.C. App. at 323-24, 444 S.E.2d at 642.

In the present case, no evidence of a comprehensive plan for the county was presented before respondent. The record shows a feed and supply store abuts petitioners’ proposed site, and three more commercial establishments appear to be located some 3,500 feet from the proposed tower. A broadcast tower owned by WFMY, even taller than petitioners’ proposed 1,500-foot tower, stands 1.35 miles away, [140]*140and apparently there is a third tower within five miles of petitioners’ proposed site.

Respondent based its conclusion of lack of harmony specifically on the “substantially greater” population density around the site of petitioners’ proposed tower than around “sites for towers which have been previously approved by [respondent] for Special Use Permits.” However, comparative evidence of population density in the record is limited to a map of the area surrounding the WFMY broadcast tower. While it is true that the WFMY map shows there to be only half as many houses within 1,500 feet of that taller tower than within 1,500 feet of petitioners’ proposed tower, the relevance of a 1,500-foot circle is never explained. No evidence of population densities around any other towers approved by respondent appears in the record, nor any suitable explanation of the relationship between population density and a broadcast tower’s harmony with an area.

“A board of commissioners ‘cannot deny applicants a permit in their unguided discretion or, stated differently, refuse it solely because, in their view, [it] would “adversely affect the public interest.” ’ ” Woodhouse v. Board of Commissioners, 299 N.C. 211, 217, 261 S.E.2d 882, 886 (1980) (citations omitted). We conclude that the record fails to show competent, material and substantial evidence to overcome petitioners’ prima facie showing of harmony under Vulcan.

II.

Respondent also assigns error to the trial court’s finding of fact that petitioners’ “proposed tower would have no substantial adverse effect on the value of adjoining or abutting properties” and conclusions of law that opponents’ testimony of adverse effect on value was incompetent because it did not relate to property adjoining or abutting petitioners’ proposed site. Respondent argues that, if the testimony of adverse property value effects by opponents was incompetent, then petitioners’ evidence of lack of adverse property value effect was similarly incompetent, because neither petitioners nor opponents introduced any evidence of actual adjoining or abutting property values. If petitioners’ evidence was incompetent, then they failed to meet their burden of showing no adverse property value effects, see Refining Co. v. Board of Aldermen, 284 N.C. 458, 468, 202 S.E.2d 129, 136 (1974), and their application was properly denied.

[141]*141In Sun Suites Holdings, L.L.C. v. Board of Aldermen of Garner, 139 N.C. App. 269, 533 S.E.2d 525, disc. review denied,

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Bluebook (online)
542 S.E.2d 253, 142 N.C. App. 137, 2001 N.C. App. LEXIS 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mann-media-inc-v-randolph-county-planning-board-ncctapp-2001.