Little River, LLC v. Lee Cnty. , 257 N.C. App. 55 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-461
Filed: 19 December 2017
Lee County, No. 16 CVS 329
LITTLE RIVER, LLC, Petitioner,
v.
LEE COUNTY, NORTH CAROLINA, Respondent,
and
CAROLINA TRACE ASSOCIATION, INC.; SOUTH LANDING PROPERTY
OWNERS ASSOCIATION, INC.; VILLAGE AT THE TRACE PROPERTY OWNERS
ASSOCIATION; SEDGEMOOR PROPERTY OWNERS ASSOCIATION;
ESCALANTE CAROLINA TRACE, LLC; SANDRA WARD; TERRY WARD; LAURA
RIDDLE; BOBBY RIDDLE, JR.; DANIEL STANLEY; KAY COLES; FRED
BERMAN; C. DAVID TURNER; JOHN BECK; LYONA BECK; GERALD MERRITT;
CHERYL MERRITT; KERMIT KEETER; LOUANE KEETER; ALFRED RUSHATZ;
SHARWYNNE BLATTERMAN; BARRY MARKOWITZ; MIRIAM MARKOWITZ;
TERRI DUSSAULT; and HOMER TODD SPOFFORD, Neighbor-Respondents.
Appeal by petitioner from order entered 12 December 2016 by Judge John W.
Smith in Lee County Superior Court. Heard in the Court of Appeals 1 November
2017.
Smith Moore Leatherwood LLP, by Karen M. Kemerait and M. Gray Styers, Jr.,
for petitioner-appellant.
Yarborough, Winters & Neville, P.A., by Garris Neil Yarborough, and Lee
County Attorney Whitney Parrish, for respondent-appellee.
Womble Carlyle Sandridge & Rice, LLP, by Michael C. Thelen, for intervenor-
respondent-appellees.
LITTLE RIVER, LLC V. LEE COUNTY
Opinion of the Court
TYSON, Judge.
Little River, LLC (“Petitioner”) appeals from an order affirming the decision of
the Lee County Board of Adjustment (the “Board”) to deny Petitioner’s application for
a special use permit. We affirm in part, reverse in part, and remand.
I. Background
On 9 September 2015, Petitioner submitted its second application to the Lee
County Planning and Community Development Department (the “Department”) for
a Special Use Permit (“SUP”) to establish an aggregate rock quarry to be located at
5500 NC Highway 87, Sanford, North Carolina, on a proposed 48 acre portion of a
377 acre parcel. The property is predominately zoned Residential Agricultural
(“RA”), with two Rural Residential (“RR”) zoned parcels adjoining NC Highway 87.
Quarries are a permitted use of right in the zoning districts under Article 4 of the
Sanford-Broadway-Lee County Unified Development Ordinance (“UDO”), subject to
a SUP.
The Department forwarded the application to the Board, which held public,
quasi-judicial hearings during five nights over the course of a six-month period. All
participants, including the Board, were represented by counsel. Special counsel for
the Board, attorneys for Petitioner, and the attorney for Intervenor-Respondent
Carolina Trace Association, Inc. (“CTA”) all agreed upon procedures to ensure both
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Opinion of the Court
fairness and expediency throughout the hearing. Petitioner and CTA presented
evidence at the hearing.
At the close of all evidence, the Board denied Petitioner’s application based
upon fifteen findings of fact, leading to the following four conclusions of law:
1. The applicant failed to demonstrate that the use will not
materially endanger the public health or safety if located
where proposed and developed according to the plan as
submitted and approved.
2. The applicant failed to demonstrate that the use met all
required conditions and specifications.
3. The applicant failed to demonstrate that the use would
not substantially injure the value of adjoining or abutting
property or that the use is a public necessity.
4. The applicant failed to demonstrate that the location and
character of the use, if developed according to the plan
submitted and approved, would be in harmony with the
area which it is located and in general conformity with all
adopted land use plans.
Petitioner sought certiorari review of the Board’s decision in the superior court.
CTA and other interested parties (collectively “Respondent-Intervenors”) moved to
intervene. Petitioner consented to their intervention. After the hearing, in an order
dated 12 December 2016, the superior court affirmed the Board’s denial of the SUP,
and concluded that for the Petitioner’s purported errors of law:
10. Applying de novo review, the Court finds and concludes
that the Lee County Board of Adjustments did not commit
legal error, in that:
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a. It is not necessary that Neighbor-Respondent
Carolina Trace Association, Inc. demonstrates legal
standing to participate in the quasi-judicial proceedings to
appear before the Lee County Board of Adjustments . . . .
...
g. The Lee County Board of Adjustments has the
discretion to determine Petitioner did not establish a prima
facie case . . . . and . . . has the discretion to require
assurances regarding health, safety, and environmental
risks . . . .
The superior court then applied a “whole record review,” and found and
concluded: (1) there was “competent, material, and substantial evidence” to support
all the findings by the Board; (2) “each and every finding of fact . . . support the
Board’s conclusions of law; “[n]one of the findings of fact . . . is either arbitrary or
capricious”; and, (3) “[a]ll of the Board’s conclusions of law support the Board’s
decision to deny Petitioner Little River, LLC’s application for a special use permit[.]”
Petitioner appeals.
II. Jurisdiction
Jurisdiction lies in this Court from an appeal of right from a final judgment of
the superior court. N.C. Gen. Stat. § 7A-27(b) (2015).
III. Issues
Petitioner argues: (1) the opponents of the quarry did not have standing in the
quasi-judicial proceeding; (2) no competent, substantial, and material evidence
supports the Board’s denial of its SUP, presuming Petitioner established a prima
facie case; (3) the Board’s denial of the SUP was arbitrary and capricious; and, (4) its
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Opinion of the Court
due process rights were violated. Respondent objects to Petitioner’s issues on appeal,
and asserts the only issue before this Court is whether the superior court properly
exercised its scope of review of the Board’s decision.
IV. Standard of Review
“A legislative body such as the Board, when granting or denying a [special] use
permit, sits as a quasi-judicial body.” Sun Suites Holdings, LLC v. Bd. of Alderman
of Town of Garner, 139 N.C. App. 269, 271, 533 S.E.2d 525, 527, disc. review denied,
353 N.C. 280, 546 S.E.2d 397 (2000).
“The Board’s decisions ‘shall be subject to review of the superior court in the
nature of certiorari.’” Dellinger v. Lincoln Cty., __ N.C. App. __, __, 789 S.E.2d 21, 26,
disc. review denied, 369 N.C. 190, 794 S.E.2d 324 (2016) (quoting N.C. Gen. Stat. §
160A-381(c) (2015)). “In reviewing the Commissioners’ decision, the superior court
sits as an appellate court, and not as a trier of facts.” Innovative 55, LLC v. Robeson
Cty., __ N.C. App. __, __, 801 S.E.2d 671, 675 (2017) (citation and quotation marks
omitted). Under the scope of its review, a superior court must only determine
whether:
1) the [b]oard committed any errors in law; 2) the [b]oard
followed lawful procedure; 3) the petitioner was afforded
appropriate due process; 4) the [b]oard’s decision was
supported by competent evidence in the whole record; and
5) [whether] the [b]oard’s decision was arbitrary and
capricious.
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Overton v. Camden Cty., 155 N.C. App. 391, 393, 574 S.E.2d 157, 159 (2002)
(alterations in original) (quoting Capital Outdoor, Inc. v. Guilford Cty. Bd. of
Adjustment, 152 N.C. App. 474, 475, 567 S.E.2d 440, 441 (2002) (citation omitted)).
The standard of review of the superior court depends upon the purported error.
Morris Commc’ns. Corp. v. Bd. of Adjustment of Gastonia, 159 N.C. App. 598, 600,
583 S.E.2d 419, 421 (2003). Petitioner raises several issues, which require both de
novo and whole record review. “When a party alleges the Board of Commissioners’
decision was based upon an error of law, both the superior court, sitting as an
appellate court, and this Court reviews the matter de novo, considering the matter
anew.” Dellinger, ___ N.C. App. at ___,789 S.E.2d at 26 (citation omitted). “When the
petitioner questions (1) whether the agency’s decision was supported by the evidence
or (2) whether the decision was arbitrary or capricious, then the reviewing court must
apply the whole record test.” ACT-UP Triangle v. Comm’n for Health Servs. of the
State of N.C., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (citation and quotation
marks omitted). “The whole record test requires that the [superior] court examine
all competent evidence to determine whether the decision was supported by
substantial evidence.” Morris Commc’ns., 159 N.C. App. at 600, 583 S.E.2d at 421.
“Where a party appeals the superior court’s order to this Court, we review the
order to (1) determine whether the superior court exercised the appropriate scope of
review and, if appropriate, (2) decide whether the court did so properly. Davidson Cty.
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Broad. Co. v. Iredell Cty., ___ N.C. App. ___, ___, 790 S.E.2d 663, 666 (2016) (citations
and quotation marks omitted), disc. review denied, ___ N.C. ___, 797 S.E.2d 13 (2017).
V. Analysis
A. Standing
Petitioner argues Respondent-Intervenors did not have standing to participate
in the quasi-judicial Board of Adjustment meeting. Petitioner asserts our decision in
Cherry v. Wiesner, __ N.C. App. __, 781 S.E.2d 871 (2016), controls this issue in its
favor. We disagree.
“Standing is a necessary prerequisite to a court’s proper exercise of subject
matter jurisdiction, and is a question of law which this Court reviews de novo.” Smith
v. Forsyth Cty. Bd. of Adjustment, 186 N.C. App. 651, 653, 652 S.E.2d 355, 357 (2007)
(citations, quotation marks, and brackets omitted). For zoning and land use decisions
being made before a Board of Adjustment, “[t]he ordinance may provide that the
board of adjustment may hear and decide special and conditional use permits in
accordance with standards and procedures specified in the ordinance.” N.C. Gen.
Stat. § 160A-388(c) (2015).
In this case, section 3.1.5.3.3 of the UDO provides: “[a]ny person or persons
may appear at a public hearing and submit evidence, either individually or as a
representative.” Petitioner applied for and appeared before the Board seeking a SUP
to open and operate a quarry. As a quasi-judicial public hearing under the UDO, any
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Opinion of the Court
member of the public was able to appear and present evidence, as Respondent-
Intervenors did.
Unlike in Cherry, where the neighbor appealed the Board’s decision allowing
the applicants’ design plans, Petitioner appealed the Board’s decision denying its
SUP. See Cherry, __N.C. App. at __, 781 S.E.2d at 874. Only petitioners with standing
may appeal a quasi-judicial decision to the superior court in the nature of certiorari.
N.C. Gen. Stat. § 160A-393(d). Any person with “an ownership interest in the
property that is the subject of the decision being appealed” has such standing. Id.
Petitioner co-operatively worked to allow Respondent’s counsel to help
determine the procedures before the Board and expressly consented to Respondent-
Intervenors’ motion to intervene before the superior court. Any purported challenge
to the standing of Respondent-Intervenors is without merit. That portion of the
superior court’s order is affirmed.
B. Little River’s Prima Facie Showing
Petitioner argues the Board failed to follow the appropriate procedure and did
not first determine whether or not the Petitioner’s evidence and testimony had made
a prima facie showing of entitlement to a SUP. This threshold determination should
be based upon the Petitioner’s competent, material, and substantial evidence, or lack
thereof. We hold Petitioner met its burden of producing a prima facie showing.
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Petitioner is not seeking a rezoning, only a SUP to conduct a use expressly
permitted in these zoning districts. “A conditional use permit is one issued for a use
which the ordinance expressly permits in a designated zone upon proof that certain
facts and conditions detailed in the ordinance exist.” Woodhouse v. Bd. of Comm’rs of
the Town of Nags Head, 299 N.C. 211, 215, 261 S.E.2d 882, 886 (1980) (citation and
quotation marks omitted). “When an applicant for a conditional use permit produces
competent, material, and substantial evidence of compliance with all ordinance
requirements, the applicant has made a prima facie showing of entitlement to a
permit.” Howard v. City of Kinston, 148 N.C. App. 238, 246, 558 S.E.2d 221, 227
(2002) (citation and quotation marks omitted). A petitioner’s burden to establish a
prima facie showing is one “of production, and not a burden of proof.” Innovative 55,
__ N.C. App. at __, 801 S.E.2d at 676. Otherwise, “[t]o 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. An applicant need not negate every possible objection to the
proposed use.” Woodhouse, 299 N.C. at 219, 261 S.E.2d at 887-88 (citation and
quotation marks omitted).
The property in question is zoned RR and RA. Article 4 of the UDO specifically
allows quarries on property zoned RR and RA as a permitted use, subject to a special
use permit and additional development regulations.
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Opinion of the Court
According to section 3.5.3 of the UDO, a SUP shall be granted if the applicant
proves:
[1] The use will not materially endanger the public health
or safety if located where proposed and developed
according to the plan as submitted and approved,
[2] The use meets all required conditions and
specifications,
[3] The use will not substantially injure the value of
adjoining or abutting property, or that the use is a public
necessity, and
[4] The location and character of the use, if developed
according to the plan submitted and approved, will be in
harmony with the area in which it is located and in general
conformity with all adopted land use plans.
1. Public Health and Safety
Petitioner presented competent, substantial, and material evidence to show
the proposed quarry is located in a zoning district where it is permitted and will not
“materially endanger the public health or safety.” Petitioner’s evidence tends to show
the proposed quarry will be subject to extensive regulation from state and federal
agencies, including several subsets of the North Carolina Department of
Environmental Quality (“NC DEQ”), the United States Mine Safety Health
Administration, and the Bureau of Alcohol, Tobacco, Firearms and Explosives. Any
blasting that occurs is strictly regulated and will be closely monitored and regulated
to ensure no adverse effects due to ground vibrations will occur. Further, Petitioner’s
application included conditions restricting the peak particle velocity to below
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regulatory standards and restricting blasting to between 9:00 a.m. and 5:00 p.m. In
North Carolina, blasting is an ultra-hazardous activity and Petitioner will be held
strictly liable for any adverse consequences. Kinsey v. Spann, 139 N.C. App. 370, 374,
533 S.E.2d 487, 491 (2000).
Petitioner presented competent evidence of minimal off-site noise, producing
no impact on public health and safety due to sound. The proposed quarry will be
subject to stricter air quality standards than other existing quarries in the county,
due to the applicability of the Clean Air Act. Further, Petitioner presented competent
evidence of dust suppression at the stages of processing, storing, and loading the
aggregate.
Petitioner’s evidence also tends to show the quarry’s use of water will be
heavily regulated by state agencies, ensuring no adverse impact to health or safety
regarding ground or surface water. Petitioner’s evidence also tends to show the
majority of water usage will be maintained through rainwater, with some withdrawal
of ground water. Water used in the quarry process will not contain any chemicals
and will be recycled and stored on site. Any withdrawal from or discharge to surface
water creeks or rivers will be subject to a National Pollutant Discharge Elimination
System permit through NC DEQ.
Regarding increased traffic, Petitioner presented evidence of a 0.1 second delay
due to truck ingress and egress from the proposed quarry. The additional trucks on
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the road would not materially impact any of the surrounding intersections. The
North Carolina Department of Transportation did not express any concerns
regarding the sightline from the proposed entrance of the quarry site, and did not
require a signal light to be installed at the proposed entrance. Petitioner agreed to
restripe the road and create a dedicated left turn lane into the quarry.
The Board incorrectly found Petitioner had “failed to prove that the proposed
use would not create significant, negative” impacts to air quality and surface and
ground water, language the superior court erroneously used in its findings of fact.
Petitioner’s burden is a burden of production, not proof. See Innovative 55, __ N.C.
App. at __, 801 S.E.2d at 676. Petitioner presented competent, material, and
substantial evidence the proposed quarry will be established on a parcel already
zoned and permitted for this use and would not have a material, adverse impact on
public health or safety.
2. Required Conditions and Specifications of Permitted Use
Lee County’s Development Regulations for quarries are found in Article 5 of
the UDO. Quarries are a permitted use and are subject to Development Regulations
laid out in section 5.23.2, entitled “Standards.”
5.23.2.1 Minimum lot area is five (5) acres.
5.23.2.2 Such uses shall have direct access to a paved
Public Street with an all-weather surface.
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5.23.2.3 Minimum front, side and rear yards shall be fifty
(50) feet, which shall be used for landscaping and
screening.
5.23.2.4 The excavated area shall be surrounded with a six
(6) foot high security fence.
5.23.2.5 Only one (1) ground sign per entrance to the
storage yard is permitted. Such sign shall not exceed fifty
(50) square feet in area. If lighted, such sign may include
indirect lighting or non-flashing illumination. Such sign
shall be located on the same lot or parcel as the mining or
quarrying operation.
The property where the proposed quarry is located contains 377 acres, with 48
acres of the property being proposed for mining, and 90 acres being disturbed.
Petitioner’s evidence tends to show that 75% of the property will be undisturbed
vegetative buffer for screening from the adjoining properties. Petitioner presented
competent evidence of a paved driveway to access the quarry from NC Highway 87
and leading to a parking lot near the sales center. Petitioner also presented evidence
asserting a proposed fifty-foot vegetative barrier bordering the driveway, the
narrowest point of vegetative barrier to be established and maintained between the
quarry and surrounding areas. Petitioner presented a preliminary site plan and
other evidence indicating the installation of a six-foot high security fence around the
mining area and only one sign located at the entrance, all of which would conform to
the standards set forth in the UDO.
The findings of the Board show no adjudication of and ignores this evidence
presented by Petitioner. The requirements the Board alleges Petitioner failed to
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include in its application, including detail on lighting and grading, are not stated as
requirements for a SUP application, but are requirements for issuance of a building
permit, an entirely separate process. Petitioner presented substantial, material, and
competent evidence of all required specifications and conditions to establish a prima
facie case for the issuance of the SUP. The Board erroneously conflagrated the
burden of producing a prima facie showing to support the SUP application with
required development and building standards and conditions.
3. Value of Adjoining and Abutting Property
Petitioner presented expert testimony by a certified real estate appraiser
tending to show no impact on the adjoining or abutting property values. The expert
ran a paired sales analysis for 319 homes near surrounding quarries, including
properties not immediately adjoining or abutting those other quarries. Based upon
this analysis, the expert appraiser opined there would be no negative impact on
property values.
4. Harmony of Quarry with Surrounding Area
“The inclusion of the particular use in the ordinance as one which is permitted
under certain conditions, is equivalent to a legislative finding that the prescribed use
is one which is in harmony with the other uses permitted in the district.” Woodhouse,
299 N.C. at 216, 261 S.E.2d at 886 (citation omitted). As quarries are a permitted
use in this zoning district under the UDO, the proposed quarry has previously been
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legislatively determined to be in harmony with the surrounding uses and zoning
districts.
Petitioner also presented expert testimony tending to show the use will be in
harmony with the surrounding area. The majority of the acreage in the property,
over 75%, will remain undisturbed and used as a buffer to protect surrounding
properties from any view of the quarry. The one-mile radius around the proposed
location is thinly populated. The only two adjoining or abutting property owners to
speak at the hearing both were in favor of issuing the SUP for the quarry, and
testified to it being in harmony with their adjoining properties and surrounding
areas.
Petitioners provided substantial, material, and competent evidence of all four
requirements listed in section 3.5.3 of the UDO. Petitioner met its prima facie
showing of entitlement to its SUP for the proposed quarry operations. See Howard,
148 N.C. App. at 246, 558 S.E.2d at 227. Respondent’s arguments to the contrary are
overruled.
C. Board’s Denial of Little River’s SUP
Petitioner asserts there is no competent, material, and substantial evidence to
counter or rebut their prima facie case, or to support the Board’s denial of their SUP
application, and the Board’s decision was arbitrary and capricious. We agree.
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“Once an applicant makes [a prima facie] showing, the burden of establishing
that the approval of a conditional use permit would endanger the public health,
safety, and welfare falls upon those who oppose the issuance of the permit.” Howard,
148 N.C. App. at 246, 558 S.E.2d at 227.
If after presentation of rebuttal evidence a Board denies a SUP application,
the denial must be “based upon findings which are supported by competent, material,
and substantial evidence appearing in the record.” Id. “When a party alleges that a
decision of the superior court is arbitrary and capricious or unsupported by
substantial evidence, this Court reviews the whole record.” Cumulus Broad., LLC v.
Hoke County Bd. of Comm’rs, 180 N.C. App. 424, 428, 638 S.E.2d 12, 16 (2006)
(citation omitted). Here, we examine the whole record to determine the sufficiency of
the evidence to support the Board’s denial of Petitioner’s SUP.
Many of the Board’s findings of fact to support its conclusions are based solely
upon opponents’ evidence and wholly ignore the evidence presented to make a prima
facie showing by Petitioner. As a reviewing court applying the whole record test, the
superior court “may not consider the evidence which in and of itself justifies the
Board’s result, without taking into account contradictory evidence or evidence from
which conflicting inferences could be drawn.” Thompson v. Wake Cty. Bd. of Educ.,
292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977).
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At the quasi-judicial hearing, CTA presented both expert and lay testimony
concerning the proposed quarry. None of the CTA residents adjoin or abut
Petitioner’s property. All of the opponents to the quarry opined it would cause harm
to public health due to blasting and dust, to the environment, to property values, and
to public safety due to traffic. “Speculative opinions that merely assert generalized
fears about the effects of granting a conditional use permit for development are not
considered substantial evidence to support the findings [to deny the permit].”
Humane Society of Moore Cty. v. Town of S. Pines, 161 N.C. App. 625, 631, 589 S.E.2d
162, 167 (2003). Without specific, competent evidence to support these “generalized
fears,” this evidence does not rebut Petitioner’s prima facie showing. See id.
Respondent-Intervenors’ experts agreed that the proposed quarry use would
be heavily regulated, and, as such, would not endanger the public health and safety
due to blasting, sound, air quality, water quality, or traffic. The only rebuttal
evidence Respondent-Intervenors produced, beyond “generalized fears” and
speculation, was that Petitioner had not yet received the required approvals and
permits from other regulatory agencies.
The UDO does not mandate all required approvals to be granted and permits
issued prior to the approval of the SUP application. If needed, the Board can
condition issuance of the SUP upon Petitioner securing these approvals and permits.
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The lack of all required approvals and permits at the time of the hearings does not
rebut Petitioner’s prima facie showing for the SUP.
The expert witness evidence to rebut Petitioner’s showing of compliance with
the UDO’s condition 2 mistakes the process for site approval in Lee County.
Petitioner presented evidence of compliance with all requirements for a SUP, and any
information the Board contends was missing was not required at this application for
approval. These missing elements may affect the site plan and building approvals,
and conditions imposed, but are insufficient to rebut the substantial, material
evidence and to overcome Petitioner’s prima facie showing or to support the Board’s
denial of the SUP.
The UDO clearly states the impact on property values only applies to
“adjoining or abutting property.” No residents of CTA or other Respondent-
Intervenors who testified or intervened own property that adjoins or abuts the
Petitioner’s property. Their expert’s assertion that several properties located in CTA
may be negatively impacted by the quarry does not, ipso facto, overcome Petitioner’s
showing in the consideration of conclusion 3. Additionally, it was improper for the
superior court to weigh the evidence and to assert Respondent-Intervenors’ expert
was “substantially more compelling.” The superior court erred by re-weighing the
evidence, as compared to reviewing the whole record as an appellate court. The
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superior court’s review is limited to competent evidence in the whole record. See
Thompson, 292 N.C. at 410, 233 S.E.2d at 541.
As noted, the County has already made a legislative decision to permit the
operation of quarries in RA and RR zoned districts with approval of a special use
permit. Respondent-Intervenors’ rebuttal evidence regarding the lack of harmony
with the surrounding uses consisted of “generalized fears” and speculation of lay
witnesses. This testimony is insufficient to rebut Petitioner’s prima facie showing
and the prior legislatively determined harmony of this use within these zoning
districts and with the surrounding area. See Woodhouse, 299 N.C. at 216, 261 S.E.2d
at 886; see also Am. Towers, Inc. v. Town of Morrisville, 222 N.C. App. 638, 643, 731
S.E.2d 698, 702-03 (2012), disc. review denied, 366 N.C. 603, 743 S.E.2d 189 (2013).
The Board’s findings are unsupported by competent, material, and substantial
evidence, and its conclusions thereon are, as a matter of law, erroneous. Respondent-
Intervenors did not present substantial, material, and competent evidence to rebut
Petitioner’s prima facie showing of entitlement to a SUP. The superior court erred
by not properly reviewing the evidence of the whole record, and the conclusions
thereon de novo, and by affirming the Board’s decision.
D. Little River’s Due Process Rights
Petitioner argues it was denied due process in the quasi-judicial hearing before
the Board of Adjustment. We disagree.
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A Board “conducting a quasi-judicial hearing, can dispense with no essential
element of a fair trial[.]” Humble Oil & Refining Co. v. Bd. of Aldermen of the Town
of Chapel Hill, 284 N.C. 458, 470, 202 S.E.2d 129, 137 (1974). The Board “must insure
that an applicant is afforded a right to cross-examine witnesses, is given a right to
present evidence, is provided a right to inspect documentary evidence presented
against him and is afforded all the procedural steps set out in the pertinent ordinance
or statute.” Coastal Ready-Mix Concrete Co. v. Bd. of Comm’rs of the Town of Nags
Head, 299 N.C. 620, 626, 265 S.E.2d 379, 383 (1980).
Here, every party was represented by counsel who all mutually agreed upon
the procedures to be followed at each of the five quasi-judicial hearings. Having
already addressed Petitioner’s argument concerning Respondent-Intervenors’
standing, we find no violation of Petitioner’s due process rights. Petitioner’s
arguments are overruled.
VI. Conclusion
Petitioner has failed to show any error in the superior court’s ruling on
Respondent-Intervenors’ standing before the Board or by allowing intervention before
the superior court, or with the due process afforded to Petitioner. We affirm the
superior court’s ruling on those issues.
Petitioner presented a prima facie showing of entitlement to a SUP.
Respondent-Intervenors failed to offer substantial, material, and competent evidence
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to rebut or overcome this showing. We reverse the superior court’s affirmation of the
Board’s denial of Petitioner’s SUP.
This case is remanded to the superior court for further remand to the Lee
County Board of Adjustment to acknowledge Petitioner’s application and prima facie
showing for a SUP for the construction and operation of a quarry on the site, and to
consider and detail any conditions, approvals, or permits from state or federal
regulatory agencies required of Petitioner to comply with the Developmental
Regulations in the UDO in order to issue the SUP. It is so ordered.
AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.
Judges STROUD and HUNTER concur.
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