Templeton Properties LP v. Town of Boone , 234 N.C. App. 303 ( 2014 )

NO. COA13-1274
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
TEMPLETON PROPERTIES LP,
Petitioner,
v. Watauga County
No. 12 CVS 665
TOWN OF BOONE,
Respondent.
Appeal by respondent from order entered 7 August 2013 by
Judge Shannon R. Joseph in Watauga County Superior Court. Heard
in the Court of Appeals 20 March 2014.
The Brough Law Firm, by Michael B. Brough; and di Santi
Watson Capua & Wilson, by Anthony S. di Santi and Chelsea
B. Garrett, for Petitioner-appellee.
Parker Poe Adams & Bernstein, LLP, by Anthony Fox and
Benjamin R. Sullivan, for Respondent-appellant.
HUNTER, JR., Robert N., Judge.
The Town of Boone (“Boone”) appeals the superior court’s 7
August 2013 order reversing a decision of the Town of Boone’s
Board of Adjustment (“Board”) that denied Templeton Properties
L.P.’s (“Templeton”) application for a zoning permit. We
reverse the superior court’s order.
I. Facts & Procedural History
This is the third time this Court has reviewed this case.
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See Templeton Properties, L.P. v. Town of Boone, ___ N.C. App.
___, ___, 724 S.E.2d 604, 605 (2012) (“Templeton II”); Templeton
Properties LP v. Town of Boone, 198 N.C. App. 406, 681 S.E.2d
566, 2009 WL 2180620 (2009) (unpublished) (“Templeton I”).
The dispute centers around Templeton’s 2.9 acre lot (“the
Parcel”) in Boone at 315 State Farm Road. The Parcel is zoned
for single-family residential use (“R-1”), but has historically
been used as a church under a special use permit. Templeton I,
2009 WL 2180620 at *1. The church is 2,250 square feet and is
located between State Farm Road and VFW Drive in Boone, which
provide routes of access to the Parcel. Id. The surrounding
neighborhood is “composed of mostly single-family residences,”
except for a non-residential VFW hall located near the Parcel.
Id. Under section 165 of Boone’s then-existing unified
development ordinance (“UDO”), medical clinics over 10,000
square feet were allowed in R-1 zoning with a valid special use
permit. Applications for special use permits may be denied by
the Board upon showing of at least one of four reasons set forth
in UDO § 69(c), namely that the development
(1) Will materially endanger the public
health or safety, or
(2) Will substantially injure the value of
adjoining or abutting property, or
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(3) Will not be in harmony with the area in
which it is to be located, or
(4) Will not be in general conformity with
the comprehensive plan, thoroughfare plan,
or other plan officially adopted by the
council.
On 28 September 2006, Templeton submitted an application to
Boone to obtain a special use permit to place a 13,050 square
foot medical clinic on the Parcel. Id. The Board denied the
application as incomplete. Id. Templeton modified its
application and resubmitted it on 2 March 2007 to address the
Board’s concerns, including decreasing the clinic’s size to
10,010 square feet, the current proposed size of the clinic.
Id.
On 1 May 2007 the Board rejected Templeton’s application.
Templeton II, ___ N.C. App. at ___, 724 S.E.2d at 606. The
Watauga County Superior Court granted a writ of certiorari and
then entered an order on 7 July 2008 reversing the Board’s
denial of Templeton’s application for the special use permit.
Id. Boone appealed to this Court and we remanded to the Board
to issue reviewable findings of fact in Templeton I. Id. at
___, 724 S.E.2d at 606–07.
On 2 September 2010, the Board met to make findings of fact
relating to the special use permit after the remand. Id. After
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taking testimony from residents and Templeton’s counsel, the
Board made findings of fact and approved them via a written
decision on 29 September 2010. Id. On 27 October 2010,
Templeton appealed the Board’s decision to the superior court by
petition for writ of certiorari, which was granted the same day.
Id. On 21 February 2011, the superior court affirmed the
Board’s decision. Id. Templeton then appealed the superior
court’s decision to this Court, resulting in Templeton II. Id.This Court remanded in Templeton II and required the Board to
“make reviewable findings of fact . . . based only upon the
testimony and evidence presented at the hearings held on 5 April
and 1 May 2007” due to defects in additional testimony taken by
the Board after the first remand. Id. at ___, 724 S.E.2d at
614. We adopt the remaining statements of fact and procedural
history in Templeton I and Templeton II.
On remand, the Board again denied Templeton’s application
for a special use permit on 4 October 2012 via an identical
order as we considered in Templeton II. The Board made twenty-
one findings of fact relating to the proposed clinic’s lack of
harmony within the order:
3. Templeton’s proposed clinic would be
10,010 square feet in size and would have 67
parking spaces distributed among four
different parking lots.
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4. The clinic and its parking lots would
have 23 light poles. These light poles
would produce a glow at night visible from
neighborhood residents’ homes and yards.
Further, some people in the surrounding
neighborhood live on properties that are at
a higher elevation than the Lot, and those
people would look down on the well-lit
clinic. The shields that Templeton proposed
for the poles’ light bulbs would not prevent
light from bleeding into the neighborhood.
5. Templeton plans for employees and
patients to access the clinic from State
Farm Road, and Templeton plans to add a
left-turn lane from State Farm Road into the
clinic.
6. The clinic would have a large dumpster
pad, though Templeton did not specify how
many dumpsters would be on this pad.
7. Templeton had not found a tenant for the
clinic and did not know what kind of medical
procedures would be performed there or what
types of medical wastes might be produced.
Templeton did acknowledge, however, that
some wastes produced at the clinic could be
hazardous.
8. The only development currently on the Lot
is a 2,250 square-foot church. The church
has few lights, and it generally has traffic
only on weekends.
9. The area surrounding the Lot is
predominantly zoned R-1 Single Family
Residential. The surrounding area has been
almost uniformly zoned R-1 Single Family
Residential since the Town first adopted
zoning for the area in 1979.
10. The area surrounding the Lot is a
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residential neighborhood, one of [the]
oldest in Boone. It is more consistently
residential, with fewer non-residential
developments, than other residential
neighborhoods in Town. The Lot’s
surrounding area also has more preserved
trees and vegetation than other areas in
Boone.
11. Next door to the Lot is a VFW hall.
Although the VFW hall is non-residential, it
is grandfathered because it was built before
Boone adopted zoning in 1979.
12. Except for the VFW hall, properties in
the Lot’s surrounding area are almost all
single-family homes.
13. During the hearing, Templeton offered
the results of a survey that it had
conducted of development along a stretch of
State Farm Road. Some properties in this
survey were non-residential.
14. However, Templeton’s survey was not
limited to the area where the clinic would
be located. Instead, Templeton’s survey
extended almost a mile away from the Lot,
into other areas of Town. The survey also
focused on properties fronting State Farm
Road, which caused it to exclude many
properties that, although not fronting on
the road, were still part of the area where
the clinic would be located.
15. Templeton’s survey did not accurately
reflect the character of the area in which
the clinic would be located.
16. The Lot’s surrounding area is separated
from less residential parts of Boone,
including those less residential parts
covered in Templeton’s survey, by distance,
topography, and the curves in State Farm
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Road. As a result, the Lot’s surrounding
area is a distinct and separate residential
neighborhood.
17. Templeton’s appraiser, in describing the
Lot’s surrounding area, also concluded that
the only developments in the surrounding
area were the VFW hall and single-family
homes.
18. The Lot’s surrounding area has no
medical buildings, offices, or commercial
developments.
19. The clinic would introduce a busy
commercial operation into an area that is
overwhelmingly residential in character.
20. At 10,010 square feet, the clinic would
be much larger than the single family homes
that predominate in the surrounding area.
21. The clinic would produce far more
traffic than other properties in the Lot’s
surrounding area and would produce a level
of traffic out-of-character for that area.
22. No properties in the Lot’s surrounding
area produce as much light as the clinic
would produce. The clinic’s lighting would
not be in keeping with the type and level of
lighting currently found in the surrounding
area.
23. Templeton’s proposed clinic would not be
in harmony with the area in which it would
be located.
On 6 November 2012, Templeton appealed the denial of its
application to the Watauga County Superior Court. On 7 November
2012, the superior court issued an ex parte writ of certiorari.
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On 7 August 2013, the superior court entered an order reversing
the Board’s denial of Templeton’s application. In its third
conclusion of law, the superior court found
3. The Board’s determination that
Petitioner’s proposed use is not in harmony
with the area rests on an overly-restrictive
application of the term “area,” which
amounts to a misinterpretation of the
applicable standard. In this case, the
relevant “area” within the meaning of the
ordinance is not limited to the residences
that lie north of the subject site and that
do not front State Farm Road but includes
similarly situated properties along State
Farm Road that are in reasonable proximity
to the subject site. The undisputed
evidence in the record is that most of those
properties are used for office,
institutional, and commercial — not
residential — purposes. Therefore, the
Board’s conclusion that the proposed use is
not in harmony with the area in which it is
to be located is not supported by the
evidence.
Also, the Board’s findings on lack of
harmony generally and impermissibly cite
impacts that are inherent in the nature of
the proposed use. As matter of law, a board
of adjustment cannot deny an application for
lack of harmony on the basis that a use
deemed conditionally permissible by the
local legislative body would produce impacts
common to all such uses — for to allow such
a decision would be to empower the board to
substitute its judgment for that of the
elected governing body. All of the Board’s
findings in this case are of that nature,
and as a matter of law do not support the
Board’s conclusion that the proposed use
would not be in harmony with the area in
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which it is to be located.
The superior court’s order also found that Finding of Fact 10
was not supported by competent evidence.
In its fourth conclusion of law, the superior court found
the Board’s determination that Templeton’s proposed use would
not be in conformity with the town’s comprehensive plan was
based on “general policy statements in the comprehensive plan”
and was not a sufficient basis to deny Templeton’s application.
The superior court also found the Board erred in finding that
the proposed use would materially endanger public safety, as
“there was not competent, material and substantial evidence to
support such a conclusion.” Boone filed notice of appeal on 26
August 2013 and a second notice of appeal on 5 September 2013 to
correct the filing number listed on the initial notice of
appeal.
II. Jurisdiction & Standard of Review
Jurisdiction in this Court is proper pursuant to N.C. Gen.
Stat. § 7A-27(b)(1) (2013) (stating a right of appeal lies with
this Court from the final judgment of a superior court “entered
upon review of a decision of an administrative agency”).
Boone first argues that the superior court erred by
improperly acting as a fact-finder in its determination of the
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“area” considered by the Board’s harmony analysis. “[T]his
Court examines the trial court’s order for error[s] of law by
determining whether the superior court: (1) exercised the proper
scope of review, and (2) correctly applied this scope of
review.” Turik v. Town of Surf City, 182 N.C. App. 427, 429,
642 S.E.2d 251, 253 (2007) (second alteration in original)
(internal quotation marks omitted) (quoting Tucker v.
Mecklenburg Cnty. Zoning Bd. of Adjustment, 148 N.C. App. 52,
55, 557 S.E.2d 631, 634 (2001)).
Here, the superior court erred when it concluded as a
matter of law that the Board considered the wrong “area” when
assessing the clinic’s harmony with the adjacent community.
This issue is more properly construed as a mixed question of
fact and law. See Farm Bureau v. Cully’s Motorcross Park, 366
N.C. 505, 512, 742 S.E.2d 781, 786 (2013) (finding a trial court
mislabeled a mixed question of fact and law as a finding of
fact); Morris Commc’ns Corp. v. City of Bessemer City Zoning Bd.
of Adjustment, 202 N.C. App. 631, 636, 689 S.E.2d 880, 883
(2010), rev’d on other grounds, 365 N.C. 152, 712 S.E.2d 868(2011).
In Morris, this Court held (i) that interpretation of a
term in a zoning ordinance was a question of law and (ii) that
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determining whether the specific actions of a petitioner fit
within that interpretation was a question of fact reviewable
under the whole record test. Morris, 202 N.C. App. at 636, 689
S.E.2d at 883. This Court relied on Whiteco Outdoor Adver. v.
Johnston Cnty. Bd. of Adjust., 132 N.C. App. 465, 513 S.E.2d 70(1999), which prescribed de novo review of a petitioner’s
alleged error of law, but also provided deference to a board of
adjustment’s interpretation of its own ordinance under that de
novo review. Id. at 470, 513 S.E.2d at 74. The Supreme Court
rejected this Court’s application of a deferential de novo
standard, stating that “[u]nder de novo review a reviewing court
considers the case anew and may freely substitute its own
interpretation of an ordinance for a board of adjustment’s
conclusions of law.” Morris, 365 N.C. at 156, 712 S.E.2d at
871. The Supreme Court did not reverse this Court’s finding
that interpreting “work” was properly considered a mixed
question of law and fact. Id.Thus, we review the superior court’s determination that the
Board erred in its definition of “area” in two parts: (i)
whether the Board’s interpretation of the ordinance’s use of
“area” prescribed was an error of law under de novo review and
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(ii) whether the specific findings of fact used to define the
area were supported under the whole record test.
Under de novo review, we examine the case with new eyes.
“[D]e novo means fresh or anew; for a second time, and an appeal
de novo is an appeal in which the appellate court uses the trial
court’s record but reviews the evidence and law without
deference to the trial court’s rulings.” Parker v. Glosson, 182
N.C. App. 229, 231, 641 S.E.2d 735, 737 (2007) (quotation marks
and citations omitted).
“When utilizing the whole record test, . . . the reviewing
court must examine all competent evidence (the whole record) in
order to determine whether the agency decision is supported by
substantial evidence.” Mann Media, Inc. v. Randolph Cnty.
Planning Bd., 356 N.C. 1, 14, 565 S.E.2d 9, 17 (2002) (quotation
marks and citation omitted). “The ‘whole record’ test does not
allow the reviewing court to replace the Board’s judgment as
between two reasonably conflicting views, even though the court
could justifiably have reached a different result had the matter
been before it de novo.” Thompson v. Wake Cnty. Bd. of Educ.,
292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977).
III. Analysis
A. Defining Area in the Ordinance
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As discussed supra in Section II, the definition of “area”
in the ordinance is a mixed question of law and fact subject to
de novo review. “[O]ne of the functions of a Board of
Adjustment is to interpret local zoning ordinances.” CG & T
Corp. v. Bd. of Adjustment of Wilmington, 105 N.C. App. 32, 39,
411 S.E.2d 655, 659 (1992). “[R]eviewing courts may make
independent assessments of the underlying merits of board of
adjustment ordinance interpretations. This proposition
emphasizes the obvious corollary that courts consider, but are
not bound by, the interpretations of administrative agencies and
boards.” Morris, 365 N.C. at 156, 712 S.E.2d at 871 (quotation
marks and citation omitted).
In Morris, the Supreme Court compared a board of
adjustment’s interpretation of the term “work” to the actual
ordinance:
[W]e find the BOA’s interpretation of the
term “work” unpersuasive. The ordinance
provides that:
“If the work described in any compliance or
sign permit has not begun within six months
from the date of issuance thereof, the
permit shall expire. Upon beginning a
project, work must be diligently continued
until completion with some progress being
apparent every three months. If such
continuance or work is not shown, the permit
will expire.”
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City of Bessemer City, N.C., Ordinance
§ 155.207.
Bessemer City’s zoning administrator
testified at the BOA hearing that he
interpreted the term “work” to mean
“actually something moving on the
ground . . . . [c]onstruction.” In his
view, Fairway failed to commence “work”
within the time period prescribed in the
sign permit because he did not observe
construction-like activities occurring on
the property. He therefore concluded the
sign was relocated without a valid sign
permit.
In contrast, Fairway argues the term “work”
encompasses the broader range of activities
necessary to complete the sign relocation.
Fairway contends its negotiations with DOT
and Dixon, as well as its acquisition of a
county building permit, constitute “work”
under the ordinance. We agree with Fairway
that the term “work” has a broader meaning
than mere visible evidence of construction.
Id. at 156–57, 712 S.E.2d at 871.
We consider the phrase “area” here and the Board’s
interpretation of it. The ordinance provides the Board with the
ability to deny a special use permit if the application “[w]ill
not be in harmony with the area in which it is located.” A
fact-specific inquiry is necessarily required to define “area”
in this context, as each individual application for a special
use permit will have different surrounding areas the Board will
need to consider when determining whether the property would be
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harmonious with its surroundings. This scenario is much like
our Supreme Court’s interpretation of the phrase a “reasonable
time”:
If, from the admitted facts, the court can
draw the conclusion as to whether the time
is reasonable or unreasonable by applying to
them a legal principle or a rule of law,
then the question is one of law. But if
different inferences may be drawn, or the
circumstances are numerous and complicated
and such that a definite legal rule cannot
be applied to them, then the matter should
be submitted to the jury. It is only when
the facts are undisputed and different
inferences cannot be reasonably drawn from
them that the question ever becomes one of
law.
Claus-Shear Co. v. E. Lee Hard Ware House, 140 N.C. 552, 555, 53
S.E. 433, 435 (1906). Conversely, if the Board made a
determination of what “area” generally meant within the
ordinance and there was no disagreement about the area in
question,1 a trial court’s de novo analysis of the Board’s
conclusion of law, that being an interpretation of “area” within
the ordinance, would be appropriate.
Here, the Board used the term “area” as it related to
specific findings of fact, which was the proper application
under UDO § 69(d). Finding of fact #13 considered Templeton’s
1
For example, if the Board made a finding that “area”
categorically included all adjacent properties within the R-1
zoning area.
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offered survey, which included non-residential developments
further down State Farm Road. Finding of fact #14 noted that
Templeton’s evidence “extended almost a mile away” from the
Parcel and that Templeton’s survey excluded several properties
fronting State Farm Road that the Board considered part of the
“area.” Finding of fact #16 stated that “distance, topography,
and the curves in State Farm Road” separated the Parcel from the
commercial properties cited by Templeton as being part of the
“area.” Finding of fact #17 noted that Templeton’s appraiser
concluded “that the only developments in the surrounding area
were the VFW hall and single-family homes.” These findings,
amongst others, are a proper contextual usage of “area” as laid
forth in the ordinance and are inherently fact specific.
Beyond reviewing the Board’s actions, this Court reviews
whether the superior court correctly performed its several tasks
in its reviewing capacity:
[T]he task of a court reviewing a decision
on an application for a conditional use
permit made by a town board sitting as a
quasi-judicial body includes:
(1) Reviewing the record for errors in law,
(2) Insuring that procedures specified by
law in both statute and ordinance are
followed,
(3) Insuring that appropriate due process
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rights of a petitioner are protected
including the right to offer evidence,
cross-examine witnesses, and inspect
documents,
(4) Insuring that decisions of town boards
are supported by competent, material and
substantial evidence in the whole record,
and
(5) Insuring that decisions are not
arbitrary and capricious.
Coastal Ready-Mix Concrete Co., Inc. v. Bd. of Comm’rs of Nags
Head, 299 N.C. 620, 626, 265 S.E.2d 379, 383 (1980).
“When the petitioner correctly contends that the agency’s
decision was either unsupported by the evidence or arbitrary and
capricious, the appropriate standard of review for the initial
reviewing court is ‘whole record’ review. If, however,
petitioner properly alleges that the agency’s decision was based
on error of law, de novo review is required.” Tucker, 148 N.C.
App. at 55, 557 S.E.2d at 634. As such, the superior court
conducts a de novo review under the first three tasks and a
“whole record” review for the final two tasks.
Here, the superior court improperly acted as a finder of
fact on review and imposed its own view of what the bounded
“area” should be, rather than reviewing whether the Board’s
findings of fact concerning the area were supported by competent
evidence and not arbitrary and capricious. The superior court
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held that the fact-specific definition of “area” as used by the
Board should have included “similarly situated” properties that
are “in reasonable proximity to the subject site.” “In
proceedings of this nature, the superior court is not the trier
of fact. Such is the function of the town board.” Coastal
Ready-Mix Concrete Co., Inc., 299 N.C. at 626, 265 S.E.2d at
383. If findings of fact about the “area” affected here were
supported by evidence, they must stand even if conflicting
evidence may have allowed the superior court to reach a
different result under de novo review. Tate Terrace Realty
Investors, Inc. v. Currituck County, 127 N.C. App. 212, 218, 488
S.E.2d 845, 849 (1997). By improperly acting as a trier of
fact, the superior court erred and we reverse its order.
B. Rebuttal of a Presumed Legislative Finding
Templeton also contends that because Boone’s R-1 zoning
allowed construction of its clinic under a special use permit,
Boone’s legislative determination that clinics are entitled to
receive special use permits should have been enforced.
Templeton cites a number of cases in support of this
proposition. See Woodhouse v. Bd. of Comm’rs of Nags Head, 299
N.C. 211, 216, 261 S.E.2d 882, 886 (1980) (“Where an applicant
for a conditional use permit produces competent, material, and
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substantial evidence tending to establish the existence of the
facts and conditions which the ordinance requires for the
issuance of a special use permit, prima facie he is entitled to
it.” (citation and quotation marks omitted)); Blair Investments,
LLC v. Roanoke Rapids City Council, ___ N.C. App. ___, ___, 752
S.E.2d 524, 527 (2013); Habitat for Humanity of Moore Cnty.,
Inc. v. Bd. of Comm’rs of Pinebluff, 187 N.C. App. 764, 768, 653
S.E.2d 886, 888 (2007); MCC Outdoor, LLC v. Franklinton Bd. of
Comm’rs, 169 N.C. App. 809, 814, 610 S.E.2d 794, 797 (2005);
Clark v. City of Asheboro, 136 N.C. App. 114, 122, 524 S.E.2d
46, 52 (1999); Vulcan Materials Co. v. Guilford Cnty. Bd. of
Cnty. Comm’rs, 115 N.C. App. 319, 324, 444 S.E.2d 639, 643
(1994) (“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.”).
Of the preceding cases, Templeton argues that Woodhouse
uses a “legislative finding” rule and that Vulcan is a “less-
restrictive” formulation of the Woodhouse test. We do not see
conflict between the two cases, which both allow the presumption
of granting the special use permit to be rebutted by the party
opposing its issuance. See Blair, ___ N.C. App. at ___, 752
S.E.2d at 528–29 (citing Woodhouse and holding that after a
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petitioner “makes a prima facie showing of entitlement to a
special use permit, 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” so long as denial is “based upon findings which are
supported by competent, material, and substantial evidence
appearing in the record” (citation and quotation marks
omitted)). Thus, while showing that entitlement to a
conditional or special use permit creates a prima facie case
that a petitioner is entitled to a special use permit, the prima
facie case may be rebutted by “competent, material, and
substantial evidence [showing the] use contemplated is not in
fact in harmony with the area in which it is to be located.”
Vulcan, 115 N.C. App. at 324, 444 S.E.2d at 643 (citations and
quotation marks omitted).
Accordingly, we must consult the record to determine
whether “competent, material, and substantial” evidence existed
to support the Board’s harmony analysis. Id.C. Findings of Fact Supporting Board’s Decision to Deny the
Special Use Permit
As noted supra in Section II, we now review whether the
Board’s findings of fact were supported by competent evidence
under the whole record test. At the outset, we note that
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[A] city council’s denial of a conditional
use permit based solely upon the generalized
objections and concerns of neighboring
community members is impermissible.
Speculative assertions, mere expression of
opinion, and generalized fears “about the
possible effects of granting a permit are
insufficient to support the findings of a
quasi-judicial body.” In other words, the
denial of a conditional use permit may not
be based on conclusions which are
speculative, sentimental, personal, vague,
or merely an excuse to prohibit the
requested use.
Blair, ___ N.C. App. at ___, 752 S.E.2d at 529 (quotation marks
and citation omitted). Were the Board’s findings concerning the
area’s characteristics solely based on the testimony of
individuals affected by development of the Parcel, denial of the
permit on those grounds might be impermissible. However,
several findings of fact concern the nature of the Parcel and
the surrounding area which buttress its decision:
 Finding of fact #3 notes that there would be sixty-seven
parking spaces at the clinic.
 Finding of fact #4 describes the twenty-three light poles
on the clinic’s grounds as well as issues with the
shielding on the lights affecting the surrounding
residents.
 Finding of fact #5 describes Templeton’s proposed left-
turn lane to allow access from State Farm Road.
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 Finding of fact #6 describes the clinic’s proposed “two
large dumpster pads,” and that Templeton could not
estimate how many containers would be placed on the pads.
 Finding of fact #7 noted the uncertainty of the type of
clinic that would locate at the facility.
 Finding of fact #8 noted the size, limited weekend use,
and lack of lighting by the current church structure on
the Parcel.
 Finding of fact #9 noted the historical tendency to zone
the surrounding area as R-1.
 Finding of fact #11 noted that the VFW Hall adjacent to
the Parcel was grandfathered into existence because it
was built before Boone adopted zoning.
 Finding of fact #12 noted that the surrounding area was
primarily comprised of single family homes.
 Findings of fact #13, #14, and #15 found that Templeton’s
survey was not limited to an area that accurately
reflected the character of the area near the Parcel,
extended close to a mile away from the Parcel, and
excluded several properties not fronting State Farm Road.
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 Finding of fact #16 finds that the Parcel is separated
from the other non-residential parcels cited by Templeton
by topography, distance, and road features.
 Finding of fact #17 notes that Templeton’s appraiser
described the Parcel’s surrounding area as the VFW hall
and single family homes.
 Findings of fact #18 and #19 note the lack of medical
buildings, offices, or other commercial developments in
the surrounding area and found that introducing the
medical clinic would introduce a “busy commercial
operation” into an “overwhelmingly residential” area.
 Findings of fact #20, #21, and #22 note that the clinic
would be “much larger” than the surrounding structures,
would produce additional traffic, and would create more
artificial light than other surrounding structures in the
area.
These findings were based on testimony, photographs of the area,
drawings, topographic surveys, and other data compiled by the
Board prior to its 4 May 2007 denial of Templeton’s application.
The foregoing was ample evidence to support a finding that the
proposed clinic was not harmonious with its surrounding area.
Further, the superior court cited only finding of fact #10 as
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not being supported by evidence in its order. We disagree and
hold that the six residents’ testimony of the area regarding its
contents constituted competent evidence supporting finding of
fact #10.2 Accordingly, there was competent evidence supporting
the Board’s finding that the medical clinic would not be in
harmony with its surrounding area pursuant to UDO § 69(c)(3) and
the superior court erred in overturning the Board’s decision to
deny the special use permit.
Because we hold that the Board’s denial of Templeton’s
special use permit was supported by competent evidence and
proper under its harmony analysis, we do not address Boone’s
remaining arguments concerning conformance with the
comprehensive plan or to provide for the public’s safety.
2
The testimony included statements from Ben Shoemake who said
the Parcel was surrounded by homes and that the commercial
development cited by Templeton was further away from the
neighborhood that he described as “much smaller.” Les
Monkemeyer testified that the neighborhood has trees over a
century old in the surrounding area. Marc Kadyk, a thirty-year
resident of the neighborhood, testified that the area is heavily
wooded. Thirty-four year neighborhood resident and Town Mayor
Loretta Clawson testified that the area was overwhelmingly used
as homes. Thomas and Joan McLaughlin also testified that the
neighborhood was residential in nature, that the area was
heavily wooded, and that the commercial portion of State Farm
Road to the southeast cited by Templeton was dissimilar because
it did not have the same amount of vegetation.
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IV. Conclusion
For the reasons stated above, the decision of the superior
court is
REVERSED.
Judges STROUD and DILLON concur.