As noted by land use scholar David W. Owens in his April 2007 article entitled Special Use Permits in North Carolina Zoning, the quality of evidence needed to support a local board’s factual findings is evolving, with more recent court decisions emphasizing “the need for a stronger foundation and greater detail in the evidence presented.”  In the first group of opinions released by the N.C. Court of Appeals (“COA”) in 2008, the COA’s decision in Weaverville Partners, LLC v. The Town of Weaverville Zoning Board of Adjustment, confirmed that the trend identified by Professor Owens in early 2007 has not changed course.

Decisions on special use (also known as conditional use or special exception) permits and variance requests are quasi-judicial, meaning that a local board, rather than an administrative official, must determine whether the applicant has met the requirements set forth in that locality’s zoning ordinance.  In making that determination, the board usually employs some judgment and discretion, but ultimately its findings of fact must be based on competent, material and substantial evidence.  If not, its decision is vulnerable to being reversed on appeal to a court of law.

In Weaverville, a developer applied for a special exception permit to build a multi-family apartment complex in a zoning district principally composed of single family housing.  As is the case in many North Carolina localities, the special exception provisions of Weaverville’s zoning ordinance include the requirement that the Town Board of Adjustment (the “Board”) make certain factual findings, such as whether the project (a) would be detrimental to the public health, safety, morals, comfort, or general welfare, (b) would substantially impair neighboring property values, and (c) would provide for adequate ingress and egress designed to minimize traffic congestion.

At the public hearing held to consider the developer’s permit application, the developer had several experts testify on its behalf, including a project manager, traffic engineer and real estate appraiser.  Several Weaverville residents also testified in opposition to the project.  The Board found that not all the requirements were satisfied and denied the developer’s application.  The developer appealed the decision to Superior Court.  The Superior Court reversed the decision of the Board, and the Board appealed to the COA.  The Court of Appeals upheld the Superior Court’s reversal, and the Board was directed to issue the permit to the developer.

In reaching its decision, the COA analyzed the evidence before the Board. In North Carolina, the rule is that when an applicant has produced competent, material and substantial evidence tending to establish the facts and conditions required by the ordinance, the applicant is entitled to the permit unless other competent, material and substantial evidence is offered which contradicts that of the applicant.  In its Weaverville opinion, the COA reiterated its own words from prior zoning cases, stating that “[s]peculative assertions and mere opinion evidence do not constitute competent evidence” and “the expression of generalized fears does not constitute a competent basis for denial of a permit.”  In reviewing the evidence presented by the residents and relied upon by the Board to deny the permit, the COA stated “the opponents based their conclusions solely upon their own observations and opinions without providing any expert opinion to quantitatively link their observations to the Board’s denial of the permit.”  Without that expert testimony, the COA concluded that the opposition’s testimony was not competent, material and substantial.

The result in Weaverville underscores that the current best practice in North Carolina, with regard to special use permit applications as well as variance requests, is to carefully consider the quality of the evidence either to be presented (if you are an applicant or opponent) or to be relied upon (if you are a local board).  Understanding what evidence courts will treat as competent, material and substantial is crucial to the integrity of a quasi-judicial decision on appeal.

For questions regarding this Land Use, Government, and Environmental Alert or assistance in other land use matters, please contact Robin Currin at 919.783.2931 or rcurrin@poynerspruill.com or Andrew Petesch at 919.783.1078 or apetesch@poynerspruill.com.