tag: North Carolina Land Use Litigator: Perfect Preparation Is Key for a Quasi-Judicial Land Use Proceeding In North Carolina

Thursday, January 23, 2014, 10:44 AM

Perfect Preparation Is Key for a Quasi-Judicial Land Use Proceeding In North Carolina

There is an adage applicable to an applicant for a special use permit or a conditional use permit before a North Carolina local government: prepare your case, which will be a quasi-judicial proceeding, as though you will lose.  There is good reason for this, as illustrated by a recent decision from the North Carolina Court of Appeals.  In the event the permit applicant loses before the local government, the statutes and applicable standard of review are such that the losing applicant will face a favorable climate on appeal of that decision.

In Blair Investments, LLC v. Roanoke Rapids City Council, COA13-690 (December 17, 2013), the issue involved the construction of a cell tower, which required the issuance of a special use permit by the City Council.  The City Council denied the permit after a quasi-judicial proceeding, which the trial court affirmed.

On appeal, however, the Court noted the burden shift applicable to an appeal of a special use permit decision as well as the applicable standard of review on the "whole record".  Notably, the Court stated (1) if the applicant makes a prima facie case that it is entitled to the special use permit or conditional use permit, based upon "competent, material and substantial evidence", then (2) the local government denying the permit must put forth "competent, material, and substantial evidence" of its own that the permit should not issue.

Here is where building your case as though you'll lose -- even a perceived "slam dunk" case, of which there really is none -- comes into play.  In Blair Investments, for example, the City's planning department recommended in favor of the applicant that the City Council issue the special use permit for the cell tower.  The City Council denied the permit.  The special use permit application submitted exceeded 100 pages of paper and included the sworn affidavit of a radiofrequency engineer, documentation that the cell tower met the requirements of the National Environmental Policy Act, that the cell tower would not impact wildlife, waterways or wetlands, and that the cell tower would not expose humans to harmful levels of radiofrequency radiation.  The City Council denied the permit.  

The only evidence in the "whole record" supporting a denial of the special use permit, however, came from the testimony of local residents, all of which the Court summarizes in its opinion along with the admonition:  "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.'"  The City Council denied the permit.

The Court of Appeals reversed the trial court and ordered that the special use permit for the cell tower issue in Blair's favor. 

The Takeaway
With the inclusion of the applicant's information in the "whole record", the applicant positioned itself well before the City Council, the trial court, and the Court of Appeals.  It did take a decision from the Court of Appeals to secure the special use permit, which undoubtedly required time and expense, but preparation for a "loss", even with the support of the local planning department, helped secure the "win".    

Prepare up front, even where success seems certain. 

"Success in a quasi-judicial proceeding, when applying for a special use permit or conditional use permit, my dear friends, is 93% perspiration, 6% electricity, 4% evaporation, and 2% butterscotch ripple."

Mike Thelen practices in Womble, Carlyle's Real Estate Litigation and Land Use practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development matters in both state and federal venues throughout North Carolina.  Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw and "like" us on Facebook here.

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