222 N.C. App. 638
N.C. Ct. App.2012Background
- Everett Trust owns 12.47 acres at 2399 Weaver Forest Way, Morrisville, adjacent to residential property.
- Property is forested, with multiple easements including telephone and power lines.
- Town zoning IM allows towers only with a special use permit; petitioner's site is in IM.
- Petitioner leased 0.147 acres to American Towers for a telecommunications tower.
- Petitioner reduced tower height from 199 to 175 feet and offered disguise options.
- Board denied the permit on December 14, 2010, and trial court affirmed; petitioner appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did petitioner establish a prima facie case on harmony with the neighborhood? | Petitioner asserts harmony is shown by IM zoning allowing a tower. | Town contends harmony was not established due to Aesthetic/plan concerns. | Yes, prima facie harmony established; can be rebutted by evidence. |
| Did petitioner establish a prima facie case that the tower conforms to the comprehensive plan? | Petitioner argues the tower complies with the IM zoning and land-use policy. | Town argues potential inconsistency with the Land Use Plan since future rezoning possible. | Yes, prima facie conformity established; plan is policy guidance subject to change. |
| Did petitioner meet the prima facie burden that the tower would not substantially injure adjoining property values? | Smith's appraisal supported no substantial injury to values. | Evidence flawed; report not benchmarked and relied on towers pre-dating nearby homes. | No; petitioner failed to show no substantial injury, as required. |
| Was the Board entitled to deny based on insufficiency of the prima facie showing and related evidence? | Prima facie case on at least two findings warrants issuance of the permit. | SBA precedent allows denial when prima facie case is not rebutted, especially on value impact. | Affirmed; court bound by SBA to uphold denial where value impact evidence is deficient. |
Key Cases Cited
- SBA v. City of Asheville City Council, 141 N.C. App. 19 (2000) (reversal of permit where value impact evidence insufficient)
- Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1 (2002) (two-step prima facie case and weighing evidence under different standards)
- Humble Oil & Ref. Co. v. Bd. of Aldermen, 284 N.C. 458 (1974) (definition of prima facie evidence and substantial evidence)
- Woodhouse v. Bd. of Comm’rs, 299 N.C. 211 (1980) (prima facie case of conformity with comprehensive plan)
- Vulcan Materials Co. v. Guilford Cty. Bd. of Cty. Comm’rs, 115 N.C. App. 319 (1994) (prima facie harmony with general zoning plan)
- MCC Outdoor, LLC v. Franklinton Bd. of Comm’rs, 169 N.C. App. 809 (2005) (prima facie harmony established by zoning designation; need competent evidence)