262 N.C. App. 231
N.C. Ct. App.2018Background
- PHG Asheville applied for a conditional use permit (CUP) to build an 8‑story, 185‑room Embassy Suites hotel (≈178,412 sq ft) on a CBD‑zoned parcel within Asheville’s Downtown Design Review Overlay District; project triggered Level III site plan (quasi‑judicial) review.
- The City planning staff, TRC, Downtown Commission, and Planning & Zoning Commission recommended approval; petitioner offered three expert witnesses at the City Council hearing and no expert opposition was presented.
- City Council held a quasi‑judicial hearing, voted to deny the CUP, and issued an order with 44 findings and conclusions that petitioner failed to present competent, material, and substantial evidence as to six of seven UDO criteria.
- Petitioner sought certiorari review in superior court; the superior court applied de novo review as to whether petitioner made out a prima facie case and concluded petitioner had, reversed the City, and ordered issuance of the CUP.
- The City appealed; the Court of Appeals affirmed, holding petitioner met its burden to establish a prima facie case under the UDO and that the City had no competent, material, and substantial evidence contra.
Issues
| Issue | Plaintiff's Argument (PHG) | Defendant's Argument (City) | Held |
|---|---|---|---|
| Proper standard of review (de novo v. whole‑record) | Superior court correctly used de novo review to decide whether PHG presented competent, material, substantial evidence to establish a prima facie case. | Superior court should have applied whole‑record review to the Council’s 44 findings and required PHG to challenge each finding. | Affirmed de novo review for initial prima facie inquiry; whole‑record unnecessary because no competent contrary evidence was presented. |
| UDO criterion 3: will the project substantially injure adjoining property values? | PHG’s appraiser (USPAP‑compliant) provided direct analysis of adjoining/nearby parcels showing likely value enhancement; no expert rebuttal. | Council reasonably found methodological inadequacies in appraisal and could reject it. | Held PHG’s appraisal was competent, material, and substantial; lay objections were not competent rebuttal; criterion 3 met. |
| UDO criterion 4: harmony with scale, bulk, density, character | Inclusion of hotels as permitted use in CBD creates a prima facie presumption of harmony; PHG’s expert showed scale/bulk/density/style comparable to nearby structures. | Development scale can be distinguished from mere use; project not necessarily harmonious. | Held presumption applies; PHG’s expert testimony established prima facie harmony; criterion 4 met. |
| UDO criterion 7: undue traffic congestion or hazard | PHG’s traffic engineer performed industry‑standard analysis showing minor or acceptable impacts; no expert contrary evidence. | Council reasonably found traffic study deficient (single‑day counts, no weekends, no future‑development cumulative analysis, no sight‑distance check). | Held traffic analysis was competent, material, and substantial; lay concerns and speculative points did not rebut expert evidence; criterion 7 met. |
Key Cases Cited
- Coastal Ready‑Mix Concrete Co. v. Board of Commissioners, 299 N.C. 620 (review scope and certiorari in CUP cases) (explains certiorari/whole‑record principles)
- Humble Oil & Refining Co. v. Board of Aldermen, 284 N.C. 458 (establishing prima facie burden for special/conditional use permits)
- Woodhouse v. Board of Commissioners of the Town of Nags Head, 299 N.C. 211 (inclusion of a use in the ordinance creates presumption of harmony)
- American Towers, Inc. v. Town of Morrisville, 222 N.C. App. 638 (discussing when methodology flaws may undermine an appraiser’s evidence)
- SBA v. City of Asheville City Council, 141 N.C. App. 19 (permitting denial where value‑impact studies failed to analyze nearby properties)
- Davidson County Broadcasting, Inc. v. Rowan County Board of Commissioners, 186 N.C. App. 81 (procedural framework for appellate review of zoning decisions)