JULY 30, 2009 ISSUE
N.C. Court of Appeals Rules in Favor of Town in Templeton Case
The North Carolina Court of Appeals announced this week that it found in favor of the Town of Boone and the Boone Board of Adjustment in the lawsuit brought against them by Templeton Properties, LP. On July 21, Judge James Andrew Wynn, Jr., writing for a unanimous panel of the Court of Appeals, overturned the decision of the Watauga Superior Court. The Watauga Superior Court had struck down the Boone Board of Adjustment’s denial of the application of Templeton Properties to construct a 10,010-square-foot medical clinic on State Farm Road at VFW Drive. In overturning the judge’s decision, the Court of Appeals held that instead of reviewing the Board’s decision to see if it was based on the evidence before the Board, which is the proper role of the Superior Court in the appeal of a special use permit denial, the judge re-weighed the evidence and substituted his own decision for the Board of Adjustment’s.
In its review, the Court of Appeals recounted as support for the Board’s action some of the testimony of the many witnesses who testified against the project, including remarks expressing concerns about traffic congestion and safety at that location on State Farm Road, the negative aesthetic impact the development would have on the neighborhood because of its destruction of century old trees, the reduction in land values of adjacent properties and the increased noise and lighting that would invade residential areas if the development went forward. The Court of Appeals also summarized some of the comments that Board of Adjustment members made in their deliberations about the application that suggested that they had been persuaded by the testimony of the neighboring property owners.
Because the Court of Appeals’ decision was unanimous, Templeton Properties LP does not have an absolute right to further appeal the decision to the North Carolina Supreme Court. It can, should it choose, petition the Supreme Court for discretionary review of the decision. Otherwise, the case will be returned to the Watauga Superior Court for further action consistent with the Court’s ruling. The full opinion itself is available on line by clicking to www.aoc.state.nc.us/www/public/coa/opinions/2009/unpub/081237-1.pdf.
According to a news release, the Town of Boone is pleased with the Court’s decision.
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