SEPTEMBER 9, 2010 ISSUE
Templeton Medical Clinic Case Returns to Superior Court
The dispute between Phil Templeton and the Town of Boone over a proposed medical clinic wages on, as the matter now returns to the North Carolina Superior Court for a second time.
The Boone Board of Adjustment (BOA) voted 6 to 2 to adopt findings of fact in a 2007 decision to deny an application by Templeton Properties for a special use permit for a medical clinic on a parcel located at 315 State Farm Road between State Farm Road and VFW Drive in Boone.
In May 2007, the BOA voted to deny the permit, finding that the planned medical clinic would not be in harmony with the area and would not be in general conformity with the town’s Comprehensive Plan.
Templeton challenged the Board of Adjustment’s decision in Superior Court, and in July 2008, Superior Court Judge Ronald K. Payne ruled that the BOA’s denial of the permit not only denied the applicant’s due process rights, but also made errors in law, did not follow the procedures specified by law and made an “arbitrary and capricious” decision not based on the evidence.
However, the BOA and Town of Boone appealed to the N.C. Court of Appeals, which determined that the Superior Court’s decision employed an “incorrect standard of review” because it lacked reviewable findings of fact from the BOA to support the 2007 permit denial. In an unpublished opinion filed in July 2009, the Court of Appeals remanded the case to the Superior Court with instructions to remand to the BOA for reviewable findings of fact.
After hearing statements by Templeton’s attorneys as well as Town of Boone attorney Sam Furgiuele, the BOA heard public comments from property owners from the VFW Drive neighborhood, including Boone Mayor Loretta Clawson, who lives on VFW Drive near the site of the proposed clinic.
The BOA voted to approve about 35 findings of fact, including the proposed clinic’s building and parking specifications and characteristics of the surrounding area and roadways, including a narrow road and blind curve near the site.
The case will now return to the Superior Court, a process that could take about six months, Templeton’s attorney Tony di Santi said. Should the Superior Court uphold the 2007 decision of the BOA, di Santi said he was sure that his client would appeal the case to the N.C. Court of Appeals.
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