Davidson County Broadcast. v. Rowan County
| Decision Date | 18 September 2007 |
| Docket Number | No. COA06-1444.,COA06-1444. |
| Citation | 649 S.E.2d 904 |
| Court | North Carolina Court of Appeals |
| Parties | DAVIDSON COUNTY BROADCASTING, INC., and Richard and Dorcas Parker, Petitioners v. ROWAN COUNTY BOARD OF COMMISSIONERS, Respondent, Mt. Ulla Historical Preservation Society, and Interested Citizens, Prospective-Alternative Cross Petitioner. |
Appeal from Petitioners Davidson County Broadcasting, Inc., and Richard and Dorcas Parker from Order entered 7 June 2006 by Judge W. David Lee in Superior Court, Rowan County. Heard in the Court of Appeals 10 May 2007.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P. by Derek J. Allen, Greensboro, for Petitioner-Appellants.
Kluttz, Reamer, Hayes, Randolph, Adkins & Carter, L.L.P. by Richard R. Reamer, Salisbury, for Cross-Petitioner Appellee.
Parker, Poe, Adams & Bernstein, L.L.P. by Anthony Fox, Charlotte, for Respondent-Appellee.
Petitioners Davidson County Broadcasting, Inc., and Richard and Dorcas Parker instituted this action against respondent Rowan County Board of Commissioners to review respondent's denial of petitioners' application for a conditional use permit to construct a 1,350 foot radio broadcast tower on Richard and Dorcas Parkers' property in Rowan County, North Carolina. In this appeal, we must consider both whether Rowan County is precluded from regulating air safety under the doctrine of federal preemption and whether the superior court correctly concluded that there was competent, material, and substantial evidence to support respondent's decision to deny petitioners' conditional use permit. For the following reasons, we hold that federal law does not preempt Rowan County's regulations in this situation and we affirm the superior court's order upholding the decision of the Rowan County Board of Commissioners.
On 18 January 2005, petitioner Davidson County Broadcasting, Inc. ("DCBI") applied for a conditional use permit ("CUP") to construct a 1,350 foot radio tower ("tower") on property owned by petitioners Richard and Dorcas Parker ("Parkers"). Respondent Rowan County Board of Commissioners ("Board") conducted a public hearing to consider the application on 13 October, 24 October, and 7 November 2005. The Board voted to deny the CUP on 7 November 2005 and adopted a written decision denying the CUP on 21 November 2005.
DCBI and the Parkers filed a petition for writ of certiorari with the Superior Court, Rowan County on 9 December 2005, seeking review under N.C. Gen.Stat. § 153A-340(c) (2005) of the Board's denial of the CUP. The petition was allowed on the same date. On 21 December 2005, Mt. Ulla Historical Preservation Society and Interested Citizens ("Mt. Ulla") filed a cross alternative petition for certiorari and motion to intervene before the superior court. The court allowed the petition on the same date.1 The petition for certiorari was heard in Superior Court, Rowan County, before the Honorable Judge W. David Lee, on 13 March 2006. The superior court entered its order on 7 June 2006, nunc pro tunc to 13 March 2006, affirming the Board's decision to deny the CUP. Petitioners appeal from this order.
The Rowan County zoning ordinance requires that an applicant for a CUP demonstrate that
(1) Adequate transportation access to the site exists;
(2) The use will not significantly detract from the character of the surrounding area;
(3) Hazardous safety conditions will not result;
(4) The use will not generate significant noise, odor, glare, or dust (5) Excessive traffic or parking problems will not result; and
(6) The use will not create significant visual impacts for adjoining properties or passersby. (Ord. of 1-19-98, § IV)
Rowan County, N.C., Code § 21-59 (1991). Rowan County Code § 21-60(3) contains additional specific requirements for communications and telecommunications towers. Rowan County, N.C., Code § 21-60 (1991). The Board's denial of the CUP was based upon Rowan County Code § 21-59(3), as the decision found that "hazardous safety conditions will result from the approval of the use." (emphasis in original).
The Board further found as follows
(19) Marshall Sanderson with the Division of Aviation of the North Carolina Department of Transportation testified on behalf of the NCDOT Aviation Division and asked that the construction of the tower at the proposed location not be allowed.
(20) Mr. Sanderson further testified that the proposed tower location will be a hazard to aircraft using Miller Air Park and would penetrate air traffic patterns.
(21) Mr. Phil Loftin, a commercially-rated pilot in single and multi-engine aircraft with over 5000 hours, also testified that the location of the tower would be a hazard to the flying public.
(22) Captain John Cox, a master pilot with more than 35 years experience and 14,000 hours, testified that the construction of a 1350' broadcast tower on the property will be on the extended center line of Miller Air Park runway and within five statute miles of the air park. He further testified that the tower will not meet adequate safety criteria and will pose significant risks to air traffic during take offs and landings.
(23) Mr. Cox discussed the normal flight operations at and around Miller Airpark and pointed out that pilots will not be able to see the tower on hazy days. He also presented documentation detailing past airplane crashes into comparable towers.
(24) Staff and the Applicant provided a letter, "Determination of No Hazard", from the FAA indicating that the proposed tower would offer no threat to aircraft operation. However, it was pointed out that the FAA's review included only flight operations to and from public airports. Miller Airpark is a private airport to which the FAA regulations do not apply.
(25) Further, the study done by the FAA prior to issuing its letter of no impact did not consider the private Miller Airpark.
(26) Sonny Schumacher, an expert witness, testified about the normal operation of aircraft at Miller Airpark and indicated that most departures were to the south and that landings were to the north, which would make the tower less of a problem. But, he admitted that this could be reversed based on wind direction. His report explained the FAA standards that apply to obstructions like towers.
(27) Mr. Loftin, a long time pilot, presented a videotape showing the conditions an operator of a small plane flying out of Miller Airpark would experience. The video demonstrated that towers are difficult to see, pose dangers to the flying public and that upon departing the airport to the north, due to the nose attitude [sic] of the plane during a normal climb, a pilot will not see the tower when the tower is positioned directly ahead of the plane, which occurs during normal departures or missed approaches.
(28) Several experienced pilots (Wayne McConnell, Michael Henry, Louis Dunn and Jack Edwards) testified about the impact the tower would have on air traffic safety, especially into and out of Miller Airpark.
(29) Chris Hudson, the regional representative of the Aircraft Owners and Pilots Association also testified about the negative impacts of the tower and its proposed location on safety.
(30) Overwhelming evidence was presented concerning the impact of the proposed tower on air safety.
(31) This tower unnecessarily will reduce the safety of flight operations in the area and result in hazardous safety conditions if approved.
The superior court, based upon review of the whole record, determined that the above findings of fact were based upon "competent and substantial evidence in the record, including the testimony of numerous pilots, an aviation expert, and a NCDOT representative." The superior court also considered the question of federal preemption de novo and determined that
federal regulation of airspace management is not so broad as to preclude Respondent from exercising its traditional role of regulating the use of structures in Rowan County.... Respondent's role as land use determiner under its sovereign power to impose reasonable land use restrictions does not impede or interfere with the federal authority to regulate flights in navigable airspace, to insure the efficient use of airspace, and to insure the safety of aircraft in the air or on the ground consistent with its obligations to regulate the frequency, routes, price, or service of air carriers.
A particular standard of review applies at each of the three levels of this proceeding — the Board, the superior court, and this Court. Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 12-14, 565 S.E.2d 9, 16-18 (2002). First, the Board is the finder of fact in its consideration of the application for a special use permit. Id., 356 N.C. at 12, 565 S.E.2d at 17. The Board is required, as the finder of fact, to
follow a two-step decision-making process in granting or denying an application for a special use permit. If an applicant has produced competent, material, and substantial evidence tending to establish the existence of the facts and conditions which the ordinance requires for the issuance of a special use permit, prima facie he is entitled to it. If a prima facie case is established, a denial of the permit then should be based upon findings contra which are supported by competent, material, and substantial evidence appearing in the record.
....
Any decision of the town board has to be based on competent, material, and substantial evidence that is introduced at a public hearing.
Id., 356 N.C. at 12, 565 S.E.2d at 16-17. A Board's "findings of fact and decisions based thereon are final, subject to the right of the courts to review the record for errors in law and to give relief against its orders which are arbitrary, oppressive or attended with manifest abuse of authority." Id., 356 N.C. at 12, 565 S.E.2d at 17 (citation and quotations omitted).
Upon appeal from the Board to the superior court, the superior court acts as a court of...
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...Court, which affirmed the decision of the superior court. Davidson Cty. Broadcasting, Inc. v. Rowan Cty. Bd. of Comm'rs, 186 N.C.App. 81, 649 S.E.2d 904 (2007) (“DCBI I ”). On 26 May 2010, DCBI applied to the Board for a CUP for a 1,200 foot radio tower (“the 2010 CUP application”) in subst......