Dellinger v. Lincoln County
| Decision Date | 19 July 2016 |
| Docket Number | No. COA15–1370.,COA15–1370. |
| Citation | 248 N.C.App. 317,789 S.E.2d 21 |
| Parties | Gary DELLINGER, Virginia Dellinger, and Timothy S. Dellinger, Petitioners, v. LINCOLN COUNTY, Lincoln County Board of Commissioners, and Strata Solar, LLC, Respondents, and Timothy P. Mooney, Martha McLean, and the Sailview Owners Association, Intervenor Respondents. |
| Court | North Carolina Court of Appeals |
Sigmon, Clark, Mackie, Hanvey & Ferrell, P.A., Hickory, by Forrest A. Ferrell and Jason White, for petitioners-appellants.
Scarbrough & Scarbrough, PLLC, Concord, by James E. Scarbrough and
John F. Scarbrough, for intervenor respondents-appellees.
Gary Dellinger, Virginia Dellinger, and Timothy S. Dellinger (collectively, "the Dellingers" or "Petitioners") appeal from order affirming the decision of the Lincoln County Board of Commissioners ("the Board") to deny Strata Solar, LLC's application for a conditional use permit. We affirm in part, reverse in part, and remand.
The Dellingers own three tracts of real property in Denver, Lincoln County, North Carolina, which total approximately fifty-four acres. In May 2013, the Dellingers contracted with Strata Solar, LLC ("Strata Solar") for it to lease a portion of their property for the installation and operation of a solar energy facility. The Dellingers' property was zoned for residential-single family use ("R–SF") under the Lincoln County Unified Development Ordinance ("the Ordinance"). The properties directly adjoining or abutting the Dellingers' property are zoned as planned development-residential ("PD–R") and general industrial ("I–G").
The Ordinance schedules the operation of a solar energy farm as a permitted use on properties with this zoning classification, upon application for a conditional use permit. According to the Ordinance, an applicant for a conditional use permit must meet four conditions:
On 23 July 2013, Strata Solar filed its conditional use permit application to construct a solar energy facility on a 35.25–acre portion of the land owned by the Dellingers. Strata Solar presented evidence in support of its application to the Lincoln County Planning Board during quasi-judicial hearings conducted on 9 September and 25 November 2013. The Lincoln County Planning Director reviewed the application, found it satisfied the four conditions, and recommended issuance of the permit. The Lincoln County Planning Board voted 4–4 on its recommendation to the Board of Commissioners for the conditional use permit.
On 2 December and 16 December 2013, the Board of Commissioners held quasi-judicial hearings for consideration of and a final determination on Strata Solar's application. One commissioner recused himself from the vote. Twenty-four witnesses testified at the 2 December hearing.
The hearing resumed on 16 December, and after the testimony and evidence was presented, the Board of Commissioners voted 3 to 1 to deny Strata Solar's application. The Board concluded Strata Solar had met the first two conditions in order to issue the conditional use permit. However, the Board voted against Strata Solar's application on not meeting the third and fourth conditions: (3) "[t]he use will not substantially injure the value of adjoining or abutting property unless the use is a public necessity;" and, (4) "[t]he location and character of the use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is located and will be in general conformity with the approved Land Development Plan for the area in question."
The Dellingers filed a Notice of Appeal and Petition for Writ of Certiorari in the Lincoln County Superior Court on 17 January 2014. The superior court also entered an order, which permitted property owners Timothy P. Mooney, George Gerard Arena, Martha McLean, and the Sailview Owners Association (collectively, "Intervenors–Respondents") to intervene in this action. One of the intervenors, George Gerard Arena, subsequently took a voluntary dismissal and withdrew from the case, after he sold his residence within the Sailview subdivision during the pendency of the action. No evidence was presented on the value of, or factors surrounding, this sale within Sailview.
On 7 August 2014, the superior court entered an order limiting the Dellingers' appeal to exclude "matters that could have been raised at the quasi-judicial hearing." The superior court concluded:
The Petitioners, [the Dellingers,] by their failure to participate in the quasi-judicial hearing, waived their rights on appeal to complain of or object to those issues which could have been raised in the quasi-judicial hearing such that the scope of review is now limited to whether the Lincoln County Board of Commissioners' decision was supported by substantial competent evidence in view of the entire record and/or whether the Board's decision was arbitrary or capricious using the "whole record" test.
The Dellingers' appeal was heard on 26 January 2015. The superior court entered a written order on 25 February 2015, in which the court concluded it was "unable to determine whether the Board's decision on the third requirement was supported or unsupported by substantial competent evidence in view of the entire record." The superior court also held "[t]he Board did not make sufficient findings of fact regarding the third requirement," and "remand[ed] the matter to the Board for additional findings of fact regarding its decision to find in the negative as to the third requirement that ‘the use will not substantially injure the value of adjoining property unless the use is a public necessity.’ "
The superior court also reversed the Board's decision concerning Strata Solar's compliance with the fourth condition. The superior court concluded: "After reviewing the entire record, ... there is not substantial evidence to support the Board's decision that the use is not in harmony with the area." This ruling on Strata Solar's compliance with the fourth condition was not appealed from, and is binding upon all parties.
Following the superior court's remand, the matter came before the Board of Commissioners for the second time on 16 March 2015. No new testimony or additional evidence was taken. The membership of the Board had changed to include two new members since the initial decision was rendered on 16 December 2013.
The Chair of the Board had originally recused himself, and did so once again. New Commissioner Beam, the Vice–Chair, also recused himself, against the advice of the County Attorney, and stated he was not a member of the Board when it issued its original decision. Commissioner Martin Oakes ("Commissioner Oakes"), another new member of the Board, stated he had reviewed the entire record of the prior proceedings and participated in the 16 March vote.
The Board voted 2 to 1 to deny the conditional use permit application in a written decision dated 20 March 2015. The Dellingers filed a second Notice of Appeal and Petition for Writ of Certiorari. The Lincoln County Superior Court issued a second writ of certiorari on 16 April 2015. The superior court permitted the Intervenors–Respondents to intervene in the second action by order entered 8 June 2015.
The Dellingers' appeal was heard on 26 May 2015. The superior court entered its Decision on Appeal on 17 July 2015, which affirmed the Board's denial of the conditional use permit. The Dellingers gave timely notice of appeal to this Court. While Lincoln County and its Board of Commissioners are listed as party-defendants, neither filed a brief on appeal nor was either entity represented during oral arguments before this Court.
The Dellingers argue the superior court erred by affirming the Board's decision because: (1) the application for a conditional use permit was supported by competent, material, and substantial evidence; (2) the Board erred by allowing Commissioner Oakes to participate in the hearing and vote, and by requiring an improper burden of proof; and, (3) the Board's denial of the conditional use permit was not supported by competent, material, and substantial evidence.
"A legislative body such as the Board, when granting or denying a conditional use permit, sits as a quasi-judicial body." Sun Suites Holdings, LLC v. Bd. of Aldermen of Town of Garner, 139 N.C.App. 269, 271, 533 S.E.2d 525, 527, disc. review denied, 353 N.C. 280, 546 S.E.2d 397 (2000).
Our Supreme Court has recognized, "[d]ue process requirements mandate that certain quasi-judicial [land use] decisions comply with all fair trial standards when they are made." County of Lancaster v. Mecklenburg Cty., 334 N.C. 496, 506, 434 S.E.2d 604, 611 (1993) (emphasis supplied). In addition to prior notice and an impartial decision-maker, our Supreme Court has explained these "fair trial standards" also include "an evidentiary hearing with the right of the parties to offer evidence; cross-examine adverse witnesses; inspect documents; have sworn testimony; and have written findings of fact supported by competent, substantial, and material evidence." Id. at 507–08, 434 S.E.2d at 612 (citations omitted).
The Board's decisions "shall be subject to review of the superior court in the nature of certiorari[,]" N.C. Gen.Stat. § 160A–381(c) (2015), in which "the superior court sits as an appellate court, and not as a trier of facts." Tate Terrace Realty Inv'rs, Inc. v....
To continue reading
Request your trial
-
Hampton v. Cumberland Cnty.
...derogate common law property rights and must be strictly construed in favor of the free use of property."). Dellinger v. Lincoln Cty. , ––– N.C. App. ––––, ––––, 789 S.E.2d 21, 27, review denied , 369 N.C. 190, 794 S.E.2d 324 (2016).The majority's opinion correctly notes, "the use of firear......
-
Appalachian Materials, LLC v. Watauga Cnty.
...substantial evidence in the whole record, and(5) Insuring that decisions are not arbitrary and capricious. Dellinger v. Lincoln Cty ., ––– N.C. App. ––––, ––––, 789 S.E.2d 21, 26 (citation omitted), disc. review denied , 369 N.C. 190, 794 S.E.2d 324 (2016)."If a petitioner appeals an admini......
-
Dellinger v. Lincoln Cnty.
...of a conditional use permit. We reverse and remand.I. Background This case returns to this Court a second time. Dellinger v. Lincoln Cty. , 248 N.C. App. 317, 789 S.E.2d 21, disc. review denied , 369 N.C. 190, 794 S.E.2d 324 (2016). A more detailed recitation of the facts of this matter can......
-
Frazier v. Town of Blowing Rock
...conclusion is derived from the superior court's prior conclusions of law. See Thompson, 2022-NCCOA-382, ¶ 13 (quoting Dellinger, 248 N.C.App. at 324-25, 789 S.E.2d at 27) ("[W]hether competent, material and substantial is present in the record is a conclusion of law."). ¶ 33 Absent the BOA'......