Mann Media, Inc. v. Randolph County Planning Bd.

Decision Date28 June 2002
Docket NumberNo. 116A01.,116A01.
Citation565 S.E.2d 9
CourtNorth Carolina Supreme Court
PartiesMANN MEDIA, INC., doing business as Our State North Carolina; and Bernard Mann, Petitioners, v. RANDOLPH COUNTY PLANNING BOARD, Respondent.

Keziah, Gates & Samet, L.L.P., by Andrew S. Lasine, High Point, for petitioner-appellees.

Gavin Cox Pugh Etheridge and Wilhoit, LLP, by Alan V. Pugh and Robert E. Wilhoit, Asheboro, for respondent-appellant.

EDMUNDS, Justice.

Petitioners Mann Media, Inc. and Bernard Mann (Mann) instituted this action against respondent Randolph County Planning Board to review respondent's denial of petitioners' application for a special use permit to construct a 1,500-foot broadcast tower in Randolph County, North Carolina. In this appeal, we must consider both whether the superior court correctly concluded that there was no competent, material, and substantial evidence to support respondent's decision to deny petitioners' special use permit application and whether the Court of Appeals properly affirmed the superior court's decision. For the reasons that follow, we hold that the superior court erred in reversing respondent's decision to deny petitioners' special use permit application to construct the broadcast tower, and therefore we reverse the Court of Appeals.

Petitioners initially applied for a special use permit to construct a 1,879-foot broadcast tower on an approximately 119.52-acre tract of land in northeast Randolph County zoned for residential/agricultural use. On 10 November 1998, respondent held a public hearing on petitioners' application and thereafter voted to deny petitioners' request.

On 17 December 1998, petitioners filed a petition for writ of certiorari with the Superior Court, Randolph County, pursuant to N.C.G.S. § 153A-345, requesting review of the denial of their application. The petition was allowed, and after a hearing in the matter, a superior court judge entered an order on 17 February 1999 vacating respondent's decision to deny the permit and remanding the case to respondent for a hearing de novo on the ground that respondent "did not specify the reasons for the denial of the Special Use Permit in the minutes of the meeting at which the action was taken."

On 20 May 1999, petitioners filed a second application for a special use permit. In this application, petitioners modified their original plans and sought to construct a shorter, 1,500-foot tower in the same location. Respondent held a second public hearing in the matter on 10 June 1999, during which petitioner Mann and Ron Crowder, a North Carolina real estate appraiser, testified on behalf of petitioners. Mann's testimony addressed safety issues, particularly whether the tower could collapse and whether ice could build up on the tower and fall off, while Crowder's testimony was directed toward whether the proposed use would substantially injure the value of adjoining or abutting properties and whether the proposed use would be in harmony with the general area. John Burkett, Rita Mintmier, Terry Davis, and Julia Davis, landowners and residents near the proposed site; Grace Steed, a North Carolina realtor; and Danny Frazier, a North Carolina building contractor, testified in opposition to petitioners' application.

At the conclusion of the hearing, respondent unanimously voted to deny the special use permit, and in a subsequent written order dated 24 June 1999, respondent denied petitioners' application. This order listed as findings of fact:

1. The applicant applied for a special use permit to allow the construction of [a] 1500' broadcast tower on a 119.52 acres tract located at the Northwest side of the intersection of Lewis Davis Road and Davis Country Road, New Market Township. Said tract is zoned Residential Agricultural.
2. The applicant does not own the land for which the permit is requested.
3. The proposed tower is to be constructed for speculative purposes, there being no contracts or leases for the use of the proposed tower, all in direct contravention of the applicant's testimony at the first public hearing. The Board therefore finds that the proposed use is not a public necessity nor required to provide broadcast service for the Piedmont-Triad area.
4. The proposed tower is located within 1500 feet of 21 established residences and there are numerous other residences located in proximity to the proposed tower.
5. Conflicting evidence was presented concerning the probability of ice forming on and falling from the proposed tower, but the Board finds that ice has formed and fallen from the other towers within the county's zoning jurisdiction causing damage and is likely to do so from the proposed tower, and would therefore materially endanger the public safety where located because of the number and density of adjoining residences.
6. Evidence was presented showing that the site for the proposed tower was approved by the Federal Aviation Agency, but opposed by the Aviation Division of the North Carolina Department of Transportation. The Board finds that the construction of this tower could therefore constitute a hazard to general aviation operating from Johnson Air Field, and thus endangers the public safety.
7. The population density of the area immediately adjacent to and in the proximity of the site for the proposed tower is substantially greater than that of areas surrounding sites for towers which have been previously approved by this Board for Special Use Permits.
8. The population density of the Residential Agricultural zoning district within Randolph County varies widely in general, but is of lower density in areas adjacent to tall telecommunication towers constructed after the adoption of the Unified Development Ordinance, and therefore this proposed site being in a high density RA district because of its size, visual impact and lighting and further because the required conditions and specifications set out in the ordinance are insufficient to harmonize this particular site (emphasis added) with the area, it is therefore not in harmony with the area.
9. Conflicting testimony was presented as to whether the issuance of the permit and the construction of the tower would substantially diminish the value of adjacent properties. The Board finds that the value of adjacent properties to the proposed site would substantially diminish and would be injured if the special use permit were issued.
10. The applicant met the required conditions and specifications for such use as set out in the Unified Development Ordinance, pursuant to General Standard No. 2 but such conditions and specifications are not dispositive as to a proposed site in an area of higher residential population density in a[n] RA District.

Respondent then concluded:

1. The [proposed] use will material[ly] endanger the public safety if located where proposed, and developed according to the plan as submitted and approved....
2. The proposed use will substantially injure the value of adjoining or abutting property, and the use is not a public necessity....
3. The location and character of the use if developed according to the plan as submitted and approved will not be in harmony with the area in which it is to be located.

On 14 July 1999, petitioners filed a second petition for writ of certiorari, requesting the superior court "to review the record de novo for errors of law, to determine if competent, material, and substantial evidence exists, based on the whole record, to support the decision, and to determine whether the decision was arbitrary and capricious." The writ of certiorari was allowed on the same day, 14 July 1999, and following a hearing, a superior court judge entered a judgment on 17 August 1999 that vacated respondent's 24 June 1999 order and remanded the matter for entry of an order granting petitioners a special use permit. The court listed as findings of fact:

1. Petitioners[] applied for a Special Use Permit to locate a 1,500[-]foot broadcast tower in Randolph County, North Carolina.
2. Petitioners' proposed use is a permitted use in the zoning district in which the broadcast tower is proposed to be located. The decision to allow a broadcast tower as a permitted use in the zoning district in question was made by the Randolph County Board of County Commissioners in enacting the zoning ordinance for Randolph County.
3. Petitioners' proposed use meets all required conditions and specifications of the Randolph County Zoning Ordinance and the Planning Board.
4. The location and height of the proposed broadcast tower was approved by the Federal Aviation Administration which concluded that the proposed tower would not have any substantial adverse effect upon the safe and efficient utilization of the navigable air space by aircraft or on the operation of navigational facilities and would not be a hazard to air navigation.
5. The North Carolina Department of Transportation comments objecting to Petitioners' proposed tower did not relate to a hazard resulting from Petitioners' proposed tower, but to a proposed tower in a different location.
6. Petitioners' proposed broadcast tower does not constitute a hazard to air traffic.
7. Petitioners' proposed broadcast tower incorporates mechanisms to prevent the formation of ice on the tower itself.
8. Ice which may form on the support wires of the proposed tower will tend to slide down the support wires to the tower anchors but, in any event would not detach and land at a distance from the tower any greater than the distance from the tower base to the anchors, which is a distance of 900 feet.
9. No residences, structures, or property are located within 900 feet of the tower base.
10. An existing television broadcast tower is presently located in the immediate vicinity of Petitioners' proposed tower. This existing tower exceeds 2,000 feet in height.
11. The location of Petitioners' proposed tower and the surrounding area is zoned residential/agricultural.
12. The area surrounding Petitioners'
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