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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
HUMANE SOCIETY OF MOORE COUNTY, INC. Petitioner, v. TOWN OF
SOUTHERN PINES and THE SOUTHERN PINES TOWN COUNCIL, Respondents
Filed: 16 December 2003
1. Zoning_conditional use permit_humane society veterinary clinic_insufficient
evidence for denial
The denial of a conditional use permit for a humane society veterinary clinic was not
based on competent, substantial, and material evidence where the town council found that the
principal use of the facility was for an animal shelter and adoption facility, but there was no
evidence that such an activity would be the primary use of the facility.
2. Zoning_conditional use permit_humane society veterinary clinic_road access or
An application for a conditional use permit for a humane society veterinary clinic
satisfied zoning requirements for access by providing an access easement from a public road.
The proposed development did not create a subdivision, as the Town found, which would have
required that the lot front a public street or approved private street.
3. Zoning_conditional use permit_damage to adjoining property_evidence speculative
There was no competent, material evidence justifying the denial of a conditional use
permit for a humane shelter veterinary clinic because it would injure adjoining property.
Evidence thereto was speculative.
4. Zoning_conditional use permit_humane society veterinary clinic_town ordered to
It was not improper for the trial court to order issuance of a conditional use permit for a
humane society veterinary clinic. Such rulings have been repeatedly upheld; moreover, the Town
had the opportunity to consider conditions to the permit and the Humane Society had consented
to restrictions on its use.
Appeal by respondents from judgment entered 10 October 2002 by
Judge Russell G. Walker, Jr. in Moore County Superior Court. Heard
in the Court of Appeals 29 October 2003.
Adams Kleemeier Hagan Hannah & Fouts, PLLC, by M. Jay DeVaney
and Edward P. Lord, for petitioner.
Gill & Tobias, LLP, by Douglas R. Gill, for respondents.
In November 1999, the Humane Society of Moore County (HumaneSociety) submitted an application to the Town of Southern Pines
(Town) for a Conditional Use Permit for a Community Animal
Welfare and Activity Center to be built upon a 12.5 acre property,
which the Humane Society had an option to purchase. The property
is zoned Planned Development, a mixed use zoning which permits
commercial land use. Among the permissible uses, according to the
Town's Unified Development Ordinance (UDO), is Veterinarian,
Animal Clinic, Outside Kennel.
Prior to an initial hearing before the Town's Planning Board,
the Humane Society received the comments and the recommendation of
the Planning Director and amended the application to a proposed use
as a Humane Society Veterinary Clinic. As reason for the change,
the Humane Society said that in addition to the Town objecting that
the original proposed use did not fall within a permissible use
category, the Humane Society had canceled their shelter contract
with Moore County and would no longer be housing stray animals.
Pursuant to the Town's zoning ordinance, an application for a
conditional use permit is processed in two phases. In the first
phase, the Town considers whether the proposed use meets with the
requirements of the UDO, Section 54(c), which states that subject
to subsection (d), the Town:
shall issue the requested permit unless it concludes
based upon the information submitted at the hearing,
1. The requested permit is not within
its jurisdiction according to the
table of permissible uses; or
2. The application is incomplete; or
3. If completed as proposed in the
application the development will not
comply with one or more requirements
of this chapter.
If the application complies with Section 54(c), a second phase
occurs in which the Town may still deny the permit under subsection
54(d) of the UDO
if it concludes, based upon the information submitted at
the hearing, that if completed as proposed, the
development, more probably than not:
1. Will materially endanger the public
health or safety; or
2. Will substantially injure the value
of adjoining or abutting property;
3. Will not be in harmony with the area
in which it is to be located; or
4. Will not be in general conformity
with the land use plan, thoroughfare
plan, or other plan officially
adopted by the council.
At its 19 April 2000 hearing, the Planning Board, over
objections by the Town, voted unanimously to consider the amended
application, rather than the first application, and recommended
approval of the amended application subject to petitioner meeting
street and sewer standards. However, the Town Council, at its 9
May 2000 meeting, denied the petitioner the right to be heard on
the amended application, reasoning that the public did not have
sufficient notice of the new proposed use. The council, at the
request of the petitioner, considered the use proposed in the
original application and after discussion, denied the conditional
use permit because the proposed use was not a permitted use in the
UDO. Since the council concluded the application did not meet the
requirements of Section 54(c)(1) of the UDO, it never considered
Section 54(d) factors.
The Humane Society filed a Petition for Writ of Certiorari and
Complaint in superior court on 8 June 2000, requesting an order
reversing the Town Council's decision on the amended applicationand asking the Court to require the Town to grant and issue the
conditional use permit for the amended application. On 15
September 2000, the superior court issued an order finding as a
matter of law that the Town Council should have considered the
amended application and that the use proposed in the amended
application was a permissible use within the scope of the Table of
Permissible Uses in the UDO.
The Town appealed the order to this Court, which dismissed the
appeal as interlocutory. Humane Soc'y of Moore County, Inc. v.
Town of Southern Pines, 146 N.C. App. 110, 553 S.E.2d 247 (2001).
The Town then held a public hearing on the amended application on
13 November 2001. On 11 December 2001, the Town Council voted
unanimously to deny the application, finding as fact, inter alia,
that the proposed facility was principally an animal shelter with
incidental use for education and care of animals. It concluded as
matters of law, inter alia, that (1) although the use of a
veterinary clinic was a permitted conditional use within the PD
district, an animal shelter or boarding kennel was not a permitted
use, (2) the proposed development would, more probably than not,
substantially injure the value of adjoining property and would not
be in harmony with the surrounding area, and (3) the access
easement did not meet the requirement of frontage on a public
street or approved private street. In addition, the council
concluded that the proposed development did not create a
The Humane Society again sought review by the superior court
of the Town's decision, alleging the decision was arbitrary andcapricious and not supported by competent, material, and
substantial evidence. On 3 September 2002, the superior court
ruled that the Town's decision was arbitrary and capricious and not
supported by competent, substantial evidence. The superior court
remanded the matter to the Town Council with an order to issue the
conditional use permit. Respondents appeal.
 Respondents first argue that the trial court erred in
finding that denial of the conditional use permit was arbitrary and
capricious and not supported by competent, material, and
substantial evidence. When the superior court reviews the decision
of a town council, the court should:
(1) review the record for errors of law, (2) ensure that
procedures specified by law in both statute and ordinance
are followed, (3) ensure that appropriate due process
rights of the petitioner are protected, including the
right to offer evidence, cross-examine witnesses, and
inspect documents; (4) ensure that the decision is
supported by competent, material, and substantial
evidence in the whole record; and (5) ensure that the
decision is not arbitrary and capricious.
Whiteco Outdoor Adver. v. Johnson County Bd. of Adjust., 132 N.C.
App. 465, 468, 513 S.E.2d 70, 73 (1999). The task of this Court in
reviewing a superior court order is (1) to determine whether the
trial court exercised the proper scope of review, and (2) to review
whether the trial court correctly applied this scope of review.
Id. When a party alleges an error of law in the Council's
decision, the reviewing court examines the record de novo,
considering the matter anew. Id. at 470, 513 S.E.2d at 74.
However, when the party alleges that the decision is arbitrary andcapricious or unsupported by substantial competent evidence, the
court reviews the whole record. Id. at 468, 513 S.E.2d at 73.
Denial of a conditional use permit must be based upon findings
which are supported by competent, material, and substantial
evidence appearing in the record. Howard v. City of Kinston, 148
N.C. App. 238, 246, 558 S.E.2d 221, 227 (2002).
The superior court found, upon review of the record, that
the decision of the Town Council was not supported by competent,
material, and substantial evidence and the decision was arbitrary
and capricious. Thus, the court applied the proper scope of
review, the whole record test, examining all the evidence in the
record to determine if there was substantial evidence to support
the Town Council's findings and conclusions. Sun Suite Holdings,
LLC v. Board of Aldermen of Town of Garner, 139 N.C. App. 269, 273,
533 S.E.2d 525, 528 (2000), disc. review denied, 353 N.C. 280, 546
S.E.2d 397. Next, we must determine if the trial court correctly
applied the scope of review.
Respondents first contend denial of the permit was proper
because the facility will be used primarily as an animal shelter,
which is not a permitted use, rather than a veterinary clinic.
When an applicant produces competent, material, and substantial
evidence of compliance with the requirements of a zoning ordinance,
he has established a prima facie case of entitlement to approval of
the application. Humble Oil & Ref. Co. v. Bd. of Aldermen, 284
N.C. 458, 468, 202 S.E.2d 129, 136 (1974). However, an application
may be denied if there are findings contra which are supported by
competent, material, and substantial evidence appearing in therecord. Id. Substantial evidence is 'evidence a reasonable mind
might accept as adequate to support a conclusion.' Whiteco, 132
N.C. App. 465, 468, 513 S.E.2d at 73 (citation omitted).
In its initial review of this matter, the superior court
determined as a matter of law that the proposed use, as a Humane
Society Veterinary Clinic, was a permissible use within the scope
of the Table of Permissible Uses in the Southern Pines UDO.
Additionally, the Town Council found, as findings of fact, that the
following services would be provided at the facility: vaccination
of animals, treatment of animal diseases, lab testing and analysis,
x-rays, spay and neutering services, euthanasia for animals,
adoption and shelter services, and educational services. Since
uses common to a veterinarian clinic were established, and
Veterinarian, Animal Clinic, Outside Kennel was listed as a
permitted use in UDO § 12.000, the Humane Society presented a prima
facie case of entitlement on the issue of whether the proposed use
was a permitted use. Thus, the application can be denied only if
there are findings contra which are supported by competent,
substantial, and material evidence.
The Town Council found that the principal use of the facility
was for an animal shelter and adoption facility. Though petitioner
acknowledges that it will operate an adoption center at the
facility among other functions, there is no evidence in the record
that such an activity will be the primary use of the facility.
Since there was not substantial evidence to show that petitioner
does not meet the requirements of the ordinance, the denial of the
permit was not based on competent, substantial, and materialevidence.
 Next, respondents argue that the requirements for a
conditional use permit have not been met because the lot does not
front a public or approved private street as required by UDO § 211.
Respondents rely upon UDO § 211 and § 220 for the street frontage
requirement, which apply only to subdivisions. However, in its
conclusions of law, the Town Council found that the proposed
development did not create a subdivision. The applicable section
of the UDO is Section 221 - Road and Sidewalk Requirements in
Unsubdivided Developments (emphasis added) - which states that
all private roads and access ways shall be designed and
constructed to facilitate the safe and convenient movement of motor
vehicle and pedestrian traffic. Petitioner satisfied the
requirements of Section 221 by providing an access easement from a
 Respondents assert that even if the proposed use of the
property were a permitted use, the Town Council was still justified
in denying the conditional use permit, finding under Phase II,
Section 54(d), of the UDO, that the development would substantially
injure the value of the adjoining and abutting property. Pursuant
to Section 55(c) of the UDO, the burden of persuasion on the issue
of whether the permit should be denied under Section 54(d) rests on
respondents. After careful review of the record, we conclude there
was not competent, material evidence that justified denial of the
Respondents' expert, Mr. Andy Hinds, an appraiser, admitted
that after an extensive effort to locate materials addressing theeffects of an animal care facility on an adjoining development, he
was unable to find any information. Instead, Mr. Hinds developed
seven case studies based on inquiries of appraisers, assessors,
brokers, and developers in the state. In case study number one,
where the tax value of property in Guilford County was affected by
barking dogs on a neighboring lot, Mr. Hinds was unable to
determine a quantifiable impact on value because there were several
other factors that contributed to the reduced value.
In case study numbers two, three and six, Mr. Hinds used
matched-pair lot comparisons for lots located near a railroad line,
a power line and a waste water treatment plant to develop a
correlation between the reduction of value from these influences
and the reduction in value from an animal care facility. Case
study number four, also conducted with matched-pairs lots,
demonstrated the additional marketing time needed for sales of
homes located close to a railroad. Evidence of the reduced value
of lots and evidence of additional marketing time from these
particular influences have no correlation with effects from an
animal care facility and cannot be considered competent, material
Mr. Hinds, in case study number five, contacted operators of
kennels in Moore County and Guilford County to determine the
distance they would recommend a kennel be built from a residential
development. However, these recommendations were simply the
opinions of kennel operators and the evidence cannot be considered
material, competent evidence. Speculative opinions that merely
assert generalized fears about the effects of granting aconditional use permit for development are not considered
substantial evidence to support the findings of a Town Council.
Howard, 148 N.C. App. at 246, 558 S.E.2d at 227.
For case study number seven, Mr. Hinds surveyed residents
within the Forest Hills subdivision asking them if the proposed
location of the Humane Society facility would have affected their
decision to purchase their home. In addition to the fact that the
survey was flawed because it stated there would be one hundred
sixty kennels, rather than the thirty to forty proposed, the
survey cannot be used as competent, material evidence as the
answers are simply speculative comments from neighborhood
residents. As Mr. Hinds' testimony was the only testimony
presented by respondents on the issue of whether the animal care
facility would substantially reduce the value of adjoining and
abutting property, the Town Council's denial of the conditional use
permit on that basis was not supported by competent, material, and
substantial evidence and cannot be upheld.
Respondents also contend the proposed facility is not in
harmony with the surrounding area. The inclusion of a use as a
conditional use in a particular zoning district establishes a prima
facie case that the permitted use is in harmony with the general
zoning plan. Vulcan Materials Co. v. Guilford County Bd. of
Comm'rs, 115 N.C. App. 319, 324, 444 S.E.2d 639, 643 (1994).
However, "conclusions unsupported by factual data or background,
are incompetent and insufficient to support the [Council's]
findings." Piney Mt. Neighborhood Assoc. v. Town of Chapel Hill,
63 N.C. App. 244, 253, 304 S.E.2d 251, 256 (1983). Accordingly,competent evidence is required to prove that the permitted use is
not in harmony with the surrounding area in order to deny the
application on that basis.
The O'Neal School and Sandhills Community College presented
the testimony of Robert Stanley Hayter, a landscape architect, that
the noises and smells from the proposed facility would produce an
undesired awareness of the facility. However, he presented no
evidence that petitioner's current facility produces unwanted
smells that disturb the area surrounding it and therefore the
evidence is speculative. The proposed facility would be located
close to the Moore County Airport, which has commercial and general
aviation flights each day, so noise is already present in the area.
Furthermore, upon cross-examination, it became evident that Mr.
Hayter considered whether the facility would be in harmony with the
developments to the west, the O'Neal School, the Forest Creek
subdivision and the Sandhills Community College, but did not
consider whether the facility would be in harmony with the whole
The owner and developer of Forest Creek subdivision presented
testimony of another landscape architect, Karen Ruscher. She, too,
testified regarding noise and smells from the facility but failed
to provide any evidence to substantiate her allegations. Although
she did not believe the facility would be in harmony with Forest
Creek, she admitted it would be in harmony with the airport, the
mini-storage warehouse, and the Whispering Pines Animal Hospital.
The Town Council improperly denied the conditional use permiton the basis of Section 54(d) of the UDO because the evidence with
respect thereto was only upon speculative and opinion evidence.
 Respondent next argues that by ordering the Town Council
to issue the conditional use permit, the court deprived the Town
Council of its right to attach conditions to the permit. Decisions
by the North Carolina Court of Appeals have regularly upheld
rulings of the trial court that remanded a case to the town for
issuance of a conditional use permit. See Clark v. City of
Asheboro, 136 N.C. App. 114, 524 S.E.2d 46 (1999); Sun Suites
Holdings, 139 N.C. App. at 280, 533 S.E.2d at 532. Moreover, after
the initial remand of the case to the Town Council for
consideration of the amended application, respondents had an
opportunity to consider conditions on the permit. The Humane
Society consented to additional restrictions in connection with the
proposed use, including limiting the number of outside kennels to
forty and designing the building to include an interior courtyard
to minimize noise and visibility to other properties. In addition,
in its conclusions of law following the 11 December 2001 meeting,
the Town Council pointed out that in order to conform to the Town's
sewer plan, modifications should be made. We therefore hold that
it was not improper for the trial court to order the issuance of
the conditional use permit.
Because we affirm the superior court's decision that the Town
Council acted arbitrarily and capriciously in denying the
conditional use permit, we need not address Petitioner's crossassignment of error.
Judges HUDSON and STEELMAN concur.
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