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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.
CUMULUS BROADCASTING, LLC, Petitioner, v. HOKE COUNTY BOARD OF
Filed: 5 December 2006
1. Zoning_conditional use permit_denial of conditional use permit_whole record
The superior court properly applied the whole record test in a case arising from the denial
of a conditional use permit for a radio tower where the court examined all of the evidence to
determine whether substantial evidence supported the Commission's findings and conclusions.
The court neither re-weighed the evidence nor substituted its judgment for that of the Board of
2. Zoning_conditional use permit_evaluation of evidence
The trial court did not err by finding that the evidence presented to the Board of
Commissioners in opposition to a conditional use permit was anecdotal, conclusory, and without
a demonstrated factual basis. The testimony came from witnesses relying solely on their personal
knowledge and observations; no witnesses rebutted the quantitative data and other evidence
supporting the permit.
3. Zoning_conditional use permit_wrongly denied_remedy
The trial court did not err by remanding the denial of a conditional use permit to the
Board of Commissioners for issuance of the permit. Trial court rulings that have remanded such
cases for the issuance of the permit have been upheld regularly, and the Board offered no
controlling authority for its contention that the common remedy would be remand for more
detailed findings and conclusions.
Appeal by respondent from order entered 18 October 2005 by
Judge B. Craig Ellis in Hoke County Superior Court. Heard in the
Court of Appeals 11 October 2006.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Derek
J. Allen and Katherine A. Murphy, for petitioner-appellee.
Garris Neil Yarborough, for respondent-appellant.
The Hoke County Board of Commissioners (the Commission)
appeals from order entered reversing its decision to deny CumulusBroadcasting, LLC (Cumulus) a conditional use permit to construct
a 499-foot radio tower. We affirm.
Jimmy and Carol Bunce (the Bunces) own approximately 250
acres of real property located in Hoke County. The Bunces leased
twenty-three acres of their property to Cumulus. Cumulus leased
the property with the intent to construct a 499-foot radio tower on
the leasehold. Cumulus applied to Hoke County's Planning
Department for a conditional use permit to construct a radio tower.
Bunce's property is zoned RA-20 Residential-Agricultural
District. The Hoke County Zoning Ordinance § 8.6(C) RA-20
Residential-Agricultural District includes as a conditional use:
Communications; Broadcasting, and Receiving Towers; Radio,
Television, and Radar; with setbacks from all property lines of at
least one (1) foot for every foot of structure height.
On 9 June 2005, the Planning Board heard Cumulus's application
and voted to deny the permit. On 5 July 2005, the Commission held
a public hearing and voted three-to-two to deny Cumulus's
application for a conditional use permit.
Cumulus timely filed a Petition for Certiorari with the
superior court asserting the Commission: (1) arbitrarily and
capriciously denied the permit; (2) improperly determined that the
permit should not be granted; (3) improperly determined that it was
within its legal authority to deny the permit for a variance; (4)
failed to follow the proper procedure in making findings; (5) actedwithout sufficient evidentiary basis; and (6) applied rules that
violated due process.
After a hearing on 3 October 2005, the superior court reversed
the Commission's decision. The superior court remanded the matter
to the Commission for approval of the application and issuance of
a conditional use permit. The Commission appeals.
The Commission argues the trial court: (1) applied an
improper standard of review to the Commission's decision; (2) erred
in finding insufficient evidence in the record to support the
Commission's decision; (3) erred in reaching conclusion of law
numbered 1; (4) erred in reaching conclusion of law numbered 2; and
(5) erred by remanding this matter to the Commission with a mandate
to approve and issue a conditional use permit.
III. Standard of Review
 In reviewing a commission's decision to deny an
application for a conditional use permit, a superior court must:
(1) review the record for errors in law; (2) insure that procedures
specified by law in both statute and ordinance are followed; (3)
insure that the appropriate due process rights of the petitioner
are protected, including the right to offer evidence, cross-examine
witnesses and inspect documents; (4) insure decisions of boards of
adjustment are supported by competent, material and substantial
evidence in the whole record; and (5) insure decisions are not
arbitrary and capricious. Humane Soc'y of Moore Cty., Inc. v. Townof Southern Pines, 161 N.C. App. 625, 628-29, 589 S.E.2d 162, 165
(2003) (internal citation omitted).
The superior court is not the trier of fact but rather sits
as an appellate court and may review both (i) sufficiency of the
evidence presented to the municipal board and (ii) whether the
record reveals error of law. Capricorn Equity Corp. v. Town of
Chapel Hill, 334 N.C. 132, 136, 431 S.E.2d 183, 186 (1993). It is
not the function of the reviewing court, in such a proceeding, to
find the facts but to determine whether the findings of fact made
by the Board are supported by the evidence before the Board. In
re Campsites Unlimited, 287 N.C. 493, 498, 215 S.E.2d 73, 76
(1975); see Lambeth v. Town of Kure Beach, 157 N.C. App. 349, 353,
578 S.E.2d 688, 691 (2003) (The whole record test applies to
findings of fact and compels a determination of whether the
findings of fact of the Board are supported by competent evidence
in the record.).
The trial court examines the whole record to determine whether
the agency's decision is supported by competent, material, and
substantial evidence. Mann Media, Inc. v. Randolph County Planning
Board, 356 N.C. 1, 14, 565 S.E.2d 9, 17 (2002). In applying the
whole record test, the trial court may not weigh the evidence
presented to the agency or substitute its own judgment for that of
the agency. BellSouth Carolinas PCS v. Henderson County Zoning
Bd. of Adjustment, 174 N.C. App. 574, 576, 621 S.E.2d 270, 272
(2005). Questions of law are reviewable de novo. Capricorn Equity
Corp., 334 N.C. at 137, 431 S.E.2d at 187. This Court has stated our standard of review:
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.
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. However, when the party alleges
that the decision is arbitrary and capricious
or unsupported by substantial competent
evidence, the court reviews the whole record.
Denial of a conditional use permit must be
based upon findings which are supported by
competent, material, and substantial evidence
appearing in the record.
Humane Soc'y of Moore Cty., Inc., 161 N.C. App. at 629, 589 S.E.2d
at 165 (emphasis supplied) (internal citations and quotations
The Commission contends the superior court erred in its
application of the appropriate standard of review to the
Commission's decision denying Cumulus's conditional use permit. We
Our Supreme Court has stated:
Zoning regulations are in derogation of common
law rights and they cannot be construed to
include or exclude by implication that which
is not clearly their express terms. It has
been held that well-founded doubts as to the
meaning of obscure provisions of a Zoning
Ordinance should be resolved in favor of the
free use of property.
Yancey v. Heafner, 268 N.C. 263, 266, 150 S.E.2d 440, 443 (1966)
(citation and quotation omitted); see Lambeth, 157 N.C. App. at
354, 578 S.E.2d at 691 (Zoning ordinances derogate common law
property rights and must be strictly construed in favor of the freeuse of property.). Every person owning property has the right to
make any lawful use of it he sees fit, and restrictions sought to
be imposed on that right must be carefully examined . . . .
Harrington & Co. v. Renner, 236 N.C. 321, 324, 72 S.E.2d 838, 840
Our Supreme Court has stated:
When 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. A denial of the
permit should be based upon findings contra
which are supported by competent, material,
and substantial evidence appearing in the
Refining Co. v. Board of Aldermen, 284 N.C. 458, 468, 202 S.E.2d
129, 136 (1974) (emphasis supplied). This Court has more recently
stated, 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 reviewed the record before the Commission
and concluded: (1) Cumulus presented sufficient material and
competent evidence to satisfy its prima facie burden of entitlement
to a conditional use permit; (2) insufficient competent and
material evidence was presented before the Commission to rebut
Cumulus's prima facie case; and (3) the Commission erred in voting
to deny Cumulus's application for a conditional use permit.
The superior court held the Commission's decision to deny the
permit was not supported by competent, material, and substantialevidence in the record. In reaching this conclusion, the superior
court neither re-weighed the evidence nor substituted its judgment
for that of the Commission. The superior court reviewing the
evidence presented in opposition to the conditional use permit and
ruled it was anecdotal, conclusory, and without a demonstrated
factual basis. The superior court properly reviewed the quantum
and not the credibility of the evidence and found it insufficient
to rebut Cumulus's prima facie case. The superior court properly
applied the whole record review by examining all the evidence to
determine if substantial evidence supported the Commission's
findings and conclusions. This assignment of error is overruled.
IV. Sufficiency of the Evidence
 The Commission contends the trial court erred in finding
as fact that the evidence presented to the Commission in opposition
to the permit was anecdotal, conclusory, and without a
demonstrated factual basis. We disagree.
When a party alleges that a decision of the superior court is
arbitrary and capricious or unsupported by substantial evidence,
this Court reviews the whole record. Humane Soc'y of Moore Cty.,
Inc., 161 N.C. App. at 629, 589 S.E.2d at 165. Here, we examine
the whole record to determine if the evidence presented to the
Commission in opposition to the permit was anecdotal, conclusory,
and without a demonstrated factual basis.
Gene Thacker (Thacker), Mary Ann Baker (Baker), Julian
Johnson, Margaret Johnson, and Will Wright testified in opposition
to the issuance of the conditional use permit. Thacker owns aprivate airport near the location of the proposed tower and
testified the proposed tower would interfere with aircraft
instrument approaches. No evidence in the record shows the basis
for Thacker's other than his ownership of the airstrip.
Baker testified she was the [former] AOPA [Aircraft Owners
and Pilots Association] safety representative in that area of Hoke
County. Baker testified not approving the tower at this location
was just a matter of common sense and safety. Baker also
testified the tower would affect 90 percent of all air traffic in
Hoke County. Baker's statements and opinions were conclusory
statements and unsupported by any other evidence.
Julian Johnson testified the Federal Aviation Administration
and the United States Military would not object to the tower. The
proposed location for the tower was out of their jurisdictions.
Margaret Johnson and Will Wright testified to their opinions about
safety concerns that the proposed tower would pose to air traffic
in the area.
No testimony in opposition was presented to show that approval
of the conditional use permit would violate any factors in the
ordinance to approve the permit or to rebut Cumulus's prima facie
case. Further, the record on appeal contains a letter of approval
for the tower issued by the Federal Aviation Administration and the
Federal Communications Commission.
In Howard v. City of Kinston, this Court held that testimony
based upon personal knowledge and observations is not
speculative assertions, mere expression[s] of opinion, or generalized fears. 148 N.C. App. 238, 247, 558 S.E.2d 221, 228
(2002). This Court stated:
[T]he City concluded that [t]he proposed
subdivision will create from  to 
additional daily trips on existing streets
which will materially endanger the public
health or safety of the residents, including
children, in the adjacent subdivision. In
reaching this conclusion, the City relied on
the testimony of Ed Lynch, a member of the
City's Planning Department, and Phyllis Gay, a
Westwood resident testifying in opposition to
At the public hearing, Mr. Lynch provided a
presentation on the impact of petitioner's
proposal on existing traffic in the area. In
sum, Mr. Lynch concluded that the proposed
subdivision would significantly increase
vehicular activity in the area by
approximately 300 to 800 trips a day. Ms. Gay
also testified during the public hearing.
During her testimony, Ms. Gay testified that
approximately 100 children lived in Westwood,
that existing traffic has caused near
accidents involving children while they were
walking and riding their bicycles, and
increased traffic would endanger the health
and safety of the children.
We note that Ms. Gay based her testimony about
the adverse effects of the proposed
subdivision on traffic congestion and safety
upon her personal knowledge and observations.
Thus, unlike Gregory, Sun Suites, and
Woodhouse, cited above, we conclude that Ms.
Gay's concerns were valid and not the result
of speculative assertions, mere expression of
opinion, or her generalized fears.
Id. at 246-47, 558 S.E.2d 227-28.
Several of the witnesses who testified in opposition to
Cumulus's application for a conditional use permit are involved in
aerial activities in the area (pilots, airstrip owners). Under
Howard, their testimony might not be considered speculativeassertions, mere expressions of opinion, or . . . generalized
The facts in Howard are distinguishable from the facts at bar.
In Howard, an expert testified on the potential traffic impact if
the conditional use permit was granted. Id. This expert testimony
quantitatively supported the health and safety concerns based upon
the personal knowledge of Ms. Gay and upon which the City relied in
denying Cumulus's application for a conditional use permit. Id.
Here, the testimony in opposition to the granting of the
conditional use permit was from witnesses relying solely upon their
personal knowledge and observations. No witnesses rebutted
Cumulus's quantitative data and other evidence in support of the
conditional use permit.
The trial court's finding of fact that the evidence presented
to the Commission to rebut Cumulus's prima facie entitlement to the
permit was anecdotal, conclusory, and without a demonstrated
factual basis is supported by the lack of material and factual
evidence in the whole record to overcome Cumulus's prima facie
entitlement to the permit.
The trial court conducted the proper review of the
Commission's decision and did not err by concluding Cumulus was
entitled to a conditional use permit. The evidence presented in
opposition did not rebut Cumulus's prima facie showing. This
assignment of error is overruled.
V. Conclusions of Law Numbered 1 and 2
The Commission contends the trial court erred in forming its
conclusion of law numbered 1 and 2 by reviewing the facts
inappropriately and making conclusions of law that are not
supported by evidence in the record or by the court's findings of
fact. The Commission argues the trial court employed the wrong
factual analysis in reaching subpart b and c of conclusion of law
numbered 1. The Commission also argues the trial court erred by
employing a de novo approach in reaching conclusion of law numbered
2 that Cumulus has satisfied its burden and has made a prima facie
case that it is entitled to a conditional use permit.
This argument is a reiteration of the Commission's argument
above that the trial court applied an improper standard of review
to the Commission's decision. For the reasons stated above, these
assignments of error are overruled.
VI. Remanding with a Mandate to Issue a Conditional Use Permit
 The Commission contends the trial court erred by remanding
this matter to the Commission with a mandate for the Commission to
approve and issue Cumulus a conditional use permit. The Commission
argues the common remedy would be to remand the matter back to
[the Commission] for more detailed findings of fact and conclusions
of law. We disagree.
This Court has regularly upheld trial court rulings that
remanded a case to the town or county commission for issuance of a
conditional use permit. See In re Application of Ellis, 277 N.C.
419, 426, 178 S.E.2d 77, 81 (1970) (The judgment . . . is
reversed, and the cause is remanded to the Superior Court for entryof judgment directing the commissioners to issue the
special-exception permit for which appellants applied.); Humane
Soc'y of Moore Cty., Inc., 161 N.C. App. at 633, 589 S.E.2d at 167
(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); Sun Suites Holdings,
LLC v. Board of Aldermen of Town of Garner, 139 N.C. App. 269, 280,
533 S.E.2d 525, 532 ([R]emand to the Board with direction to issue
the requested conditional use permit to petitioners.), disc. rev.
denied, 353 N.C. 280, 546 S.E.2d 397 (2000). The Commission failed
to offer any controlling authority to support its contention. This
assignment of error is overruled.
The trial court applied the proper standard of review to the
Commission's decision. The trial court did not err in finding
insufficient material and factual evidence in the whole record to
rebut Cumulus's prima facie
entitlement to the permit or to support
the Commission's decision. The trial court did not err by
remanding this matter to the Commission with a mandate to approve
and issue Cumulus a conditional use permit. The superior court's
order is affirmed.
Judges BRYANT and LEVINSON concur.
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