Appeals by respondent Union County Zoning Board of Adjustment
(BOA) and intervenor respondents Wal-Mart Stores East, Inc. and
Wal-Mart Real Estate Business Trust (Wal-Mart) from a final order
entered 25 April 2006 by Judge Christopher M. Collier in Union
County Superior Court, vacating the issuance of a special use
permit, and from an interlocutory order entered 26 April 2005
denying respondent's and intervenor respondents' motions to dismiss
the petitioners' petition for writ of certiorari to the superior
court. Heard in the Court of Appeals 28 March 2007.
Parker, Poe, Adams & Bernstein, LLP, by Benjamin R. Sullivan
and Brenton W. McConkey for Petitioner-Appellees Cook, Frank,
Hendry, Murphy, Nesbit & Rubottom.
Shumaker, Loop & Kendrick, LLP, by William H. Sturges for
Petitioner-Appellee, Union County.
John T. Burns for Respondent-Appellant, Union County Zoning
Board of Adjustment.
Guthrie, Davis, Henderson & Staton, PLLC, by John H. Hasty,
Kimberly R. Matthews, and Justin N. Davis for
Troutman Sanders, LLP, by Ashley H. Story for
The dispositive issues in this case are whether petitioners
had standing to appeal to superior court the grant of a special use
permit to respondent-intervenor, and whether petitioners were
denied due process in the proceedings by which respondent-
intervernors' application for a special use permit was granted. We
hold that petitioners had standing to appeal, and that they were
denied due process in the proceedings. Accordingly, we affirm thetrial court order vacating the issuance of the special use permit
Wal-Mart submitted an application for a special use permit
(original application) to the BOA on 1 March 2004, seeking to
construct a 206,242 square foot retail sales establishment (store)
at the corner of Rea Road extension and Tom Short Road on an
approximately 31 acre tract of land (tract) in Union County. This
tract is located within the Somerset Planned Unit Development
(PUD). Individual petitioners Cook, Frank, Hendry, Nesbit, and
Rubottom (Somerset citizens)
(See footnote 1)
are all landowners whose land adjoins
or abuts the store tract. The BOA held a hearing regarding the
application, starting on 20 July 2004, with additional sessions on
21 and 22 July, 30 August, 1 September, 4 October, 18 October, and
8 November 2004.
(See footnote 2)
Presentation of formal testimony by all parties
was completed at the 1 September 2004 hearing. The BOA voted on 1
September 2004 to approve the application, subject to many changes
which were discussed during the hearing, and required that Wal-Mart
present a revised site plan, at which time the BOA would give its
final decision on the issuance of the special use permit.
On 4 October and again with further amendments on 8 November
2004, Wal-Mart submitted a revised site plan (revised application)containing in excess of twenty changes to the project as set forth
on the original application. The changes included moving and
reorienting the store building to the other side of the tract,
reconfiguration of the traffic patterns of the store entrance,
addition of a drive-through for the store pharmacy, change of the
location of the retention pond, changes to the parking lots, a new
lighting plan, new elevations, and a new landscaping plan. On 5
January 2005, the BOA filed its findings of fact, conclusions, and
decision regarding the revised application. The Special Use Permit
(SUP), issued on 6 January 2005, noted that the revised application
was approved on 8 November 2004. Petitioners filed a verified
petition for writ of certiorari on 3 February 2005 with the
superior court. On 15 March 2005, the superior court granted
Wal-Mart's motion to intervene. On 26 April 2005, the superior
court denied Wal-Mart's motions to dismiss the petition for
certiorari and granted petitioners' motion to amend the petition.
The amended petition, filed 28 June 2005, alleged that the BOA
erred by issuing the special use permit based upon the revised
application including exhibits which were created after the
evidentiary hearing ended on 1 September 2004. Specifically,
petitioners asserted that the BOA: (1) committed an error of law in
that no evidence was heard on the revised application; (2) failed
to follow the statutes, common law, and land use ordinance; (3)
violated the due process rights of petitioners to offer evidence,
cross-examine witnesses, and inspect documents regarding the
revised application; (4) did not have competent, material, and
substantial evidence in the record to support approval of therevised application; and (5) arbitrarily and capriciously granted
the special use permit.
The superior court held a hearing on the petition on 3 March
2006. On 25 April 2006, the superior court vacated the special use
permit because: (1) after reviewing the whole record, it concluded
that the decision of the BOA was arbitrary, not being supported by
competent, material, and substantial evidence; and (2) on de novo
review, it concluded that the BOA violated the due process rights
of petitioners. Wal-Mart and the BOA appeal.
Respondents Wal-mart and the BOA argue that the superior court
erred in vacating the special use permit. Specifically, they argue
that: (1) petitioners lacked standing to appeal the decision of the
BOA; (2) petitioners waived all objections to the BOA's
post-decision consideration (i.e., after 1 September 2004) of
permit conditions and therefore did not preserve any right to
appellate review; (3) petitioners received due process sufficient
to fairly present their petition to the BOA; (4) the BOA's decision
was based on sufficient, material, and substantial evidence; and
(5) petitioners failed to preserve for appellate review the issues
addressed in their cross-assignments of error.
III. Standards of Review
Each of the three levels _ the board of adjustment, the
superior court, and this Court _ has a particular standard of
review. First, the board of adjustment sits as the finder of fact
in its consideration of the application for a special use permit.
Mann Media, Inc. v. Randolph Cty. Planning Bd.
, 356 N.C. 1, 12, 565S.E.2d 9, 17 (2002). As finder of fact, a board of adjustment is
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.
The board of adjustment planning board
sits in a quasi-judicial capacity when
determining whether to grant or deny a special
use permit and must insure that an applicant
is afforded a right to cross-examine
witnesses, is given a right to present
evidence, is provided a right to inspect
documentary evidence presented against him and
is afforded all the procedural steps set out
in the pertinent ordinance or statute. Any
decision of the town board has to be based on
competent, material, and substantial evidence
that is introduced at a public hearing.
, 565 S.E.2d at 16-17 (internal citations and quotations
omitted). A board of adjustment'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.
, 565 S.E.2d at 17 (citation and
At the second level, upon appeal from a board of adjustment
decision by petition for certiorari, the superior court acts as a
court of appellate review. Id
. at 12, 565 S.E.2d at 17. The
superior court's task is: (1) Reviewing the record for errors in law,
(2) Insuring that procedures specified by law
in both statute and ordinance are followed,
(3) Insuring that the appropriate due process
rights of the petitioner are protected,
including the right to offer evidence,
cross-examine witnesses and inspect documents,
(4) Insuring that decisions of . . . boards
[of adjustment] are supported by competent,
material and substantial evidence in the whole
(5) Insuring that decisions are not arbitrary
. at 13, 565 S.E.2d at 17 (citation omitted).
The type of error assigned determines the standard of review
applied by the superior court. If the error assigned is that a
board's decision is not supported by the evidence or is arbitrary
and capricious, the superior court must apply the whole record
On the other hand, de novo review is appropriate if a
petitioner contends the board's decision was based on an error of
, including a contention that the board's proceedings
failed to protect the due process rights of a party, see Piedmont
Triad Reg'l Water Auth. v. Sumner Hills, Inc.
, 353 N.C. 343, 348,
543 S.E.2d 844, 848 (2001).
These two standards of review are distinguished from each
other as follows:
Under a de novo
review, the superior court
considers the matter anew and freely
substitutes its own judgment for the [board's]
judgment. When utilizing the whole record
test, however, the reviewing court must
examine all competent evidence (the whole
record) in order to determine whether the
[board's] decision is supported by
substantial evidence. The whole recordtest does not allow the reviewing court to
replace the board's judgment as between two
reasonably conflicting views, even though the
court could justifiably have reached a
different result had the matter been before it
356 N.C. at 13-14, 565 S.E.2d at 17-18 (internal citations and
quotations omitted). Finally, the superior court must set forth
sufficient information in its order to reveal the scope of review
utilized and the application of that review. 356 N.C. at 13, 565
S.E.2d at 17 (citation omitted).
When this Court reviews a superior court's order which
reviewed a zoning board's decision, we examine the order to: (1)
determin[e] whether the [superior] court exercised the appropriate
scope of review and, if appropriate, (2) decid[e] whether the court
did so properly. ACT-UP Triangle v. Commission for Health
, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (citation
and quotations omitted).
'Standing typically refers to the question of whether a
particular litigant is a proper party to assert a legal position.'
Higgins v. Simmons
, 324 N.C. 100, 103, 376 S.E.2d 449, 452 (1989)
(quoting State v. Labor and Indus. Review Comm'n
, 136 Wis. 2d 281,
287 n.2, 401 N.W.2d 585, 588 n.2 (1987)). Standing is a necessary
prerequisite to a court's proper exercise of subject matter
jurisdiction. Aubin v. Susi
, 149 N.C. App. 320, 324, 560 S.E.2d
875, 878, disc. review denied
, 356 N.C. 610, 574 S.E.2d 474 (2002).
Standing is a question of law which this Court reviews de novo.
Neuse River Found., Inc. v. Smithfield Foods, Inc.,
155 N.C. App.110, 114, 574 S.E.2d 48, 51 (2002), disc. review denied
, 356 N.C.
675, 577 S.E.2d 628 (2003).
A. Union County
 Respondents contend that Union County did not have
standing to appeal to the superior court because the County is not
an aggrieved person on the facts of this case. Respondents
further argue that because the Union County Zoning Board of
Adjustment is a creation of and an agent of Union County, Union
County has no standing to appeal decisions of the Union County BOA
as a matter of law.
The statute which governs standing to appeal decisions
pursuant to a county zoning ordinance is N.C. Gen. Stat. § 153A-345
(See footnote 3)
which provides, in pertinent part, that
(b) The board of adjustment shall hear and
decide appeals from and review any order,
requirement, decision, or determination made
by an administrative official charged with
enforcing [a zoning] ordinance. Any person
aggrieved or any officer, department, board,
or bureau of the county may take an appeal.
. . .
(c) The zoning ordinance may provide that the
board of adjustment may permit special
exceptions to the zoning regulations in
classes of cases or situations and in
accordance with the principles, conditions,
safeguards, and procedures specified in the
. . .
(e) Each decision of the board is subject to
review by the superior court by proceedings in
the nature of certiorari.
Subsection (b) of the statute, dealing with appeals to a board
of adjustment from the ruling of an administrative official,
enumerates the parties who may appeal to a board of adjustment, and
this includes any person aggrieved or any officer, department,
board, or bureau of the county. [Emphasis added.] Thus, a
county, in a category distinct from a person aggrieved, could
appeal a ruling by an administrative official of the county to a
board of adjustment.
Further, subsection (c) deals with a board's power to issue
special use permits, in accordance with the principles,
conditions, safeguards, and procedures specified in the ordinance.
Then, subsection (e) provides that [e]ach decision of the board is
subject to review by the superior court by certiorari. The
statute contains no limitation on the parties who may seek
certiorari, and it provides that [e]ach decision of a board of
adjustment is subject to this review. This would necessarily
include review of a board of adjustment decisions under subsection
(b), which specifically identifies any officer, department, board,
or bureau of the county as potential parties. Therefore under
N.C. Gen. Stat. § 153A-345, Union County may seek review by
certiorari of a decision by its BOA, particularly where the County
claims, as here, that the BOA has failed to act in accordance with
. . . procedures specified in the ordinance in the issuance of aspecial use permit. N.C. Gen. Stat. § 153A-345(c) (emphasis
This interpretation of the statute is consistent with Mize v.
County of Mecklenburg, 80 N.C. App. 279, 341 S.E.2d 767 (1986),
which held that the zoning board of adjustment was a necessary
party respondent to a petition filed pursuant to N.C. Gen. Stat. §
153A-345(e) even though the County was already a party to the
certiorari petition. In Mize, the appellant argued that the County
was the only necessary party . . . because the Board of Adjustment
has only that authority which has been delegated to it by [the]
County and is therefore an agent of [the] County. Id. at 282, 341
S.E.2d at 769. However, the Mize court noted that
the Board of Adjustment is an independent,
quasi-judicial body whose decisions cannot be
reviewed or reversed by the Board of
Commissioners or the town manager, [and] that
instances may arise where the position of the
Board of Adjustment and the County . . . may
be adverse. The focus of the review under
G.S. § 153A-345(e) is on the decision of the
Zoning Board of Adjustment. While the County
delegates to the Board the authority to hear
appeals of zoning cases, once the delegation
has occurred the County has no power to
influence the decisions of the Board.
Mize, 80 N.C. App. at 282-83, 341 S.E.2d at 769 (emphasis added)
(internal citation omitted).
We conclude that petitioner Union County did not need to show
that it is an aggrieved person to have standing to appeal.
Further, respondents cite no statute or case on point prohibiting
a county from appealing a decision by its own board of adjustment.
To the contrary, the statute setting forth the powers and duties of
a board of adjustment indicates that such an appeal is permitted.Accordingly, we hold that Union County was a proper party to appeal
the BOA's decision to the superior court.
B. Somerset citizens
 Respondents further contend that the Somerset citizens
lacked standing to appeal to the superior court to vacate the
issuance of the special use permit. Specifically, respondents
argue that the record does not contain sufficient facts to
establish that the Somerset citizens are persons aggrieved.
[A]ny person aggrieved has standing to appeal the decision
of a board of adjustment pursuant to N.C. Gen. Stat. § 153A-345(b)
(2003). See Lloyd v. Town of Chapel Hill, 127 N.C. App. 347, 350,
489 S.E.2d 898, 900 (1997) (applying N.C. Gen. Stat. § 160A-388,
the parallel statute governing city zoning boards). A person
aggrieved must show either some interest in the property
affected, or, if plaintiffs are nearby property owners, they must
show special damage which amounts to a reduction in the value of
[their] property. Heery v. Zoning Board of Adjustment, 61 N.C.
App. 612, 613, 300 S.E.2d 869, 870 (1983) (internal citations and
The evidence in the record shows that the Somerset citizens
have suffered special damages to their properties which are unique
in character and quantity and distinct from those inflicted upon
the community at large, including a reduction in the values of
C. As to all petitioners  Respondents further contend that petitioners lack standing
because neither the Somerset citizens nor Union County ever made a
motion before the BOA or the superior court to intervene as parties
to the action. Respondents assert that [o]ne cannot simply walk
into a public hearing, make a statement for the record and then
appeal the agency's ruling without moving to be made a party to the
proceedings, and cite Duke Power Co. v. Board of Adjustment, 20
N.C. App. 730, 202 S.E.2d 607, cert. denied, 285 N.C. 235, 204
S.E.2d 22 (1974), in support. However, Duke Power is not apposite
to the case sub judice. In Duke Power, the property owners, who
made no motion to become parties in the superior court proceedings,
sought to appeal the ruling of the superior court to this Court.
Id. at 732, 202 S.E.2d at 608. The issue in Duke Power was thus the
right of the property owners to appeal to this Court from a
superior court order when they were not parties to the superior
In the instant case, both Union County and the Somerset
citizens were petitioners before the superior court. Union County
and the Somerset citizens were represented by counsel and
participated fully in all eight sessions of the public hearing
before the BOA as well as the superior court proceedings.
Respondents have not identified, nor can we find, any ordinance or
statute which would indicate any additional procedural step that
petitioners could have taken to gain status as parties in this
We hold that the trial court did not err in denying the motion
to dismiss on the basis of standing, as Union County and theSomerset citizens had the right to file a petition for certiorari
pursuant to N.C. Gen. Stat. § 153A-345(e). This assignment of
error is therefore overruled.
(See footnote 4)
V. Waiver of Objections
 Respondents next contend that petitioners waived all
objections to the BOA's post-decision consideration of the
conditions to be attached to the special use permit. Respondents
rely solely upon N.C.R. App. P. 10(b), which requires a party to
present a timely request, objection, or motion in order to
preserve a question for appellate review. N.C.R. App. P. 10(b).
N.C.R. App. P. 1 sets forth the scope of the Rules of
Appellate Procedure as follows:
(a) Scope of Rules. These rules govern
procedure in all appeals from the courts of
the trial division to the courts of the
appellate division; in appeals in civil and
criminal cases from the Court of Appeals to
the Supreme Court; in direct appeals from
administrative agencies, boards, and
commissions to the appellate division; and in
applications to the courts of the appellate
division for writs and other relief which the
courts or judges thereof are empowered to
. . .
(c) Definition of Trial Tribunal. As used in
these rules, the term trial tribunal
includes the superior courts, the district
courts, and any administrative agencies,
boards, or commissions from which appeals lie
directly to the appellate division.
The Rules of Appellate Procedure do not apply to appeals by
certiorari to the superior court from a hearing before a county
board of adjustment, as there is no direct right of appeal from a
board of adjustment to the appellate division. A board of
adjustment is not a trial tribunal as defined by N.C.R. App. P.
1(c). Appeals from a board of adjustment are to the superior
court, by certiorari. N.C. Gen. Stat. § 153A-345(e).
As discussed more fully below, the BOA was required to follow
its own rules of procedure, because the procedural rules of an
administrative agency are binding upon the agency which enacts them
as well as upon the public. To be valid the action of the agency
must conform to its rules which are in effect at the time the
action is taken. Robins v. Town of Hillsborough
, 361 N.C. 193,
198, 639 S.E.2d 421, 424 (2007) (internal citations and quotations
omitted). Respondents do not cite any relevant authority, nor do
we find any, for the proposition that a formal objection needs to
be made when a county board of adjustment fails to follow its own
rules of procedure. We decline to make this rule. This assignment
of error is without merit.
VI. Procedure for Approval of Revised Application
 Respondents next argue that the superior court erred when
it vacated Wal-Mart's special use permit based upon the superior
court's finding that the board of adjustment had denied the
original application and was thus barred from further consideration
of the revised application. Respondents further contend that the
changes to the original application as required by the BOA werejust additional requirements under Section 59(a)
(See footnote 5)
amendments or modifications which substantially changed the
original application, so that the BOA proceedings after the 1
September 2004 meeting at which the first approval occurred were
post-decision or administrative proceedings which did not require
an additional evidentiary hearing. Because these arguments are
concerned with the protection of procedural due process rights,
this Court reviews them de novo.
Respondents cite In re Application of Raynor
, 94 N.C. App.
173, 379 S.E.2d 884, disc. review denied and appeal dismissed
, 325N.C. 546, 385 S.E.2d 495 (1989), as establishing that adjoining
land owners do not have a right to present evidence during the
post-decision administrative process. In fact, Raynor
deal with a post-decision administrative process at all. In
, there was a public hearing session at which individuals who
were opposed to issuance of the conditional use permit were present
and permitted to present evidence, but the board made no decision
regarding the permit. Id.
at 174, 379 S.E.2d at 885. At a
regularly scheduled meeting of the Board of Aldermen when the
petitioners were not present, the permit applicant offered to add
two additional minor conditions to his application to address
concerns raised during the public hearing. Id.
At a later
meeting, the board voted to approve the permit. The Raynor
held that the addition of the two conditions was not an
introduction of evidence which would give opposing property
owners a right to cross-examination and to present their own
rebuttal evidence, because the two conditions were very minor
changes which actually favored the opposing property owners. Id.
at 177-78, 379 S.E.2d at 887.
Although a board of adjustment is a quasi-judicial body which
is not bound by formal rules of evidence or civil procedure, when
it conducts a quasi-judicial hearing to determine facts
prerequisite to issuance of a permit, [its procedures] can dispense
with no essential element of a fair trial. Raynor
, 94 N.C. App.
at 176, 379 S.E.2d at 886 (citation omitted). One essential
element of a fair trial is that a party whose rights are being
determined [is entitled to] the opportunity to cross-examineadverse witnesses and to offer evidence in support of his position
and in rebuttal of his opponents' contentions. Id.
at 177, 379
S.E.2d at 887. Furthermore, a board of adjustment is required to
follow the procedures set forth in its ordinances. Robins
N.C. at 198-99, 639 S.E.2d at 424; Refining Co. v. Board of
, 284 N.C. 458, 471, 202 S.E.2d 129, 138 (1974).
Section 101(b) of the Union County zoning ordinance provides
that all persons interested in the application shall be given an
opportunity to present evidence and arguments and ask questions of
persons who testify. Under Section 101(c), the BOA may place
reasonable and equitable limitations on the presentation of
evidence and arguments and the cross-examination of witnesses so
that the matter at issue may be heard and decided without undue
delay. On their face, these procedures comport with N.C. Gen.
Stat. § 153A-345 and our case law.
At the hearing sessions prior to 4 October 2004, petitioners'
witnesses presented many hours of detailed testimony based on the
original site plan, addressing concerns such as the proximity of
the store's loading dock to homes, traffic patterns, and many other
issues based specifically on the original site plan. However, even
though the decision was not final, at the start of the 4 October
(See footnote 6)
the Chairman disallowed any further evidence from
petitioners by announcing that [n]o additional testimony will be taken on any
issues that were raised by the parties during
the public hearing prior to the Board's
decision to grant the special use permit on
September 1st, 2004. While the Board may feel
it necessary to ask for comment on specific
aspects of the amended site plan from Union
County and the public at large, general
testimony and comment regarding the compliance
of the amended site plan with the Board's
September 1st, 2004, ruling will not be
At the 4 October 2004 session, Wal-Mart presented a revised
site plan which was substantially different from the original site
plan, as the revised plan completely reoriented the building,
parking lot, retention pond, and changed the traffic patterns for
the proposed Wal-Mart store. At the 8 November session, Wal-Mart
presented another site plan with more revisions. Although Wal-Mart
did not present any additional formal testimony, the BOA allowed
Wal-Mart's counsel to explain the revised site plan and answer the
BOA's questions regarding the revised plans at the 4 October and 8
November 2004 sessions of the hearing.
Wal-Mart contends that no further evidence from petitioners
was necessary because the revised site plan which was submitted on
8 November 2004 adequately addressed the concerns raised by the
Somerset citizens, Union County, and the BOA in the previous
hearing sessions. Petitioners, however, contend that the revised
site plan actually raised new concerns based upon the relocation of
the building, as the relocated building would not shield the
adjacent residences from the parking lot and traffic. Petitioners
also note that there were no sound studies for the new
configuration of the site and that the back of the building wouldbe very close to Rea Road, which impacts the Hunter Oaks PUD and
properties on the other side of Rea Road. There was no analysis of
the revised application by the Union County Land Use Administrator
as required by Section 56 of the Union County zoning ordinance, and
no evidence, expert review, or cross-examination regarding these
issues or others raised by the revised application.
However, the revised site plan and explanation of that site
plan were in fact crucial to the BOA's decision, as the BOA based
its findings and conclusions in large part upon the revised site
plan and upon the information adduced at the 4 October and 8
November sessions of the hearing. By not allowing additional
testimony or evidence from petitioners, the BOA essentially cut off
the rights of the Somerset citizens and the County under Section
101(b) to present evidence or conduct cross-examination as of 1
September 2004, while continuing to hold sessions of the hearing
and permitting Wal-mart to present evidence.
Terminating the rights of the petitioners to present evidence
and cross-examine on 4 October 2004 was not justified under Section
101(c) as a reasonable and equitable limitation on the
presentation of evidence. The evidence which petitioners would
have sought to present based on the revised site plan would not
have been cumulative or redundant, as it would be based on a
substantively different revised site plan. Furthermore, after
receiving Wal-Mart's revised site plan as an exhibit, the BOA did
vote again, on 8 November 2004, to approve the revised application.
As a consequence of the above, we hold that petitioners were denieddue process rights to present evidence before the BOA before it
made its decision to grant Wal-Mart's special use permit.
Because we find that the BOA did not afford due process to the
petitioners due to its failure to comply with Section 101 of the
Union County zoning ordinance, we do not find it necessary to
determine if the revised application was really a new application
which would be governed by Section 65, or if the revised
application as approved by the BOA was properly considered as an
application with conditions pursuant to Section 59(a). We also do
not find it necessary to address Wal-Mart's argument that the
superior court erred by its failure to find facts supporting its
decision that the BOA's issuance of the special use permit was not
supported by competent, material, and substantial evidence.
The superior court did not err when it found that petitioners
had standing to appeal the BOA's decision to superior court.
Further, the superior court did not err when it concluded that
petitioners were denied due process by the BOA's failure to comply
with hearing procedures as set forth in Section 101 of the Union
County zoning ordinance. The superior court therefore did not err
in vacating the special use permit, and we affirm the order of the
Judges McCULLOUGH and ELMORE concur.