ALLTEL COMMUNICATIONS, INC.,
and H&T PROPERTIES, INC.,
No. 06 CVS 593
Smith Moore LLP, by Thomas E. Terrell, Jr., for Petitioners-
Robert C. Hedrick for Respondent-Appellee.
Alltel Communications, Inc. (Alltel) applied to the Davidson County Board of Commissioners (the BOC) on 24 October 2005 for a special use permit to construct a 160 foot wireless telecommunication tower and facility (the proposed tower). Alltel sought to construct the proposed tower on an 0.86 acre tract of land (the tract) located in the Highway Commercial zoning district (HC) and owned by H&T Properties, Inc. The tract is abutted by two properties located in a Rural Agricultural zoning district (RA-1). Davidson County's (the County) zoning ordinance (the ordinance) states that wireless communication towers in non-residential zoningdistricts
must meet required setbacks in Article 4, Table of Area, Height, and Placement Regulation, Non-Residential Development Pg. 17B of the Davidson County Zoning Ordinance unless deviation in height limits is requested.
The table in Article 4 of the ordinance establishes the following setbacks for a structure which does not exceed 35 feet in height: 50 feet from the front property line, 0 feet from the side property lines, and 20 feet from the rear property line. The setbacks increase by an additional foot for each two feet, or fraction thereof, by which the height of a proposed tower exceeds 35 feet. The BOC held a public hearing on Alltel's application on 6 February 2006. At the public hearing, Alltel amended its request and decreased the height of the proposed tower to 156 feet and 11 inches. Therefore, the applicable setbacks for the proposed tower would be 111 feet from the front property line, 61 feet from the side property lines, and 81 feet from the rear property line. To reflect the decreased height of the proposed tower, Alltel amended its deviation request to 39 feet and 6.5 inches from the east property line, 21 feet and 11.5 inches from the west property line, and 62 feet and 9.5 inches from the rear property line.
Robert Koontz and Maxine Yarborough owned residential property adjoining the tract and opposed Alltel's application at the hearing. Robert Koontz testified that his house was located 189 feet from the proposed tower location. Steven Yarborough, son of Maxine Yarborough, also testified that the shed in which Maxine Yarborough parked her car was within 120 feet of the proposedtower.
Pursuant to the ordinance, an applicant must satisfy the following criteria in order to receive a special use permit:
(1) The use will promote the public health, safety and general welfare, if located where proposed and developed and operated according to the plan as submitted;
(2) The use, which is listed as a Special Use in the district in which it is proposed to be located, complies with all required regulations and standards of this ordinance including the Area, Height, Bulk and Placement regulations (Article 4), unless greater or different regulations are contained in the individual standards for that special use;
(3) That the use will maintain or enhance the value of contiguous property, or that the use is a public necessity;
(4) That the use is in compliance with the general plans for the physical development of the county as embodied in these regulations.
An applicant is responsible for producing evidence as to each standard to support an application.
The BOC unanimously denied Alltel's application. The BOC found that Alltel met the third and fourth requirements set out in the ordinance. However, the BOC found that Alltel did not meet the first and second requirements. As to the first requirement, the BOC found "[t]he requested deviations from required setbacks are the largest deviations ever requested by an applicant since the new special use permit was created in 1998 for wireless telecommunications towers and facilities." The BOC found that the proximity of the tower to adjoining property lines created "an unsafe environment for the occupied residences closest to the towerbase." The BOC also found that if it granted Alltel's deviation request, it would set a precedent for special use permits which would "go against the [ordinance's] intent of providing substantial separation between residential uses and towers."
As to the second requirement, the BOC found that the proposed tower would not satisfy the required setbacks. Further, the BOC found that "[t]he requested setback deviations result in the tower being placed too close to the property lines. The property is too small for the proposed use as a cell tower site."
Alltel and H&T Properties, Inc. (collectively Petitioners) filed a complaint and petition for writ of certiorari with the Superior Court, Davidson County on 16 February 2006. Petitioners filed a motion for summary judgment on 21 March 2006, and the County filed a cross-motion for summary judgment on 30 March 2006. Further, the parties stipulated that the proposed tower would be located 39 feet from the corner west of the tower, 18 feet and 2 inches from the property line north of the tower, and 21 feet and 5 inches from the property line northeast of the tower. The Superior Court granted the County's motion on 11 July 2006 and affirmed the BOC's decision. In its judgment, the Superior Court overruled the BOC's finding that Alltel failed to satisfy the first requirement for a special use permit, but upheld the BOC's finding as to Alltel's failure to meet the second requirement. Petitioners appeal.
When determining whether to grant or deny a special use permit, a county board sits in a quasi-judicial capacity. MannMedia, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 12, 565 S.E.2d 9, 16 (2002). In this capacity, a county board of commissioners acts as a finder of fact, and "a reviewing superior court 'sits in the posture of an appellate court' and 'does not review the sufficiency of evidence presented to it but reviews that evidence presented to the  board.'" Id. at 12, 565 S.E.2d at 17 (quoting Concrete Co. v. Board of Commissioners, 299 N.C. 620, 626-27, 265 S.E.2d 379, 383, reh'g denied, 300 N.C. 562, 270 S.E.2d 106 (1980)). "When the petitioner 'questions (1) whether the [board's] decision was supported by the evidence or (2) whether the decision was arbitrary or capricious, then the reviewing court must apply the 'whole record' test.'" ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting In re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993)). Under the whole record test, a reviewing court should "'examine all competent evidence . . . in order to determine whether the [board's] decision is supported by substantial evidence.'" Id. (quoting Amanini v. N.C. Dep't of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 188 (1994)). This test
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 de novo. . . . Finally, when an appellate court reviews 'a superior court order regarding an agency decision, the appellate court examines the trial court's order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and,if appropriate, (2) deciding whether the court did so properly.'
Mann Media, 356 N.C. at 14, 565 S.E.2d at 17-18 (quoting ACT-UP Triangle, 345 N.C. at 706, 483 S.E.2d at 392).
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