BOA affirms findings in Templeton case
by Anna Oakes
In a case that has twice reached the N.C. Court of Appeals and
been returned to the local board because of procedural errors, the Boone Board of Adjustment on
Thursday again adopted findings of fact in its 2007 denial of a special use permit for a medical
clinic.
In 2009, the state appellate court ordered the BOA to adopt findings of fact supporting its decision to deny the SUP for a medical clinic at 315 State Farm Road to Templeton Properties, but in March of this year, the Court of Appeals ruled that the BOA errantly accepted new testimony at a 2010 meeting in which it adopted the findings.
“This court made no instruction to the board to gather additional evidence,” the Court of Appeals opinion stated. “The reviewable findings of fact were to be based on the evidence presented at the 5 April and 1 May 2007 hearings and to support the board’s decision to deny petitioner’s application.”
On Thursday, the BOA voted unanimously to adopt the same 37 findings of fact in denying the SUP application but to amend the preamble for the findings, stating, “Therefore, based solely on the testimony and other evidence from the April 5, 2007, and May 1, 2007 hearing, the board finds the following facts.”
“I find that the proposed findings of fact are accurate, and I’m ready to endorse them,” said BOA member Fred Hay.
“I agree. (The problem) was just the process we used to get to the adoption of the findings of fact,” said BOA Chairman Rich Crepeau.
Attorneys for Templeton submitted their own findings of fact for the board’s consideration, but the BOA voted not to accept them, concluding that doing so could constitute the reception of additional testimony.
Speaking in March, Phil Templeton’s attorney Tony di Santi said it would be up to his client to decide whether to again appeal the BOA’s decision, “but I fully expect that he would.”
A public records request by Watauga Democrat revealed that the town of Boone as of April had paid more than $132,000 to law firm Parker Poe since 2008 for its representation of the town in the case.
HISTORY OF THE CASE:
• May 2007: The Boone Board of Adjustment votes 3 to 5 on a motion to issue Templeton Properties a special use permit for a medical clinic at 315 State Farm Road between State Farm Road and VFW Drive in Boone. Opposing board members stated the development was not in harmony with the adjacent neighborhood and incompatible with the town’s Comprehensive Plan, and they cited safety concerns related to traffic congestion.
• May 2007: Templeton appealed to the Superior Court.
• July 2008: The Watauga County Superior Court reversed the BOA’s decision and ordered the board to issue the SUP. Judge Ronald K. Payne ruled that the BOA’s denial of the permit denied the applicant’s due process rights, made errors in law and made an “arbitrary and capricious” decision not based on the evidence. The town of Boone appealed to the state Court of Appeals.
• July 2009: The Court of Appeals remanded the case to the Superior Court with instructions to remand to the BOA for reviewable findings of fact, stating the BOA did not indicate the findings of fact supporting its decision to deny the permit. The court said the Superior Court erred in its de novo review of the case by making its own findings of fact instead of remanding to the BOA.
• September 2010: The BOA adopted findings of fact in the May 2007 decision. After hearing statements by Templeton’s attorneys as well as Town of Boone attorney Sam Furgiuele, the BOA again heard comments in opposition to the clinic from residents of the VFW Drive neighborhood, including Boone Mayor Loretta Clawson.
• October 2010: Templeton appealed to the Superior Court
• February 2011: The Superior Court affirmed the BOA’s decision.
• March 2011: Templeton appealed the case to the Court of Appeals.
• March 2012: The Court of Appeals concluded that the BOA erred in accepting new testimony from VFW Drive residents at the September 2010 hearing and, in turn, by not affording Templeton a second chance to present evidence. The court again remanded to the Superior Court for remand to the BOA for findings of fact.
• October 2012: The BOA adopts the same findings of fact as in 2010, stating the findings are based on the 2007 hearings.
In 2009, the state appellate court ordered the BOA to adopt findings of fact supporting its decision to deny the SUP for a medical clinic at 315 State Farm Road to Templeton Properties, but in March of this year, the Court of Appeals ruled that the BOA errantly accepted new testimony at a 2010 meeting in which it adopted the findings.
“This court made no instruction to the board to gather additional evidence,” the Court of Appeals opinion stated. “The reviewable findings of fact were to be based on the evidence presented at the 5 April and 1 May 2007 hearings and to support the board’s decision to deny petitioner’s application.”
On Thursday, the BOA voted unanimously to adopt the same 37 findings of fact in denying the SUP application but to amend the preamble for the findings, stating, “Therefore, based solely on the testimony and other evidence from the April 5, 2007, and May 1, 2007 hearing, the board finds the following facts.”
“I find that the proposed findings of fact are accurate, and I’m ready to endorse them,” said BOA member Fred Hay.
“I agree. (The problem) was just the process we used to get to the adoption of the findings of fact,” said BOA Chairman Rich Crepeau.
Attorneys for Templeton submitted their own findings of fact for the board’s consideration, but the BOA voted not to accept them, concluding that doing so could constitute the reception of additional testimony.
Speaking in March, Phil Templeton’s attorney Tony di Santi said it would be up to his client to decide whether to again appeal the BOA’s decision, “but I fully expect that he would.”
A public records request by Watauga Democrat revealed that the town of Boone as of April had paid more than $132,000 to law firm Parker Poe since 2008 for its representation of the town in the case.
HISTORY OF THE CASE:
• May 2007: The Boone Board of Adjustment votes 3 to 5 on a motion to issue Templeton Properties a special use permit for a medical clinic at 315 State Farm Road between State Farm Road and VFW Drive in Boone. Opposing board members stated the development was not in harmony with the adjacent neighborhood and incompatible with the town’s Comprehensive Plan, and they cited safety concerns related to traffic congestion.
• May 2007: Templeton appealed to the Superior Court.
• July 2008: The Watauga County Superior Court reversed the BOA’s decision and ordered the board to issue the SUP. Judge Ronald K. Payne ruled that the BOA’s denial of the permit denied the applicant’s due process rights, made errors in law and made an “arbitrary and capricious” decision not based on the evidence. The town of Boone appealed to the state Court of Appeals.
• July 2009: The Court of Appeals remanded the case to the Superior Court with instructions to remand to the BOA for reviewable findings of fact, stating the BOA did not indicate the findings of fact supporting its decision to deny the permit. The court said the Superior Court erred in its de novo review of the case by making its own findings of fact instead of remanding to the BOA.
• September 2010: The BOA adopted findings of fact in the May 2007 decision. After hearing statements by Templeton’s attorneys as well as Town of Boone attorney Sam Furgiuele, the BOA again heard comments in opposition to the clinic from residents of the VFW Drive neighborhood, including Boone Mayor Loretta Clawson.
• October 2010: Templeton appealed to the Superior Court
• February 2011: The Superior Court affirmed the BOA’s decision.
• March 2011: Templeton appealed the case to the Court of Appeals.
• March 2012: The Court of Appeals concluded that the BOA erred in accepting new testimony from VFW Drive residents at the September 2010 hearing and, in turn, by not affording Templeton a second chance to present evidence. The court again remanded to the Superior Court for remand to the BOA for findings of fact.
• October 2012: The BOA adopts the same findings of fact as in 2010, stating the findings are based on the 2007 hearings.