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Originally published: 2013-07-06 16:42:49
Last modified: 2013-07-06 16:43:34

Judge reverses decision on clinic permit

by Anna Oakes

Superior Court Judge Shannon Joseph has reversed a decision by the Boone Board of Adjustment to deny a special use permit for a medical clinic planned by Templeton Properties following a June 24 hearing.

Joseph emailed attorneys for Templeton and the town on Friday to advise them of her decision, which as of Friday had not yet been filed in the Watauga County Clerk of Court's office.

The Boone Board of Adjustment denied a special use permit request for a clinic at 315 State Farm Road in May 2007. 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.

Joseph ruled that the BOA's findings did not support the conclusion that a medical clinic would be in disharmony with the area. She also said that the board's citation of general policy statements from the town's Comprehensive Plan were insufficient in denying the permit.

"Such general policy statements are, as a matter of law, not sufficient to serve as a basis for denying petitioner's application," she said. In addition, Joseph ruled the BOA had insufficient evidence to conclude that the proposed clinic would endanger public safety.

This marks the third time the case has been heard by the Watauga County Superior Court.

In 2008, the Watauga County Superior Court reversed the BOA's denial, stating it 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 appealed to the N.C. Court of Appeals.

In 2009, the appellate court did not issue a ruling but instead remanded the case back to the BOA to adopt findings of fact to support its permit denial, which the BOA did in 2010. In 2011, the case then returned to the county Superior Court, which that time affirmed the BOA's decision. Templeton appealed to the N.C. Court of Appeals.

The Court of Appeals in March 2012 again remanded the case back to the BOA because of procedural errors, stating the BOA errantly accepted new testimony in adopting the findings of fact in 2010.

The BOA voted last fall to adopt the same findings of fact in the permit denial, but to amend the preamble to state "based solely on the testimony and other evidence from the April 5, 2007, and May 1, 2007, hearing."

Templeton is represented by the law firm di Santi Watson Capua & Wilson. The town is represented by the firm Parker Poe. Parker Poe attorneys could not be reached before presstime Saturday to indicate whether or not the town will appeal the most recent Superior Court decision.