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Originally published: 2013-06-25 18:31:20
Last modified: 2013-06-25 18:34:07

Medical clinic case returns to Watauga court

by Anna Oakes

A challenge of the town of Boone's denial of a medical clinic planned by Templeton Properties returned to Watauga County Superior Court for the third time on Monday. The judgment is expected sometime this week, according to 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.

The case has twice reached the N.C. Court of Appeals, but has been returned to the Boone Board of Adjustment because of procedural errors. In 2009, the appellate court ordered the BOA to adopt findings of fact to support its permit denial, which the BOA did in 2010; the court then ruled in March 2012 that the BOA errantly accepted new testimony in adopting the findings of fact.

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."

The Watauga County Superior Court has come down on both sides of the case in its two previous hearings. In 2008, the trial 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 Court of Appeals.

In 2011, the county Superior Court affirmed the BOA's decision; that time, Templeton appealed to the appellate court. Templeton is represented by the law firm di Santi Watson Capua & Wilson. The town is represented by the firm Parker Poe.

A Boone Board of Adjustment decision in January is the subject of another lawsuit moving through the courts.

The Boone Board of Adjustment voted Jan. 10 to uphold the town's notice of violation issued in March 2012 to Delta Holdings LLC, lessee of the Boone Ready-Mix concrete plant at 110 Seven Oaks Road, for continued operation of a nonconforming situation after loss of a grandfathered use.

Delta Holdings, represented by attorney Nathan Miller -- the chairman of the county commissioners -- appealed to the Watauga County Superior Court in February, but the town removed the case to U.S. District Court March 25. Miller's request to remand the case back to the Superior Court was denied on May 6.

In another dispute, closed session agendas indicate the Boone Town Council could be planning to sue Watauga County. The council in May and June consulted with the town attorney in closed session "to consider and give instructions concerning the handling or settlement of a claim or judicial action against Watauga County," according to the agendas.

Council members have not confirmed whether the action being considered relates to the town's dispute with the county earlier this year, including a 3-2 vote by the Republican-led commissioners to change local sales tax distribution.