NC appeals court sides with Boone in Templeton case
by Anna Oakes
In a unanimous 3-0 decision, a panel of the court reversed Superior Court Judge Shannon Joseph's August 2013 ruling in favor of the developer, whose special use permit request for a 10,010-square-foot clinic on State Farm Road was originally denied by the Boone Board of Adjustment in May 2007.
The decision, filed Tuesday, marks the third time the case has reached the Court of Appeals, but the first time the court has considered the merits of the case. The appellate court remanded the case back to the Board of Adjustment in 2009 and 2012 because of procedural errors.
"We're just extremely happy that the Court of Appeals interpreted the law as we understood it to be, and we're happy with the outcome for the town of Boone," said Anthony Fox, one of two attorneys from Charlotte-based firm Parker, Poe, Adams & Bernstein who represented the town in the case. "It's been a long, drawn-out fight and effort."
The Boone Board of Adjustment's denial of the clinic permit was based on conclusions that the development was not in harmony with the adjacent VFW Drive neighborhood and incompatible with the town's Comprehensive Plan, and they cited safety concerns related to traffic congestion.
Joseph ruled last August 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.
This week, however, the Court of Appeals ruled that the Superior Court judge errantly acted as a finder of fact in imposing an opinion on the proper area of town to be considered when assessing the clinic's harmony with the adjacent community. The appellate court also said the BOA's findings of fact represented "competent, material and substantial" evidence to support the board's conclusion that the clinic would be disharmonious with the area -- which is grounds for denial of a permit under the Boone Unified Development Ordinance.
Reached by phone Tuesday, Templeton Properties owner Phil Templeton said he had not yet had time to review the Court of Appeals ruling. Templeton attorney Tony di Santi did not respond to an email seeking comment as of presstime.
Court of Appeals Judge Robert N. Hunter Jr. authored the opinion, joined by Judges Donna S. Stroud and Chris Dillon.
Because the Court of Appeals decision was unanimous, Templeton Properties does not have an automatic right of appeal to the N.C. Supreme Court. Templeton could ask the Supreme Court to grant a petition for discretionary review of the case, but the Supreme Court rarely grants such petitions after unanimous Court of Appeals rulings, according to various sources.
However, Fox said cautiously, "I cannot predict whether or not we're seeing the end of it ... you never know what the Supreme Court might do."