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Templeton seeks NC Supreme Court review of Boone lawsuit

by Anna Oakes

Templeton Properties on Monday filed a petition to the North Carolina Supreme Court for discretionary review of its case against the town of Boone following a June 3 N.C. Court of Appeals ruling.

The state's second-highest court sided with the town of Boone in the case that has continued since 2007, when the Boone Board of Adjustment denied a special use permit request from Templeton to build a 10,010-square-foot clinic on State Farm Road near VFW Drive.

The ruling reversed a Superior Court judge's August 2013 decision that sided with the developer. Judge Shannon Joseph had ruled that the board's findings of fact did not support a conclusion that the clinic would be out of harmony with the surrounding area. The three-judge panel of the Court of Appeals, however, felt that the BOA's findings represented "competent, material and substantial" evidence to support its conclusion and denial of the permit.

Because the decision was a unanimous 3-0 decision by the panel, Templeton Properties does not have an automatic right of appeal to the N.C. Supreme Court. In such instances, a party may ask the Supreme Court to grant a petition for discretionary review of the case, but it is rare for the court to grant them, according to various sources.

The petition filed Monday asks for the Supreme Court's review "on the grounds that this case involves legal principles of major significance to the jurisprudence of this state, and the subject matter of this appeal has significant public interest."

"Resolution by this court of the issues presented would not only protect the property rights of the many hundreds of landowners who every year seek special use permits to develop their properties, but would provide important guidance to the local governments that issue such permits," it added.

The petition argues that because medical clinics in excess of 10,000 square feet were permissible in R-1 (single-family) districts with a SUP at the time of Templeton's SUP application, the BOA could not conclude the clinic would be out of harmony with the single-family neighborhood unless evidence showed the clinic would generate impacts not common to medical clinics.

"There was no evidence in the case at hand that the proposed clinic would generate impacts not common to any permissible medical clinic," the petition states.

Anthony di Santi, attorney for Templeton Properties, said he expected the Supreme Court would make a decision within 90 days on whether or not to review the case.

Anthony Fox, one of two attorneys representing the town from Charlotte-based firm Parker, Poe, Adams & Bernstein, said last month, "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," but added, "I cannot predict whether or not we're seeing the end of it ... you never know what the Supreme Court might do."