Court of AppealsAn unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
2021-NCCOA-596
No. COA21-37
Filed 2 November 2021
New Hanover County, No. 20 CVS 1980
COSWALLD, LLC, by and through its Agent TRIBUTE INVESTMENT AND
DEVELOPMENT, INC., Petitioners,
V.
NEW HANOVER COUNTY and the NEW HANOVER COUNTY BOARD OF
COUNTY COMMISSIONERS, Respondents.
Appeal by Petitioners from judgment entered 19 October 2020 by Judge George
F. Jones in New Hanover County Superior Court. Heard in the Court of Appeals 22
September 2021.
Kip D. Nelson and Thomas E. Terrell, Jr. for Petitioners -Appellants.
Deputy County Attorney Sharon J. Huffman for Respondents -Appellees.
GRIFFIN, Judge.
ill Coswald, LLC and its agent Tribute Investment and Development, Inc.
(collectively, "Petitioners") argue that their opponents did not present competent,
material, and substantial evidence to rebut Petitioners' prima facie case of
entitlement to a special use permit. Petitioners argue that the superior court erred
by upholding the denial of their permit. Upon review, we agree that the rebuttal
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evidence was not competent, material, and substantial. We reverse and remand for
issuance of the permit.
I. Factual and Procedural Background
A. Application for Special Use Permit
¶ 2 Coswald, LLC owns an approximately 30-acre parcel of land, located near the
intersection of Market Street and Lendire Road, in New Hanover County. In July
2019, Tribute Investment and Development, Inc., as agent for Coswald, applied for a
special use permit to develop 15.6 acres within this parcel.
¶ 3 Petitioners proposed a mixed -used development of the property, including
multi -family apartment buildings with limited commercial uses. Petitioner's
proposal included two access points to the property: one on Lendire Road and one on
"Old" Lendire Road.
114 The New Hanover County Zoning Ordinance then in effect provided that the
New Hanover County Board of Commissioners
shall approve an application for a special use permit if it
reaches each of the following conclusions based on findings
of fact supported by competent, substantial, and material
evidence presented at the hearing.
(1) The use will not materially endanger the public
health or safety if located where proposed and
approved.
(2) The use meets all required conditions and
specifications of the Zoning Ordinance;
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(3) The use will not substantially injure the value of
adjoining or abutting property, or that the use is a
public necessity.
(4) The location and character of the use if developed
according to the plan as submitted and approved will
be in harmony with the area in which it is to be
located and in general conformity with the
Comprehensive Land Use Plan for New Hanover
County.
New Hanover County, N.C., New Hanover County Zoning Ordinance art. 7, § 70-7
(2019). After considering Tribute's application in a 3 October 2019 meeting, the
County's planning board and the County manager recommended approval of the
application.
B. 21 October 2019 Hearing
JJ 5 A public hearing on the application was held before the New Hanover County
Board of Commissioners on 21 October 2019. Individuals who opposed issuance of
the permit presented public comments, a PowerPoint presentation, and sworn
testimonies. The evidence pertinent to this appeal centered on the development's
potential danger to public health and safety.
1. Traffic
116 Petitioners presented a traffic impact analysis ("TIA') which had been
approved by NCDOT and the Wilmington Metropolitan Planning Organization. The
engineer who had prepared the TIA testified at the hearing. The TIA indicated that
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the development would slightly increase the time it takes for vehicles to get through
certain intersections nearby, but would not reduce the overall level of service in those
intersections from the projected level of operation for 2021.
¶ 7 Opponents presented lay opinions regarding road conditions and the
development's potential impact on traffic. A local resident testified, "The current
volume of traffic on Lendire [Road] has caused it to be unsafe at the present time."
She described the poor condition of Lendire Road and referred to a Board resolution
from 2005 that stated, "This segment of Market Street is highly congested with traffic
movements already failing at many locations." The PowerPoint presentation
contained photographs depicting maintenance issues and congested traffic on Lendire
Road. Public comments from local residents referred generally to congested traffic
and accidents in the area; the comments predicted that the development would
increase traffic. Some comments also noted the poor condition of Lendire Road. The
opponents presented no expert testimony or quantitative data regarding traffic and
road conditions, nor did they cross-examine the Petitioners' expert witnesses
regarding those issues.
2. Stormwater
118 Petitioners presented expert testimony from an engineer who testified that
through this project, stormwater runoff would be reduced (for all storms less than a
100-year storm) compared to the current stormwater runoff as an undeveloped piece
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of land. New Hanover County requires controlling for stormwater that occurs from a
25-year storm. Petitioners offered to control for stormwater that occurs from a 100-
year storm.
119 In rebuttal, opponents presented lay testimony about past flooding in the area.
For example, a local resident testified, "Multiple residents have had to move off of
their property for over a year after storm events due to flooding." Another resident
opined that
[Petitioners are] saying that the water is not going to
outfall here. It will outfall here and it will go back into our
neighborhoods. This water will not stay in this 100-year
flood retention pond. There are retention ponds back here
that are cresting at any summer rain at any time.
The resident further testified, "Across the street here where that water was supposed
to go out to Howe's Creek, it washed out. It took the DOT a year to get that fixed
where the new Publix is."
1110 The opponents' PowerPoint presentation included photographs of past
flooding. A testifying resident referred to letters from the County manager which
generally discussed the importance ' of maintaining the County's ecological systems.
Public comments from local residents described past flooding and poor drainage in
the area; the comments predicted that any further development would worsen these
problems. The opponents did not present any expert testimony or quantitative data
about flooding, and there was no cross-examination of the Petitioners' expert
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witnesses regarding the issues of stormwater runoff or the condition of the public
streets.
3. Other Public Safety Concerns
¶ 11 Local residents expressed other public safety concerns at the hearing. One
resident stated, "A child was just hit this morning while crossing the street to get to
the school bus," and asked, "Who will take responsibility if and when a child is injured
on this road[?]" Another resident testified, "We have a rapist right now in o[u]r
neighborhood going around early in the morning trying to get these women alone and
raping. ... So we worry about that and we worry about even letting ou[r] dogs out."
C. Denial of Application
1112 Based on the evidence presented to the Board, the Deputy County Attorney
opined that "a denial of the special use permit would not be upheld. I think it would
be returned for issuance of the special use permit."
1113 At the conclusion of the 21 October 2019 meeting, the Board voted to table the
application for 90 days. Nearly eight months later, on 1 June 2020, the Board denied
Petitioners' application. In support of its conclusion that the proposed use did not
satisfy the requirement that the use not "materially endanger the public health or
safety[,]" the Board relied on a single finding of fact: "Drainage improvements have
not been completed and traffic improvements planned for the area have not been
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completed." The Board concluded that the proposed use met the other three
requirements for a special use permit.
D. Appeals
14 On 26 June 2020, Petitioners filed a Petition for Writ of Certiorari and for
Judicial Review. The matter was heard in New Hanover County Superior Court on
17 September 2020.
¶ 15 In its judgment dated 19 October 2020, the superior court made 68 findings of
fact. The superior court's conclusions of law included the following:
76) The testimony of lay witnesses offering only opinions
(as opposed to facts and/or observations within their
personal knowledge), speculative assertions, and/or
generalized fears, is not competent evidence. Accordingly,
citizens' opinions and/or testimonies as to the proposed
use's effects upon, including but not limited to: crime,
aesthetics, education, increased traffic, etc[.] are not
competent, material, and substantial evidence in
opposition to the proposed use.
77) The testimony of a lay witness(es) in the form of an
opinion as to the direction of stormwater effluent outfall on
property which he or she neither owns nor resides upon is
not competent, material, and substantial evidence as same
constitutes matters about which only expert testimony
would generally be admissible under the rules of evidence.
NCGS [§] 160A-393(k)(3).
78) The testimony and/or opinion of an individual as to
facts within the personal knowledge and/or personal
observation(s) of the individual is, except as to matters
specifically deemed incompetent by NCGS § 160A-393,
competent. Furthermore, the afore -mentioned
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testimony(ies) and/or opinion(s) was/were admitted
without objection and the same appears to be sufficiently
trustworthy and was admitted under such circumstances
that it was reasonable for the Board of Commissioners to
rely upon it.
Ultimately, the superior court concluded there was "competent, material, and
substantial evidence" sufficient to rebut Petitioners' `prima facie showing of
entitlement to issuance of the requested Special Use Permit."
¶ 16 The superior court affirmed the Board's denial of the permit. Petitioners
timely appealed the superior court's judgment.
II. Analysis
� 17 Respondents concede that Petitioners "initially presented competent, material,
and substantial evidence sufficient to establish a prima facie case of entitlement to
the permit." See Humble Oil & Ref. Co. v. Bd. of Aldermen, 284 N.C. 458, 468, 202
S.E.2d 129, 136 (1974) ("When an applicant has produced competent, material, and
substantial evidence tending to establish the existence of the facts and conditions
which the ordinance requires for the issuance of a special use permit, prima facie he
is entitled to it."). Further, Respondents do not argue that competent, material, and
substantial rebuttal evidence showed that Petitioners failed to meet requirements
(2), (3), or (4) of the New Hanover County Zoning Ordinance requirements for a
special use permit. The sole issue on appeal is whether there was competent,
material, and substantial evidence to rebut the Petitioners' prima facie case that the
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proposed development "would not materially endanger the public health or safety."
We agree with Petitioners that the evidence presented in rebuttal was not competent,
material, and substantial.
A. Standard of Review
18 "A legislative body such as the Board, when granting or denying a conditional
use permit, sits as a quasi-judicial body." Sun Suites Holdings, L.L.C. v. Board of
Aldermen of Garner, 139 N.C. App. 269, 271, 533 S.E.2d 525, 527 (2000) (citing
Humble Oil & Ref. Co., 284 N.C. at 469, 202 S.E.2d at 136-37). Its decisions "shall be
subject to review by the superior court by proceedings in the nature of certiorari."
Capricorn Equity Corp. v. Chapel Hill, 334 N.C. 132, 135, 431 S.E.2d 183, 186 (1993)
(internal quotation marks omitted) (citing N.C. Gen. Stat. § 160A-388(e) (Supp.
1992)). "The superior court is not the trier of fact but rather sits as an appellate
court." Id. at 136, 431 S.E.2d at 186. The superior court's responsibilities on review
include
(1) Reviewing the record for errors in law,
(2) Insuring that procedures specified by law in both
statute and ordinance are followed,
(3) Insuring that appropriate due process rights of a
petitioner are protected including the right to offer
evidence, cross-examine witnesses, and inspect
documents,
(4) Insuring that decisions of town boards are supported by
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competent, material[,] and substantial evidence in the
whole record, and
(5) Insuring that decisions are not arbitrary and capricious.
PHG Asheville, LLC v. City of Asheville, 374 N.C. 133, 149-50, 839 S.E.2d 755, 766
(2020) (citations omitted).
¶ 19 Our "task on review of the superior court's order is twofold: (1) determining
whether the [superior] court exercised the appropriate scope of review and, if
appropriate, (2) deciding whether the court did so properly." Jubilee Carolina, LLC
v. Town of Carolina Beach, 268 N.C. App. 90, 94, 834 S.E.2d 665, 669 (2019) (citation
and internal quotation mark omitted).
¶ 20 Here, the issue on appeal is whether competent, material, and substantial
evidence was admitted to rebut Petitioners' prima facie case. "Denial of a conditional
use permit must be based upon findings which are supported by competent, material,
and substantial evidence appearing in the record." Humane Soc'y of Moore Cty. v.
Town of S. Pines, 161 N.C. App. 625, 629, 589 S.E.2d 162, 165 (2003) (citation
omitted). "The extent to which `the record contains competent, material, and
substantial evidence is a conclusion of law, reviewable de novo."' PHG Asheville, 374
N.C. at 150, 839 S.E.2d at 766 (quoting N.C. Gen. Stat. § 160A-393(k)(2) (2019)).
B. The Rebuttal Evidence was Not Competent, Material and Substantial.
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121 The superior court concluded that the record contained competent, material,
and substantial evidence sufficient to rebut Petitioners' prima facie entitlement to a
special use permit. We disagree.
1. Traffic
122 North Carolina statutory and case law conclusively establishes that "lay
testimony concerning traffic conditions is not competent in conditional use permit
proceedings." Id. at 156, 839 S.E.2d at 770; see also N.C. Gen. Stat. § 160A-
393(k)(3)(b) (2019) (providing that "competent evidence" shall "not be deemed to
include the opinion testimony of lay witnesses as to [whether] ... [t]he increase in
vehicular traffic resulting from a proposed development would pose a danger to public
safety").
1123 Here, the rebuttal evidence concerning the project's potential impacts on traffic
consisted exclusively of lay opinions in the form of testimony and comments from local
residents. The rebuttal evidence did not include any expert testimony or quantitative
data regarding the project's potential impact on traffic. This evidence concerning
traffic was not competent to rebut Petitioners' prima facie case.
1124 Further, we note that the rebuttal evidence regarding an increase in traffic
from the proposed development was not substantial. Although the lay comments
predicted that the development would increase traffic, no evidence specified what
amount the traffic would purportedly increase. "[A] mere increase in traffic does not
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necessarily mean an intensification of traffic congestion or a traffic hazard that would
materially endanger the public ... safety." Sun Suites Holdings, 139 N.C. App. at
277, 533 S.E.2d at 530 (concluding there was no "substantial" evidence that the
proposed project would "materially endanger the public health or safety") (citations
and internal quotation marks omitted).
¶ 25 Respondents argue that the Board and the superior court did not rely on
evidence regarding traffic congestion, but instead relied on evidence concerning the
poor condition of Lendire Road. This evidence was not material to whether the
proposed use posed a danger to public health or safety. Petitioners did not own
Lendire Road, and no evidence suggests they had any ability to remedy it. Regardless
of whether the special use permit was issued, Lendire Road would have been in poor
condition. There is no competent evidence in the Record that the condition of the
roadway would be worsened beyond its designed lifespan by allowing this permit. To
deny Petitioners the special use permit (to which they were prima facie entitled) on
this basis would deprive them of their right to use their property as authorized by
ordinance. See Woodhouse v. Bd. of Commis, 299 N.C. 211, 219-20, 261 S.E.2d 882,
888 (1980) (noting that "the concern over fire -fighting facilities would exist regardless
of the type of use or development of the property involved here" (citing Nalitt v.
Millburn, 66 N.J. Super. 292, 299, 168 A.2d 864, 868 (1961) (reasoning that the
purported hazard would equally apply "to any structure which might be erected on
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the site, the logical result then being that the lands would remain in an unimproved
condition and the owners thereof would be deprived of the right to put the premises
to the uses authorized by the ordinance itself.")). Respondents' argument is without
merit.
2. Stormwater
¶ 26 "[T]he expression of `generalized fears' does not constitute a competent basis
for denial of a permit." Sun Suites Holdings, 139 N.C. App. at 276, 533 S.E.2d at 530
(citation omitted). "[S]peculative assertions or mere expression of opinion about the
possible effects of granting a permit are insufficient to support the findings of a quasi-
judicial body." Id.
1127 Here, the rebuttal evidence concerning stormwater runoff was generalized and
speculative. The lay testimony and public comments described past flooding and poor
drainage in the area, but did not articulate any causal connection between these
problems and the proposed development or explain relevant similarities to other
causes of flooding, except to speculate that any further development would exacerbate
flooding. See id. at 276-77, 533 S.E.2d at 530 (concluding there was na material
rebuttal evidence when "no evidence was presented suggesting any relevant
similarities" between the proposed project and a purportedly problematic building
apart from the allegation that both were "`extended -stay' hotels").
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T 28 This case is analogous to Ecoplexus Inc. v. Cty. of Currituck, 257 N.C. App. 9,
809 S.E.2d 148 (2017). In Ecoplexus, residents who opposed issuance of a special use
permit testified as to flooding and drainage concerns. Id. at 16-11, 809 S.E.2d at 152.
This Court concluded that their testimony was not competent, and noted that "[e]ven
if true, this flooding [was] based upon current conditions from the defunct golf course
and not due to conditions or uses proposed by [the petitioners]." Id. at 17-18, 809
S.E.2d at 156. Similar to Ecoplexus, here opponents presented evidence of past
flooding in the area that was caused by factors other than "conditions or uses
proposed by Petitioners." Id.
1129 Further, the opposing evidence did not address Petitioners' expert testimony
that the proposed development would actually reduce stormwater runoff (for all
storms less than a 100-year storm) compared to leaving the land undeveloped. One
resident disagreed with this expert testimony by testifying that the stormwater
would "not stay in [Petitioners'] 100-year flood retention pond." As support for his
prediction, the resident only stated that "[t]here are retention ponds back here that
are cresting at any summer rain at any time." This "vague" and "speculative"
evidence was insufficient to oppose issuance of the special use permit. See
Woodhouse, 299 N.C. at 220-21, 261 S.E.2d at 888 ("Evidence that similar sewage
plants gave off offensive odors is insufficient standing alone to show that petitioners'
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plant will do likewise. Such evidence is hypothetical as to the operation of the
proposed plant." (citations omitted)).
3. Other Public Safety Concerns
30 Opponents of the development expressed additional fears about public safety,
namely that there was a rapist in the neighborhood, that the residents were afraid to
let their dogs out, and that a child had been hit by a car while crossing the street.
This testimony was incompetent to rebut Petitioners' prima facie case. See Sun
Suites Holdings, 139 N.C. App. at 276, 533 S.E.2d at 530 ("[T]he expression of
`generalized fears' does not constitute a competent basis for denial of a permit."
(citation omitted)). "[T]he speculative comments of neighborhood residents relating
their `generalized fears,' and impressions that ... crime would be affected by the
project cannot be characterized as `substantial' evidence and were insufficient to
support the Board's decision." Id. at 277, 533 S.E.2d at 530 (citations omitted).
C. The Superior Court Erred in its Review.
1131 On appeal of an administrative board's decision, "[i]t is not the function of the
reviewing court ... to find the facts[.]" Capricorn Equity Corp., 334 N.C. at 136, 431
S.E.2d at 186 (citations omitted); see also Batch v. Chapel Hill, 326 N.C. 1, 11, 387
S.E.2d 655, 662 (1990) (when reviewing an administrative decision, "[t]he superior
court judge may not make additional findings [of fact]" (citation omitted)).
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132 The superior court made inconsistent conclusions of law. Conclusion of Law
76 noted that lay testimony is incompetent when in the form of "opinions ... ,
speculative assertions, and/or generalized fears." Conclusion of Law 77 held that
"testimony of a lay witness(es) in the form of an opinion as to the direction of
stormwater effluent outfall on property which he or she neither owns nor resides upon
is not competent, material, and substantial evidence." Together, Conclusions of Law
76 and 77 excluded virtually all the rebuttal evidence as incompetent. Despite these
conclusions, the superior court proceeded to hold that there existed "competent,
material, and substantial evidence" sufficient to rebut Petitioners' prima facie
entitlement to the special use permit. As discussed supra, the rebuttal evidence in
the Record was not competent, material, and substantial.
III. Conclusion
1133 The Board's finding that the proposed development posed a danger to public
health and safety was unsupported by competent, material, and substantial evidence.
The superior court erred in affirming the Board's denial of the special use permit. We
reverse and remand the judgment of the superior court with instructions that the
matter be remanded to the Board of County Commissioners with an instruction to
issue the special use permit.
REVERSED AND REMANDED.
Judges TYSON and ARROWOOD concur.
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Report per Rule 30(e).