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Back You are here: Home Opinion Opinion Section Editorials Editorial: Finding of Fact, Not Opinion, Key In Permit Decisions

Editorial: Finding of Fact, Not Opinion, Key In Permit Decisions

By WILLARD KILLOUGH III
Managing Editor

The Carolina Beach Planning and Zoning Commission will consider a conditional use permit request at their upcoming February 14, meeting for a Tattoo studio located at 1009 N. Lake Park Blvd Unit B-2. The studio will offer an art gallery, tattooing and provide permanent cosmetic make-up.
This issue was recently debated by the Planning Commission and Town Council regarding a request by the Tattoo Studio applicant - Dixon Broadfoot - to amend the Town's zoning ordinance to permit such businesses in the Highway Business District (HB) on Lake Park Blvd.
The Planning Commission, in a split vote, recommended the Town Council deny the rezoning request. The Town Council later approved allowing Tattoo Studios as a conditional use within that zoning district following a long and very emotional public hearing involving lengthy comments and arguments from supporters and opponents.
That was a legislative decision concerning the entire HB district. Both the Council and the Planning Commission could base their decisions largely upon opinion and value judgments.
The conditional use permit request that's now going before the Planning Commission and then ultimately to the Council for final approval is an entirely different review process.
While the Planning Commission can hold an informal hearing taking input from the public, they are ultimately making only a recommendation to the Town Council. The Planning Commission can base their recommendation on just about any opinion or information they feel warrants approval or denial.
However, when the Town Council takes up the issue, they have a strict set of rules that must be followed under a quasi-judicial process.
Let's start with an example:
According to David Owens with the North Carolina School of Government, in the case of Clark v. City of Asheboro, 136 N.C. App. 114, 524 S.E.2d 46 (1999), neighbors in opposition to a special use permit for a proposed mobile home park testified that the park would be an eyesore and would bring crime and increased traffic to the area. The court characterized this testimony as generalized fears that park residents would be low-income residents who would constitute a danger to the neighborhood, concerns unsupported by competent evidence and thus invalid as grounds for permit denial.
A quasi-judicial zoning decision requires a process similar to a courtroom trial. The hearing must be open to the public, but the objective is to gather evidence and protect the rights of the parties involved. Additionally, no new legislative polices can be adopted.
Since the rights of the applicant for a conditional use permit are being determined, the courts have historically imposed strict requirements to make sure decisions are made impartial and based on legitimate evidence through evidentiary hearings where witnesses present testimony, exhibits are submitted, minutes are kept, with a written explanation of the decision.
For example, in a quasi-judicial hearing, a person cannot present a letter from John Smith as evidence because John Smith would not be present at the meeting for cross-examination.
Other requirements call for expert competent testimony and avoiding consideration of hearsay. 
According to Owens' article, “The courts have held that the constitutional requirements of due process mandate that all fair trial standards be observed when quasi-judicial zoning decisions are made, no matter which local board is making the decision. This includes an evidentiary hearing with the right of the parties to offer evidence, cross-examine adverse witnesses, inspect documents, have sworn testimony, have the decision based only on evidence that is properly in the hearing record, and have written findings of fact supported by competent, substantial, and material evidence.”
At the Council's January 8, meeting when they voted to permit Tattoo Studios in the HB district, one business owner in the same shopping center as the proposed location for the applicants studio said he's not against tattoos but he purchased the property in that commercial development based on other similar services such as real estate and a law office. He said a tattoo studio is not a similar type of business and would likely cause people to turn away rather than visit his business.
That's an opinion. Not findings of fact supported by competent, substantial, and material evidence.
Councilman Tom Bridges voted against the rezoning to permit Tattoo Studios as a conditional use via a permit. At that January 8, meeting he stated, "We have tried to have a positive affect on the perception of this Island, and I'm afraid that will open the Pandora’s box for our perception. We're on a positive track now and I'm afraid that it may take a bump that we can't survive from."
Again, that's an opinion and while it was absolutely reasonable when considering a rezoning request, it wouldn't stand as a reason for denial under the quasi-judicial process to review a permit request.
Here's another example:
In the case of Sun Suites Holdings, LLC v. Town of Garner, 139 N.C. App. 269, 533 S.E.2d 525, review denied, 546 S.E.2d 397 (2000) the town council denied the plaintiff’s conditional use permit for an extended stay hotel on the grounds that the project would materially endanger public safety and would substantially injure the value of adjoining property.  The court held that a whole record review established that this finding was not supported by substantial evidence.  General expressions of a fear of potential increases in crime in the vicinity of any hotel are insufficient to establish a threat to public safety.  Similarly, a recitation of crime statistics with reference to another extended stay hotel in the town, without any foundation as to the how those relate to the subject project, was held inadequate to support a denial.  Speculative comments by a neighbor and a realtor about impacts on property values were likewise held insubstantial evidence on the property value issue.
In regards to the issue of Tattoo Studios in Carolina Beach, when the Town Council voted to approve allowing such a use under a "conditional use permit" they were making a legislative decision that would affect an entire zoning district.
That's a value-based judgment based on the values of the individual Council members and what types of development the majority of the Council desires within that district.
Once they made that decision, it's no longer a question of whether or not a Tattoo Studio should be permitted, it's to ensure the applicant acknowledges the conditions and will adhere to them or else the Town can revoke the permit for non-compliance.
All such hearings are open to the public and everyone should come and speak their mind. Yet elected officials should remember the rules when making a solid decision that will stand up to review in Superior Court if challenged. If not, they're opening up Pandora's legal box.