Municipal – Zoning – Special Use Permit – Findings of Fact

Templeton Properties, L.P. v. Town of Boone (Lawyers Weekly No. 12-07-0259, 27 pp.) (Donna S. Stroud, J.) Appealed from Watauga County Superior Court. (Marvin P. Pope Jr., J.) N.C. App. Full-text opinion.

Holding: On a prior appeal, we remanded so the respondent-town’s board of adjustment could make reviewable findings of fact based on its 2007 public hearings. Instead, the board allowed new testimony from opponents of petitioner’s application for a special use permit — while not allowing new testimony from petitioner — and made findings of fact that were obviously influenced by the new testimony.

Again, we reverse and remand. The board of adjustment must make its findings of fact based only on the testimony and evidence presented at the hearings held on April 5 and May 1, 2007. The board may consider legal arguments regarding the application of the law to the factual evidence presented at the 2007 hearings but may not receive additional factual testimony or evidence, sworn or unsworn.

Although our prior opinion noted that there was sufficient evidence before the board of adjustment to support either a denial or a grant of the petition, this observation did not dictate any particular findings, as it is the role of the board to make findings of fact.