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Zoning – Special Use Permit – Burden of Production – Gravel Quarry

Little River, LLC v. Lee County (Lawyers Weekly No. 011-386-17, 21 pp.) (John Tyson, J.) Appealed from Lee County Superior Court (John Smith, J.) N.C. App.

Holding: Petitioner’s production of evidence ticked all the boxes required for a special use permit for a gravel quarry – a permitted use in the relevant zoning district – and so met its prima facie showing of entitlement to an SUP for the proposed quarry. Opponents’ generalized fears and speculations were insufficient to justify denial of the SUP.

We affirm the superior court’s finding that intervenors had standing to attend the hearing before the Board of Adjustment. We reverse the superior court’s decision to uphold the Board’s denial of petitioner’s SUP.

At a quasi-judicial public hearing under the Unified Development Ordinance, any member of the public was permitted to appear and present evidence, as the respondent-intervenors did. Furthermore, petitioner cooperatively worked to allow respondents’ counsel to help determine procedures before the Board and expressly consented to the intervenors’ motion to intervene before the superior court. Any purported challenge to the intervenors’ standing is without merit.

Respondents’ experts asserted that petitioner had not yet received the required approvals and permits from other regulatory agencies; however the UDO does not mandate that all required approvals be granted and permits issued prior to the approval of the SUP application.

Petitioner presented evidence of compliance with all requirements for a SUP, and any information the Board contends was missing was not required at this application for approval. These missing elements may affect the site plan and building approvals, and conditions imposed, but are insufficient to rebut the substantial, material evidence and to overcome petitioner’s prima facie showing or to support the Board’s denial of the SUP.

Additionally, it was improper for the superior court to weigh the evidence and to assert that the intervenors’ expert was “substantially more compelling.” The superior court erred by re-weighing the evidence, rather than reviewing the whole record as an appellate court.

Affirmed in part, reversed in part, and remanded.


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