Municipal – Zoning – Conditional Use Permits – Interconnectivity

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Where (1) the respondent-town granted a conditional use permit to petitioner-developer Jubilee Carolina, LLC, to develop a Harris Teeter grocery store, which included connectivity with a neighboring shopping center and (2) the shopping center was then sold to respondent-developer Carolina Beach Development Co. (CBDC), which intended to put a Publix grocery store on the property and sought a conditional use permit without interconnectivity with Jubilee’s property, the town could grant the conditional use permit for the Publix without interconnectivity. The weight of the evidence established that CBDC met the requirements to receive its permit, and Jubilee did not present any evidence to rebut the permit’s issuance.

We affirm the superior court’s order upholding the issuance of the permit.

Jubilee said it was “in support of the [CBDC] project” as long as interconnectivity was required. However, the town council found that the requirement for interconnectivity was not enforced during the deliberation for the Jubilee permit, and therefore, to require interconnectivity for the CBDC permit would be improper.

While Jubilee contends that the town council was motivated by a discriminatory purpose to favor the CBDC permit because CBDC might use the fill dirt in the possession of the town, we reject that contention as the evidence shows that Jubilee was offered the same opportunity to use the fill dirt by the town.

The superior court properly applied the whole record test and did not err in finding and concluding that the town council’s decision was based on competent, material, and substantial evidence in the record and was not arbitrary and capricious.

Jubilee did not raise its claim of a vested interest in interconnectivity before the town council. Therefore, the vested interest issue was not properly before the superior court and is not properly before this court.

Affirmed.

Jubilee Carolina, LLC v. Town of Carolina Beach (Lawyers Weekly No. 011-273-19, 10 pp.) (Wanda Bryant, J.) Appealed from New Hanover County Superior Court (R. Kent Harrell, J.) Daniel Smith and S. Leigh Rodenbough for petitioner; Charlotte Noel Fox, Kip Nelson, Thomas Terrell and Thomas Babel for respondents. N.C. App.