               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-461

                              Filed: 19 December 2017

Lee County, No. 16 CVS 329

LITTLE RIVER, LLC, Petitioner,

              v.

LEE COUNTY, NORTH CAROLINA, Respondent,


and


CAROLINA TRACE ASSOCIATION, INC.; SOUTH LANDING PROPERTY
OWNERS ASSOCIATION, INC.; VILLAGE AT THE TRACE PROPERTY OWNERS
ASSOCIATION;   SEDGEMOOR      PROPERTY    OWNERS    ASSOCIATION;
ESCALANTE CAROLINA TRACE, LLC; SANDRA WARD; TERRY WARD; LAURA
RIDDLE; BOBBY RIDDLE, JR.; DANIEL STANLEY; KAY COLES; FRED
BERMAN; C. DAVID TURNER; JOHN BECK; LYONA BECK; GERALD MERRITT;
CHERYL MERRITT; KERMIT KEETER; LOUANE KEETER; ALFRED RUSHATZ;
SHARWYNNE BLATTERMAN; BARRY MARKOWITZ; MIRIAM MARKOWITZ;
TERRI DUSSAULT; and HOMER TODD SPOFFORD, Neighbor-Respondents.


        Appeal by petitioner from order entered 12 December 2016 by Judge John W.

Smith in Lee County Superior Court. Heard in the Court of Appeals 1 November

2017.


        Smith Moore Leatherwood LLP, by Karen M. Kemerait and M. Gray Styers, Jr.,
        for petitioner-appellant.

        Yarborough, Winters & Neville, P.A., by Garris Neil Yarborough, and Lee
        County Attorney Whitney Parrish, for respondent-appellee.

        Womble Carlyle Sandridge & Rice, LLP, by Michael C. Thelen, for intervenor-
        respondent-appellees.
                         LITTLE RIVER, LLC V. LEE COUNTY

                                 Opinion of the Court




      TYSON, Judge.


      Little River, LLC (“Petitioner”) appeals from an order affirming the decision of

the Lee County Board of Adjustment (the “Board”) to deny Petitioner’s application for

a special use permit. We affirm in part, reverse in part, and remand.

                                   I. Background

      On 9 September 2015, Petitioner submitted its second application to the Lee

County Planning and Community Development Department (the “Department”) for

a Special Use Permit (“SUP”) to establish an aggregate rock quarry to be located at

5500 NC Highway 87, Sanford, North Carolina, on a proposed 48 acre portion of a

377 acre parcel.   The property is predominately zoned Residential Agricultural

(“RA”), with two Rural Residential (“RR”) zoned parcels adjoining NC Highway 87.

Quarries are a permitted use of right in the zoning districts under Article 4 of the

Sanford-Broadway-Lee County Unified Development Ordinance (“UDO”), subject to

a SUP.

      The Department forwarded the application to the Board, which held public,

quasi-judicial hearings during five nights over the course of a six-month period. All

participants, including the Board, were represented by counsel. Special counsel for

the Board, attorneys for Petitioner, and the attorney for Intervenor-Respondent

Carolina Trace Association, Inc. (“CTA”) all agreed upon procedures to ensure both



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                                   Opinion of the Court



fairness and expediency throughout the hearing. Petitioner and CTA presented

evidence at the hearing.

      At the close of all evidence, the Board denied Petitioner’s application based

upon fifteen findings of fact, leading to the following four conclusions of law:

             1. The applicant failed to demonstrate that the use will not
             materially endanger the public health or safety if located
             where proposed and developed according to the plan as
             submitted and approved.

             2. The applicant failed to demonstrate that the use met all
             required conditions and specifications.

             3. The applicant failed to demonstrate that the use would
             not substantially injure the value of adjoining or abutting
             property or that the use is a public necessity.

             4. The applicant failed to demonstrate that the location and
             character of the use, if developed according to the plan
             submitted and approved, would be in harmony with the
             area which it is located and in general conformity with all
             adopted land use plans.

      Petitioner sought certiorari review of the Board’s decision in the superior court.

CTA and other interested parties (collectively “Respondent-Intervenors”) moved to

intervene. Petitioner consented to their intervention. After the hearing, in an order

dated 12 December 2016, the superior court affirmed the Board’s denial of the SUP,

and concluded that for the Petitioner’s purported errors of law:

             10. Applying de novo review, the Court finds and concludes
             that the Lee County Board of Adjustments did not commit
             legal error, in that:



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                                   Opinion of the Court



                     a. It is not necessary that Neighbor-Respondent
             Carolina Trace Association, Inc. demonstrates legal
             standing to participate in the quasi-judicial proceedings to
             appear before the Lee County Board of Adjustments . . . .
             ...
                     g. The Lee County Board of Adjustments has the
             discretion to determine Petitioner did not establish a prima
             facie case . . . . and . . . has the discretion to require
             assurances regarding health, safety, and environmental
             risks . . . .

      The superior court then applied a “whole record review,” and found and

concluded: (1) there was “competent, material, and substantial evidence” to support

all the findings by the Board; (2) “each and every finding of fact . . . support the

Board’s conclusions of law; “[n]one of the findings of fact . . . is either arbitrary or

capricious”; and, (3) “[a]ll of the Board’s conclusions of law support the Board’s

decision to deny Petitioner Little River, LLC’s application for a special use permit[.]”

Petitioner appeals.

                                    II. Jurisdiction

      Jurisdiction lies in this Court from an appeal of right from a final judgment of

the superior court. N.C. Gen. Stat. § 7A-27(b) (2015).

                                       III. Issues

      Petitioner argues: (1) the opponents of the quarry did not have standing in the

quasi-judicial proceeding; (2) no competent, substantial, and material evidence

supports the Board’s denial of its SUP, presuming Petitioner established a prima

facie case; (3) the Board’s denial of the SUP was arbitrary and capricious; and, (4) its


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                                   Opinion of the Court



due process rights were violated. Respondent objects to Petitioner’s issues on appeal,

and asserts the only issue before this Court is whether the superior court properly

exercised its scope of review of the Board’s decision.

                                IV. Standard of Review

      “A legislative body such as the Board, when granting or denying a [special] use

permit, sits as a quasi-judicial body.” Sun Suites Holdings, LLC v. Bd. of Alderman

of Town of Garner, 139 N.C. App. 269, 271, 533 S.E.2d 525, 527, disc. review denied,

353 N.C. 280, 546 S.E.2d 397 (2000).

      “The Board’s decisions ‘shall be subject to review of the superior court in the

nature of certiorari.’” Dellinger v. Lincoln Cty., __ N.C. App. __, __, 789 S.E.2d 21, 26,

disc. review denied, 369 N.C. 190, 794 S.E.2d 324 (2016) (quoting N.C. Gen. Stat. §

160A-381(c) (2015)). “In reviewing the Commissioners’ decision, the superior court

sits as an appellate court, and not as a trier of facts.” Innovative 55, LLC v. Robeson

Cty., __ N.C. App. __, __, 801 S.E.2d 671, 675 (2017) (citation and quotation marks

omitted).   Under the scope of its review, a superior court must only determine

whether:

             1) the [b]oard committed any errors in law; 2) the [b]oard
             followed lawful procedure; 3) the petitioner was afforded
             appropriate due process; 4) the [b]oard’s decision was
             supported by competent evidence in the whole record; and
             5) [whether] the [b]oard’s decision was arbitrary and
             capricious.




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                                  Opinion of the Court



      Overton v. Camden Cty., 155 N.C. App. 391, 393, 574 S.E.2d 157, 159 (2002)

(alterations in original) (quoting Capital Outdoor, Inc. v. Guilford Cty. Bd. of

Adjustment, 152 N.C. App. 474, 475, 567 S.E.2d 440, 441 (2002) (citation omitted)).

      The standard of review of the superior court depends upon the purported error.

Morris Commc’ns. Corp. v. Bd. of Adjustment of Gastonia, 159 N.C. App. 598, 600,

583 S.E.2d 419, 421 (2003). Petitioner raises several issues, which require both de

novo and whole record review. “When a party alleges the Board of Commissioners’

decision was based upon an error of law, both the superior court, sitting as an

appellate court, and this Court reviews the matter de novo, considering the matter

anew.” Dellinger, ___ N.C. App. at ___,789 S.E.2d at 26 (citation omitted). “When the

petitioner questions (1) whether the agency’s decision was supported by the evidence

or (2) whether the decision was arbitrary or capricious, then the reviewing court must

apply the whole record test.” ACT-UP Triangle v. Comm’n for Health Servs. of the

State of N.C., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (citation and quotation

marks omitted). “The whole record test requires that the [superior] court examine

all competent evidence to determine whether the decision was supported by

substantial evidence.” Morris Commc’ns., 159 N.C. App. at 600, 583 S.E.2d at 421.

      “Where a party appeals the superior court’s order to this Court, we review the

order to (1) determine whether the superior court exercised the appropriate scope of

review and, if appropriate, (2) decide whether the court did so properly. Davidson Cty.



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                                   Opinion of the Court



Broad. Co. v. Iredell Cty., ___ N.C. App. ___, ___, 790 S.E.2d 663, 666 (2016) (citations

and quotation marks omitted), disc. review denied, ___ N.C. ___, 797 S.E.2d 13 (2017).

                                      V. Analysis

                                      A. Standing

      Petitioner argues Respondent-Intervenors did not have standing to participate

in the quasi-judicial Board of Adjustment meeting. Petitioner asserts our decision in

Cherry v. Wiesner, __ N.C. App. __, 781 S.E.2d 871 (2016), controls this issue in its

favor. We disagree.

      “Standing is a necessary prerequisite to a court’s proper exercise of subject

matter jurisdiction, and is a question of law which this Court reviews de novo.” Smith

v. Forsyth Cty. Bd. of Adjustment, 186 N.C. App. 651, 653, 652 S.E.2d 355, 357 (2007)

(citations, quotation marks, and brackets omitted). For zoning and land use decisions

being made before a Board of Adjustment, “[t]he ordinance may provide that the

board of adjustment may hear and decide special and conditional use permits in

accordance with standards and procedures specified in the ordinance.” N.C. Gen.

Stat. § 160A-388(c) (2015).

      In this case, section 3.1.5.3.3 of the UDO provides: “[a]ny person or persons

may appear at a public hearing and submit evidence, either individually or as a

representative.” Petitioner applied for and appeared before the Board seeking a SUP

to open and operate a quarry. As a quasi-judicial public hearing under the UDO, any



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                                      Opinion of the Court



member of the public was able to appear and present evidence, as Respondent-

Intervenors did.

      Unlike in Cherry, where the neighbor appealed the Board’s decision allowing

the applicants’ design plans, Petitioner appealed the Board’s decision denying its

SUP. See Cherry, __N.C. App. at __, 781 S.E.2d at 874. Only petitioners with standing

may appeal a quasi-judicial decision to the superior court in the nature of certiorari.

N.C. Gen. Stat. § 160A-393(d).         Any person with “an ownership interest in the

property that is the subject of the decision being appealed” has such standing. Id.

      Petitioner co-operatively worked to allow Respondent’s counsel to help

determine the procedures before the Board and expressly consented to Respondent-

Intervenors’ motion to intervene before the superior court. Any purported challenge

to the standing of Respondent-Intervenors is without merit. That portion of the

superior court’s order is affirmed.

                        B. Little River’s Prima Facie Showing

      Petitioner argues the Board failed to follow the appropriate procedure and did

not first determine whether or not the Petitioner’s evidence and testimony had made

a prima facie showing of entitlement to a SUP. This threshold determination should

be based upon the Petitioner’s competent, material, and substantial evidence, or lack

thereof. We hold Petitioner met its burden of producing a prima facie showing.




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                                  Opinion of the Court



      Petitioner is not seeking a rezoning, only a SUP to conduct a use expressly

permitted in these zoning districts. “A conditional use permit is one issued for a use

which the ordinance expressly permits in a designated zone upon proof that certain

facts and conditions detailed in the ordinance exist.” Woodhouse v. Bd. of Comm’rs of

the Town of Nags Head, 299 N.C. 211, 215, 261 S.E.2d 882, 886 (1980) (citation and

quotation marks omitted). “When an applicant for a conditional use permit produces

competent, material, and substantial evidence of compliance with all ordinance

requirements, the applicant has made a prima facie showing of entitlement to a

permit.” Howard v. City of Kinston, 148 N.C. App. 238, 246, 558 S.E.2d 221, 227

(2002) (citation and quotation marks omitted). A petitioner’s burden to establish a

prima facie showing is one “of production, and not a burden of proof.” Innovative 55,

__ N.C. App. at __, 801 S.E.2d at 676. Otherwise, “[t]o hold that an applicant must

first anticipate and then prove or disprove each and every general consideration

would impose an intolerable, if not impossible, burden on an applicant for a

conditional use permit. An applicant need not negate every possible objection to the

proposed use.” Woodhouse, 299 N.C. at 219, 261 S.E.2d at 887-88 (citation and

quotation marks omitted).

      The property in question is zoned RR and RA. Article 4 of the UDO specifically

allows quarries on property zoned RR and RA as a permitted use, subject to a special

use permit and additional development regulations.



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                                    Opinion of the Court



      According to section 3.5.3 of the UDO, a SUP shall be granted if the applicant

proves:

             [1] The use will not materially endanger the public health
             or safety if located where proposed and developed
             according to the plan as submitted and approved,

             [2] The use        meets     all   required   conditions   and
             specifications,

             [3] The use will not substantially injure the value of
             adjoining or abutting property, or that the use is a public
             necessity, and

             [4] The location and character of the use, if developed
             according to the plan submitted and approved, will be in
             harmony with the area in which it is located and in general
             conformity with all adopted land use plans.

                               1. Public Health and Safety

      Petitioner presented competent, substantial, and material evidence to show

the proposed quarry is located in a zoning district where it is permitted and will not

“materially endanger the public health or safety.” Petitioner’s evidence tends to show

the proposed quarry will be subject to extensive regulation from state and federal

agencies, including several subsets of the North Carolina Department of

Environmental Quality (“NC DEQ”), the United States Mine Safety Health

Administration, and the Bureau of Alcohol, Tobacco, Firearms and Explosives. Any

blasting that occurs is strictly regulated and will be closely monitored and regulated

to ensure no adverse effects due to ground vibrations will occur. Further, Petitioner’s

application included conditions restricting the peak particle velocity to below

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                                  Opinion of the Court



regulatory standards and restricting blasting to between 9:00 a.m. and 5:00 p.m. In

North Carolina, blasting is an ultra-hazardous activity and Petitioner will be held

strictly liable for any adverse consequences. Kinsey v. Spann, 139 N.C. App. 370, 374,

533 S.E.2d 487, 491 (2000).

      Petitioner presented competent evidence of minimal off-site noise, producing

no impact on public health and safety due to sound. The proposed quarry will be

subject to stricter air quality standards than other existing quarries in the county,

due to the applicability of the Clean Air Act. Further, Petitioner presented competent

evidence of dust suppression at the stages of processing, storing, and loading the

aggregate.

      Petitioner’s evidence also tends to show the quarry’s use of water will be

heavily regulated by state agencies, ensuring no adverse impact to health or safety

regarding ground or surface water. Petitioner’s evidence also tends to show the

majority of water usage will be maintained through rainwater, with some withdrawal

of ground water. Water used in the quarry process will not contain any chemicals

and will be recycled and stored on site. Any withdrawal from or discharge to surface

water creeks or rivers will be subject to a National Pollutant Discharge Elimination

System permit through NC DEQ.

      Regarding increased traffic, Petitioner presented evidence of a 0.1 second delay

due to truck ingress and egress from the proposed quarry. The additional trucks on



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                                   Opinion of the Court



the road would not materially impact any of the surrounding intersections. The

North Carolina Department of Transportation did not express any concerns

regarding the sightline from the proposed entrance of the quarry site, and did not

require a signal light to be installed at the proposed entrance. Petitioner agreed to

restripe the road and create a dedicated left turn lane into the quarry.

      The Board incorrectly found Petitioner had “failed to prove that the proposed

use would not create significant, negative” impacts to air quality and surface and

ground water, language the superior court erroneously used in its findings of fact.

Petitioner’s burden is a burden of production, not proof. See Innovative 55, __ N.C.

App. at __, 801 S.E.2d at 676.       Petitioner presented competent, material, and

substantial evidence the proposed quarry will be established on a parcel already

zoned and permitted for this use and would not have a material, adverse impact on

public health or safety.

             2. Required Conditions and Specifications of Permitted Use

      Lee County’s Development Regulations for quarries are found in Article 5 of

the UDO. Quarries are a permitted use and are subject to Development Regulations

laid out in section 5.23.2, entitled “Standards.”

             5.23.2.1 Minimum lot area is five (5) acres.

             5.23.2.2 Such uses shall have direct access to a paved
             Public Street with an all-weather surface.




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                                  Opinion of the Court



             5.23.2.3 Minimum front, side and rear yards shall be fifty
             (50) feet, which shall be used for landscaping and
             screening.

             5.23.2.4 The excavated area shall be surrounded with a six
             (6) foot high security fence.

             5.23.2.5 Only one (1) ground sign per entrance to the
             storage yard is permitted. Such sign shall not exceed fifty
             (50) square feet in area. If lighted, such sign may include
             indirect lighting or non-flashing illumination. Such sign
             shall be located on the same lot or parcel as the mining or
             quarrying operation.

      The property where the proposed quarry is located contains 377 acres, with 48

acres of the property being proposed for mining, and 90 acres being disturbed.

Petitioner’s evidence tends to show that 75% of the property will be undisturbed

vegetative buffer for screening from the adjoining properties. Petitioner presented

competent evidence of a paved driveway to access the quarry from NC Highway 87

and leading to a parking lot near the sales center. Petitioner also presented evidence

asserting a proposed fifty-foot vegetative barrier bordering the driveway, the

narrowest point of vegetative barrier to be established and maintained between the

quarry and surrounding areas. Petitioner presented a preliminary site plan and

other evidence indicating the installation of a six-foot high security fence around the

mining area and only one sign located at the entrance, all of which would conform to

the standards set forth in the UDO.

      The findings of the Board show no adjudication of and ignores this evidence

presented by Petitioner. The requirements the Board alleges Petitioner failed to

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                                   Opinion of the Court



include in its application, including detail on lighting and grading, are not stated as

requirements for a SUP application, but are requirements for issuance of a building

permit, an entirely separate process. Petitioner presented substantial, material, and

competent evidence of all required specifications and conditions to establish a prima

facie case for the issuance of the SUP. The Board erroneously conflagrated the

burden of producing a prima facie showing to support the SUP application with

required development and building standards and conditions.

                    3. Value of Adjoining and Abutting Property

      Petitioner presented expert testimony by a certified real estate appraiser

tending to show no impact on the adjoining or abutting property values. The expert

ran a paired sales analysis for 319 homes near surrounding quarries, including

properties not immediately adjoining or abutting those other quarries. Based upon

this analysis, the expert appraiser opined there would be no negative impact on

property values.

                    4. Harmony of Quarry with Surrounding Area

      “The inclusion of the particular use in the ordinance as one which is permitted

under certain conditions, is equivalent to a legislative finding that the prescribed use

is one which is in harmony with the other uses permitted in the district.” Woodhouse,

299 N.C. at 216, 261 S.E.2d at 886 (citation omitted). As quarries are a permitted

use in this zoning district under the UDO, the proposed quarry has previously been



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                                    Opinion of the Court



legislatively determined to be in harmony with the surrounding uses and zoning

districts.

         Petitioner also presented expert testimony tending to show the use will be in

harmony with the surrounding area. The majority of the acreage in the property,

over 75%, will remain undisturbed and used as a buffer to protect surrounding

properties from any view of the quarry. The one-mile radius around the proposed

location is thinly populated. The only two adjoining or abutting property owners to

speak at the hearing both were in favor of issuing the SUP for the quarry, and

testified to it being in harmony with their adjoining properties and surrounding

areas.

         Petitioners provided substantial, material, and competent evidence of all four

requirements listed in section 3.5.3 of the UDO. Petitioner met its prima facie

showing of entitlement to its SUP for the proposed quarry operations. See Howard,

148 N.C. App. at 246, 558 S.E.2d at 227. Respondent’s arguments to the contrary are

overruled.

                         C. Board’s Denial of Little River’s SUP

         Petitioner asserts there is no competent, material, and substantial evidence to

counter or rebut their prima facie case, or to support the Board’s denial of their SUP

application, and the Board’s decision was arbitrary and capricious. We agree.




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                                  Opinion of the Court



      “Once an applicant makes [a prima facie] showing, the burden of establishing

that the approval of a conditional use permit would endanger the public health,

safety, and welfare falls upon those who oppose the issuance of the permit.” Howard,

148 N.C. App. at 246, 558 S.E.2d at 227.

      If after presentation of rebuttal evidence a Board denies a SUP application,

the denial must be “based upon findings which are supported by competent, material,

and substantial evidence appearing in the record.” Id. “When a party alleges that a

decision of the superior court is arbitrary and capricious or unsupported by

substantial evidence, this Court reviews the whole record.” Cumulus Broad., LLC v.

Hoke County Bd. of Comm’rs, 180 N.C. App. 424, 428, 638 S.E.2d 12, 16 (2006)

(citation omitted). Here, we examine the whole record to determine the sufficiency of

the evidence to support the Board’s denial of Petitioner’s SUP.

      Many of the Board’s findings of fact to support its conclusions are based solely

upon opponents’ evidence and wholly ignore the evidence presented to make a prima

facie showing by Petitioner. As a reviewing court applying the whole record test, the

superior court “may not consider the evidence which in and of itself justifies the

Board’s result, without taking into account contradictory evidence or evidence from

which conflicting inferences could be drawn.” Thompson v. Wake Cty. Bd. of Educ.,

292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977).




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      At the quasi-judicial hearing, CTA presented both expert and lay testimony

concerning the proposed quarry.       None of the CTA residents adjoin or abut

Petitioner’s property. All of the opponents to the quarry opined it would cause harm

to public health due to blasting and dust, to the environment, to property values, and

to public safety due to traffic. “Speculative opinions that merely assert generalized

fears about the effects of granting a conditional use permit for development are not

considered substantial evidence to support the findings [to deny the permit].”

Humane Society of Moore Cty. v. Town of S. Pines, 161 N.C. App. 625, 631, 589 S.E.2d

162, 167 (2003). Without specific, competent evidence to support these “generalized

fears,” this evidence does not rebut Petitioner’s prima facie showing. See id.

      Respondent-Intervenors’ experts agreed that the proposed quarry use would

be heavily regulated, and, as such, would not endanger the public health and safety

due to blasting, sound, air quality, water quality, or traffic.     The only rebuttal

evidence Respondent-Intervenors produced, beyond “generalized fears” and

speculation, was that Petitioner had not yet received the required approvals and

permits from other regulatory agencies.

      The UDO does not mandate all required approvals to be granted and permits

issued prior to the approval of the SUP application.       If needed, the Board can

condition issuance of the SUP upon Petitioner securing these approvals and permits.




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The lack of all required approvals and permits at the time of the hearings does not

rebut Petitioner’s prima facie showing for the SUP.

      The expert witness evidence to rebut Petitioner’s showing of compliance with

the UDO’s condition 2 mistakes the process for site approval in Lee County.

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.

      The UDO clearly states the impact on property values only applies to

“adjoining or abutting property.”     No residents of CTA or other Respondent-

Intervenors who testified or intervened own property that adjoins or abuts the

Petitioner’s property. Their expert’s assertion that several properties located in CTA

may be negatively impacted by the quarry does not, ipso facto, overcome Petitioner’s

showing in the consideration of conclusion 3. Additionally, it was improper for the

superior court to weigh the evidence and to assert Respondent-Intervenors’ expert

was “substantially more compelling.” The superior court erred by re-weighing the

evidence, as compared to reviewing the whole record as an appellate court. The




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superior court’s review is limited to competent evidence in the whole record. See

Thompson, 292 N.C. at 410, 233 S.E.2d at 541.

      As noted, the County has already made a legislative decision to permit the

operation of quarries in RA and RR zoned districts with approval of a special use

permit. Respondent-Intervenors’ rebuttal evidence regarding the lack of harmony

with the surrounding uses consisted of “generalized fears” and speculation of lay

witnesses. This testimony is insufficient to rebut Petitioner’s prima facie showing

and the prior legislatively determined harmony of this use within these zoning

districts and with the surrounding area. See Woodhouse, 299 N.C. at 216, 261 S.E.2d

at 886; see also Am. Towers, Inc. v. Town of Morrisville, 222 N.C. App. 638, 643, 731

S.E.2d 698, 702-03 (2012), disc. review denied, 366 N.C. 603, 743 S.E.2d 189 (2013).

      The Board’s findings are unsupported by competent, material, and substantial

evidence, and its conclusions thereon are, as a matter of law, erroneous. Respondent-

Intervenors did not present substantial, material, and competent evidence to rebut

Petitioner’s prima facie showing of entitlement to a SUP. The superior court erred

by not properly reviewing the evidence of the whole record, and the conclusions

thereon de novo, and by affirming the Board’s decision.

                        D. Little River’s Due Process Rights

      Petitioner argues it was denied due process in the quasi-judicial hearing before

the Board of Adjustment. We disagree.



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                                  Opinion of the Court



      A Board “conducting a quasi-judicial hearing, can dispense with no essential

element of a fair trial[.]” Humble Oil & Refining Co. v. Bd. of Aldermen of the Town

of Chapel Hill, 284 N.C. 458, 470, 202 S.E.2d 129, 137 (1974). The Board “must insure

that an applicant is afforded a right to cross-examine witnesses, is given a right to

present evidence, is provided a right to inspect documentary evidence presented

against him and is afforded all the procedural steps set out in the pertinent ordinance

or statute.” Coastal Ready-Mix Concrete Co. v. Bd. of Comm’rs of the Town of Nags

Head, 299 N.C. 620, 626, 265 S.E.2d 379, 383 (1980).

      Here, every party was represented by counsel who all mutually agreed upon

the procedures to be followed at each of the five quasi-judicial hearings. Having

already addressed Petitioner’s argument concerning Respondent-Intervenors’

standing, we find no violation of Petitioner’s due process rights.         Petitioner’s

arguments are overruled.

                                    VI. Conclusion

      Petitioner has failed to show any error in the superior court’s ruling on

Respondent-Intervenors’ standing before the Board or by allowing intervention before

the superior court, or with the due process afforded to Petitioner. We affirm the

superior court’s ruling on those issues.

      Petitioner presented a prima facie showing of entitlement to a SUP.

Respondent-Intervenors failed to offer substantial, material, and competent evidence



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                         LITTLE RIVER, LLC V. LEE COUNTY

                                  Opinion of the Court



to rebut or overcome this showing. We reverse the superior court’s affirmation of the

Board’s denial of Petitioner’s SUP.

      This case is remanded to the superior court for further remand to the Lee

County Board of Adjustment to acknowledge Petitioner’s application and prima facie

showing for a SUP for the construction and operation of a quarry on the site, and to

consider and detail any conditions, approvals, or permits from state or federal

regulatory agencies required of Petitioner to comply with the Developmental

Regulations in the UDO in order to issue the SUP. It is so ordered.

      AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.

      Judges STROUD and HUNTER concur.




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