                            NO. COA13-1274

                   NORTH CAROLINA COURT OF APPEALS

                           Filed: 3 June 2014


TEMPLETON PROPERTIES LP,
     Petitioner,

    v.                                 Watauga County
                                       No. 12 CVS 665
TOWN OF BOONE,
     Respondent.


    Appeal by respondent from order entered 7 August 2013 by

Judge Shannon R. Joseph in Watauga County Superior Court.           Heard

in the Court of Appeals 20 March 2014.


    The Brough Law Firm, by Michael B. Brough; and di Santi
    Watson Capua & Wilson, by Anthony S. di Santi and Chelsea
    B. Garrett, for Petitioner-appellee.

    Parker Poe Adams & Bernstein, LLP, by Anthony              Fox   and
    Benjamin R. Sullivan, for Respondent-appellant.


    HUNTER, JR., Robert N., Judge.


    The Town of Boone (“Boone”) appeals the superior court’s 7

August 2013 order reversing a decision of the Town of Boone’s

Board of Adjustment (“Board”) that denied Templeton Properties

L.P.’s   (“Templeton”)   application   for   a   zoning   permit.     We

reverse the superior court’s order.

                   I. Facts & Procedural History

    This is the third time this Court has reviewed this case.
                                     -2-
See Templeton Properties, L.P. v. Town of Boone, ___ N.C. App.

___, ___, 724 S.E.2d 604, 605 (2012) (“Templeton II”); Templeton

Properties LP v. Town of Boone, 198 N.C. App. 406, 681 S.E.2d

566, 2009 WL 2180620 (2009) (unpublished) (“Templeton I”).

      The dispute centers around Templeton’s 2.9 acre lot (“the

Parcel”) in Boone at 315 State Farm Road.              The Parcel is zoned

for single-family residential use (“R-1”), but has historically

been used as a church under a special use permit.              Templeton I,

2009 WL 2180620 at *1.         The church is 2,250 square feet and is

located between State Farm Road and VFW Drive in Boone, which

provide routes of access to the Parcel.               Id.   The surrounding

neighborhood is “composed of mostly single-family residences,”

except for a non-residential VFW hall located near the Parcel.

Id.       Under    section    165   of   Boone’s     then-existing    unified

development       ordinance   (“UDO”),     medical   clinics   over   10,000

square feet were allowed in R-1 zoning with a valid special use

permit.     Applications for special use permits may be denied by

the Board upon showing of at least one of four reasons set forth

in UDO § 69(c), namely that the development

            (1) Will materially          endanger     the   public
            health or safety, or

            (2) Will substantially injure the value of
            adjoining or abutting property, or
                                         -3-
           (3) Will not be in harmony with the area in
           which it is to be located, or

           (4) Will not be in general conformity with
           the comprehensive plan, thoroughfare plan,
           or other plan officially adopted by the
           council.

       On 28 September 2006, Templeton submitted an application to

Boone to obtain a special use permit to place a 13,050 square

foot medical clinic on the Parcel.                Id.    The Board denied the

application      as    incomplete.         Id.      Templeton       modified      its

application and resubmitted it on 2 March 2007 to address the

Board’s   concerns,      including       decreasing     the   clinic’s     size    to

10,010 square feet, the current proposed size of the clinic.

Id.

       On 1 May 2007 the Board rejected Templeton’s application.

Templeton II, ___ N.C. App. at ___, 724 S.E.2d at 606.                            The

Watauga County Superior Court granted a writ of certiorari and

then   entered    an   order   on    7   July    2008   reversing    the     Board’s

denial of Templeton’s application for the special use permit.

Id.    Boone appealed to this Court and we remanded to the Board

to issue reviewable findings of fact in Templeton I.                         Id. at

___, 724 S.E.2d at 606–07.

       On 2 September 2010, the Board met to make findings of fact

relating to the special use permit after the remand.                   Id.     After
                                          -4-
taking    testimony     from     residents      and    Templeton’s    counsel,     the

Board made findings of fact and approved them via a written

decision      on   29   September    2010.        Id.      On   27   October   2010,

Templeton appealed the Board’s decision to the superior court by

petition for writ of certiorari, which was granted the same day.

Id.      On   21   February      2011,    the   superior    court     affirmed     the

Board’s decision.          Id.      Templeton then appealed the superior

court’s decision to this Court, resulting in Templeton II.                         Id.

This Court remanded in Templeton II and required the Board to

“make    reviewable      findings    of    fact . . . based          only   upon   the

testimony and evidence presented at the hearings held on 5 April

and 1 May 2007” due to defects in additional testimony taken by

the Board after the first remand.                     Id. at ___, 724 S.E.2d at

614.     We adopt the remaining statements of fact and procedural

history in Templeton I and Templeton II.

       On remand, the Board again denied Templeton’s application

for a special use permit on 4 October 2012 via an identical

order as we considered in Templeton II.                   The Board made twenty-

one findings of fact relating to the proposed clinic’s lack of

harmony within the order:

              3. Templeton’s proposed clinic would be
              10,010 square feet in size and would have 67
              parking   spaces   distributed  among   four
              different parking lots.
                       -5-


4. The clinic and its parking lots would
have 23 light poles.      These light poles
would produce a glow at night visible from
neighborhood residents’ homes and yards.
Further, some people in the surrounding
neighborhood live on properties that are at
a higher elevation than the Lot, and those
people would look down on the well-lit
clinic. The shields that Templeton proposed
for the poles’ light bulbs would not prevent
light from bleeding into the neighborhood.

5.   Templeton  plans   for   employees  and
patients to access the clinic from State
Farm Road, and Templeton plans to add a
left-turn lane from State Farm Road into the
clinic.

6. The clinic would have a large dumpster
pad, though Templeton did not specify how
many dumpsters would be on this pad.

7. Templeton had not found a tenant for the
clinic and did not know what kind of medical
procedures would be performed there or what
types of medical wastes might be produced.
Templeton did acknowledge, however, that
some wastes produced at the clinic could be
hazardous.

8. The only development currently on the Lot
is a 2,250 square-foot church.    The church
has few lights, and it generally has traffic
only on weekends.

9.   The   area    surrounding  the   Lot   is
predominantly    zoned    R-1  Single   Family
Residential.    The surrounding area has been
almost uniformly zoned R-1 Single Family
Residential since the Town first adopted
zoning for the area in 1979.

10.   The   area   surrounding   the   Lot   is   a
                     -6-
residential   neighborhood,    one   of  [the]
oldest in Boone.     It is more consistently
residential,   with    fewer   non-residential
developments,     than    other    residential
neighborhoods    in    Town.       The   Lot’s
surrounding area also has more preserved
trees and vegetation than other areas in
Boone.

11. Next door to the Lot is a VFW hall.
Although the VFW hall is non-residential, it
is grandfathered because it was built before
Boone adopted zoning in 1979.

12. Except for the VFW hall, properties in
the Lot’s surrounding area are almost all
single-family homes.

13. During the hearing, Templeton offered
the results of a survey that it had
conducted of development along a stretch of
State Farm Road.    Some properties in this
survey were non-residential.

14. However, Templeton’s survey was not
limited to the area where the clinic would
be located.     Instead, Templeton’s survey
extended almost a mile away from the Lot,
into other areas of Town.    The survey also
focused on properties fronting State Farm
Road, which caused it to exclude many
properties that, although not fronting on
the road, were still part of the area where
the clinic would be located.

15. Templeton’s survey did not accurately
reflect the character of the area in which
the clinic would be located.

16. The Lot’s surrounding area is separated
from   less  residential  parts  of  Boone,
including   those  less  residential  parts
covered in Templeton’s survey, by distance,
topography, and the curves in State Farm
                              -7-
         Road.   As a result, the Lot’s surrounding
         area is a distinct and separate residential
         neighborhood.

         17. Templeton’s appraiser, in describing the
         Lot’s surrounding area, also concluded that
         the only developments in the surrounding
         area were the VFW hall and single-family
         homes.

         18. The Lot’s surrounding      area has no
         medical buildings, offices,    or commercial
         developments.

         19. The clinic would introduce a busy
         commercial operation into an area that is
         overwhelmingly residential in character.

         20. At 10,010 square feet, the clinic would
         be much larger than the single family homes
         that predominate in the surrounding area.

         21. The clinic would produce far more
         traffic than other properties in the Lot’s
         surrounding area and would produce a level
         of traffic out-of-character for that area.

         22. No properties in the Lot’s surrounding
         area produce as much light as the clinic
         would produce.   The clinic’s lighting would
         not be in keeping with the type and level of
         lighting currently found in the surrounding
         area.

         23. Templeton’s proposed clinic would not be
         in harmony with the area in which it would
         be located.

    On 6 November 2012, Templeton appealed the denial of its

application to the Watauga County Superior Court.   On 7 November

2012, the superior court issued an ex parte writ of certiorari.
                               -8-
On 7 August 2013, the superior court entered an order reversing

the Board’s denial of Templeton’s application.       In its third

conclusion of law, the superior court found

         3.    The    Board’s      determination     that
         Petitioner’s proposed use is not in harmony
         with the area rests on an overly-restrictive
         application   of    the   term  “area,”    which
         amounts   to   a   misinterpretation    of   the
         applicable standard.       In this case, the
         relevant “area” within the meaning of the
         ordinance is not limited to the residences
         that lie north of the subject site and that
         do not front State Farm Road but includes
         similarly situated properties along State
         Farm Road that are in reasonable proximity
         to the subject site.           The undisputed
         evidence in the record is that most of those
         properties     are      used     for     office,
         institutional,     and    commercial    —    not
         residential   —    purposes.   Therefore,    the
         Board’s conclusion that the proposed use is
         not in harmony with the area in which it is
         to be located is not supported by the
         evidence.

         Also, the Board’s findings on lack of
         harmony generally and impermissibly cite
         impacts that are inherent in the nature of
         the proposed use. As matter of law, a board
         of adjustment cannot deny an application for
         lack of harmony on the basis that a use
         deemed conditionally permissible by the
         local legislative body would produce impacts
         common to all such uses — for to allow such
         a decision would be to empower the board to
         substitute its judgment for that of the
         elected governing body. All of the Board’s
         findings in this case are of that nature,
         and as a matter of law do not support the
         Board’s conclusion that the proposed use
         would not be in harmony with the area in
                                    -9-
            which it is to be located.

The superior court’s order also found that Finding of Fact 10

was not supported by competent evidence.

    In its fourth conclusion of law, the superior court found

the Board’s determination that Templeton’s proposed use would

not be in conformity with the town’s comprehensive plan was

based on “general policy statements in the comprehensive plan”

and was not a sufficient basis to deny Templeton’s application.

The superior court also found the Board erred in finding that

the proposed use would materially endanger public safety, as

“there was not competent, material and substantial evidence to

support such a conclusion.”        Boone filed notice of appeal on 26

August 2013 and a second notice of appeal on 5 September 2013 to

correct   the    filing   number   listed     on   the   initial   notice   of

appeal.

                 II. Jurisdiction & Standard of Review

    Jurisdiction in this Court is proper pursuant to N.C. Gen.

Stat. § 7A-27(b)(1) (2013) (stating a right of appeal lies with

this Court from the final judgment of a superior court “entered

upon review of a decision of an administrative agency”).

    Boone       first   argues   that   the    superior    court   erred    by

improperly acting as a fact-finder in its determination of the
                                            -10-
“area”    considered        by    the    Board’s        harmony    analysis.        “[T]his

Court examines the trial court’s order for error[s] of law by

determining whether the superior court: (1) exercised the proper

scope    of     review,     and    (2)     correctly        applied      this     scope       of

review.”       Turik v. Town of Surf City, 182 N.C. App. 427, 429,

642    S.E.2d    251,     253     (2007)        (second    alteration      in    original)

(internal        quotation        marks         omitted)        (quoting        Tucker        v.

Mecklenburg Cnty. Zoning Bd. of Adjustment, 148 N.C. App. 52,

55, 557 S.E.2d 631, 634 (2001)).

       Here,    the   superior          court    erred     when    it   concluded        as    a

matter of law that the Board considered the wrong “area” when

assessing      the    clinic’s      harmony        with    the     adjacent      community.

This issue is more properly construed as a mixed question of

fact and law.         See Farm Bureau v. Cully’s Motorcross Park, 366

N.C. 505, 512, 742 S.E.2d 781, 786 (2013) (finding a trial court

mislabeled a mixed question of fact and law as a finding of

fact); Morris Commc’ns Corp. v. City of Bessemer City Zoning Bd.

of    Adjustment,     202    N.C.       App.     631,    636,     689   S.E.2d    880,    883

(2010), rev’d on other grounds, 365 N.C. 152, 712 S.E.2d 868

(2011).

       In Morris, this Court held (i) that interpretation of a

term in a zoning ordinance was a question of law and (ii) that
                                           -11-
determining whether the specific actions of a petitioner fit

within that interpretation was a question of fact reviewable

under the whole record test.               Morris, 202 N.C. App. at 636, 689

S.E.2d at 883.        This Court relied on Whiteco Outdoor Adver. v.

Johnston Cnty. Bd. of Adjust., 132 N.C. App. 465, 513 S.E.2d 70

(1999),    which     prescribed      de     novo    review    of   a     petitioner’s

alleged error of law, but also provided deference to a board of

adjustment’s interpretation of its own ordinance under that de

novo review.       Id. at 470, 513 S.E.2d at 74.                 The Supreme Court

rejected    this     Court’s     application        of   a   deferential     de    novo

standard, stating that “[u]nder de novo review a reviewing court

considers    the     case    anew    and    may    freely    substitute      its    own

interpretation       of   an    ordinance     for    a   board     of    adjustment’s

conclusions of law.”            Morris, 365 N.C. at 156, 712 S.E.2d at

871.    The Supreme Court did not reverse this Court’s finding

that    interpreting        “work”    was     properly       considered     a     mixed

question of law and fact.            Id.

       Thus, we review the superior court’s determination that the

Board   erred   in    its      definition     of    “area”    in   two    parts:    (i)

whether the Board’s interpretation of the ordinance’s use of

“area” prescribed was an error of law under de novo review and
                                   -12-
(ii) whether the specific findings of fact used to define the

area were supported under the whole record test.

    Under de novo review, we examine the case with new eyes.

“[D]e novo means fresh or anew; for a second time, and an appeal

de novo is an appeal in which the appellate court uses the trial

court’s   record   but   reviews    the   evidence    and   law   without

deference to the trial court’s rulings.”       Parker v. Glosson, 182

N.C. App. 229, 231, 641 S.E.2d 735, 737 (2007) (quotation marks

and citations omitted).

    “When utilizing the whole record test, . . . the reviewing

court must examine all competent evidence (the whole record) in

order to determine whether the agency decision is supported by

substantial   evidence.”    Mann    Media,   Inc.    v.   Randolph   Cnty.

Planning Bd., 356 N.C. 1, 14, 565 S.E.2d 9, 17 (2002) (quotation

marks and citation omitted).       “The ‘whole record’ test does not

allow the reviewing court to replace the Board’s judgment as

between two reasonably conflicting views, even though the court

could justifiably have reached a different result had the matter

been before it de novo.” Thompson v. Wake Cnty. Bd. of Educ.,

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

                            III. Analysis

                    A. Defining Area in the Ordinance
                                   -13-
       As discussed supra in Section II, the definition of “area”

in the ordinance is a mixed question of law and fact subject to

de    novo   review.     “[O]ne   of   the   functions    of    a    Board    of

Adjustment is to interpret local zoning ordinances.”                    CG & T

Corp. v. Bd. of Adjustment of Wilmington, 105 N.C. App. 32, 39,

411   S.E.2d    655,   659   (1992).    “[R]eviewing      courts      may    make

independent assessments of the underlying merits of board of

adjustment      ordinance     interpretations.           This       proposition

emphasizes the obvious corollary that courts consider, but are

not bound by, the interpretations of administrative agencies and

boards.”     Morris, 365 N.C. at 156, 712 S.E.2d at 871 (quotation

marks and citation omitted).

       In    Morris,   the   Supreme   Court     compared       a    board    of

adjustment’s interpretation of the term “work” to the actual

ordinance:

             [W]e find the BOA’s interpretation of the
             term “work” unpersuasive. The ordinance
             provides that:

             “If the work described in any compliance or
             sign permit has not begun within six months
             from the date of issuance thereof, the
             permit shall expire.      Upon beginning a
             project, work must be diligently continued
             until completion with some progress being
             apparent   every  three   months.  If   such
             continuance or work is not shown, the permit
             will expire.”
                                 -14-
         City of Bessemer           City,   N.C.,    Ordinance
         § 155.207.

         Bessemer    City’s     zoning     administrator
         testified at the BOA hearing that he
         interpreted   the   term    “work”    to   mean
         “actually    something     moving     on    the
         ground . . . .   [c]onstruction.”       In his
         view, Fairway failed to commence “work”
         within the time period prescribed in the
         sign permit because he did not observe
         construction-like activities occurring on
         the property. He therefore concluded the
         sign was relocated without a valid sign
         permit.

         In contrast, Fairway argues the term “work”
         encompasses the broader range of activities
         necessary to complete the sign relocation.
         Fairway contends its negotiations with DOT
         and Dixon, as well as its acquisition of a
         county building permit, constitute “work”
         under the ordinance. We agree with Fairway
         that the term “work” has a broader meaning
         than mere visible evidence of construction.

Id. at 156–57, 712 S.E.2d at 871.

    We   consider   the    phrase    “area”   here    and   the   Board’s

interpretation of it.     The ordinance provides the Board with the

ability to deny a special use permit if the application “[w]ill

not be in harmony with the area in which it is located.”                A

fact-specific inquiry is necessarily required to define “area”

in this context, as each individual application for a special

use permit will have different surrounding areas the Board will

need to consider when determining whether the property would be
                                               -15-
harmonious with its surroundings.                       This scenario is much like

our Supreme Court’s interpretation of the phrase a “reasonable

time”:

               If, from the admitted facts, the court can
               draw the conclusion as to whether the time
               is reasonable or unreasonable by applying to
               them a legal principle or a rule of law,
               then the question is one of law.      But if
               different inferences may be drawn, or the
               circumstances are numerous and complicated
               and such that a definite legal rule cannot
               be applied to them, then the matter should
               be submitted to the jury.    It is only when
               the facts are undisputed and different
               inferences cannot be reasonably drawn from
               them that the question ever becomes one of
               law.

Claus-Shear Co. v. E. Lee Hard Ware House, 140 N.C. 552, 555, 53

S.E.     433,    435    (1906).            Conversely,        if    the     Board      made     a

determination          of     what       “area”       generally     meant        within       the

ordinance       and    there       was    no    disagreement        about      the     area    in

question,1      a     trial    court’s         de   novo   analysis       of     the   Board’s

conclusion of law, that being an interpretation of “area” within

the ordinance, would be appropriate.

       Here,    the     Board      used    the      term   “area”    as     it    related     to

specific     findings         of   fact,       which    was   the   proper       application

under UDO § 69(d).             Finding of fact #13 considered Templeton’s

1
   For example, if the Board made a finding that “area”
categorically included all adjacent properties within the R-1
zoning area.
                                   -16-
offered   survey,   which   included      non-residential      developments

further down State Farm Road.        Finding of fact #14 noted that

Templeton’s   evidence   “extended   almost    a   mile    away”    from   the

Parcel and that Templeton’s survey excluded several properties

fronting State Farm Road that the Board considered part of the

“area.”   Finding of fact #16 stated that “distance, topography,

and the curves in State Farm Road” separated the Parcel from the

commercial properties cited by Templeton as being part of the

“area.”   Finding of fact #17 noted that Templeton’s appraiser

concluded “that the only developments in the surrounding area

were the VFW hall and single-family homes.”                These findings,

amongst others, are a proper contextual usage of “area” as laid

forth in the ordinance and are inherently fact specific.

    Beyond reviewing the Board’s actions, this Court reviews

whether the superior court correctly performed its several tasks

in its reviewing capacity:

          [T]he task of a court reviewing a decision
          on an application for a conditional use
          permit made by a town board sitting as a
          quasi-judicial body includes:

          (1) Reviewing the record for errors in law,

          (2) Insuring that procedures specified by
          law in both statute and ordinance are
          followed,

          (3)   Insuring    that   appropriate     due    process
                                    -17-
            rights   of   a       petitioner are      protected
            including the        right to offer       evidence,
            cross-examine        witnesses,   and       inspect
            documents,

            (4) Insuring that decisions of town boards
            are supported by competent, material and
            substantial evidence in the whole record,
            and

            (5)   Insuring   that   decisions         are      not
            arbitrary and capricious.

Coastal Ready-Mix Concrete Co., Inc. v. Bd. of Comm’rs of Nags

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

    “When the petitioner correctly contends that the agency’s

decision was either unsupported by the evidence or arbitrary and

capricious, the appropriate standard of review for the initial

reviewing    court   is   ‘whole    record’    review.         If,    however,

petitioner properly alleges that the agency’s decision was based

on error of law, de novo review is required.”            Tucker, 148 N.C.

App. at 55, 557 S.E.2d at 634.             As such, the superior court

conducts a de novo review under the first three tasks and a

“whole record” review for the final two tasks.

    Here, the superior court improperly acted as a finder of

fact on review and imposed its own view of what the bounded

“area”   should   be,   rather    than   reviewing   whether    the   Board’s

findings of fact concerning the area were supported by competent

evidence and not arbitrary and capricious.            The superior court
                                       -18-
held that the fact-specific definition of “area” as used by the

Board should have included “similarly situated” properties that

are    “in   reasonable      proximity       to     the    subject      site.”         “In

proceedings of this nature, the superior court is not the trier

of fact.      Such is the function of the town board.”                            Coastal

Ready-Mix Concrete Co., Inc., 299 N.C. at 626, 265 S.E.2d at

383.    If findings of fact about the “area” affected here were

supported     by   evidence,    they     must      stand     even    if    conflicting

evidence     may   have    allowed     the        superior      court     to   reach    a

different result under         de novo       review.         Tate Terrace Realty

Investors, Inc. v. Currituck County, 127 N.C. App. 212, 218, 488

S.E.2d 845, 849 (1997).           By improperly acting as a trier of

fact, the superior court erred and we reverse its order.

             B. Rebuttal of a Presumed Legislative Finding

       Templeton    also   contends    that        because      Boone’s     R-1     zoning

allowed construction of its clinic under a special use permit,

Boone’s legislative determination that clinics are entitled to

receive      special   use     permits       should        have     been       enforced.

Templeton     cites    a     number    of     cases        in     support      of    this

proposition.       See Woodhouse v. Bd. of Comm’rs of Nags Head, 299

N.C. 211, 216, 261 S.E.2d 882, 886 (1980) (“Where an applicant

for a conditional use permit produces competent, material, and
                                           -19-
substantial evidence tending to establish the existence of the

facts    and     conditions    which       the    ordinance       requires    for    the

issuance of a special use permit, prima facie he is entitled to

it.” (citation and quotation marks omitted)); Blair Investments,

LLC v. Roanoke Rapids City Council, ___ N.C. App. ___, ___, 752

S.E.2d 524, 527 (2013); Habitat for Humanity of Moore Cnty.,

Inc. v. Bd. of Comm’rs of Pinebluff, 187 N.C. App. 764, 768, 653

S.E.2d 886, 888 (2007); MCC Outdoor, LLC v. Franklinton Bd. of

Comm’rs, 169 N.C. App. 809, 814, 610 S.E.2d 794, 797 (2005);

Clark v. City of Asheboro, 136 N.C. App. 114, 122, 524 S.E.2d

46, 52 (1999);        Vulcan Materials Co. v. Guilford Cnty. Bd. of

Cnty.    Comm’rs,    115   N.C.    App.     319,    324,    444     S.E.2d   639,    643

(1994)    (“The    inclusion      of   a    use   as   a   conditional       use    in   a

particular zoning district establishes a prima facie case that

the permitted use is in harmony with the general zoning plan.”).

    Of     the    preceding    cases,       Templeton      argues    that    Woodhouse

uses a “legislative finding” rule and that Vulcan is a “less-

restrictive” formulation of the Woodhouse test.                       We do not see

conflict between the two cases, which both allow the presumption

of granting the special use permit to be rebutted by the party

opposing its issuance.            See Blair, ___ N.C. App. at ___, 752

S.E.2d at 528–29 (citing Woodhouse                  and holding        that after a
                                           -20-
petitioner “makes a prima facie showing of entitlement to                             a

special use permit, 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” so long as denial is “based upon findings which are

supported    by     competent,          material,    and     substantial    evidence

appearing      in    the        record”     (citation      and     quotation      marks

omitted)).          Thus,       while     showing     that       entitlement   to     a

conditional or special use permit creates a prima facie case

that a petitioner is entitled to a special use permit, the prima

facie   case      may   be       rebutted    by     “competent,       material,     and

substantial evidence [showing the] use contemplated is not in

fact in harmony with the area in which it is to be located.”

Vulcan, 115 N.C. App. at 324, 444 S.E.2d at 643 (citations and

quotation marks omitted).

    Accordingly,           we    must     consult    the     record    to   determine

whether “competent, material, and substantial” evidence existed

to support the Board’s harmony analysis.                   Id.

   C. Findings of Fact Supporting Board’s Decision to Deny the
                                 Special Use Permit
    As noted supra in Section II, we now review whether the

Board’s findings of fact were supported by competent evidence

under the whole record test.              At the outset, we note that
                                      -21-
              [A] city council’s denial of a conditional
              use permit based solely upon the generalized
              objections   and    concerns    of    neighboring
              community     members     is      impermissible.
              Speculative assertions, mere expression of
              opinion, and generalized fears “about the
              possible effects of granting a permit are
              insufficient to support the findings of a
              quasi-judicial body.” In other words, the
              denial of a conditional use permit may not
              be    based   on     conclusions     which    are
              speculative, sentimental, personal, vague,
              or   merely   an   excuse    to    prohibit   the
              requested use.

Blair, ___ N.C. App. at ___, 752 S.E.2d at 529 (quotation marks

and citation omitted).          Were the Board’s findings concerning the

area’s   characteristics         solely     based     on    the    testimony     of

individuals affected by development of the Parcel, denial of the

permit   on     those   grounds     might    be    impermissible.        However,

several findings of fact concern the nature of the Parcel and

the surrounding area which buttress its decision:

        Finding of fact #3 notes that there would be sixty-seven

         parking spaces at the clinic.

        Finding of fact #4 describes the twenty-three light poles

         on    the   clinic’s     grounds    as    well    as   issues   with   the

         shielding      on   the    lights        affecting     the   surrounding

         residents.

        Finding of fact #5 describes Templeton’s proposed left-

         turn lane to allow access from State Farm Road.
                                    -22-

   Finding of fact #6 describes the clinic’s proposed “two

    large    dumpster      pads,”     and       that    Templeton      could    not

    estimate how many containers would be placed on the pads.

   Finding of fact #7 noted the uncertainty of the type of

    clinic that would locate at the facility.

   Finding of fact #8 noted the size, limited weekend use,

    and lack of lighting by the current church structure on

    the Parcel.

   Finding of fact #9 noted the historical tendency to zone

    the surrounding area as R-1.

   Finding of fact #11 noted that the VFW Hall adjacent to

    the Parcel was grandfathered into existence because it

    was built before Boone adopted zoning.

   Finding of fact #12 noted that the surrounding area was

    primarily comprised of single family homes.

   Findings of fact #13, #14, and #15 found that Templeton’s

    survey     was   not    limited        to    an    area    that    accurately

    reflected    the    character      of       the    area   near    the   Parcel,

    extended    close      to   a   mile    away       from   the     Parcel,   and

    excluded several properties not fronting State Farm Road.
                                      -23-

       Finding of fact #16 finds that the Parcel is separated

        from the other non-residential parcels cited by Templeton

        by topography, distance, and road features.

       Finding   of   fact   #17     notes    that   Templeton’s    appraiser

        described the Parcel’s surrounding area as the VFW hall

        and single family homes.

       Findings of fact #18 and #19 note the lack of medical

        buildings, offices, or other commercial developments in

        the   surrounding     area    and     found   that    introducing   the

        medical   clinic      would     introduce      a     “busy   commercial

        operation” into an “overwhelmingly residential” area.

       Findings of fact #20, #21, and #22 note that the clinic

        would be “much larger” than the surrounding structures,

        would produce additional traffic, and would create more

        artificial light than other surrounding structures in the

        area.

These findings were based on testimony, photographs of the area,

drawings, topographic surveys, and other data compiled by the

Board prior to its 4 May 2007 denial of Templeton’s application.

The foregoing was ample evidence to support a finding that the

proposed clinic was not harmonious with its surrounding area.

Further, the superior court cited only finding of fact #10 as
                                       -24-
not being supported by evidence in its order.                    We disagree and

hold that the six residents’ testimony of the area regarding its

contents constituted competent evidence                 supporting     finding of

fact #10.2      Accordingly, there was competent evidence supporting

the Board’s finding that the medical clinic would not be in

harmony with its surrounding area pursuant to UDO § 69(c)(3) and

the superior court erred in overturning the Board’s decision to

deny the special use permit.

     Because     we   hold    that    the   Board’s     denial    of   Templeton’s

special   use    permit      was   supported    by    competent    evidence    and

proper under its harmony analysis, we do not address Boone’s

remaining       arguments          concerning        conformance       with    the

comprehensive plan or to provide for the public’s safety.




2
  The testimony included statements from Ben Shoemake who said
the Parcel was surrounded by homes and that the commercial
development cited by Templeton was further away from the
neighborhood that he described as “much smaller.”            Les
Monkemeyer testified that the neighborhood has trees over a
century old in the surrounding area. Marc Kadyk, a thirty-year
resident of the neighborhood, testified that the area is heavily
wooded.   Thirty-four year neighborhood resident and Town Mayor
Loretta Clawson testified that the area was overwhelmingly used
as homes.   Thomas and Joan McLaughlin also testified that the
neighborhood was residential in nature, that the area was
heavily wooded, and that the commercial portion of State Farm
Road to the southeast cited by Templeton was dissimilar because
it did not have the same amount of vegetation.
                             -25-
                        IV. Conclusion

    For the reasons stated above, the decision of the superior

court is

    REVERSED.

    Judges STROUD and DILLON concur.
