Battling a Proposed Development? it is a Legal Fight, Not a Political Fight

In the news lately, residents of Lewisville, North Carolina, are reportedly angered and upset at a proposed residential development on their local Conrad Road. As described in the report, Lewisville residents proudly claim that their town and Conrad Road itself are some of the most picturesque and beautiful parts of North Carolina with rolling hills, large fields, woodlands and stately homes on three-acre lots near the Yadkin River.

However, things may be changing as a local home builder has filed an application for approval of a permit and development plan that would subdivide about 58 acres along Conrad Road into 61 home lots ranging from about a third-acre to a half-acre. The proposed development plan would build two ingress/egress access points onto Conrad Road.

Locals are rightly concerned about the adverse effects of such a housing development on the charm of the area and are also concerned about increased traffic congestion and stresses on infrastructure like water and sewer. The local residents are also concerned about the precedent. As one resident is quoted as saying: “If they get one, they’ll continue to do it to that road.”

According to the media report, the local Planning and Zoning Board has scheduled a meeting to hear about and, potentially, approve the special use permit allowing the builder's residential development plan. The local neighbors have reportedly hired an attorney "to speak on their behalf" at the meeting. The media report does not give any further details. But, if the local residents are only having an attorney "speak for them," that will be woefully insufficient to stop the development.

Fighting a permit approval is a legal fight, not a political fight. Many believe that, since the decision-makers are elected officials, then taking political action will prevent approval of a permit. This is a mistaken belief. Permit battles are legal battles. While "being heard," expressing "concerns" and articulating "worries" might win a political fight, such will NOT win a legal fight, at least not here in North Carolina.

To win a legal battle over approval of a special use permit, North Carolina statutes and case law require that the proponents and opponents of land use applications present "competent, material, and substantial evidence" to the decision-making body with respect to the relevant legal and factual issues. In effect, this means hiring expert witnesses to evaluate factual issues like traffic congestion and whether a new development will cause excess flooding or undue stress on sewer and other public infrastructure. North Carolina courts have repeatedly refused to give any consideration AT ALL to opinions and worries about matters like traffic congestion expressed by local residents. The courts do not consider such public pronouncements to be "competent" evidence. Further, having such concerns and worries expressed by a lawyer will not make a difference. The courts require evidence and that means experts.

The legal fight starts with a review and understanding of the local zoning and/or land use ordinances. Thus, the first question that the residents of Conrad Road need to ask is this: does the local ordinance allow a 61-lot neighborhood development on Conrad Road? The media report suggests that other areas of Lewisville are approved for such developments, but not Conrad Road. If the area around Conrad Road is not approved for 61-unit neighborhoods, then that could be a solid legal basis for preventing the development.

The next question is this: What are the other requirements for approval of a special use permit? Often, North Carolina county and city ordinances have requirements like these:

• The proposed use cannot be a danger to public health or safety
• The proposed use must be in harmony with the area
• The proposed use must be in conformity with the comprehensive plan
• And similar

Fighting over these legal requirements is where expert reports and witnesses enter the picture. Excess traffic congestion could be considered a public health and safety issue. But, an expert on traffic safety will need to provide a report and opinion testimony with respect to how traffic safety is impacted by the proposed development. Again, opinions and concerns by local residents are not enough to win the legal fight.

The general rule is that the developer "goes first" and provides competent, substantial and material evidence that the proposed development satisfies all the legal requirements. If the developer provides such evidence, the developer is, by law, ENTITLED to the permit. The opponents then "go next" to offer their own competent, substantial and material evidence disputing that the proposed development meets the legal requirements. At that point, the decision-making body can weigh the evidence and make a decision. Courts will generally uphold a decision that is based on weighing evidence that is properly presented. It is at this point that political considerations might legally be a factor.

For more information, and to schedule a confidential consultation with experienced and dedicated zoning and land use attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning and condemnation legal matters in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.