NC Court of Appeals Provides Another Illustration of What is NOT

In general, a landowner seeking a conditional use permit ("CUP") from a local zoning board is entitled to issuance of the SUP if these legal conditions are met:

• The landowner satisfies presents "competent, material and substantial evidence" that all the requirements of the local ordinance are met and
• Opponents fail to rebut the landowners evidence with their own "competent, material and substantial evidence"

The North Carolina Court of Appeals recently issued an opinion in the case of Coswalld, LLC v. New Hanover County, 2021 NCCOA 596 (NC App., November 2, 2021) (unpublished). In that case, a local landowner owned a 30-acre parcel of land in New Hanover County and, through a developer, sought a special use permit (“SUP”) to develop 15.6 acres within this parcel. The development was proposed as a mixed-used development of the property, including multi-family apartment buildings with limited commercial uses. The proposal included two access points to the property.

Similar to many North Carolina zoning ordinances, the New Hanover County zoning ordinance required the Board of Commissioners to issue a SUP if the Board reaches each of the following conclusions based on findings of fact supported by competent, substantial, and material evidence presented at the hearing:

• That the use will not materially endanger the public health or safety if located where proposed and approved.
• That the use meets all required conditions and specifications of the Zoning Ordinance.
• That the use will not substantially injure the value of adjoining or abutting property, or that the use is a public necessity.
• That the location and character of the use if developed according to the plan as submitted and approved will be in harmony with the area in which it is to be located and in general conformity with the Comprehensive Land Use Plan for New Hanover County.

In Coswalld, the developer presented competent, substantial, and material evidence establishing all four requirements for issuance of the SUP.

Opponents of the development focused on the development's potential danger to public health and safety. Among other concerns, opponents highlighted the potential for the development to increase traffic congestion. In looking at the evidence presented, the Court of Appeals rejected all the opponent's evidence as not being competent, substantial, or material.

In general, "competent" evidence in SUP cases means expert opinion evidence. The Coswalld developer presented a traffic impact analysis prepared by an expert witness -- an engineer with training, education, and expertise with respect to how developments impact traffic volume and flows. The report contained traffic data and statistical modeling. The engineer testified under oath and presented his report at the hearing.

By contrast, the opponents presented only non-expert opinion testimony from local residents. The law calls these "lay opinions." However, both North Carolina cases and statutes prohibit use of lay opinion testimony. See N.C. Gen. Stat. § 160A-393(k)(3)(b) (2019) (providing that "competent evidence" shall "not be deemed to include the opinion testimony of lay witnesses as to [whether] . . . [t]he increase in vehicular traffic resulting from a proposed development would pose a danger to public safety."

Because only lay opinions were provided by the opponents, their evidence was not "competent evidence."

Further, even if the opponent's evidence had been expert evidence, the Court of Appeals concluded that the evidence would not have been "substantial." For example, there were several opinions predicting that the development would increase traffic, but no data or modeling was generated or presented showing how much the traffic would purportedly increase. Further, a mere increase in traffic does not necessarily mean more congestion or an increase in hazards that would materially endanger public safety.

For evidence to be "material," it must "connect up" logically to the development at issue. In Coswalld, many of the opponents focused on the poor condition of the roads that would provide access to the development. However, the Court of Appeals noted that, even if the access roads were in poor condition, this evidence was not material. The developer seeking the SUP did not own the access roads and had no legal right, ability, or obligation to remedy the alleged poor condition of the roads. This evidence was not material because, as the court stated, "[r]regardless of whether the special use permit was issued, [the access] Road would have been in poor condition."

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.