The N.C. Court of Appeals has affirmed a lower court in finding that Southern Pines’s decision to deny a conditional use permit to the local humane society was “arbitrary and capricious and not supported by competent, substantial evidence.”
The case involves the Humane Society of Moore County’s application to build a veterinary clinic in Southern Pines. On Dec. 11, 2001, the town council unanimously rejected the application. The council found that the proposed facility was principally an animal shelter with only secondary use for education and care of animals. It also concluded the facility would reduce the value of neighboring properties and would not be in harmony with the surrounding area. The Humane Society appealed.
The Court of Appeals, like the superior court before, was not persuaded by the town’s analysis. A veterinary clinic with outdoor kennels was an approved conditional use of the proposed site under Southern Pines’s existing zoning laws. Under state law, the Humane Society was entitled to a presumption that the organization would comply with zoning requirements unless the town could show otherwise.
“Though [the humane society] acknowledges that it will operate an adoption center at the facility among other functions, there is no evidence in the record that such an activity will be the primary use of the facility,” wrote Judge John Martin for the court. “Since there was not substantial evidence to show that petitioner does not meet the requirements of the ordinance, the denial of the permit was not based on competent, substantial, and material evidence.”
The court was no more persuaded by the town’s attempts to show that the clinic would hurt property values in the area. The town’s expert admitted that there was no actual data that shows the effects of an animal care facility on local property values. The appraiser instead developed numerous case studies to argue that the facility would reduce property values. The courts rejected these models.
Several of the case studies attempted to quantify the impact of the clinic by showing the effects of some less-than-desirable features — a power line, a waste treatment plant, and a railroad line — on property values. The appeals court rejected these analogies, noting that “evidence of the reduced value of lots and evidence of additional marketing time from these particular influences have no correlation with effects from an animal care facility and cannot be considered competent, material evidence.”
Likewise, the court held as merely speculative and not “competent, material evidence” a survey of local residents that asked whether they would have still moved to the area had it contained an animal care facility.
Southern Pines also argued that the clinic would not be in harmony with the surrounding area. North Carolina law presumes that approved conditional uses are in harmony with the area unless factual evidence shows otherwise. Though two landscape architects expressed concerns about odors and noise, because they did not or could not show the Humane society’s existing facility created these problems, their testimony was again mere speculation and without a factual basis.
The case is Humane Society of Moore Cty., Inc. v. Town of S. Pines, (03-77).
Lowrey is a Charlotte-based associate editor at Carolina Journal.