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April 10, 2014 1 Volume 81 Issue 7 Zoning Bulletin <br />DECISION: Judgment of superior court affirmed. <br />As a matter of first impression (i.e., the first time the court had ruled on <br />the issue), the Court of Appeals of North Carolina held that, in the context <br />of quasi - judicial land use decisions, a "material change" may preclude the <br />use of the defense of res judicata. The court declared that such a "material <br />change" occurs when the specific facts or circumstances which led to the <br />prior quasi-judicial land use decision have changed to the extent that they <br />"vitiate . . . the reasons which produced and supported" the prior decision <br />such that the application "can no longer can be characterized as the same <br />claim." <br />Also as a matter of first impression, the court said that when reviewing a <br />board's determination that there had been a material change in circum- <br />stances between a first application for a CUP, which had been denied, and a <br />second application for a CUP, which was granted, it would apply a <br />deferential "whole record" test. Under such a test, the reviewing court must <br />examine all competent evidence (i.e., the "whole record ") in order to <br />determine whether the board's decision is supported by substantial evidence. <br />Here, the court found that the lowering of the height of the proposed <br />radio tower by 150 feet in the second CUP application did not constitute a <br />material change in circumstances from DCBI's first application. The court <br />found that the whole record reflected that the Board essentially considered <br />the same information in both the 2005 and 2010 CUP applications and <br />reached different decisions. More specifically, the court found that a whole <br />record review did not reveal any evidence that the 150 foot change in the <br />tower height would undermine the reasoning behind the denial of the 2005 <br />CUP application. The safety evidence cited by the County would be equally <br />applicable to both a 1,350 -foot tower and a 1,200 -foot tower, found the <br />court. Thus, the court concluded that the doctrine of res judicata precluded <br />the Board from granting the 2010 CUP application. <br />See also: Little v. Board of Adjustment of City of Raleigh, 195 N.C. 793, <br />143 S.E. 827 (1928). <br />See also: Harden v. City of Raleigh, 192 N.C. 395, 135 S.E. 151 (1926). <br />See also: Application of Broughton Estate, 210 N.C. 62, 185 S.E. 434 <br />(1936). <br />4 © 2014 Thomson Reuters <br />