Agenda - Planning Commission - 06/07/2007

Home

Zoning Bulletin See also: Bratton 1/. Cit)1 of Florence, 688 So. 2d 233 (Ala. 1996). See also: Mobile Count)1 Department of Human Resources v. Mims, 666 So. 2d 22 (Ala. Ci1/. App. 1995). Conditional Use permit-Commission appeals decision reversing its denial of permit for radio tower Argues court applied wrong standard of review Citation: C~tmulus Broadcasting, LLC 1/. Hoke County Bd. Of Com'rs, - S.E.2d - _, 2006 WL 3487140 (N. C. App. 2006) NORTH CA..'R.OLIt'JA-Cumulus Broadcasting, LLC leased 23 acres of land in Hoke County 'with the intention of constructing a 499-foot radio tower on the property. The county allowed: "Communications; Broadcasting, and Receiving Towers; Radio, Television, and Radar; with setbacks from all property lines of at least one (1) foot for every foot of strucrure height" with a conditional use permit. Cumulus applied for a conditional use permit, but, after a hearing, the permit was denied. Cumulus filed an appeal against the commission in court, arguing that it had arbitraiJy and capriciously denied the permit, abused its discretion in deny- ing the permit, and violated administrative procedure, thereby denying due process. The court found in favor of Cumulus, and it reversed the decision of the com- mission. The court sent the case back before the commission with the instruction to issue the conditional use permit. The commission appealed. Decision: Affirmed. On appeal, the commission argued that the lower court had applied the wTong standard of review and had erred in its application of the law. The appeals court did not agree; the decision of the lower court was upheld. The trial court reviewed the record to: search for errors of law, ensure that the law and ordinance were followed and procedural due process rights were pro- tected (including the right to offer evidence, cross-examine wimesses and inspect documents), and determine if the decision was arbitrary, capricious, or not sup- ported by the weight of the evidence. This was the proper standard of review for zoning cases. The lower court could uphold t..he denial of the conditional use permit only if the record contained competent, material, and substantial evidence that t..he permit should not have been granted. The court could not, however, substitute its judg- ment for that of the zoning board's. Here, the COlli, found t..hat the evidence against Cumulus was "anecdotal, conclusory, and without a demonstrated factual basis." The court did not reweigh the evidence; the record simply did not meet the necessary burden to justify a denial of the permit. The objections of the wimesses at t..he hearing were mainly concerned with the tower's proximity to a privately owned airport. Their statements were merely personal opinions, and they did not present any evidence to support them. On the other hand, Cumulus presented evi- dence that its proposal met all the conditions of the ordinance. Further, there was a letter of approval for the tower issued by the Federal Aviation Administration arId the Federal Communications Commission in the record. Because the majority of the evidence in the record supported the lower court's decision-and because it had applied the correct standard of review-it was affirmed. See also: Howard v. City of Kinston, 558 S.E.2d 221 (2002). 6 150