IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA18-251

Filed: 6 November 2018

Buncombe County, No. 17 CVS 01188

PHG ASHEVILLE, LLC, Petitioner,

v.

CITY OF ASHEVILLE, Respondent.

Appeal by respondent from order entered 2 November 2017 by Judge William 

H. Coward in Buncombe County Superior Court. Heard in the Court of Appeals 20 

September 2018.

Smith Moore Leatherwood LLP, by Kip D. Nelson and Thomas E. Terrell, Jr., 

for petitioner-appellee.

City of Asheville City Attorney’s Office, by City Attorney Robin Tatum Currin 

and Assistant City Attorney Catherine A. Hofmann, for respondent-appellant.

TYSON, Judge.

The City of Asheville (“the City”) appeals from an order of the superior court 

reversing the City’s denial of a conditional use permit to PHG Asheville, LLC for the 

construction of a hotel. We affirm. 

I. Background

PHG Asheville, LLC (“Petitioner”), a North Carolina business entity,

submitted an application to the City for a conditional use permit (“CUP”) on 27 July 

2016. Petitioner planned to construct an eight-story, 178,412 square foot Embassy 
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Suites hotel, with 185 rooms and on-site parking structure, to be built upon a 2.05 

acre parcel located in downtown Asheville at 192 Haywood Street (the “Project”). The 

property is zoned “Central Business District,” (“CBD”), which includes hotels as a 

permitted use. The property is also located within the “Downtown Design Review 

Overlay District” (“DDROD’’) under the City’s Uniform Development Ordinance

(“UDO”). Asheville, N.C., Code of Ordinances, § 7-5-9.1(a)(1) (2016).

Development projects designed to contain a gross floor area greater than 

175,000 square feet to be built on parcels zoned CBD and located in the DDROD are 

subject to the City’s “Level III site plan” review. This multi-level review includes a 

quasi-judicial hearing for issuance of a CUP from the Asheville City Council. 

Asheville, N.C., Code of Ordinances, § 7-5-9.1(a)(1),(7) (2016). 

The UDO provides the following criteria for issuance of a CUP:

Conditional use standards. The Asheville City Council 

shall not approve the conditional use application and site 

plan unless and until it makes the following findings, based 

on the evidence and testimony received at the public 

hearing or otherwise appearing in the record of the case:

(1) That the proposed use or development of the land will 

not materially endanger the public health or safety;

(2) That the proposed use or development of the land is 

reasonably compatible with significant natural and 

topographic features on the site and within the immediate 

vicinity of the site given the proposed site design and any 

mitigation techniques or measures proposed by the 

applicant;
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(3) That the proposed use or development of the land will 

not substantially injure the value of adjoining or abutting 

property;

(4) That the proposed use or development of the land will 

be in harmony with the scale, bulk, coverage, density, and 

character of the area or neighborhood in which it is located;

(5) That the proposed use or development of the land will 

generally conform with the comprehensive plan, smart 

growth policies, sustainable economic development 

strategic plan, and other official plans adopted by the city;

(6) That the proposed use is appropriately located with 

respect to transportation facilities, water supply, fire and 

police protection, waste disposal, and similar facilities; and

(7) That the proposed use will not cause undue traffic 

congestion or create a traffic hazard.

Asheville, N.C., Code of Ordinances, § 7-16-2(c) (2016). 

Petitioner’s Project was reviewed by, and received recommendations for 

approval from, the City’s planning department staff, the Technical Review 

Committee, the Downtown Commission, and the Asheville Planning & Zoning 

Commission. All of these recommendations were submitted to the City Council. The

City Council conducted a quasi-judicial public hearing on Petitioner’s CUP 

application on 24 January 2017. 

Petitioner presented three expert witnesses, who testified and were questioned

and who submitted detailed reports at the hearing. No evidence was offered in 

opposition to Petitioner’s CUP application. One area resident present at the hearing 
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questioned whether the hotel could possibly create a sight line issue that could affect 

traffic safety.

At the close of the hearing, the City Council voted to deny Petitioner’s 

application for a CUP. Three weeks later on 14 February 2017, the City issued an 

order containing 44 written findings of fact and 2 conclusions of law, detailing why it 

denied Petitioner’s requested CUP. The City concluded the CUP should be denied 

because Petitioner did not produce competent, material and substantial evidence

establishing criteria 1, 2, 3, 4, 5 or 7 of § 7-16-2(c) of the UDO. Aside from its 

additional 44 findings of fact, the City ultimately found:

2. In this case, the City Council finds that the CUP should 

be denied, for the following reasons, pursuant to UDO 

Section 7-16-2(c):

(1) The Applicant failed to produce competent, 

material and substantial evidence that the Hotel 

will not materially endanger the public health or 

safety;

(2) The Applicant failed to produce competent, 

material and substantial evidence that the Hotel is 

reasonably compatible with significant topographic 

features of the site and within the immediate 

vicinity of the site given the proposed site design and 

any mitigation techniques or measures proposed by 

the applicant;

(3) The Applicant failed to produce competent, 

material and substantial evidence that the Hotel 

will not substantially injure the value of the 

adjoining or abutting property;
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(4) The Applicant failed to produce competent, 

material and substantial evidence that the Hotel 

will be in harmony with the scale, bulk, coverage, 

density, and character of the area or neighborhood 

in which it is located and, moreover, the evidence 

instead showed the Hotel would not be in harmony 

with the scale, bulk, coverage and character of the 

area and neighborhood.

(5) The Applicant failed to produce competent, 

material and substantial evidence that the Hotel 

will generally conform to the comprehensive plan, 

smart growth policies, sustainable economic 

development strategic plan and other official plans 

adopted by the City and, moreover, the evidence 

instead showed the Hotel would not generally 

conform to the City’s 2036 Vision Plan; and

(7) The Applicant failed to produce competent, 

material and substantial evidence that the Hotel 

will not cause undue traffic congestion or create a 

traffic hazard.

On 16 March 2017, Petitioner filed a petition for writ of certiorari in superior 

court to seek review of the City’s decision. The superior court entered an order after

determining de novo Petitioner had established a prima facie case for entitlement to 

a CUP. The court concluded the City’s decision to deny Petitioner a CUP was 

arbitrary and capricious, and it reversed and remanded the matter with an order to 

the City Council to grant Petitioner’s requested CUP on 2 November 2017. The City 

timely appealed from the superior court’s order. 

II. Jurisdiction
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Jurisdiction lies in this Court from an appeal of right from a final judgment of 

the superior court. N.C. Gen. Stat. § 7A-27(b) (2017).

III. Standard of Review

“Judicial review of town decisions to grant or deny conditional use permits is 

provided for in G.S. 160A-388(e), which states, inter alia, ‘Every decision of the board 

shall be subject to review by the superior court by proceedings in the nature of 

certiorari.’” Coastal Ready-Mix Concrete Co. v. Bd. Of Comm’rs, 299 N.C. 620, 623, 

265 S.E.2d 379, 381 (1980).

[T]he task of a court reviewing a decision on an application 

for a conditional use permit made by a town board sitting 

as a quasi-judicial body includes:

(1) [r]eviewing the record for errors in law, 

(2) [i]nsuring that procedures specified by law in both 

statute and ordinance are followed, 

(3) [i]nsuring that appropriate due process rights of a 

petitioner are protected including the right to offer 

evidence, cross-examine witnesses, and inspect documents, 

(4) [i]nsuring that decisions of town boards are supported 

by competent, material and substantial evidence in the 

whole record, and 

(5) [i]nsuring that decisions are not arbitrary and 

capricious.

Id. at 626, 265 S.E.2d at 383.
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“The standard of review of the superior court depends upon the purported 

error.” Little River, LLC v. Lee Cty., __ N.C. App. __, __, 809 S.E.2d 42, 46 (2017) 

(citing Morris Commc’ns Corp. v. Bd. of Adjustment of Gastonia, 159 N.C. App. 598, 

600, 583 S.E.2d 419, 421 (2003)). “When a party alleges the [decision-marking 

board’s] decision was based upon an error of law, both the superior court, sitting as 

an appellate court, and this Court reviews the matter de novo, considering the matter 

anew.” Dellinger v. Lincoln Cty., __ N.C. App. __, __, 789 S.E.2d 21, 26 (2016) (citation 

omitted). 

“When the petitioner questions (1) whether the agency’s decision was 

supported by the evidence or (2) whether the decision was arbitrary or capricious, 

then the reviewing court must apply the whole record test.” ACT-UP Triangle v. 

Comm’n for Health Servs. of the State of N.C., 345 N.C. 699, 706, 483 S.E.2d 388, 392 

(1997) (citation and quotation marks omitted). “The whole record test requires that 

the [superior] court examine all competent evidence to determine whether the 

decision was supported by substantial evidence.” Morris Commc’ns, 159 N.C. App. at 

600, 583 S.E.2d at 421. The initial issue of whether a petitioner has presented 

competent, material, and substantial evidence to obtain a special use permit is 

subject to de novo review. Am. Towers, Inc. v. Town of Morrisville, 222 N.C. App. 638, 

641, 731 S.E.2d 698, 701 (2012). 
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“[T]he terms ‘special use’ and ‘conditional use’ are used interchangeably[.] . . . 

[A] conditional use or a special use permit ‘is one issued for a use which the ordinance 

expressly permits in a designated zone upon proof that certain facts and conditions 

detailed in the ordinance exist.’” Concrete Co., 299 N.C. at 623, 265 S.E.2d at 381 

(quoting Humble Oil & Ref. Co. v. Bd. of Aldermen, 284 N.C. 458, 467, 202 S.E.2d 

129, 136 (1974) (other citation omitted)).

A particular standard of review applies at each of the three 

levels of this proceeding—the [council], the superior court, 

and this Court. First, the [council] is the finder of fact in its 

consideration of the application for a special use permit. 

The [council] is required, as the finder of fact, to follow a 

two-step decision-making process in granting or denying 

an application for a special use permit. If an applicant has 

produced competent, material, and substantial evidence 

tending to establish the existence of the facts and 

conditions which the ordinance requires for the issuance of 

a special use permit, prima facie he is entitled to it. If a 

prima facie case is established, [a] denial of the permit 

[then] should be based upon findings contra which are 

supported by competent, material, and substantial evidence 

appearing in the record.

Davidson Cty. Broad., Inc. v. Rowan Cty. Bd. of Comm’rs, 186 N.C. App. 81, 86, 649 

S.E.2d 904, 909 (2007) (emphasis supplied) (citation and internal quotation marks 

omitted), disc. review denied, 362 N.C. 470, 666 S.E.2d 119 (2008).

“When this Court reviews a superior court’s order regarding a zoning decision 

by a [decision-making board], we examine the order to: ‘(1) determin[e] whether the 

[superior] court exercised the appropriate scope of review and, if appropriate, (2) 
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decid[e] whether the court did so properly.’” Id. at 87, 649 S.E.2d at 910 (citations

omitted).

IV. Analysis

A petitioner’s burden on an application for a CUP is well established. An 

applicant for a CUP must establish a prima facie case, by competent, material, and 

substantial evidence, meeting all the conditions in the zoning ordinance. Humble Oil 

284 N.C. at 467, 202 S.E.2d at 136. “Material evidence” has been recognized by this 

Court to mean “[e]vidence having some logical connection with the facts of 

consequence or issues.” Innovative 55, LLC v. Robeson Cty., __ N.C. App. __, __, 801 

S.E.2d 671, 676 (2017) (citing Black’s Law Dictionary 638 (9th ed. 2009)). 

“Substantial evidence” has been defined to mean such relevant “evidence as a 

reasonable mind might accept as adequate to support a conclusion.” Id. (citation 

omitted).

It must do more than create the suspicion of the existence 

of the fact to be established. . . . [I]t must be enough to 

justify, if the trial were to a jury, a refusal to direct a 

verdict when the conclusion sought to be drawn from it is 

one of fact for the jury.

Humble Oil, 284 N.C. at 471, 202 S.E.2d at 137 (citations and quotation marks 

omitted). 

It is well established that:

When an applicant has produced competent, material, and 

substantial evidence tending to establish the existence of 
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the facts and conditions which the ordinance requires for 

the issuance of a special use permit, prima facie he is 

entitled to it. A denial of the permit should be based upon 

findings contra which are supported by competent, 

material, and substantial evidence appearing in the record.

Dellinger, __ N.C. App. at __, 789 S.E.2d at 27 (citing Humble Oil, 284 N.C. at 468, 

202 S.E.2d at 136). 

“[G]overnmental restrictions on the use of land are construed strictly in favor 

of the free use of real property.” Morris Commc’ns v. City of Bessemer Zoning Bd. of 

Adjustment, 365 N.C. 152, 157, 712 S.E.2d 868, 871 (2011). 

Council members sitting in a quasi-judicial capacity must base their decision 

to grant or deny a CUP on objective factors, which are based upon the evidence 

presented, and not upon their subjective preferences or ideas. See id. “A city council 

may not deny a conditional use permit in their unguided discretion or because, in 

their view, it would adversely affect the public interest.” Howard v. City of Kinston, 

148 N.C. App. 238, 246, 558 S.E.2d 221, 227 (2002). “[T]he denial of a conditional use 

permit may not be based on conclusions which are speculative, sentimental, personal, 

vague or merely an excuse to prohibit the requested use.” Id. 

Petitioner is not seeking a rezoning, but rather a CUP to conduct a use that is 

expressly permitted in the CBD zoning district by the UDO. See Asheville, N.C., Code 

of Ordinances, § 7-5-9.1(a)(1). The legislative and policy decision of whether to allow 

a hotel use in a CBD zoning district has already been made by the City Council in 
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adopting the UDO ordinance. “A conditional use permit is one issued for a use which 

the ordinance expressly permits in a designated zone upon proof that certain facts 

and conditions detailed in the ordinance exist.” Woodhouse v. Bd. of Comm’rs of the 

Town of Nags Head, 299 N.C. 211, 215, 261 S.E.2d 882, 886 (1980) (citation and 

quotation marks omitted).

Governing bodies sitting in a quasi-judicial capacity are performing as judges 

and must be neutral, impartial, and base their decisions solely upon the evidence 

submitted. See Handy v. PPG Indus., 154 N.C. App. 311, 321, 571 S.E.2d 853, 860 

(2002) (“Neutrality and the appearance of neutrality are equally critical in 

maintaining the integrity of our judicial and quasi-judicial processes”). The property 

rights of CUP applicants must be respected and protected and the due process 

procedures must be followed. 

A quasi-judicial hearing is a judicial proceeding and not a legislative function.

See Butterworth v. City of Asheville, 247 N.C. App. 508, 511, 786 S.E.2d 101, 105 

(2016) (“In making quasi-judicial decisions, the decision-maker must exercise 

discretion of a judicial nature.” (citation and quotations omitted)). It is not an 

occasion to revisit the zoning or permitted uses of a property. Council members’

personal or policy preferences are irrelevant and immaterial. See Sun Suites 

Holdings, LLC v. Bd. of Aldermen of Town of Garner, 139 N.C. App. 269, 276, 533 

S.E.2d 525, 530 (2000) (“speculative assertions or mere expression of opinion about 
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the possible effects of granting a permit are insufficient to support the findings of a 

quasi-judicial body”).

In quasi-judicial proceedings, no board or council member should appear to be 

an advocate for nor adopt an adversarial position to a party, bring in extraneous or 

incompetent evidence, or rely upon ex parte communications when making their 

decision. It is incumbent upon city and county attorneys to advise and inform 

decision-making boards of their proper roles and procedures required in quasijudicial proceedings. 

A. Superior Court Applied the Correct Standard of Review

The City argues the superior court misapplied the standards of review in 

assessing the City’s written decision to deny Petitioner a CUP. The City contends 

the superior court “expressly and erroneously applied de novo review in evaluating 

whether the evidence was ‘sufficient’” based upon the court’s conclusion 4: 

4. Exercising de novo review, the Court concludes as a 

matter of law that the evidence presented by PHG and 

other supporting witnesses was competent, material and 

substantial and sufficient to establish a prima facie case of 

entitlement to a conditional use permit. In deciding 

otherwise, the Council made an error of law. A court 

reviews “de novo the initial issue of whether the evidence 

presented by a petitioner met the requirement of being 

competent, material, and substantial.” Blair Investments, 

LLC v. Roanoke Rapids City Council, 231 N.C. App. 318, 

321, 752 S.E.2d 524, 527 (2013).

This conclusion 4, and the superior court’s citation to this Court’s decision in 
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Blair Investments, clearly shows the superior court appropriately applied de novo 

review in determining whether Petitioner had presented “competent, material, and 

substantial” evidence to establish a prima facie case. When a petitioner meets its

initial burden to present competent, material, and substantial evidence that it is 

entitled to a CUP, petitioner has established a prima facie case to issuance of the 

CUP. See Am. Towers, 222 N.C. App. at 641, 731 S.E.2d at 701 (“We must determine 

whether petitioner presented competent, material, and substantial evidence. If so, 

then petitioner has made out a prima facie case”).

Presuming arguendo, the superior court correctly determined Petitioner’s 

evidence was competent, material, and substantial, then Petitioner’s evidence was 

necessarily “sufficient” to make out a prima facie case. See id. The superior court’s 

order shows it did not weigh evidence, but properly applied de novo review to 

determine the initial legal issue of whether Petitioner had presented competent, 

material, and substantial evidence. The City’s argument is overruled.

The City also argues the superior court improperly made a de novo review of 

the evidence without applying whole record review to the City Council’s 44 findings 

of fact. The City asserts Petitioner was required to specifically challenge the City 

Council’s 44 findings of fact before the superior court. We disagree.

In Little River, the Lee County Board of Adjustment made 15 findings of fact 

to support its denial of the petitioner’s requested special-use permit. __ N.C. App. __, 
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809 S.E.2d at 42. This Court determined the Petitioner had met its prima facie

showing of entitlement to the SUP under de novo review. Id. at __, 809 S.E.2d at 52. 

Rather than specifically addressing each of the Board of Adjustment’s findings of fact, 

this Court stated: “Many of the Board’s findings of fact to support its conclusions are 

based solely upon opponents’ evidence and wholly ignore the evidence presented to 

make a prima facie showing by Petitioner.” Id. at __, 809 S.E.2d at 50. 

This Court then held: “The Board’s findings are unsupported by competent, 

material, and substantial evidence, and its conclusions thereon are, as a matter of 

law, erroneous. Respondent-Intervenors did not present substantial, material, and 

competent evidence to rebut Petitioner’s prima facie showing of entitlement to a 

SUP.” Id. at __, 809 S.E.2d at 51. Here, as in Little River, it was unnecessary for the 

superior court, and is unnecessary for this Court, to specifically address each of the 

City Council’s 44 findings of fact, because no “competent, material, and substantial 

evidence” contra was presented to rebut Petitioner’s prima facie showing. Id. 

“[F]indings of fact are not necessary when the record sufficiently reveals the 

basis for the decision below or when the material facts are undisputed and the case 

presents only an issue of law.” N.C. Gen. Stat. § 160A-393(l)(2) (2017) (emphasis 

supplied). The City Council’s 44 findings of fact were unnecessary, improper, and 

irrelevant. No competent, material, and substantial evidence was presented to rebut 

Petitioner’s prima facie case, and no conflicts in the evidence required the City 
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Council to make findings to resolve any disputed issues of fact. See Dellinger, __ N.C. 

App. at __, 789 S.E.2d at 27.

Under the terms of its own order, the City Council did not have to make 44 

findings of fact to weigh or resolve conflicts in the evidence. The City Council made 

the initial legal determination Petitioner had failed to present competent, material, 

and substantial evidence to establish a prima facie case of entitlement to a CUP. 

Once the City Council made this legal determination, it was unnecessary and 

erroneous to make 44 findings of fact on unchallenged evidence beyond the required 

ultimate findings on the 7 criteria specified by the UDO. Asheville, N.C., Code of 

Ordinances, § 7-16-2(c). 

Additionally, once the superior court made the initial de novo determination 

that Petitioner had presented competent, material, and substantial evidence to 

establish a prima facie case, and no competent, material, and substantial evidence 

contra was presented in opposition or rebuttal to Petitioner’s evidence, Petitioner was 

entitled to a CUP as a matter of law. See Dellinger, __ N.C. App. at __, 789 S.E.2d at 

27. Further, any purported whole record review by the superior court of the City 

Council’s extraneous and superfluous 44 “findings of fact” would have been

unnecessary. 

The City’s argument that Petitioner was required to assign specific error to 

any of the 44 extraneous and superfluous findings of fact is without merit. The City’s 
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argument the trial court misapplied its standards of review by not conducting whole 

record review of the City Council’s unnecessary 44 findings of fact on unchallenged

and unrebutted evidence is overruled. 

B. Preservation of Arguments 

Before this Court, the City only argues Petitioner has failed to establish 3 of 

the 7 required criteria for issuance of a CUP under the UDO. These criteria are 3, 4, 

and 7. Asheville, N.C., Code of Ordinances, § 7-16-2(c). The City Council denied the 

requested CUP on the grounds Petitioner had failed to establish a prima facie case of 

entitlement to the CUP under criteria 1, 2, 3, 4, 5, and 7. The City has abandoned 

any arguments related to the superior court’s conclusion of Petitioner’s prima facie

satisfaction of criteria 1, 2, 5 and 6. N.C. R. App. P. 28(b)(6) (“Issues not presented 

in a party’s brief, or in support of which no reason or argument is stated, will be taken 

as abandoned”). Petitioner’s prima facie compliance with criteria 1, 2, 5 and 6 is 

unchallenged and established as a matter of law. Id.

C. Criteria 3: Impact on Adjoining or Abutting Property

The City contends Petitioner has failed to meet its burden of establishing a 

prima facie case of entitlement to a CUP, because it has not presented material 

evidence. The City concedes Petitioner’s expert testimony and reports were properly 

admitted without objection and this evidence was competent and substantial. 

“Material evidence” is defined to mean “[e]vidence having some logical connection 
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with the facts of consequence or the issues.” Innovative 55, __ N.C. App. at __, 801 

S.E.2d at 676 (internal citation omitted).

The City argues the superior court erred by reversing the City Council’s 

conclusion that Petitioner had failed to meet its burden of producing competent, 

material, and substantial evidence that the Project “will not substantially injure the 

value of adjoining or abutting property.” Asheville, N.C., Code of Ordinances, § 7-16-

2(c)(3). 

The City contends Defendant’s expert witness’s uncontradicted testimony and 

report were not material, because the City Council found inadequacies in the 

methodologies employed by the expert. The City cites this Court’s opinions in 

American Towers and SBA v. City of Asheville City Council to support its assertions 

that the City Council could determine Petitioner failed to establish a prima facie case 

under criteria 3 because of “perceived inadequacies” in Petitioner’s expert’s analysis. 

We disagree.

In American Towers, an applicant applied to the Town of Morrisville for a 

special use permit to erect a telecommunications tower. 222 N.C. App. at 642, 731 

S.E.2d at 702. One of the criteria for obtaining a special use permit was “that the 

proposed development or use will not substantially injure the value of adjoining 

property.” Id. At a hearing before the town board, the applicant offered the testimony 

and report of an appraiser, who had been admitted as an expert witness. Id. at 639, 
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731 S.E.2d at 700. No expert testimony was presented to rebut the applicant’s expert 

appraiser. Id.

The town board denied the applicant’s requested special use permit based, in 

part, upon the applicant’s failure to establish a prima facie case that the tower “would 

not substantially injure the value of adjoining properties.” Id. at 646, 731 S.E. 2d at 

704. The superior court affirmed the town board’s decision to deny the special use 

permit. Id. at 638, 731 S.E.2d at 700. 

This Court affirmed the superior court’s order upholding the town board’s 

denial of the special use permit. Id. This Court recited the town board’s reasons for 

concluding the applicant had failed to establish a prima facie case that the tower 

“would not substantially injure the value of adjoining properties[,]” as follows:

1) the report was not benchmarked against other 

developments or against the market in general, 2) in the 

two subdivisions studied by Mr. Smith the cell tower was 

in place before the neighboring homes were built. (as 

opposed to the case at hand here), 3) the report did not 

attempt to study the effect of possible devaluation of 

property, and 4) the report did not take into account any 

potential loss of value due to the loss of “curb appeal” with 

the tower rising above the adjoining residential 

neighborhood.

Id. at 645, 731 S.E.2d at 703. 

This Court in American Towers summarized the Court’s prior holding in SBA, 

as follows:

This Court was faced with a virtually identical fact 
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situation in the case of SBA v. City of Asheville City 

Council. 141 N.C. App. 19, 539 S.E.2d 18 (2000). In SBA, 

one of the bases for rejecting the application for a 

conditional use permit to erect a telecommunications tower 

was the failure of petitioner to establish a prima facie case 

that the value of adjoining properties would not be 

adversely affected. We noted that:

City Code § 7-16-2(c)(3) requires a showing that the

value of properties adjoining or abutting the subject 

property would not be adversely affected by the 

proposed land use. The City’s Staff Report submitted 

to respondent expressed concern that petitioners’

Property Value Impact Study did not address 

properties in the vicinity of the subject property, but

rather focused on towers and properties in other 

parts of the City. Petitioners’ evidence was about

other neighborhoods and other towers in the City. 

Their study did not even include information with 

respect to an existing cellular tower a short distance

from the proposed site that potentially affected the 

same neighborhoods. Petitioners simply did not

meet their burden of demonstrating the absence of 

harm to property adjoining or abutting the proposed 

tower as required by § 7-16-2(c)(3).

Id. at 27, 539 S.E.2d at 23.

Based upon the holding of SBA, respondent was permitted 

to find that petitioner failed to present a prima facie case 

based upon perceived inadequacies in the methodology of 

its expert. We are bound by this ruling. In re Civil Penalty, 

324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989). 

Id. at 645-46, 731 S.E.2d at 704.

Here, Petitioner presented the testimony and report of Tommy Crozier, who 

was tendered and admitted as an expert witness in land appraisal and valuation 
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without objection. Crozier certified that his report was prepared in conformity with 

the “Uniform Standards of Professional Appraisal Practice” (“USPAP”). Crozier’s oral 

testimony and report identified three properties, which directly adjoin or abut the

property comprising the Project, and two properties located directly across the street. 

The adjoining and abutting properties are Carolina Apartments; First Church of 

Christ, Scientist; and the Asheville Broad Center. The properties across the street 

from the Project are a Hyatt Place hotel and an office building occupied by the 

Salvation Army. The report states in relevant part: 

The proposed hotel will consist of a new, ±$25M project 

located amidst 50+ year old structures that have 

historically been valued for tax purposes well below $3.0M. 

The presence of the new hotel should meaningfully enhance 

the values of surrounding properties. This Principle of 

Progression has already materialized in the immediate 

area, evidenced by record high transaction prices since the 

nearby Hotel Indigo opened in 2009. (emphasis supplied). 

. . . 

There have been numerous examples of property value 

enhancement as the result of revitalization (and as a result 

of new hotel development specifically) in comparable 

leisure markets like Charleston, Wilmington, 

Chattanooga, Savannah and Greenville, SC[.] 

Crozier’s report also contains an estimated value of $50.00 per square foot for 

the implied land values of the properties adjoining the Project. Crozier’s estimate 

was based upon the sale prices for “vacant sites or improved sites acquired for 

redevelopment where the existing improvements were considered to have little to no 
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contributory value.” Crozier’s report compares the $50.00 per square foot implied 

land values of the adjoining properties to the substantially lower assessed ad valorum

values from the Buncombe County tax assessment conducted prior to Petitioner’s 

purchase of the subject property located at 192 Haywood Street.

The City’s reliance upon SBA and American Towers is misplaced. Neither of 

these Court’s opinions in SBA nor American Towers contains any indication that the 

expert reports at issue in those cases were prepared in accordance with the applicable

USPAP standards of the property appraisal licensure or other governing bodies. See 

SBA, 141 N.C. App. at 27, 539 S.E.2d at 18; Am. Towers, 222 N.C. App. at 645-46, 

731 S.E.2d 698, 703-04. 

Additionally, the expert reports in SBA and American Towers were immaterial 

to the issue of whether the telecommunications towers would adversely impact the

value of adjoining property. The expert witness’ report in American Towers was

based upon an analysis of the values of adjoining properties built later than 

neighboring cell phone towers. Am. Towers, 222 N.C. App. at 645, 731 S.E.2d at 703 

(“[I]n the two subdivisions studied by Mr. Smith the cell tower was in place before the 

neighboring homes were built.”). 

The expert witness’ report in SBA “did not address properties in the vicinity of 

the subject property, but rather focused on towers and properties in other parts of the 

City.” SBA, 141 N.C. App. at 27, 539 S.E.2d at 23. Unlike the report in SBA, Crozier’s 
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findings and conclusions specifically analyzes and addresses the values of properties 

adjoining, abutting, and neighboring the Project in Asheville. 

Crozier certified that “[t]he reported analyses, opinions, and conclusions were 

developed, and this report has been prepared, in conformity with the requirements of 

the Code of Professional Ethics & Standards of Professional Appraisal Practice of the 

Appraisal Institute, which includes the Uniform Standards of Professional Appraisal 

Practice.” No competent, material, and substantial expert evidence contra was 

presented at the hearing to show Crozier’s analysis was unsound or utilized an 

improper methodology. 

Any competent, material, and substantial evidence to rebut Crozier’s admitted 

expert testimony and report would have to have been presented by an expert witness 

in land valuation. N.C. Gen. Stat. § 160A-393(k)(3)(a) (2017) (“The term ‘competent 

evidence,’ as used in this subsection, shall not be deemed to include the opinion 

testimony of lay witnesses as to . . . [t]he use of property in a particular way would 

affect the value of other property”). The City Council’s lay notion that Crozier’s 

analysis is based upon an inadequate methodology does not constitute competent 

evidence under the statute to rebut his expert testimony and report. Innovative 55, 

__ N.C. App. at __, 801 S.E.2d at 678 (“Speculative and general lay opinions and bare 

or vague assertions do not constitute competent evidence before the [decision-making 

body] to overcome the applicant’s prima facie entitlement to the CUP”). 
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Crozier’s admitted and uncontroverted testimony and report meets the low 

threshold of being “material evidence” as his analysis has a “logical connection” to 

whether the Project “will impair the value of adjoining or abutting property.” Id. at 

__, 801 S.E.2d at 676. Crozier’s analyses and conclusions that: (1) adjoining and 

nearby property values in the neighborhood of the Project have increased since the 

Hotel Indigo opened in 2009; (2) values of neighboring properties in other markets 

have appreciated since the hotels were opened; and, (3) implied values of the 

adjoining properties have substantially increased since the neighboring Hyatt Hotel 

opened, all reinforce a “logical connection” to whether the Project will affect the value 

of “adjoining or abutting property.” Crozier’s report and testimony constitutes 

material, as well as competent and substantial, evidence to show prima facie

compliance with criteria 3. The City’s argument that Crozier’s testimony and report 

are not “material” is contrary to the statute and controlling precedents, and is

overruled. 

D. Criteria 4: Harmony with the Neighborhood

The City also argues Petitioner failed to present material evidence “[t]hat the 

proposed use or development of the land will be in harmony with the scale, bulk, 

coverage, density, and character of the area or neighborhood in which it is located.” 

Asheville, N.C., Code of Ordinances, § 7-16-2(c)(4). 
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Under our binding precedents, “The inclusion of the particular use in the 

ordinance as one which is permitted under certain conditions, is equivalent to a 

legislative finding that the prescribed use is one which is in harmony with the other 

uses permitted in the district.” Woodhouse, 299 N.C. at 216, 261 S.E.2d at 886. 

“[W]here a use is included as a conditional use in a particular zoning district, a prima 

facie case of harmony with the area is established.” Habitat for Humanity of Moore 

Cty., Inc v. Bd. of Comm’rs, 187 N.C. App. 764, 768, 653 S.E.2d 886, 888 (2007). 

Here, the City does not dispute that a hotel is a permitted “use” in the CBD 

zoning district under the UDO. The City argues that even though the use of the 

subject property as a hotel in the CBD is a permitted use, the development of a hotel 

is not presumed to “be in harmony with the area.” The statute, long-established 

precedents and the UDO contain no basis that “development” of a use is to be treated, 

analyzed, or distinguished from the “use” itself for purposes of criteria 4. Asheville, 

N.C., Code of Ordinances, § 7-16-2(c)(4) (“the proposed use or development . . . will be 

in harmony”); see, e.g. Petersilie v. Town of Boone Bd. of Adjustment, 94 N.C. App. 

764, 767, 381 S.E.2d 349, 351 (1989) (using “use” and “development” interchangeably 

in discussing special-use permit ordinance similar to Asheville’s UDO); Habitat, 187 

N.C. App. at 768, 653 S.E.2d at 888 (treating “use” the same as “development” in 

applying presumption that use is in harmony with an area when it is included as a 

permitted use in the zoning district). 
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In addition, Petitioner presented the testimony of an expert witness, Blake 

Esselstyn. Esselstyn prepared a map showing the location of similar structures in 

the area compared to the proposed Project. He testified that the “scale, bulk and 

coverage” of the Project would be similar to a number of these similar structures. The 

density of the Project would be similar to the Carolina Apartments, Vanderbilt 

Apartments, and Battery Park Apartments located within the area of the Project. 

Esselstyn also testified that the contemporary architectural style of the Project would 

be harmonious with the area. 

Petitioner’s “use or development” of the property for the conditional use of a 

hotel in the permitted CBD zone establishes a prima facie case of harmony with the 

area. Habitat, 187 N.C. App. at 768, 653 S.E.2d at 888. Although the City asserts

“use” should be distinguished from “development” in the UDO, Petitioner’s expert 

witness, Esselstyn, established a prima facie case of harmony of the Project’s use and 

development within the CBD area under criteria 4. The City’s argument is overruled. 

E. Criteria 7: Undue Traffic Congestion or Traffic Hazard

The City also argues Petitioner failed to present material evidence to establish 

a prima facie case under criteria 7. Criteria 7 requires: “That the proposed use will 

not cause undue traffic congestion or create a traffic hazard.” Asheville, N.C., Code of 

Ordinances, § 7-16-2(c)(7). 
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Petitioner presented the testimony and report of traffic engineer Kevin Dean, 

who was accepted and admitted as an expert witness without objection at the City 

Council hearing. Dean’s report contains the data and results from a traffic analysis 

he conducted on the streets and intersections adjacent to the Project. Dean testified 

he had “coordinated with the City’s traffic engineer, and [were] told that all we needed 

to provide was the trip generation table . . . as well as our anticipated distribution of 

those trips.” Both the trip generation table and trip distributions were included in 

Dean’s report.

Dean performed a “capacity analysis” and “collected peak hour traffic counts 

on [Thursday,] November 10th” 2016. Dean testified he performed the traffic analysis 

on a Thursday to accord with industry standards, which specify traffic should be 

analyzed on days between Tuesday and Thursday.

Proposed traffic to and from the Project was estimated based upon industry 

standard data promulgated by “the Institute of Transportation Engineers.” Dean’s 

analysis showed the Project would increase the delays caused by traffic at nearby 

intersections by “five percent . . . or less.” Dean testified that if his analysis had been 

performed on days when there was more traffic volume on the roads, the estimated 

traffic impact generated from the Project would impact a smaller percentage of 

overall traffic, due to higher traffic volumes at those intersections from sources other 

than the Project.
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Dean’s report indicates and concludes that “[w]ith the hotel in place, all of the 

study intersections are expected to continue to operate at acceptable levels of service 

with only minor increases in delay. Some of the intersections are expected to 

experience a reduction in overall delay. . . .” Additionally, Dean concluded “traffic 

entering the site should not conflict with traffic exiting the site.”

Based upon his analysis, Dean testified to his professional opinion that the 

Project “will not cause undue traffic congestion or a hazard[.]”

Despite Dean’s expert testimony, and the absence of any expert testimony to 

the contrary, the City Council found that Dean’s analysis was deficient, in part, 

because: (1) Dean’s traffic analysis only included data for November 10th and not for 

other times of the year; (2) Dean was not aware of whether environmental conditions 

could have affected traffic volumes; (3) Dean did not conduct his traffic analysis 

during the weekend; and (4) the traffic analysis “did not account for traffic that will 

be generated by future hotels and apartments in the downtown area. . . .” 

The City Council also found Dean’s analysis was deficient because a “sight 

distance check” was not conducted to determine if a “blind hill with limited visibility 

in the vicinity of the Hotel’s parking deck’s entrance and exit” would “endanger driver 

or pedestrian safety.” This “finding” is apparently based upon a question posed by

Charles Rawls, a lay member of the public, at the City Council hearing. Rawls 
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questioned whether there was a potential sight distance problem for traffic coming 

over a purportedly blind hill near the Project’s planned parking deck.

No competent, material, and substantial evidence was presented to refute 

Dean’s traffic analysis. Dean testified his study was conducted in accordance with 

industry standards and used standard industry data and methods. The speculations 

of lay members of the public and unsubstantiated opinions of City Council members 

do not constitute competent evidence contra under the statute or precedents to rebut 

Dean’s traffic analysis. N.C. Gen. Stat. § 160A-393(k)(3)(b) (“‘competent evidence,’ as 

used in this subsection, shall not be deemed to include the opinion testimony of lay 

witnesses as to . . . [t]he increase in vehicular traffic resulting from a proposed 

development would pose a danger to the public safety”); Howard, 148 N.C. App. at 

246, 558 S.E.2d at 227 (“denial of a conditional use permit may not be based on 

conclusions which are speculative, sentimental, personal, vague or merely an excuse 

to prohibit the requested use”). 

Dean’s expert testimony and admitted report clearly constitute “material 

evidence” because they bear “a logical connection” to the issues of whether 

Petitioner’s Project will impact traffic congestion or create a traffic hazard. Innovative 

55, __ N.C. App. at __, 801 S.E.2d at 676. Although lay members of the City Council 

may disagree with Petitioner’s experts’ testimony and reports, that does not rebut the 

legal determination of whether the evidence is “material.” See id. at __, 801 S.E.2d at 
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675 (“Whether . . . material . . . evidence is present in the record is a conclusion of 

law.” (citation omitted)). The City has failed to show that any of Petitioner’s experts’

testimony and evidence was incompetent, immaterial, unsubstantial, or rebutted by 

contrary evidence meeting the same statutory and precedential standards to deny the 

CUP. The City’s arguments are overruled. 

V. Conclusion

Applying de novo review, the trial court properly concluded Petitioner had 

presented a prima facie showing of entitlement to a CUP to construct their hotel as a 

permitted use in the CBD zone. Petitioner satisfied its burden of production and, in 

the absence of competent, material, and substantial evidence to the contrary, is 

entitled to issuance of the CUP as a matter of law. See Dellinger, __ N.C. App. at __, 

789 S.E.2d at 27. The City Council’s denial of the application was not based upon 

any competent, material, and substantial evidence contra to rebut the Petitioner’s 

prima facie showing. 

Once the superior court made the initial de novo determination that Petitioner 

had presented competent, material, and substantial evidence to establish a prima 

facie case, and no competent, material, and substantial evidence contra was 

presented in opposition or rebuttal to Petitioner’s evidence, the superior court 

properly reversed and remanded for issuance of the CUP as a matter of law. See id. 

Further, any purported whole record review by the superior court of the City Council’s 
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extraneous and superfluous 44 “findings of fact” was unnecessary. 

The superior court’s order reversing the City’s denial of Petitioner’s application

and remanding for issuance of the CUP is affirmed. This cause is remanded to the 

superior court for further remand to the City to issue the CUP to Petitioner. It is so 

ordered. 

AFFIRMED.

Judges INMAN and BERGER concur.