NO. COA13-1274

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

TEMPLETON PROPERTIES LP,

Petitioner,

v. Watauga County

No. 12 CVS 665

TOWN OF BOONE,

Respondent.

Appeal by respondent from order entered 7 August 2013 by 

Judge Shannon R. Joseph in Watauga County Superior Court. Heard 

in the Court of Appeals 20 March 2014.

The Brough Law Firm, by Michael B. Brough; and di Santi 

Watson Capua & Wilson, by Anthony S. di Santi and Chelsea 

B. Garrett, for Petitioner-appellee.

Parker Poe Adams & Bernstein, LLP, by Anthony Fox and 

Benjamin R. Sullivan, for Respondent-appellant.

HUNTER, JR., Robert N., Judge.

The Town of Boone (“Boone”) appeals the superior court’s 7 

August 2013 order reversing a decision of the Town of Boone’s 

Board of Adjustment (“Board”) that denied Templeton Properties

L.P.’s (“Templeton”) application for a zoning permit. We 

reverse the superior court’s order. 

I. Facts & Procedural History

This is the third time this Court has reviewed this case. 
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See Templeton Properties, L.P. v. Town of Boone, ___ N.C. App. 

___, ___, 724 S.E.2d 604, 605 (2012) (“Templeton II”); Templeton 

Properties LP v. Town of Boone, 198 N.C. App. 406, 681 S.E.2d 

566, 2009 WL 2180620 (2009) (unpublished) (“Templeton I”). 

The dispute centers around Templeton’s 2.9 acre lot (“the 

Parcel”) in Boone at 315 State Farm Road. The Parcel is zoned 

for single-family residential use (“R-1”), but has historically 

been used as a church under a special use permit. Templeton I, 

2009 WL 2180620 at *1. The church is 2,250 square feet and is 

located between State Farm Road and VFW Drive in Boone, which 

provide routes of access to the Parcel. Id. The surrounding 

neighborhood is “composed of mostly single-family residences,” 

except for a non-residential VFW hall located near the Parcel. 

Id. Under section 165 of Boone’s then-existing unified 

development ordinance (“UDO”), medical clinics over 10,000 

square feet were allowed in R-1 zoning with a valid special use 

permit. Applications for special use permits may be denied by 

the Board upon showing of at least one of four reasons set forth 

in UDO § 69(c), namely that the development

(1) Will materially endanger the public 

health or safety, or

(2) Will substantially injure the value of 

adjoining or abutting property, or
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(3) Will not be in harmony with the area in 

which it is to be located, or

(4) Will not be in general conformity with 

the comprehensive plan, thoroughfare plan, 

or other plan officially adopted by the 

council.

On 28 September 2006, Templeton submitted an application to 

Boone to obtain a special use permit to place a 13,050 square 

foot medical clinic on the Parcel. Id. The Board denied the 

application as incomplete. Id. Templeton modified its 

application and resubmitted it on 2 March 2007 to address the 

Board’s concerns, including decreasing the clinic’s size to

10,010 square feet, the current proposed size of the clinic. 

Id.

On 1 May 2007 the Board rejected Templeton’s application. 

Templeton II, ___ N.C. App. at ___, 724 S.E.2d at 606. The 

Watauga County Superior Court granted a writ of certiorari and 

then entered an order on 7 July 2008 reversing the Board’s 

denial of Templeton’s application for the special use permit. 

Id. Boone appealed to this Court and we remanded to the Board 

to issue reviewable findings of fact in Templeton I. Id. at 

___, 724 S.E.2d at 606–07. 

On 2 September 2010, the Board met to make findings of fact 

relating to the special use permit after the remand. Id. After 
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taking testimony from residents and Templeton’s counsel, the 

Board made findings of fact and approved them via a written 

decision on 29 September 2010. Id. On 27 October 2010, 

Templeton appealed the Board’s decision to the superior court by 

petition for writ of certiorari, which was granted the same day. 

Id. On 21 February 2011, the superior court affirmed the 

Board’s decision. Id. Templeton then appealed the superior 

court’s decision to this Court, resulting in Templeton II. Id. 

This Court remanded in Templeton II and required the Board to 

“make reviewable findings of fact . . . based only upon the 

testimony and evidence presented at the hearings held on 5 April 

and 1 May 2007” due to defects in additional testimony taken by 

the Board after the first remand. Id. at ___, 724 S.E.2d at 

614. We adopt the remaining statements of fact and procedural 

history in Templeton I and Templeton II.

On remand, the Board again denied Templeton’s application 

for a special use permit on 4 October 2012 via an identical 

order as we considered in Templeton II. The Board made twentyone findings of fact relating to the proposed clinic’s lack of 

harmony within the order:

3. Templeton’s proposed clinic would be 

10,010 square feet in size and would have 67 

parking spaces distributed among four 

different parking lots.
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4. The clinic and its parking lots would 

have 23 light poles. These light poles 

would produce a glow at night visible from 

neighborhood residents’ homes and yards. 

Further, some people in the surrounding 

neighborhood live on properties that are at 

a higher elevation than the Lot, and those 

people would look down on the well-lit 

clinic. The shields that Templeton proposed 

for the poles’ light bulbs would not prevent 

light from bleeding into the neighborhood.

5. Templeton plans for employees and 

patients to access the clinic from State 

Farm Road, and Templeton plans to add a 

left-turn lane from State Farm Road into the 

clinic. 

6. The clinic would have a large dumpster 

pad, though Templeton did not specify how 

many dumpsters would be on this pad.

7. Templeton had not found a tenant for the 

clinic and did not know what kind of medical 

procedures would be performed there or what 

types of medical wastes might be produced. 

Templeton did acknowledge, however, that 

some wastes produced at the clinic could be 

hazardous.

8. The only development currently on the Lot 

is a 2,250 square-foot church. The church 

has few lights, and it generally has traffic 

only on weekends.

9. The area surrounding the Lot is 

predominantly zoned R-1 Single Family 

Residential. The surrounding area has been 

almost uniformly zoned R-1 Single Family 

Residential since the Town first adopted 

zoning for the area in 1979. 

10. The area surrounding the Lot is a 
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residential neighborhood, one of [the]

oldest in Boone. It is more consistently 

residential, with fewer non-residential 

developments, than other residential 

neighborhoods in Town. The Lot’s 

surrounding area also has more preserved 

trees and vegetation than other areas in 

Boone.

11. Next door to the Lot is a VFW hall. 

Although the VFW hall is non-residential, it 

is grandfathered because it was built before 

Boone adopted zoning in 1979.

12. Except for the VFW hall, properties in 

the Lot’s surrounding area are almost all 

single-family homes.

13. During the hearing, Templeton offered 

the results of a survey that it had 

conducted of development along a stretch of 

State Farm Road. Some properties in this 

survey were non-residential.

14. However, Templeton’s survey was not 

limited to the area where the clinic would 

be located. Instead, Templeton’s survey 

extended almost a mile away from the Lot, 

into other areas of Town. The survey also 

focused on properties fronting State Farm 

Road, which caused it to exclude many 

properties that, although not fronting on 

the road, were still part of the area where 

the clinic would be located.

15. Templeton’s survey did not accurately 

reflect the character of the area in which 

the clinic would be located.

16. The Lot’s surrounding area is separated 

from less residential parts of Boone, 

including those less residential parts 

covered in Templeton’s survey, by distance, 

topography, and the curves in State Farm 
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Road. As a result, the Lot’s surrounding 

area is a distinct and separate residential 

neighborhood.

17. Templeton’s appraiser, in describing the 

Lot’s surrounding area, also concluded that 

the only developments in the surrounding 

area were the VFW hall and single-family 

homes.

18. The Lot’s surrounding area has no 

medical buildings, offices, or commercial 

developments.

19. The clinic would introduce a busy 

commercial operation into an area that is 

overwhelmingly residential in character.

20. At 10,010 square feet, the clinic would 

be much larger than the single family homes 

that predominate in the surrounding area.

21. The clinic would produce far more 

traffic than other properties in the Lot’s 

surrounding area and would produce a level 

of traffic out-of-character for that area.

22. No properties in the Lot’s surrounding 

area produce as much light as the clinic 

would produce. The clinic’s lighting would 

not be in keeping with the type and level of 

lighting currently found in the surrounding 

area. 

23. Templeton’s proposed clinic would not be 

in harmony with the area in which it would 

be located.

On 6 November 2012, Templeton appealed the denial of its 

application to the Watauga County Superior Court. On 7 November 

2012, the superior court issued an ex parte writ of certiorari. 
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On 7 August 2013, the superior court entered an order reversing 

the Board’s denial of Templeton’s application. In its third 

conclusion of law, the superior court found 

3. The Board’s determination that 

Petitioner’s proposed use is not in harmony 

with the area rests on an overly-restrictive 

application of the term “area,” which 

amounts to a misinterpretation of the 

applicable standard. In this case, the 

relevant “area” within the meaning of the 

ordinance is not limited to the residences 

that lie north of the subject site and that 

do not front State Farm Road but includes 

similarly situated properties along State 

Farm Road that are in reasonable proximity 

to the subject site. The undisputed 

evidence in the record is that most of those

properties are used for office, 

institutional, and commercial — not 

residential — purposes. Therefore, the 

Board’s conclusion that the proposed use is 

not in harmony with the area in which it is 

to be located is not supported by the 

evidence.

Also, the Board’s findings on lack of 

harmony generally and impermissibly cite 

impacts that are inherent in the nature of 

the proposed use. As matter of law, a board 

of adjustment cannot deny an application for 

lack of harmony on the basis that a use 

deemed conditionally permissible by the 

local legislative body would produce impacts 

common to all such uses — for to allow such 

a decision would be to empower the board to 

substitute its judgment for that of the 

elected governing body. All of the Board’s 

findings in this case are of that nature, 

and as a matter of law do not support the 

Board’s conclusion that the proposed use 

would not be in harmony with the area in 
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which it is to be located.

The superior court’s order also found that Finding of Fact 10 

was not supported by competent evidence.

In its fourth conclusion of law, the superior court found 

the Board’s determination that Templeton’s proposed use would 

not be in conformity with the town’s comprehensive plan was 

based on “general policy statements in the comprehensive plan” 

and was not a sufficient basis to deny Templeton’s application. 

The superior court also found the Board erred in finding that 

the proposed use would materially endanger public safety, as 

“there was not competent, material and substantial evidence to 

support such a conclusion.” Boone filed notice of appeal on 26 

August 2013 and a second notice of appeal on 5 September 2013 to 

correct the filing number listed on the initial notice of 

appeal.

II. Jurisdiction & Standard of Review

Jurisdiction in this Court is proper pursuant to N.C. Gen. 

Stat. § 7A-27(b)(1) (2013) (stating a right of appeal lies with 

this Court from the final judgment of a superior court “entered 

upon review of a decision of an administrative agency”). 

Boone first argues that the superior court erred by 

improperly acting as a fact-finder in its determination of the 
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“area” considered by the Board’s harmony analysis. “[T]his 

Court examines the trial court’s order for error[s] of law by 

determining whether the superior court: (1) exercised the proper 

scope of review, and (2) correctly applied this scope of 

review.” Turik v. Town of Surf City, 182 N.C. App. 427, 429, 

642 S.E.2d 251, 253 (2007) (second alteration in original) 

(internal quotation marks omitted) (quoting Tucker v. 

Mecklenburg Cnty. Zoning Bd. of Adjustment, 148 N.C. App. 52, 

55, 557 S.E.2d 631, 634 (2001)). 

Here, the superior court erred when it concluded as a 

matter of law that the Board considered the wrong “area” when 

assessing the clinic’s harmony with the adjacent community. 

This issue is more properly construed as a mixed question of 

fact and law. See Farm Bureau v. Cully’s Motorcross Park, 366 

N.C. 505, 512, 742 S.E.2d 781, 786 (2013) (finding a trial court 

mislabeled a mixed question of fact and law as a finding of 

fact); Morris Commc’ns Corp. v. City of Bessemer City Zoning Bd. 

of Adjustment, 202 N.C. App. 631, 636, 689 S.E.2d 880, 883 

(2010), rev’d on other grounds, 365 N.C. 152, 712 S.E.2d 868 

(2011). 

In Morris, this Court held (i) that interpretation of a 

term in a zoning ordinance was a question of law and (ii) that 
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determining whether the specific actions of a petitioner fit 

within that interpretation was a question of fact reviewable 

under the whole record test. Morris, 202 N.C. App. at 636, 689 

S.E.2d at 883. This Court relied on Whiteco Outdoor Adver. v. 

Johnston Cnty. Bd. of Adjust., 132 N.C. App. 465, 513 S.E.2d 70

(1999), which prescribed de novo review of a petitioner’s 

alleged error of law, but also provided deference to a board of 

adjustment’s interpretation of its own ordinance under that de 

novo review. Id. at 470, 513 S.E.2d at 74. The Supreme Court 

rejected this Court’s application of a deferential de novo

standard, stating that “[u]nder de novo review a reviewing court 

considers the case anew and may freely substitute its own 

interpretation of an ordinance for a board of adjustment’s 

conclusions of law.” Morris, 365 N.C. at 156, 712 S.E.2d at 

871. The Supreme Court did not reverse this Court’s finding 

that interpreting “work” was properly considered a mixed 

question of law and fact. Id.

Thus, we review the superior court’s determination that the 

Board erred in its definition of “area” in two parts: (i) 

whether the Board’s interpretation of the ordinance’s use of 

“area” prescribed was an error of law under de novo review and 
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(ii) whether the specific findings of fact used to define the 

area were supported under the whole record test.

Under de novo review, we examine the case with new eyes. 

“[D]e novo means fresh or anew; for a second time, and an appeal 

de novo is an appeal in which the appellate court uses the trial 

court’s record but reviews the evidence and law without 

deference to the trial court’s rulings.” Parker v. Glosson, 182 

N.C. App. 229, 231, 641 S.E.2d 735, 737 (2007) (quotation marks 

and citations omitted).

“When utilizing the whole record test, . . . the reviewing 

court must examine all competent evidence (the whole record) in 

order to determine whether the agency decision is supported by 

substantial evidence.” Mann Media, Inc. v. Randolph Cnty. 

Planning Bd., 356 N.C. 1, 14, 565 S.E.2d 9, 17 (2002) (quotation 

marks and citation omitted). “The ‘whole record’ test does not 

allow the reviewing court to replace the Board’s judgment as 

between two reasonably conflicting views, even though the court 

could justifiably have reached a different result had the matter 

been before it de novo.” Thompson v. Wake Cnty. Bd. of Educ., 

292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977).

III. Analysis

A. Defining Area in the Ordinance
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As discussed supra in Section II, the definition of “area” 

in the ordinance is a mixed question of law and fact subject to

de novo review. “[O]ne of the functions of a Board of 

Adjustment is to interpret local zoning ordinances.” CG & T 

Corp. v. Bd. of Adjustment of Wilmington, 105 N.C. App. 32, 39, 

411 S.E.2d 655, 659 (1992). “[R]eviewing courts may make 

independent assessments of the underlying merits of board of 

adjustment ordinance interpretations. This proposition 

emphasizes the obvious corollary that courts consider, but are 

not bound by, the interpretations of administrative agencies and 

boards.” Morris, 365 N.C. at 156, 712 S.E.2d at 871 (quotation 

marks and citation omitted). 

In Morris, the Supreme Court compared a board of 

adjustment’s interpretation of the term “work” to the actual 

ordinance:

[W]e find the BOA’s interpretation of the 

term “work” unpersuasive. The ordinance 

provides that:

“If the work described in any compliance or 

sign permit has not begun within six months 

from the date of issuance thereof, the 

permit shall expire. Upon beginning a 

project, work must be diligently continued 

until completion with some progress being 

apparent every three months. If such 

continuance or work is not shown, the permit 

will expire.”
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City of Bessemer City, N.C., Ordinance 

§ 155.207.

Bessemer City’s zoning administrator 

testified at the BOA hearing that he 

interpreted the term “work” to mean 

“actually something moving on the 

ground . . . . [c]onstruction.” In his 

view, Fairway failed to commence “work” 

within the time period prescribed in the 

sign permit because he did not observe 

construction-like activities occurring on 

the property. He therefore concluded the 

sign was relocated without a valid sign 

permit.

In contrast, Fairway argues the term “work” 

encompasses the broader range of activities 

necessary to complete the sign relocation. 

Fairway contends its negotiations with DOT 

and Dixon, as well as its acquisition of a 

county building permit, constitute “work” 

under the ordinance. We agree with Fairway 

that the term “work” has a broader meaning 

than mere visible evidence of construction.

Id. at 156–57, 712 S.E.2d at 871. 

We consider the phrase “area” here and the Board’s 

interpretation of it. The ordinance provides the Board with the 

ability to deny a special use permit if the application “[w]ill 

not be in harmony with the area in which it is located.” A

fact-specific inquiry is necessarily required to define “area” 

in this context, as each individual application for a special 

use permit will have different surrounding areas the Board will 

need to consider when determining whether the property would be 
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harmonious with its surroundings. This scenario is much like 

our Supreme Court’s interpretation of the phrase a “reasonable 

time”:

If, from the admitted facts, the court can 

draw the conclusion as to whether the time 

is reasonable or unreasonable by applying to 

them a legal principle or a rule of law, 

then the question is one of law. But if 

different inferences may be drawn, or the 

circumstances are numerous and complicated 

and such that a definite legal rule cannot 

be applied to them, then the matter should 

be submitted to the jury. It is only when 

the facts are undisputed and different 

inferences cannot be reasonably drawn from 

them that the question ever becomes one of 

law.

Claus-Shear Co. v. E. Lee Hard Ware House, 140 N.C. 552, 555, 53 

S.E. 433, 435 (1906). Conversely, if the Board made a 

determination of what “area” generally meant within the 

ordinance and there was no disagreement about the area in 

question,

1 a trial court’s de novo analysis of the Board’s 

conclusion of law, that being an interpretation of “area” within 

the ordinance, would be appropriate. 

Here, the Board used the term “area” as it related to 

specific findings of fact, which was the proper application 

under UDO § 69(d). Finding of fact #13 considered Templeton’s 

 

1 For example, if the Board made a finding that “area” 

categorically included all adjacent properties within the R-1 

zoning area.
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offered survey, which included non-residential developments 

further down State Farm Road. Finding of fact #14 noted that

Templeton’s evidence “extended almost a mile away” from the 

Parcel and that Templeton’s survey excluded several properties 

fronting State Farm Road that the Board considered part of the 

“area.” Finding of fact #16 stated that “distance, topography, 

and the curves in State Farm Road” separated the Parcel from the 

commercial properties cited by Templeton as being part of the 

“area.” Finding of fact #17 noted that Templeton’s appraiser 

concluded “that the only developments in the surrounding area 

were the VFW hall and single-family homes.” These findings, 

amongst others, are a proper contextual usage of “area” as laid 

forth in the ordinance and are inherently fact specific.

Beyond reviewing the Board’s actions, this Court reviews 

whether the superior court correctly performed its several tasks 

in its reviewing capacity:

[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) Reviewing the record for errors in law,

(2) Insuring that procedures specified by 

law in both statute and ordinance are 

followed,

(3) Insuring that appropriate due process 
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rights of a petitioner are protected 

including the right to offer evidence, 

cross-examine witnesses, and inspect 

documents,

(4) Insuring that decisions of town boards 

are supported by competent, material and 

substantial evidence in the whole record, 

and

(5) Insuring that decisions are not 

arbitrary and capricious.

Coastal Ready-Mix Concrete Co., Inc. v. Bd. of Comm’rs of Nags 

Head, 299 N.C. 620, 626, 265 S.E.2d 379, 383 (1980). 

“When the petitioner correctly contends that the agency’s 

decision was either unsupported by the evidence or arbitrary and 

capricious, the appropriate standard of review for the initial 

reviewing court is ‘whole record’ review. If, however, 

petitioner properly alleges that the agency’s decision was based 

on error of law, de novo review is required.” Tucker, 148 N.C. 

App. at 55, 557 S.E.2d at 634. As such, the superior court 

conducts a de novo review under the first three tasks and a 

“whole record” review for the final two tasks.

Here, the superior court improperly acted as a finder of 

fact on review and imposed its own view of what the bounded 

“area” should be, rather than reviewing whether the Board’s 

findings of fact concerning the area were supported by competent 

evidence and not arbitrary and capricious. The superior court 
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held that the fact-specific definition of “area” as used by the 

Board should have included “similarly situated” properties that 

are “in reasonable proximity to the subject site.” “In 

proceedings of this nature, the superior court is not the trier 

of fact. Such is the function of the town board.” Coastal 

Ready-Mix Concrete Co., Inc., 299 N.C. at 626, 265 S.E.2d at 

383. If findings of fact about the “area” affected here were 

supported by evidence, they must stand even if conflicting 

evidence may have allowed the superior court to reach a 

different result under de novo review. Tate Terrace Realty 

Investors, Inc. v. Currituck County, 127 N.C. App. 212, 218, 488 

S.E.2d 845, 849 (1997). By improperly acting as a trier of 

fact, the superior court erred and we reverse its order.

B. Rebuttal of a Presumed Legislative Finding

Templeton also contends that because Boone’s R-1 zoning 

allowed construction of its clinic under a special use permit, 

Boone’s legislative determination that clinics are entitled to 

receive special use permits should have been enforced. 

Templeton cites a number of cases in support of this 

proposition. See Woodhouse v. Bd. of Comm’rs of Nags Head, 299 

N.C. 211, 216, 261 S.E.2d 882, 886 (1980) (“Where an applicant 

for a conditional use permit produces competent, material, and 
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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.” (citation and quotation marks omitted)); Blair Investments, 

LLC v. Roanoke Rapids City Council, ___ N.C. App. ___, ___, 752 

S.E.2d 524, 527 (2013); Habitat for Humanity of Moore Cnty., 

Inc. v. Bd. of Comm’rs of Pinebluff, 187 N.C. App. 764, 768, 653 

S.E.2d 886, 888 (2007); MCC Outdoor, LLC v. Franklinton Bd. of 

Comm’rs, 169 N.C. App. 809, 814, 610 S.E.2d 794, 797 (2005); 

Clark v. City of Asheboro, 136 N.C. App. 114, 122, 524 S.E.2d 

46, 52 (1999); Vulcan Materials Co. v. Guilford Cnty. Bd. of 

Cnty. Comm’rs, 115 N.C. App. 319, 324, 444 S.E.2d 639, 643 

(1994) (“The inclusion of a use as a conditional use in a 

particular zoning district establishes a prima facie case that 

the permitted use is in harmony with the general zoning plan.”). 

Of the preceding cases, Templeton argues that Woodhouse

uses a “legislative finding” rule and that Vulcan is a “lessrestrictive” formulation of the Woodhouse test. We do not see 

conflict between the two cases, which both allow the presumption 

of granting the special use permit to be rebutted by the party 

opposing its issuance. See Blair, ___ N.C. App. at ___, 752 

S.E.2d at 528–29 (citing Woodhouse and holding that after a 
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petitioner “makes a prima facie showing of entitlement to a 

special use permit, the burden of establishing that the approval 

of a conditional use permit would endanger the public health, 

safety, and welfare falls upon those who oppose the issuance of 

the permit” so long as denial is “based upon findings which are 

supported by competent, material, and substantial evidence 

appearing in the record” (citation and quotation marks 

omitted)). Thus, while showing that entitlement to a 

conditional or special use permit creates a prima facie case 

that a petitioner is entitled to a special use permit, the prima 

facie case may be rebutted by “competent, material, and 

substantial evidence [showing the] use contemplated is not in 

fact in harmony with the area in which it is to be located.” 

Vulcan, 115 N.C. App. at 324, 444 S.E.2d at 643 (citations and 

quotation marks omitted). 

Accordingly, we must consult the record to determine 

whether “competent, material, and substantial” evidence existed 

to support the Board’s harmony analysis. Id.

C. Findings of Fact Supporting Board’s Decision to Deny the 

Special Use Permit

As noted supra in Section II, we now review whether the 

Board’s findings of fact were supported by competent evidence 

under the whole record test. At the outset, we note that
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[A] city council’s denial of a conditional 

use permit based solely upon the generalized 

objections and concerns of neighboring 

community members is impermissible. 

Speculative assertions, mere expression of 

opinion, and generalized fears “about the 

possible effects of granting a permit are 

insufficient to support the findings of a 

quasi-judicial body.” In other words, the

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.

Blair, ___ N.C. App. at ___, 752 S.E.2d at 529 (quotation marks 

and citation omitted). Were the Board’s findings concerning the 

area’s characteristics solely based on the testimony of 

individuals affected by development of the Parcel, denial of the 

permit on those grounds might be impermissible. However, 

several findings of fact concern the nature of the Parcel and 

the surrounding area which buttress its decision:

 Finding of fact #3 notes that there would be sixty-seven 

parking spaces at the clinic.

 Finding of fact #4 describes the twenty-three light poles 

on the clinic’s grounds as well as issues with the 

shielding on the lights affecting the surrounding 

residents. 

 Finding of fact #5 describes Templeton’s proposed leftturn lane to allow access from State Farm Road. 
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 Finding of fact #6 describes the clinic’s proposed “two 

large dumpster pads,” and that Templeton could not 

estimate how many containers would be placed on the pads.

 Finding of fact #7 noted the uncertainty of the type of 

clinic that would locate at the facility. 

 Finding of fact #8 noted the size, limited weekend use, 

and lack of lighting by the current church structure on 

the Parcel. 

 Finding of fact #9 noted the historical tendency to zone 

the surrounding area as R-1. 

 Finding of fact #11 noted that the VFW Hall adjacent to 

the Parcel was grandfathered into existence because it 

was built before Boone adopted zoning.

 Finding of fact #12 noted that the surrounding area was 

primarily comprised of single family homes.

 Findings of fact #13, #14, and #15 found that Templeton’s 

survey was not limited to an area that accurately 

reflected the character of the area near the Parcel, 

extended close to a mile away from the Parcel, and 

excluded several properties not fronting State Farm Road.
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 Finding of fact #16 finds that the Parcel is separated 

from the other non-residential parcels cited by Templeton 

by topography, distance, and road features. 

 Finding of fact #17 notes that Templeton’s appraiser 

described the Parcel’s surrounding area as the VFW hall 

and single family homes. 

 Findings of fact #18 and #19 note the lack of medical 

buildings, offices, or other commercial developments in 

the surrounding area and found that introducing the 

medical clinic would introduce a “busy commercial 

operation” into an “overwhelmingly residential” area.

 Findings of fact #20, #21, and #22 note that the clinic 

would be “much larger” than the surrounding structures, 

would produce additional traffic, and would create more 

artificial light than other surrounding structures in the 

area. 

These findings were based on testimony, photographs of the area, 

drawings, topographic surveys, and other data compiled by the 

Board prior to its 4 May 2007 denial of Templeton’s application. 

The foregoing was ample evidence to support a finding that the 

proposed clinic was not harmonious with its surrounding area. 

Further, the superior court cited only finding of fact #10 as 
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not being supported by evidence in its order. We disagree and 

hold that the six residents’ testimony of the area regarding its 

contents constituted competent evidence supporting finding of 

fact #10.

2 Accordingly, there was competent evidence supporting 

the Board’s finding that the medical clinic would not be in 

harmony with its surrounding area pursuant to UDO § 69(c)(3) and 

the superior court erred in overturning the Board’s decision to 

deny the special use permit. 

Because we hold that the Board’s denial of Templeton’s 

special use permit was supported by competent evidence and 

proper under its harmony analysis, we do not address Boone’s 

remaining arguments concerning conformance with the 

comprehensive plan or to provide for the public’s safety.

 

2 The testimony included statements from Ben Shoemake who said 

the Parcel was surrounded by homes and that the commercial 

development cited by Templeton was further away from the 

neighborhood that he described as “much smaller.” Les 

Monkemeyer testified that the neighborhood has trees over a 

century old in the surrounding area. Marc Kadyk, a thirty-year 

resident of the neighborhood, testified that the area is heavily 

wooded. Thirty-four year neighborhood resident and Town Mayor 

Loretta Clawson testified that the area was overwhelmingly used 

as homes. Thomas and Joan McLaughlin also testified that the 

neighborhood was residential in nature, that the area was 

heavily wooded, and that the commercial portion of State Farm 

Road to the southeast cited by Templeton was dissimilar because 

it did not have the same amount of vegetation.
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IV. Conclusion

For the reasons stated above, the decision of the superior

court is

REVERSED.

Judges STROUD and DILLON concur.