By Ron Fitzwater
Mar. 16, 2012. BOONE — “We are going to see this through till the end and see justice for our petition.” That’s how Phil Templeton reacted to the ruling by the North Carolina Court of Appeals last week. After more than five years of court battles, and a significant monetary investment in legal fees, his appeal of a denial of a request for a special use permit (SUP) to place a medical office facility at 315 State Farm Road in Boone is heading right back to where it started in 2006; the Boone Board of Adjustment (BOA).
The battle between the developer and the town began in September 2006, when Templeton filed paperwork with the town for a Special Use Permit (SUP) to begin renovations on an old church on the property, with the intention of converting it into the clinic.
Templeton met several months of opposition through public hearings and testimony that he feels was driven by Boone Mayor Loretta Clawson, who spoke in opposition to the project as a town citizen and resident of VFW Drive, one of the access roads to the proposed clinic, which would be located at 315 State Farm Road.
One of the key points of Templeton’s case against the town is that at the time of his September request and subsequent application for the SUP in March 2007, the facility met the town’s Unified Development Ordinance (UDO) criteria for a medical clinic in the R-1 zoned area.
An R-1 Zone is designed to keep areas having a suburban/rural density setting free from commercial and industrial developments. These developments include medical service facilities, multiple-family dwellings, professional offices and several others. But under the UDO in force at the time, medical clinics were permitted if they met certain criteria such as having a facility in excess of 10,000 square feet; Templeton’s property was reduced from 13,050 square feet to just over 10,000 square feet.
For several months the town and Templeton went back and forth on issues of dumpsters, building height lighting and access to the employee parking lot accessible from both State Farm Road and VFW Drive.
During the hearing processes in April and May of 2007 the then town planning supervisor George Cole stated that all the concerns cited in the process were addressed by the town’s UDO and that the proposal Templeton submitted was complete and the Town Council would need to approve the SUP.
However, during the process, on April 19th 2007, the Town Council adjusted the UDO to prohibit all new medical facilities being placed in R-1 zoned areas. Then in May the BOA again met and unanimously voted that the plan met the requirements under the UDO, but then voted 3 to 5 to approve the SUP, stating that the project was not compatible with the town’s comprehensive plan and was not in keeping with the “harmony of the surrounding neighborhood.” Being that the motion to approve failed; no vote to deny was needed at the time, but subsequently the board met again and officially voted to deny the application.
On May 18, 2007 Templeton filed a petition to have the Superior Court review the case and issue a ruling. And in July 2009 Superior Court Judge Ronald Payne overturned the town’s decision to deny the permit based on several points of fact including the existence of 33 properties for commercial, office and institutional uses related to medical fields. The order issued by Payne named the town of Boone and the BOA as respondents and stated that the Town Council and BOA must act in accordance with the procedures and provisions of the UDO in force at the time of the application, and cited the May unanimous vote by the BOA.
Additionally, Payne determined that the BOA had denied Templeton’s due process rights, erred in their interpretation of law and made an “arbitrary and capricious” ruling not based on the evidence presented. The town of Boone appealed to the state Court of Appeals.
In July 2009, the appellate court sent the case to Superior Court, instructing them to remand the case to the BOA for review of findings of fact for denial, which were not made in previous proceedings.
The BOA met in September of 2010 to make reviewable findings of fact from the May 2007 determination but amidst objections from Templeton’s legal counsel allowed additional testimony to be made by residents of the community affected (including Clawson), but none from Templeton. The BOA voted 6 to 2 to approve more than 30 findings of fact in support of the denial based on the September meeting. Templeton appealed the determination to Superior Court, which supported the decision. Templeton then appealed the decision to the State Court of Appeals which filed an opinion last week that the BOA should not have allowed additional testimony from residents at the September 2010 meeting and that the decision should have been based on evidence from the April and May hearings.
The Court of Appeals remanded the case back to Superior Court for remanding to the BOA to repeat the process ordered by Payne’s 2009 findings; effectively turning the clock back to the September 2010 hearing.
Templeton feels that the decision of the town that his proposed property was not in keeping with the comprehensive plan for the town is simply a catch-all decision.
“The comprehensive plan is a guide; the zoning ordinance is already adopted. So they use that to cover anything that they don’t want,” he said.
Templeton believes that many residents who testified against the clinic were under the influence of misinformation that the facility was going to be a Methadone clinic and that subsequently it would bring an undesirable element into the community, something he states is not true in fact.
“I have a family practitioner who needs a clinic and in fact, in that space, I can put a couple of different doctors. The issue of it being a Methadone clinic was a red herring used by the opponents of the clinic because they were grasping for reasons to deny the application.”
At the March 13 special meeting of the Town Board of Commissioners, the appellate court’s decision was the topic of a closed session meeting. While no announcement was made about the meeting and no date yet set for the BOA to meet for a new findings of fact hearing, the town is working with legal counsel to plot the course forward.
For her part, Clawson denied comment on the issue stating, “Under advice of legal counsel I cannot comment on ongoing legal matters surrounding the case.”