In a unanimous decision, the NC Court of Appeals ruled Tuesday against the Town of Smithfield’s attempts to block a controversial RV Park.
In the 3-0 decision, the NC Court of Appeals ruled the Town of Smithfield erred when they denied a Conditional Use Permit to developer Theron Lee McLamb of Smithfield in 2017. In doing so, the appeals court upheld a Superior Court decision that also said the Town violated the law when they rejected the permit application.
In October 2017, the Smithfield Town Council voted 4-to-2 to reject a request by Mr. McLamb to operate a 148 space recreational vehicle park plus 48 cabin rentals on 33.3 acres of land he owns on Venture Drive near the Outlet Center. The council sided with numerous citizens and nearby property owners who spoke during the Public Hearing, including many from the adjacent Pine Acres Subdivision, who expressed concerns about noise, light pollution, traffic, and devalued property.
McLamb’s attorney, Chip Hewett of Selma filed a 56-page lawsuit in December 2017 in Johnston County Superior Court seeking to overturn the decision. On May 31, 2018, Superior Court Judge Jeffrey B. Foster of Pitt County ruled in favor of McLamb saying the town council acted “outside the scope of its legal authority in their stated reason for denial” and allowed testimony from neighboring property owners who were not expert witnesses and could only speculate on property values.
In the 2018 harshly worded ruling, Judge Foster said the council acted “outside the scope of its legal authority in their stated reason for denial” while ignoring testimony from an expert witness for the applicant, Bruce Sauter, who testified surrounding land prices would not be substantially injured.
The superior court judge said the testimony of neighboring owners “was not competent as to a land value, and was speculative at best with regard to impact on the neighboring property…” Foster said opponents presented “…non-competent evidence, speculative opinions, and generalized fears which cannot form the basis for a reasoned decision.”
In June 2018, following a closed session with members of the Smithfield Town Council, Mayor Andy Moore and Town Attorney Bob Spence, the Town unanimously agreed to appeal the Superior Court ruling to the NC Court of Appeals.
In a Press Release to JoCoReport announcing the June 2018 appeal, Town Manager Michael Scott wrote, “It is the Town of Smithfield’s assertion that our citizens are the best experts when discussing what is best for Smithfield and their individual properties. It is in this spirit that the Town Council voted to continue supporting our citizens who would be negatively impacted by the placement of an RV park at this location and appeal Judge Foster’s ruling to the North Carolina Court of Appeals.”
“While Smithfield applauds economic growth and residential growth and regularly partners with developers to bring positive growth to our local economy, the Town Council does not believe that an RV park at this location is in the best interest of the Town, its future plans or its citizens considering that additional traffic patterns and storm water runoff may negatively impact this area, as well as negatively impact property values.”
In the 16 page Court of Appeals ruling issued June 4th, 2019 the Court upheld Judge Foster’s ruling saying the town council erred when it denied McLamb’s application. The Courts ruled that when an applicant for a Conditional Use Permit “produces competent, material, and substantial evidence of compliance with all ordinance requirements, the applicant has made” and is entitled to a permit. The court said, “Otherwise, to hold that an applicant must first anticipate and then prove or disprove each and every general consideration would impose an intolerable, if not impossible, burden on an applicant for a conditional use permit. An applicant need not negate every possible objection to the proposed use.”
The Court ruled that evidence presented during the October 2017 hearing “…tended to show the proposed use will not adversely affect the use or any physical attribute of adjoining or abutting property.”
Attorney Hewett presented evidence during the 2017 hearing from four expert witnesses, including experts in RV parks and property appraisal, that showed the facility would not have a negative impact on the adjoining Pine Acres neighborhood. McLamb said he would have a 50-foot buffer with mature pine trees and planned to plant shrubs and erect a 6-foot opaque fence between the development and adjoining neighborhood.
“To the extent (the Town of Smithfield) relied on the lay testimony that the proposed development would affect the value of other property or vehicular traffic, (the Town) erred.”
The Court of Appeals asked for more information before deciding how much attorney’s fees should be awarded to Mr. Hewett.
Following Tuesday’s ruling Smithfield Town Manager Mike Scott told JoCoReport, “We will review the ruling and make the decision the Council believes is best for the Town of Smithfield. We respect and thank the Court of Appeals for their diligence and their hard work evaluating this case. We look forward to Smithfield’s continued growth both economically and residentially, as we continuing working hard for our citizens.”
