A North Carolina Superior Court judge has ruled against the Town of Smithfield in a lawsuit involving a planned RV park. Developers of the proposed 148 space RV park and 48 cabin rentals appealed a decision by the Smithfield Town Council last October and have now won. The decision was rendered Thursday by Pitt County Superior Court Judge Jeffrey B. Foster.
On October 3, 2017, over 70 people packed into the Smithfield Town Council chambers for a public hearing on plans for a RV park submitted by developer Theron Lee McLamb of Smithfield. McLamb wanted to operate the recreational vehicle park on 33.32 acres of land he owns on Venture Drive near the Outlet Center.
Numerous citizens who lived near the proposed site, including those in the nearby Pine Acres community, spoke during the four hour public hearing expressing a variety of concerns over noise, light pollution, and injury to surrounding property values.
In a 4-to-2 vote to deny McLamb the Conditional Use Permit (CUP) in October, the council agreed with adjacent property owners that the park could injure or damage surrounding home values.
McLamb’s attorney, Chip Hewett of Selma, filed a 56 page lawsuit in December 2017 claiming numerous errors were made by town staff, the planning board and town council, including the use of “… irrelevant, inadmissible and prejudicial testimony and evidence over the objection of counsel for the Petitioner.” The lawsuit said no one testifying against the developer was qualified as an expert witness and in doing so violated state law that requires “every quasi-judicial decision shall be based upon competent, material, and substantial evidence in the record.” The testimony by lay witnesses violated the statute, Hewett said in the lawsuit.
Ruling
In his ruling, Superior Court Judge Foster said McLamb met his burden of proof showing his entitlement to the CUP, no party speaking against the applicant was qualified as an expert witness, and allowing adjoining property owners to testify as to their opinion on the affect of the value of their property was “improper, irrelevant, inadmissible, and prejudicial testimony… resulting in eroneous findings of fact and conclusions of law.”
In a 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 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.”
The ruling orders the Town of Smithfield to issue a Conditional Use Permit (CUP) to McLamb as soon as reasonably possible. The Town of Smithfield was also ordered to pay McLamb’s legal fees of $14,336.34.
Reaction from McLamb’s Attorney
“On behalf of Mr. Lee McLamb, we are obviously pleased with the Court’s ruling,” stated his attorney, Chip Hewett. “After lengthy oral arguments, Judge Foster spent a great deal of time to thoroughly review the legal briefs, case law, pleadings and watched the entire four hour video of the conditional use permit (CUP) hearing. After deliberation, Judge Foster followed the existing case law and ruled that the CUP should have been issued by Smithfield. The judgment of the court is legally sound.”
Hewett added, “This case has always been about Smithfield following its own ordinances. The RV Park is a permitted use subject to a CUP. The case will now be remanded back to Smithfield to issue the CUP and to set conditions. We hope that Smithfield will be reasonable and allow this project to move forward without further delays. If Smithfield decides to appeal Judge Foster’s ruling, we will fight to have the Court of Appeals affirm the decision and seek additional legal fees.”
East Smithfield Development Chairman
“We are deeply disappointed in the judge’s decision concerning the ruling on the RV Park,” according to Tony D. Nixon, Chairman of the East Smithfield Development Organization. “We stand by our position that this particular business is wrong to be placed directly adjacent to an established historical neighborhood such as Pine Acres or any other neighborhood within the city limits of Smithfield as it will adversely affect property values and quality of life. Obviously, the Town Council has seen the error of previous Unified Development Ordinances and removed this particular use from its B-3 zoning. We would encourage our Town Council to appeal this ruling as it can set precedence for future land-growth development decisions for the Citizens of Smithfield.”
Smithfield Town Attorney
Smithfield Town Attorney Bob Spence released a written statement to WTSB News following Thursday’s ruling:
“At the time of the McLamb application for a conditional use permit to operate a RV Park in the zoning district immediately adjacent to the Pine Acres subdivision, the district allowed the owner certain uses as a matter of right, “permitted uses”, and other uses, “conditional uses”, which the Board could allow at certain locations in the district and not others based upon whether the town found that the use at that location in the district would have an adverse effect on adjoining properties at that location though it might not in other locations in the district. Pine Acres Subdivision has eleven residences immediately adjacent to the back yard of the proposed RV Park. The applicant proposes a total of 196 tightly packed camping lots on 2500 to 2900 separate gross square feet of yard for each campsite, each with its own “fire pit” and “grill”. Thus the subdivision would suddenly have 196 campfires outside of its back yard virtually every night with each site hosting a group of travelers along I 95 enjoying camping out. The Council found that even if the site were partially screened by a six foot fence and shrubs, that for the neighboring subdivision to be forced to listen to and look out of their back yards onto 196 campfires of itinerant groups traveling up and down I-95 would substantially and adversely affect the quiet enjoyment of the adjacent subdivision, the sense of privacy available in these long established homes, and the sense of vulnerability to neighboring itinerant revelers and campers.”
“The town board turned down the application as not appropriate immediately adjacent to this historic subdivision. It might well be appropriate in another area in the district but not right next to the back yard of people’s homes.”
“The judge disagreed and said the campfires adjacent to the back yards of these residences would not have an adverse effect on the use of the residences. We cannot really explain his decision. We believe that there are numerous examples of commercial uses along highway 70 where commercial businesses back up to residential uses and the residents hardly know the other use is there and have full enjoyment of their back yard. For instance the residences behind the subdivision at Carroll Pharmacy or the florist across the street suffer little impact at night from the adjacent commercial use. But to put 195 campsites next door with outdoor picnic tables and camp fires, the Town Board believes no one would want that next to their home, no one. Judge Foster, from Greenville, saw no adverse effect to the neighboring residences use of the back yards to have the campsites adjacent and said the Town Board was acting arbitrarily to say there would be adverse effect. To say the least, the viewpoints differ,” according to the statement from Mr. Spence.
The town has 30 days to decide if they wish to appeal Judge Foster’s ruling.
