An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 7 August 2007
ALLTEL COMMUNICATIONS, INC.,
and H&T PROPERTIES, INC.,
No. 06 CVS 593
Court of Appeals
Appeal by Petitioners from judgment entered 11 July 2006 by
Judge Christopher M. Collier in Superior Court, Davidson County.
Heard in the Court of Appeals 11 April 2007.
Smith Moore LLP, by Thomas E. Terrell, Jr., for PetitionersAppellants.
Robert C. Hedrick for Respondent-Appellee.
Alltel Communications, Inc. (Alltel) applied to the Davidson
County Board of Commissioners (the BOC) on 24 October 2005 for a
telecommunication tower and facility (the proposed tower).
sought to construct the proposed tower on an 0.86 acre tract of
land (the tract) located in the Highway Commercial zoning district
(HC) and owned by H&T Properties, Inc.
The tract is abutted by two
properties located in a Rural Agricultural zoning district (RA-1).
-2Davidson County's (the County) zoning ordinance (the ordinance)
states that wireless communication towers in non-residential zoning
must meet required setbacks in Article 4,
Regulation, Non-Residential Development Pg.
17B of the Davidson County Zoning Ordinance
The table in Article 4 of the ordinance establishes the following
setbacks for a structure which does not exceed 35 feet in height:
50 feet from the front property line, 0 feet from the side property
lines, and 20 feet from the rear property line.
increase by an additional foot for each two feet, or fraction
thereof, by which the height of a proposed tower exceeds 35 feet.
The BOC held a public hearing on Alltel's application on 6
At the public hearing, Alltel amended its request
and decreased the height of the proposed tower to 156 feet and 11
Therefore, the applicable setbacks for the proposed tower
would be 111 feet from the front property line, 61 feet from the
side property lines, and 81 feet from the rear property line.
reflect the decreased height of the proposed tower, Alltel amended
its deviation request to 39 feet and 6.5 inches from the east
property line, 21 feet and 11.5 inches from the west property line,
and 62 feet and 9.5 inches from the rear property line.
Robert Koontz and Maxine Yarborough owned residential property
Robert Koontz testified that his house was located 189
feet from the proposed tower location.
Steven Yarborough, son of
-3Maxine Yarborough, also testified that the shed in which Maxine
Yarborough parked her car was within 120 feet of the proposed
Pursuant to the ordinance, an applicant must satisfy the
following criteria in order to receive a special use permit:
(1) The use will promote the public health,
safety and general welfare, if located where
proposed and developed and operated according
to the plan as submitted;
(2) The use, which is listed as a Special Use
in the district in which it is proposed to be
regulations and standards of this ordinance
including the Area, Height, Bulk and Placement
regulations (Article 4), unless greater or
different regulations are contained in the
individual standards for that special use;
(3) That the use will maintain or enhance the
value of contiguous property, or that the use
is a public necessity;
(4) That the use is in compliance with the
general plans for the physical development of
the county as embodied in these regulations.
An applicant is responsible for producing evidence as to each
standard to support an application.
The BOC unanimously denied Alltel's application.
found that Alltel met the third and fourth requirements set out in
However, the BOC found that Alltel did not meet the
first and second requirements.
As to the first requirement, the
BOC found "[t]he requested deviations from required setbacks are
the largest deviations ever requested by an applicant since the new
telecommunications towers and facilities."
The BOC found that the
-4proximity of the tower to adjoining property lines created "an
unsafe environment for the occupied residences closest to the tower
The BOC also found that if it granted Alltel's deviation
request, it would set a precedent for special use permits which
substantial separation between residential uses and towers."
As to the second requirement, the BOC found that the proposed
tower would not satisfy the required setbacks.
Further, the BOC
found that "[t]he requested setback deviations result in the
tower being placed too close to the property lines.
is too small for the proposed use as a cell tower site."
Alltel and H&T Properties, Inc. (collectively Petitioners)
filed a complaint and petition for writ of certiorari with the
Superior Court, Davidson County on 16 February 2006.
filed a motion for summary judgment on 21 March 2006, and the
County filed a cross-motion for summary judgment on 30 March 2006.
Further, the parties stipulated that the proposed tower would be
located 39 feet from the corner west of the tower, 18 feet and 2
inches from the property line north of the tower, and 21 feet and
5 inches from the property line northeast of the tower.
Superior Court granted the County's motion on 11 July 2006 and
affirmed the BOC's decision.
In its judgment, the Superior Court
overruled the BOC's finding that Alltel failed to satisfy the first
requirement for a special use permit, but upheld the BOC's finding
as to Alltel's failure to meet the second requirement. Petitioners
-5When determining whether to grant or deny a special use
permit, a county board sits in a quasi-judicial capacity.
Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 12, 565
commissioners acts as a finder of fact, and "a reviewing superior
court 'sits in the posture of an appellate court' and 'does not
review the sufficiency of evidence presented to it but reviews that
evidence presented to the  board.'"
Id. at 12, 565 S.E.2d at 17
(quoting Concrete Co. v. Board of Commissioners, 299 N.C. 620,
626-27, 265 S.E.2d 379, 383, reh'g denied, 300 N.C. 562, 270 S.E.2d
"When the petitioner 'questions (1) whether the
[board'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. Commission for
Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)
(quoting In re Appeal by McCrary, 112 N.C. App. 161, 165, 435
S.E.2d 359, 363 (1993)).
Under the whole record test, a reviewing
court should "'examine all competent evidence . . . in order to
Id. (quoting Amanini v. N.C. Dep't of
Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 188
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. . . .
Finally, when an appellate court reviews 'a
superior court order regarding an agency
decision, the appellate court examines the
-6trial court's order for error of law.
process has been described as a twofold task:
(1) determining whether the trial court
exercised the appropriate scope of review and,
if appropriate, (2) deciding whether the court
did so properly.'
Mann Media, 356 N.C. at 14, 565 S.E.2d at 17-18 (quoting ACT-UP
Triangle, 345 N.C. at 706, 483 S.E.2d at 392).
Petitioners first argue the Superior Court erred by failing to
reverse the BOC's finding that Petitioners did not meet the second
requirement of the ordinance.
ascertain and effectuate the intention of the  legislative body."
George v. Town of Edenton, 294 N.C. 679, 684, 242 S.E.2d 877, 880
"Legislative purpose is first ascertained from the plain
words of the [ordinance]." Electric Supply Co. v. Swain Electrical
Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991).
presumed that the [legislative body] intended each portion to be
given full effect and did not intend any provision to be mere
Builders, Inc. v. City of Winston-Salem, 302 N.C.
550, 556, 276 S.E.2d 443, 447 (1981).
The ordinance in this case
residential zoning districts
meet required setbacks in Article 4, Table of
Non-Residential Development Pg. 17B of the
[ordinance] unless deviation in height limits
Petitioners argue that the ordinance plainly allows, through
the special use permit application process, deviations from setback
-7requirements for towers.
Petitioners further argue that where an
evidence that the first, third, and fourth requirements have been
met, and the second requirement has been met except for the
deviations requested, the ordinance requires that the special use
permit be granted.
Petitioners contend that if the ordinance is
interpreted otherwise, an applicant can never satisfy the special
Petitioners' interpretation would render a portion of the ordinance
meaningless, we cannot agree.
The provision that setbacks must be met "unless deviation in
eliminate the setback requirements.
If the ordinance was intended
to establish that all requests for deviations be automatically
granted, the setback requirement need not have been included in the
provisions that apply to wireless communications towers.
cannot conclude that the intent of the ordinance was to require
that a special use permit be granted in all instances where a
deviation is requested, regardless of the size of the requested
Petitioners argue that such an interpretation of the ordinance
makes it impossible to ever obtain a deviation.
its order denying the special use permit, the BOC noted that
-8Alltel's requested deviations were the largest ever requested for
a wireless communication tower and that:
The requested setback deviations result in
the tower being placed too close to the
property lines. The property is too small for
the proposed use as a cell tower site.
Thus, the BOC denied Petitioners' application based upon the
decision to deny Alltel's application was not equivalent to a
determination that no deviation request would ever be granted.
Rather, the denial was based upon the specific deviations requested
and the physical characteristics and dimensions of the tract.
conclude the Superior Court did not err by affirming the BOC's
finding that Alltel had failed to satisfy the second requirement.
In their next assignment of error, Petitioners argue that
Alltel satisfied the first, third, and fourth requirements, and
that Alltel presented sufficient evidence that it would have
satisfied the second requirement had the setback deviations been
However, as we stated above, we affirm the
requirement but failed to meet the second requirement.
we conclude that the Superior Court did not err by concluding that
Alltel was not entitled to a special use permit for the proposed
We overrule this assignment of error.
Lastly, Petitioners argue that Alltel was entitled to the
special use permit because no competent, material, and substantial
-9evidence in opposition to the special use permit was presented. We
In support of their position, Petitioners cite Concrete Co.
In Concrete Co., our Supreme Court held that an applicant that had
produced competent, material, and substantial evidence that tended
to establish the requirements for the issuance of a special use
permit was prima facie entitled to the permit, unless there were
contrary findings supported by competent, material, and substantial
Concrete Co., 299 N.C. at 625, 265 S.E.2d at 382 (citing
Refining Co. v. Board of Alderman, 284 N.C. 458, 468, 202 S.E.2d
129, 136 (1974)).
However, as stated above, we conclude that the
Superior Court did not err by concluding that Alltel had not
established the second requirement for a special use permit.
Therefore, competent evidence existed to support the BOC's denial
of the application.
We overrule this assignment of error.
Judges TYSON and ELMORE concur.
Report per Rule 30(e).