Wednesday, July 22, 2009

Templeton Loses in Court (Again)

Back a year ago, Superior Court Judge Ronald Payne ruled against the Town of Boone and said Phil Templeton could build his medical clinic in the single-family neighborhood of VFW Drive. The Town of Boone appealed that ruling. (Another Templeton lawsuit, challenging Boone's steep slope development ordinance, was thrown out of court earlier this year.)

Yesterday the N.C. Court of Appeals ruled unanimously that Judge Payne erred in substituting his judgment for the Boone Board of Adjustments: "The Superior Court was not free to find facts in place of the Board of Adjustment; its function was to determine whether the Board of Adjustment's findings were supported by competent evidence in the record before it." The Appeals Court noted that Judge Payne at one point declared that he himself planned to visit the proposed construction site (though whether he ever did that is unclear).

The Boone Board of Adjustments erred in not making a formal finding of fact, though the BOA had "substantial evidence" before it opposing the Templeton special use request, and so the case is remanded back to the Boone BOA so that a finding of fact can be made.

Once the BOA does that, it's possible that Templeton could appeal again. However, the Court of Appeal's opinion essentially holds that the record contains sufficient evidence to support denial of the permit, and that would seem to destroy Templeton's procedural arguments. So, assuming that the Board adopts sufficient findings on remand, Templeton should have little ammunition for another appeal.

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