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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.
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.
Labels: Jeff Templeton, Phil Templeton, Town of Boone, zoning
Tuesday, June 09, 2009
Templeton Lawsuit Against Town of Boone Dismissed
It happened back on May 25, but the judge didn't sign his order to make it official until today.
The Jeff Templeton lawsuit against the Town of Boone, challenging the constitutionality of the town's steep-slope development regs, was thrown out by Superior Court Judge Joseph N. Crosswhite (who's a Republican, incidentally) for failing to set out "facts or legal claims which showed any potentially valid basis under state law or the constitution."
This was the second lawsuit filed by Boone attorney Charlie Clement on behalf of Templeton to try to strike down the ordinances. The first attempt was voluntarily withdrawn by Clement in December 2006 just before it was to be heard in court, a move sometimes regarded as an admission of "I have no case."
The Jeff Templeton lawsuit against the Town of Boone, challenging the constitutionality of the town's steep-slope development regs, was thrown out by Superior Court Judge Joseph N. Crosswhite (who's a Republican, incidentally) for failing to set out "facts or legal claims which showed any potentially valid basis under state law or the constitution."
This was the second lawsuit filed by Boone attorney Charlie Clement on behalf of Templeton to try to strike down the ordinances. The first attempt was voluntarily withdrawn by Clement in December 2006 just before it was to be heard in court, a move sometimes regarded as an admission of "I have no case."
Labels: Boone, Charles E. Clement, Jeff Templeton, steep slope hazards
