Planning and Development Regulation
SUP: Application of Neighborhood Harmony Standard
[Adapted from Owens, Land Use Law in North Carolina (4th ed. 2023)]
An ordinance’s inclusion of a particular use as a special use establishes a rebuttable presumption that the use is compatible with the surrounding area. The harmony standard often produces generalized objections from neighbors.[1] It is not uncommon for boards to hear testimony from objecting neighbors that the proposal is simply a bad project that does not fit where it is proposed.
In Woodhousev. Board of Commissioners, the court noted that “inclusion of the particular use in the ordinance as one which is permitted under certain conditions, is equivalent to a legislative finding that the prescribed use is one which is in harmony with the other uses permitted in the district.”[2] Similarly, in Harts Book Stores v. City of Raleigh,[3]the court held that it was improper to deny a special use permit for an adult bookstore on the grounds that it would be incompatible with surrounding buildings, since its inclusion as a special use by the zoning regulation was conclusive on the policy question of use compatibility.
These statements, if literally applied, would make a permit standard of harmony or compatibility superfluous. Cases applying this rule have more precisely noted that inclusion of a use as a permissible special use within a district establishes a prima facie showing or a rebuttable presumption of harmony with the surrounding area rather than a conclusive finding of harmony. For example, in American Towers, Inc. v. Town of Morrisville,[4] the court noted that inclusion of telecommunication towers as a potential special use in an industrial zoning district itself established a prima facie case of harmony with the surrounding area, which was conclusive absent presentation of substantial evidence to rebut that presumption. Inclusion as a possible special use in the district means that it is not inherently incompatible, but a detailed review is needed to assure that the particular location and design proposed will in fact be compatible with the immediate surroundings. Therefore, the burden is on the challengers to rebut the presumption of harmony with specific reasons the project as proposed is inharmonious rather than simply objecting to the location of the use in their neighborhood. A number of North Carolina cases illustrate the evidence required to establish that a proposed special use is not in harmony with the surrounding area.
In Davidson County Broadcasting Co. v. Iredell County, the court upheld denial of a special use permit for a 1130-foot radio broadcast tower in a residential-agricultural zoning district. The court found evidence submitted by the opposing neighbors was sufficient to rebut the presumption of harmony. The evidence included photographs; diagrams of the height of the tower in relation to its surroundings; testimony regarding the height, appearance, and lighting of the tower; and testimony on the impact of construction.[5]
In Hopkins v. Nash County,[6] the court upheld the denial of a special use permit for a land-clearing and inert-debris landfill (or, as the court began its opinion, “This is the case of a stump dump denied.”). The evidence presented by neighbors who objected to the landfill was that the area, which was zoned A-1 Agricultural, was previously agricultural in nature, the site of a long-standing crossroads community, and now primarily single-family residential, and that the thirty to forty trucks per day that would use the landfill would bring disruptive traffic, noise, and dust into the residential area. The court held this to be sufficient evidence to rebut the presumption of harmony with the surrounding area.[7]
In SBA, Inc. v. City of Asheville,[8] the court upheld the denial of a special use permit for a 175-foot telecommunication tower. There was uncontroverted evidence that the tower would be four times taller than existing buildings in the neighborhood. Twelve witnesses testified that the tower would be an eyesore. The court held that the applicant’s own evidence, a computer-generated photograph superimposing the tower, corroborated the proposed tower’s visibility and predominance over existing buildings and showed that it would be “in sharp contrast” to its surroundings. The court held this to be sufficient to establish that this particular tower would not be compatible with the neighborhood.
In Vulcan Materials Co. v. Guilford County Board of County Commissioners,[9] the board of county commissioners denied a special use permit for a proposed rock quarry on the grounds that there was insufficient credible evidence to find that the use would be compatible with the surrounding land uses. The court held that the record showed all uses within two miles of the quarry were residential, which was sufficient evidence for this finding.
In Petersilie v. Boone Board of Adjustment,[10] the court upheld the denial of a special use permit for an apartment building in a neighborhood of single-family homes. The court ruled that although the applicant submitted sufficient evidence to support the issuance of the permit, there had also been competent evidence before the board of adjustment regarding problems of noise, traffic congestion, crime, vandalism, and effects on property values to justify the denial of the permit.
By contrast, the courts have on a number of occasions found there to be insufficient evidence in the record to support a conclusion that a proposed special use is not in harmony with its surrounding area. In these cases the courts concluded that the evidence presented was insufficient to rebut a prima facie showing of harmony.
In Ecoplexus, neighbors opposed a solar farm proposed for a defunct golf course adjacent to farmland and a residential neighborhood. The applicant’s evidence stressed the large vegetated buffers, screening, and limited traffic to show harmony, while the neighbors offered unsubstantiated fears of stormwater runoff and the undesirability of solar energy.[11]
In McDonald v. City of Concord,[12] neighbors challenged a special use permit issued by the city to Cabarrus County for a law-enforcement center located along the edge of downtown Concord. The permit authorized construction of three buildings on a ten-acre site: a sheriff’s office, an annex, and a jail. The center would be located adjacent to the existing jail, on the portion of the site zoned “central city.” The remainder of the site (which was not proposed for development) was zoned “residential compact” and adjoined the plaintiffs’ residential neighborhood. The permit standard at issue was that the project had to conform “to the character of the neighborhood, considering the location, type, and height of buildings or structures and the type and extent of landscaping and screening on the site.”[13] The court concluded that the decision to issue the permit was supported by competent, substantial, and material evidence. The ordinance directed that Webster’s Third New International Dictionary be used to define its terms. Applying those definitions, as well as the specific items listed in the standard to address neighborhood compatibility, the court concluded that the proposed buildings were sufficiently similar to historical uses in this portion of downtown; that the bulk, height, style, and appearance of the proposed buildings was similar to the neighboring governmental and business buildings in the central-city district; and that these governmental uses had always been adjacent to residential areas. The court noted that the permit contained conditions for a fifty-foot vegetated buffer for the portion of the site contiguous to residential areas. While there was contrary evidence presented, the court cannot substitute its judgment between two reasonably conflicting views so long as the board’s conclusion on harmony was supported by the evidence.
In Little River, LLC v. Lee County, the court held that generalized fears and speculation by opponents to a rock quarry were insufficient to rebut a presumption of harmony.[14] In Habitat for Humanity of Moore County, Inc. v. Board of Commissioners of Pinebluff, [15] the court found the testimony in opposition to the permit to be both very general and likely applicable to virtually any development of the site. In Humane Society of Moore County, Inc. v. Town of Southern Pines,[16] the court overturned the denial of a special use permit for an animal shelter. The court found testimony of landscape architects as to noise and odor impacts to be speculative. The court noted that witnesses had also either ignored the fact that ministorage warehouses, an airport, and another animal hospital were already located in the area or had conceded that the proposed use was in harmony with them. In Ward, involving a special use permit for a bank with four drive-through windows, the court found that presentation of evidence regarding the mix of existing uses in the area, along with conditions imposed relative to street parking, lighting, tree removal, and vegetative buffers, sufficiently supported a finding that the project would not substantially injure adjoining properties.[17] In MCC Outdoor, LLC v. Town of Franklinton,[18] involving an application for a special use permit to erect billboards, the court held that the neighbors’ ability to see a billboard from their property was insufficient to support a finding that the signs would be incompatible with the neighborhood, given the presence of other businesses, signs, and an active rail line in the immediate area.
The zoning-enabling statute also includes a specific limit on the use of a neighborhood-harmony standard. In 2021, the General Assembly prohibited the use of a harmony standard when applied to projects providing affordable housing. G.S. 160D-703(b1)[19] provides that if a parcel is in a zoning district where multifamily structures are “an allowable use,” a harmony requirement may not be required for permit approval if the development contains affordable housing units.[20]
[1]. When queried as to the source of evidence presented on neighborhood compatibility, North Carolina cities and counties reported that such evidence was most typically presented by neighbors (74 percent), followed in order of frequency by testimony from the owner or developer (68 percent), reference to consistency with adopted plans (64 percent), and testimony from professional planners (41 percent)..
[2]. 299 N.C. 211, 216, 261 S.E.2d 882, 886 (1980) (quoting 3 Arden H. Rathkopf, The Law of Zoning and Planning 54–55 (1979)).
[3]. 53 N.C. App. 753, 281 S.E.2d 761 (1981).
[4]. 222 N.C. App. 638, 731 S.E.2d 698 (2012), review denied, 743 S.E.2d 189 (2013). See also PHG Asheville, LLC v. City of Asheville, 374 N.C. 133, 839 S.E.2d 755 (2020) (unrebutted expert testimony on project’s harmony with surroundings is conclusive).
[5]. 248 N.C. App. 305, 790 S.E.2d 663 (2016), review denied, 369 N.C. 530 (2017). The plaintiffs argued that it was an error of law for the board not to apply a conclusive presumption of harmony based on inclusion of this use as a possible special use in the district. The court, in a de novo review, held inclusion only created a presumption that could be rebutted by substantial evidence to the contrary.
[6]. 149 N.C. App. 446, 560 S.E.2d 592 (2002).
[7]. A similar ruling, which does not have precedential value, is Templeton Properties, LP v. Town of Boone, 234 N.C. App. 303, 759 S.E.2d 311 (2014), aff’d per curiam by equally divided court, 368 N.C. 82, 772 S.E.2d 239 (2015). The court of appeals had held that the issue of harmony was a mixed question of fact and law, and the board’s findings regarding the size of the building, amount of parking, lighting, and anticipated traffic volume relative to the surrounding residential area were properly considered to rebut the presumption of harmony.
[8]. 141 N.C. App. 19, 539 S.E.2d 18 (2000). In Mann, the court noted in dicta that inclusion in the controlling ordinance of a use as a special use in a particular district established a prima facie case that the use was in harmony with the general zoning plan, but that presumption might be rebutted in the hearing. Mann Media, Inc. v. Randolph Cnty. Planning Bd., 356 N.C. 1, 19, 565 S.E.2d 9, 20 (2002).
[9]. 115 N.C. App. 319, 444 S.E.2d 639, review denied, 337 N.C. 807, 449 S.E.2d 758 (1994).
[10]. 94 N.C. App. 764, 381 S.E.2d 349 (1989).
[11]. Ecoplexus Inc. v. Cnty. of Currituck, 257 N.C. App. 9, 809 S.E.2d 148 (2017).
[12]. 188 N.C. App. 278, 655 S.E.2d 455 (2008).
[13]. Id. at 279, 655 S.E.2d at 456–57 (quoting City of Concord, N.C., Unified Development Ordinance § 6.2.7).
[14]. 257 N.C. App. 55, 809 S.E.2d 42 (2017).
[15]. Habitat for Humanity of Moore Cnty., Inc. v. Bd. of Comm’rs of Pinebluff, 187 N.C. App. 764, 653 S.E.2d 886 (2007).
[16]. Humane Soc’y of Moore Cnty., Inc. v. Town of S. Pines, 161 N.C. App. 625, 589 S.E.2d 162 (2003).
[17]. Ward v. Inscoe, 166 N.C. App. 586, 603 S.E.2d 393 (2004).
[18]. MCC Outdoor, LLC v. Town of Franklinton, 169 N.C. App. 809, 610 S.E.2d 794 (2005).
[19]. This provision was created by S.L. 2021-180, § 5.16(a).
[20]. For purposes of this restriction, affordable housing units are defined as those for families or individuals with incomes below 80 percent of the area median income. While use of the term “allowable use” is not a defined term, nor is it typical zoning nomenclature, it would apparently be applicable to any zoning district where multifamily use is either a permitted use or a use allowed by special use permit. It would not include a single-family residential zoning district where multifamily uses are not allowed by right or with a special use permit. This limit on the use of a harmony standard would also apply to a quasi-judicial review of a site plan for a multifamily project with affordable housing. Most site-plan reviews use only objective standards, which would not include a harmony standard. But if such a standard is included in a site plan or other permitting review, this limitation would be applicable.
