STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

COUNTY OF BUNCOMBE SUPERIOR COURT DIVISION

FILE NO. 18CVS2406

RAB BUILDERS, LLC;

Petitioner, CD
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V. NOTICE OF AtTES, ^'-0 -n

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BUNCOMBE COUNTY, a North o o
Carolina municipal corporation, 13
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Respondent. . O XT

TO THE HONORABLE COURT OF APPEALS OF NORTH CAROLINA:

Petitioner hereby gives Notice of Appeal to the North Carolina Court of Appeals

from the Order of the Honorable Marvin P. Pope, Jr., Superior Court Judge Presiding,

that was filed with the Clerk of Court on August 29, 2018, said Order is attached hereto

as Exhibit" A"; and the Order Affirming Board of Adjustment of the Honorable Marvin

R Pope, Jr., Superior Court Judge Presiding, that was filed with the Clerk of Court on

September 6, 2018, said Order Affirming Board of Adjustment is attached hereto as

Exhibit "3".

This the ^ day of September, 2018.

VAN WINKLE, BUCK, WALL,
STARNES & DAVIS, P.A.

Craig D. Justus
NC Bar #18268
P.O. Box 7376
Asheville, NC 28802-7376
Telephone: 828-258-2991
Attorneys for Petitioner

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 CERTinCATE OF SERVICE

This is to certify that I have this day served the foregoing Notice of Appeal on the
other parties to thiscause via email and by depositing in the U.S. Postal Service a copy of
same in a post-paid, properly addressed wrapper in a post office or official depository
imder the exclusive care and custody of the United States Postal Service and addressed
as follows:

J. Brandon Freeman John David Noor

Buncombe County Legal Department Roberts & Stevens, P.A.
200 College Street, Fourth Floor PO Box 7647
Asheville,NC 28801 Asheville, NC 28802
Brandon.Freeman@buncombecounty.org inoor@roberts-stevens.com
Attorneyfor Respondent Attorneyfor Proposed Intervenors

This the ^ day of September, 2018.

VAN WINKLE, BUCK, WALL,
STARNES & DAVIS, P.A.

By:
Craig D. Justus

4815-0989-2724, v. 1

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 STATE OF NORTH CAROLINA c!' - r IN THE GENERAL COURT OF JUSTICE
COUNTY OF BUNCOMBE ,, ,,,, 2q p 3 SUPERIOR COURT DIVISION
m 18CVS2406
RAB BUILDERS, LLC,
E CO., C.S.C.
Petitioner, BY

vs.

BUNCOMBE COUNTY, a North

Carolina county and body politic.

Respondent.
ORDER
AND

JENNIFER HEIM; TIMOTHY HEIM;

EASTMOOR HOMEOWNERS
ASSOCIATION, INC., a North Carolina
non-profit corporation; MOUNTAIN
LAND & CATTLE, LLC; a North
Carolina limited liability company; AND
TIMOTHY L. BURLESON,

Intervenor-Respondents.

THIS MATTER was before the Court on Intervenor-Respondents' Motion to Intervene

(the "Motion"), pursuant to N.C, Gen. Stat. § 160A-393(h) and Rule 24 ofthe North Carolina
Rules of Civil Procedure. After considering the Motion, Petitioner's Response to the Motion,
Intervenor-Respondents' Reply in Support of the Motion, and arguments by counsel for all
parties during the August 27, 2018, hearing on the Motion, this Court concludes that Intervenor-
Respondents have standing to intervene in this action pursuant to N.C. Gen. Stat. § 160A-393
and Rule 24 because each intervenor demonstrated that it would suffer special damages as a
result of the decision being appealed. Intervenor-Respondent Eastmoor Homeowners
Association, Inc. ("Eastmoor") also established that it was an incorporated association to which

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z EXHIBIT
R&S 2087934 1
 owners of property within adesignated area belong by virtue oftheir owning property within the
area, at least one ofits members would have standing as an individual to challenge the decision
being appealed, and that Eastmoor was not created in response to the particular development or
issue being appealed in this case.

THEREFORE, it is ORDERED that Intervenor-Respondents' Motion is GRANTED and

Jennifer Heim, Timothy Heim, Eastmoor Homeowners Association, Inc, Mountain Land &
Cattle, LLC, and Timothy Burleson are admitted as Intervenor-Respondents in this case.
SO ORDERED, this the dayof August 2018.

larvin P. Pope
Resident Superior Court Judge Presiding

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R&S 2087934 1
 STATE OF NORTH CAROLINA
FIlElSJ^ the GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF BUNCOMBE
2818 SEP -b P ?• 31 ^
RAB BUILDERS, LLC,
BUKCO! IBECO., C.S.C.
Petitioner,

vs.

BUNCOMBE COUNTY, a North

Carolina countyand body politic.

Respondent
ORDER AgglRMING BOAPn Off
AND ADJUiSTMENT

JENNIFER HEIN^ TIMOTHY HEIM;

EASTMOOR HOMEOWKBEIS
ASSOCIATION. INC.. a North Carolina
non-profit cotporatioi^ MOUNTAIN
LAND & CATTLE, LLC; aNorth
Carolina limited liability company; AND
TIMOTHY L. BURLBSON,

Intcrvenor-Regpondests.

THIS MATTER is before the Court pursuant to a writ of certiorari issued by the
Buncombe Comity Clerk of Court for an appeal filed by Petitioner RAB Builders, LLC
CPetitionef) from an adverse ruling by Respondent Buncombe County's Board ofAdjustment
("BOA'*) denying Petitioner's application for conditional use permit After considering the
pleadings in this matter and the arguments made by Petitioner in its Petition for Writ of
Certbiari and Hearing Memorandum; the arguments made by Intervenor-Respondents in their
Brief in Opposition to the Petition for Writ of Certiorari; the administrative record filed by
Respondent, as amended ("Record"); the stipulations submitted by the parties; and the arguments
made by counsel for all parties during the Court's August 27, 2018, hearing on Petitioner's

R&S20&90I7J EXHIBIT
 appeal, the Court concludes that the BOA's May 9,2018 Order denying Petitioner's application
should be afEiimed and concludes as follows:

L That the Courthasjurisdiction to consider this matter Pursuant to N.C. Oen. Stat.

§ 160A-393 and that all partiesare properly before the Court

2. The BOA committed no errors oflaw, that it properly inteipreted all applicable
sections oftiie Buncombe County Code and other relevant statutory and county code provisions,
andthatit properlyapplied the law to the facts ofthis case.

3. The BOA followed the procedures set out in the North Carolina General Statutes,
Buncombe County Code, and its own Rules of Procedure for consideration of conditional use
permits.

4. Hie Record discloses that Petitioner was afforded appropriate due process
protections atthe hearing on its application for conditional use pennit and that the BOA allowed
Petitioner a full and fair opportunity to present its application. Specifically, and by way of
example and not limitation, Petitioner was afforded: (1) aflill and fair opportunity to present its
application and evidence in support ofits application, including testimony and reports; (2) an
opportunity to object to and cross-escamine all individuals who spoke in opposition to the
application; (3) an opportunity to inspect documents; and (4) an opportunity to present rebuttal
evidence to all objecting testimony and documents offered in opposition to the application.
5. The Buncombe County Code only pemafts conditional use permits to be issued if
"die provisions of [Section 78-676] and ail other divisions of [Article VI] have been mot."
Buncombe County Code § 78-676.

6. Additionally, Section 78-677(g) of the Buncombe Counly Code requires that

"[b]efore any conditional use permit is issued, the board of adjustment shall make written

R&S2089017J
 iindings certifying compliance with the specific rules governing the individual conditional use
and that satis&ctory provision and arrangement hais been made for at least the following, where
applicable:... (2) The proposed use will not be detrimental to the public welfare or injurious to
property orpublic improvements in the neighborhood...
7. Petitioner "ha[d] the initial burden ofshowing compliance with the standards and
conditions required by the oidmance for the issuance ofaconditional use permit."
V. Board of CommVs. of Town ofNags Head, 299 N.C. 211, 217, 261 S,E.2d 882, 887 (1980)
(citationsomittecQ.

8. Based on a full review ofthe Record, Petitioner did not present any evidence to
fte BOA showing how its proposed use *Sv[ould] not be detrimental to the public welfere or
injurious to property orpublic improvements inllieneighborhood."
9. As a result, Petitioner did not meet its burden of showing compliance with the
standards and conditions required for a conditional use permit
10. The Petitioner did not object to any of the evidence offered in opposition to its
application.

11. Intervenor Jennifer Heim identified herself as a"registered architect," (Tr. 13:1)
at the hearing and provided competent ejqpert testimony pursuant to N.C. Gen. Stat § 160A-
393(lc).

12. The factual testimony ofthe other Intervenor Respondents presented to the BOA
was competent and their opinion testimony did not fall withm any ofthe exclusionary exceptions
provided in lo Section 160A-393(k).

13. That the BOA's conclusion that "[tJKe proposed Conditional Use Peimit will be
detrimental to the public welfare or injurious to property or public improvements in the

R&S 2089017.1
^ neighborhood" is supported not only by Petitioner's Mure to meet its burfen of
showing compliance wife Section 78-677(^(2), but also by substantial con^etent evidence
offered inopposition to theapplication.
14. Thatthe BOA*s conclusions are conectas a matter of law.

15. That the decision ofthe BOA in ^ matter is notarbitrary or capricious.

16. That the BOA*s May 9, 2018 Order denying Petitioner's {plication for
conditional use permit because "[t]he proposed Conditional Use Permit will be... injurious to
property or pubUc improvements in the neighborhood" does not violate any of Petitioner's
constitutional rights

17. That the BOA*s Order and actionsare not ultra vires.

WHEREFORE, the Court concludes as a matter oflaw that the decision ofthe BOA in
this case was proper mallrespects and should beaffirmed.
It is therefore ORDERED that the Order adopted by the BOA on May 9,2018, denying
Petitioner's conditional usepermit is AFFIRMED,

SO ORDERED, this the[dday ofA^^2018.

Honorable Marvin f. Pope, Jr.

Superior Court Judge Presiding

R&S 2089017.1