Agenda - 08-03-1995 - VIII-K - Laserfiche WebLink

Browse Search

s I 6 Mr. Marvin Collins Page 2 March 7, 1995 the application stage. On the other hand, although the applicant can be required to show in general that the use will maintain or promote the public health, safety and general welfare, the applicant cannot be expected to anticipate every specific health, safety and welfare problem. Proof of any such specific problem should be the responsibility of opponents . The best statement of the principles involved here is that contained in Brough & Green, The Zoning Board of Adjustment, at pages 83-84 (2nd ed. Institute of Government, UNC-CH, 1984) . These principles were recognized and approved in a recent North Carolina Court of Appeals case, Sicnorel•li v. Town of Highland, 93 N.C.App. 704, 379 S.E.2d 55 (1989) . In that case, the applicant sought a special use permit. The permit was denied and the Superior Court affirmed on the basis that the "petitioner failed to meet the burden of producing evidence and the burden of persuasion to allow the board to find in the petitioner's favor. " 379 S.E.2d at 57 . The Court of Appeals' decision affirming the Superior Court in Signorelli contains the first explicit recognition in North Carolina case law that "the evidentiary burden in special use permit proceedings can shift from the applicant to those who oppose the application. " Id. The Signorelli case is interesting also for its recognition that the applicant has some burden on the issue of public health, safety and general welfare, notwithstanding the caution on that point in the passage from the Brough and Green publication set out above. The Signorelli court concluded that the applicant had established a prima facie case because his application demonstrated compliance with the relevant specific requirements and therefore the question was whether the burden of showing that the proposed use would materially endanger the public health and safety had been met. The court stated that there was evidence that the plans were not specific enough for the board to properly decide whether or not the proposed use would materially endanger the public health and safety. In particular, the court noted that the board had found that: . . .no set of plans or specifics were submitted regarding hours of operation, number of machines and tables, or methods of supervision so that protection of the public welfare against traffic and noise difficulties was not assured. Id. , 379 S.E.2d at 58. The court then concluded that "a plan - lacking in essential details and specifics potentially threatens health and safety no less than a detailed plan which is antithetical to the public and the public interest. " Id. , 379 S.E.2d at 59 . In other words, the evidence before the board on