06JuneBOAPage 1 of 6 6/2/2026
June 2, 2026
1.Call to Order of the Randolph County Board of Adjustment.
There was a meeting of the Randolph County Zoning Board of Adjustment on June 2,
2026, at 6:00 PM in the 1909 Historic Courthouse Meeting Room, 145-C Worth St,
Asheboro, NC. Chairman Pell called the meeting to order and welcomed those in
attendance. Pell reminded those in attendance that the Planning Board Rules of
Procedure state that anyone wishing to speak must sign up to speak and that speakers
other than the applicant are limited to three minutes.
The following Zoning Board of Adjustment members were present at the meeting: Reid
Pell, Kemp Davis, John Cable, Reggie Beeson, Ken Austin, Brandon Hedrick, Nicholas
Mooney. The following Zoning Board of Adjustment members were absent from the
meeting: Susan Thompson. Alternate member Steven Maness was also present for the
meeting. Planning Director Kim Heinzer was present, and County Attorney Ben Morgan
was also present, along with County Planning staff members Kayla Brown, Melissa
Burkhart, David Harris, and Cory Hartsoe.
2.Consent Agenda:
On the motion of Cable, seconded by Hedrick, the Planning Board voted 7-0 to
approve the Consent Agenda as presented in the agenda packet.
●Approval of agenda for the June 2, 2026, Board of Adjustment meeting.
●Approval of the minutes from the April 7, 2026, Board of Adjustment
meeting.
3.Conflict of Interest:
There were no Conflicts of Interest or ex parte communication identified by any Zoning
Board of Adjustment member.
●Are there any Conflicts of Interest or ex parte communication that should be
disclosed? (If there is a Conflict of Interest, the Board must vote to allow the
member with the Conflict of Interest to not participate in the hearing of the
specific case where the Conflict of Interest has been identified.)
4.Old Business.
The JEM Marketing LLC Variance request from April 7th, 2026 is officially
withdrawn.
Heinzer gave an update that the JEM Marketing LLC Variance request has been
Page 2 of 6 6/2/2026
withdrawn since the applicant met all setbacks, and he no longer needs a variance.
5.New Business.
NETWORK TOWERS II LLC SPECIAL USE REQUEST #2026-00022017
The Randolph County Planning Board will hold a duly published and notified
quasi-judicial hearing on the request by Network Towers II LLC, Glen
Allen, VA, and their request to obtain a Special Use Permit on Bondurant
Rd, Cedar Grove Township, Tax ID #7658260580, 65.69 acres, RA -
Residential Agricultural District. The applicant desires to obtain a Special
Use Permit to specifically allow a 199’ monopole telecommunication
tower. Property Owner: Mark Braswell
Heinzer presented the case for Network Towers II LLC's special use request.
Tom Johnson and Sam Averna were sworn in by County Attorney Ben Morgan.
Johnson is speaking on behalf of the applicant. Johnson said that he had a
PowerPoint presentation that was submitted before the meeting, so it could be
included in the Board of Adjustments PowerPoint. Johnson also submitted the
PowerPoint printout as Exhibit 1 for evidence.
Johnson stated that this request was for the proposed installation of a new 199'
monopole telecommunications tower within a 55-foot by 55-foot fenced-in compound
as per the site plan, and they need a 40 % reduction in the setback for the monopole
structure. This tower would improve communications for all surrounding areas. It
would provide better connectivity for 911, citizens, and students who work from
home. This tower would also have space for three additional carriers, with T-Mobile
being the first. There is currently a gap in the middle of the map, and that is what we
are trying to cover. When the tower is in place, that will cover the gap. The goal is to
provide good and strong signals to citizens. The site plan showing a tower within the
leased area with an access road to get onto the site is 199 ft, so it does not have to
be lighted. The monopole will be 195 ft with a 4ft lighting rod as shown on the site
plan. There will be a 7 ft fence with 1 ft of barbed wire. The impact study that was
done shows no negative impact on adjacent or abutting properties.
Davis asked how far the closest house is from the proposed cell tower. Averna
stated 189 ft.
Morgan asked about the fall radius and if this pole was engineered to fall. Johnson
said the tower is engineered with a 100 ft fall zone radius and that it is engineered for
ice and wind. Tom stated that in his experience, he has seen poles tilt but never fall.
Page 3 of 6 6/2/2026
Davis asked if the collapsed area was 100 ft. Johnson said yes, it is designed to
bend before it collapses.
Morgan asked if there were guide wires. Johnson said no, just a pole with bolts in the
concrete. It comes in three sections, and a crane stacks them together.
Austin asked about the security at the site. Johnson said there is a fenced-in area,
and each provider will have their own lock to access the tower.
Johnson stated there would be a generator on site to provide power when storms
knock out power. Austin asked if it would be diesel or gas. Johnson said propane or
diesel.
Austin asked if the tank would be on-site. Johnson said yes in a tank in a contained
area.
Cable asked who maintains the easement. Johnson said The Towers II LLC will
maintain it.
Austin asked how often the site was inspected. Averna said quarterly. The
landscaping will be inspected every two months, and if there is ever a problem, they
will be out there the same day or the next day to check on the issue.
Hedrick said, Is the fall radius in the tree line on the site plan? Johnson said the
scalloped lines are the existing tree line that will outline the fence, and we will only
clear what is needed.
Hedrick said the 100 ft fall zone is kept on the property. Johnson said it is related to
health and safety to keep it on the property.
He asked if the fall zone letter would be stamped by the engineer. Johnson said yes,
that they would buy the pole, and they would design and deliver it to meet all
requirements.
Cable asked how long the project would take, start to finish? Johnson said sixty to
ninety days. Clearing the land would take the longest.
Austin asked if Bondurant was a state-maintained road. Johnson said yes, it is a
state-maintained road, and we will have to get a driveway permit from the DOT.
Hedrick asked if there was going to be more than one tenant. Johnson said yes, the
Randolph County Ordinance requires three tenants.
Johnson stated that wireless is important for health and safety. The building code
requires the fall zone to be kept on site, and some people like having a tower nearby
for better service.
Page 4 of 6 6/2/2026
Austin asked if there was a high frequency. Johnson said no, the rules require that
not to be the case, and if there were, the carrier would have to come fix it. That has
to meet FCC standards.
Morgan asked if the pole would look like a tree. Johnson said, No, it draws your
attention more than a single pole. It is not lighted and is made of galvanized steel, so
over time it blends into the best we have come to find.
Pell asked if the Board had any more questions.
Robin Fogleman, 4710 US HWY 220 BUS S, Asheboro, was sworn in by Ben
Morgan.
Fogleman stated she was speaking for herself and for her neighbors. She asked the
Board to consider the public interest and the safety of the tower. She said that the
FCC standards that have to be met are from 1996, and the risks of cancer and DNA
damage increase with higher towers. She stated that the HUD said towers are a
nuisance. She said that Johnson had addressed some of her concerns in his
presentation.
Pell asked if anyone else had questions.
Cable asked when that study was done by HUD. Fogleman said she wasn't sure.
Austin asked if she knew how many towers were in Randolph County that were
similar. She said she wasn't sure.
Davis asked whether she had cell service at her house. She said yes, and she works
from home.
Davis stated that we are all dependent on our cell phones.
Austin asked what the closest school was and if they had good service. She said
UCA, and she assumed they had good service.
Morgan asked if her property was south of the roundabout. She said, You should go
through the roundabout to access her property.
Cable asked what Johnson talked about that you were concerned about. Fogleman
said the fall zone.
Morgan stated that the county requires more carriers on a pole so that there are
fewer poles in the county.
Morgan stated that the Board can not consider radio frequency. Johnson said NC
Page 5 of 6 6/2/2026
160 D-932 is the rule and provided evidence as Exhibit 2.
Hedrick asked about the current vegetation, and the UDO reads a forested area.
Johnson said nothing had been cleared, and the only spot that would be cleared
would be the tower site.
Austin asked why the tower was only 199ft. Johnson said they are trying to stay
under 200 ft so they don't have to light it, and if you get any lower, you will be at tree
height.
Mooney asked how long the lease was for. Johnson said it was for 55 years.
Pell asked if you decide to abandon the tower, what happens? Johnson said the
Randolph County ordinance makes us remove the tower from the site. Pell stated for
the record that it would have to be removed.
The board discussed all the information presented to them.
Hedrick stated that the 160 D that the board could only take so much into
consideration, and that it looks like the applicant has met all requirements.
Austin said that when COVID-19 was around, and kids had to do schoolwork from
home, a lot didn't have access to get the work done.
Hedrick stated that the things the Board can consider have met all the requirements.
On the motion of Cable, seconded by Hedrick, with a vote of 7-0, the Zoning Board
of Adjustment voted to approve the request with the motions contained in the Zoning
Board of Adjustment agenda packet.
6. Update from the Planning Director
Planning Director Kim Heinzer had no comments.
7. Adjournment.
Having no further business, on the motion of Austin, seconded by Cable, the Zoning
Board of Adjustment voted 7-0 to adjourn at 7:08 p.m.
________________________________
Chairman
________________________________
Clerk to the Board
Page 6 of 6 6/2/2026
NETWORK
TOWERS
Randolph County Planning Board
June2,2026
EXHIBIT
Gtrro**\rowens
Zonine Request: S pecial Use Permit (SUP) approval to
construct a 199-foot monopole tower
Location: Bondurant Rd, Asheboro, NC 27205
First Wireless Provider: T-Mobile
Tower Owner: Network Towers
Tower Location NETWORK
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Gr*o**\TOWERSNeed for the Proposed Facility
Provide improved voice and data coverage to the following:
. Those living in in the Greater UIah Region
. Those travelling lnterstateT4, Asheboro Bypass, Pisgah
Covered Bridge Road, US Hwy 22O, Dawson Miller Road,
Staleys Farm Road, and surrounding roads
Benefits:. lmprove overall quality of life by providing connectivity and
access to first responders. Provide students access to online educational opportunities
. Allow employees to work from home. Provide the infrastructure necessary for other wireless
carriers to expand their networks. Allow emergency workers operating in the area the ability to
communicate more effectively
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lmpact Study AtP-tcT sIL'Dt' BOXDL'LI\-| kD. -|S, ORO. P.t\TnLpE cotaTt: .Yc
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adjust[r. to th. propoicd &v.lopm.dt $ordd bc ,ursl.adug
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adjurt taot for thc dclclopurcDt of a ton'cr olr a oaarb]-
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urllu.nccr Norld rot b. crediblc
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proposcd &v.loodrctrr \irll rubrtanrrally ro.yruc thc raluc of
adjac(tt o( .butnng propcrtr'. lrylulc lorv{.ni$ rGr&ntirl
arrd slrrcultural rr3.3 arc prcr'aleot ur maoy ponrout of
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arat $'ould fact6 rhc posglbihtv of a lugh6 latcogr\.c uca that
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Studies - Property Values and Wireless
Henrico County, 1999 - The lmpact of Communications Towers on
Residential Property Values (Allen G. Dorin, Jr., Right of Way). Conclusion: No market evidence suggested any negative impact
to residential properties
Boston, Dallas, Phoenix, and Raleigh, 2018 - Property Values
(Valbridge Property Advisors). Conclusion: No measurable difference in prices was found
Anne Arundel County, MD,2023 - Property Values (Treffer Appraisal
Group). Conclusion: There was no significant influence on residential real
estate related to the visibility of towers
NETWORK
RS
Homes.com,2O2O. According to the National Association of Realtors, homeowners
lose approximately 2.8%in home value by not having broadband
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Federal Law Regulates
Radio Frequency Emissions
The Telecommunications Act of 199G preempts localities from regulating the
placement, construction, and modification of wireless facilities on the basis ofthe perceived environmental effects of radiofrequency emissions if those
facilities comply with the FCC's regulations concerning emissions.
47 U.S.C. S 332(cX7)(BXiv)
"Radiofrequency emissions from antennas used for cellular and
PCS transmissions result in exposure levels on the ground that
are typically thousands of times below safety limits. There is no
reason to believe that such towers could constitute a potential
health hazard to nearby residents or students"
.USA.
4
CA
+
American
CancerSociety'
Wireless and Public Safety
Cell towers emit lower power level
than radio and TV broadcast
stations
Energy decreases rapidly as
distance from antenna increases
Very low exposure at ground level
because of distance, low power,
and intermittent transmission
Effective Radiated Power (ERP)
regulated by the FCC
At ground level, RF energy is
thousands of times less than FCC
exposure limits
There's no strong evidence that
exposure to RF waves from cell
phone towers causes any
noticeable health effects
World Health
0rganization
Conclusions from scientific research:
"ln the area of biological effects and medical applications of non-ionizing
radiation approximately 25,000 articles have been published over the past
30 years. Despite the feeling of some people that more research needs to
be done, scientific knowledge in this area is now more extensive than for
most chemicals. Based on a recent in-depth review of the scientific
literature, the WHO concluded that current evidence does not confirm
the existence of any health consequences from exposure to low level
el ectromagnetic fi elds."
WHO Fact Sheet, August 4,2Ot6
S 160D-932. Local authority, NC ST S 160D-932
West's North Carolina General Statutes Annotated
Chapter r6oD. Local Planning and Deveiopment Regulation
Article 9. Regulation of Particular Uses and Areas
Part g. Wireless Telecommunication Facilities
N.C.G.S.A. $ r6oD-932
$ r6oD-ggz. Local authority
Effective: June t9,2ozo
Curentness
A local government may plan for and regulate the siting or modification of wireless support structures and wireless facilities
in accordance with land development regulations and in conformity with this Part. Except as expressly stated, nothing in this
Part shall limit a local government from regulating applications to construct, modiff, or maintain wireless support sffuctures,
or construct, modifo, maintain, or collocate wireless facilities on a wireless support structure based on consideration of land
use, public safety, and zoning considerations, including aesthetics, landscaping, structural design, setbacks, and fall zones, or
State and local building code requirements, consistent with the provisions of federal law provided in G.S. l60D-930. For
purposes of this Part, public safety includes, without limitation, federal, State, and local safety regulations but does not
include requirements relating to radio frequency emissions of wireless facilities.
Credits
Added by S.L. 2019-l I l, $ 2.4($ l60D-9-32), eff. June 19,2020.
N.C.G.S.A. $ l60D-932, NC ST $ l60D-932
The statutes and Constitution are current through S.L. 2025-97 of the 2025 Regular Session of the General Assembly, subject
to changes made pursuant to direction of the Revisor of Statutes.
End ofDocument (c) 2026 Thomson Reuters. No claim to orisinal U.S. Government Works.
EXHIBIT
a
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S 16OD-933. Construction of new wireless support structures or substantial modifications of wireless..., NC
sT s 160D-933
West's North Carolina General Statutes Annotated
Chapter r6oD. Local Planning and Development Regulation
Article 9. Regulation of Particrlar Uses and Areas
Part 3. Wireless Telecommunication Facilities
N.C.G.S.A. S r6oD-933
g r6oD-933. Construction of new lvrreless support structures or substantial modifications of
wireless support structures
Effective: June tg, zozo
Currentness
(a) Any person that proposes to construct a new wireless support structure or substantially modifl a wireless support structure
within the planning and development regulation jurisdiction of a local government must do both of the following:
(2) Comply with any local ordinances concerning land use and any applicable permitting processes.
(b) A local government's review of an application for the placement or construction of a new wireless support sfructure or
substantial modification of a wireless support structure shall only address public safety, land development, or zoning issues.
In reviewing an application, the local govemment may not require information on or evaluate an applicant's business
decisions about its designed service, customer demand for its service, or quality of its service to or from a particular area or
site. A local government may not require information that concerns the specific need for the wireless support structure,
including if the service to be provided from the wireless support sffucture is to add additional wireless coverage or additional
wireless capacity. A local government may not require proprietary, confidential, or other business information to justifu the
need for the new wireless support structure, including propagation maps and telecommunication traffic studies. In reviewing
an application, the local govemment may review the following:
(1) Applicable public safety, land-use, or zoning issues addressed in its adopted regulations, including aesthetics,
landscaping, land-use based location priorities, structural design, setbacks, and fall zones.
(2) Information or materials directly related to an identified public safety, land development, or zoning issue including
evidence that no existing or previously approved wireless support structure can reasonably be used for the wirelessfacility placement instead of the construction of a new wireless support structure that residential, historic, anddesignated scenic areas cannot be served from outside the area or that the proposed height of a new wireless support
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(l ) Submit a completed application with the necessary copies and attachments to the appropriate planning authority.
S 16OD-933. Construction of new wireless support structures or substantial modifications of wireless..., NC
sT s 150D-933
structure or initial wireless facility placement or a proposed height increase of a substantially modified wireless
support structure or replacement wireless support structure is necessary to provide the applicant's designed service.
(3) A local government may require applicants for new wireless facilities to evaluate the reasonable feasibility of
collocating new antennas and equipment on an existing wireless support structure or structures within the applicant's
search ring. Collocation on an existing wireless support structure is not reasonably feasible if collocation is
technically or commercially impractical or the owner of the existing wireless support structure is unwilling to enter
into a contract for such use at fair market value. Local governments may require information necessary to determine
whether collocation on existing wireless support structures is reasonably feasible.
(c) The local govemment shall issue a written decision approving or denying an application under this section within a
reasonable period of time consistent with the issuance of other development approvals in the case of other applications, each
as measured from the time the application is deemed complete.
(d) A local government may fix and charge an application fee, consulting fee, or other fee associated with the submission,
review, processing, and approval of an application to site new wireless support structures or to substantially modifo wireless
support structures or wireless facilities that is based on the costs ofthe services provided and does not exceed what is usual
and customary for such services. Any charges or fees assessed by a local government on account of an outside consultant
shall be fixed in advance and incorporated into a permit or application fee and shall be based on the reasonable costs to be
incurred by the local government in connection with the regulatory review authorized under this section. The foregoing does
not prohibit a local government from imposing additional reasonable and cost-based fees for costs incurred should an
applicant amend its application. On request, the amount of the consultant charges incorporated into the permit or application
fee shall be separately identified and disclosed to the applicant. The fee imposed by a local government for review of the
application may not be used for either of the following:
(l) Travel time or expenses, meals, or overnight accommodations incurred in the review of an application by a
consultant or other third party.
(2) Reimbursements for a consultant or other third party based on a contingent fee basis or a results-based
arrangement.
(f) The local government may not require the placement of wireless support structures or wireless facilities on local
government owned or leased properfy but may develop a process to encourage the placement of wireless support structures or
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(e) The local govemment may condition approval of an application for a new wireless support structure on the provision of
documentation prior to the issuance of a building permit establishing the existence of one or more parties, including the
owner of the wireless support structure, who intend to locate wireless facilities on the wireless support structure. A local
government shall not deny an initial development approval based on such documentation. A local government may condition
a development approval on a requirement to construct facilities within a reasonable period of time, which shall be no less
than 24 months.
S 160D-933. Construction of new wireless support structures or substantial modifications of wireless..., NC
sT s 160D-933
facilities on local government owned or leased property, including an expedited approval process.
(g) This section shall not be construed to limit the provisions or requirements of any historic district or landmark regulation
adopted pursuant to this Article.
Credits
Added by S.L. 2019-l I l, $ 2.4($ l60D-9-33), eff. June 19,2020
N.C.G.S.A. $ l60D-933, NC ST $ l60D-933
The statutes and Constitution are currentthrough 5.L.2025-9'7 of the2025 Regular Session of the General Assembly, subject
to changes made pursuant to direction of the Revisor of Statutes.
End of Document O 2026 -l-homson Reuters. No claim to original U.S. (iovernmertt Works
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S 160D-1402. Appeals in the nature of certiorari, NC ST S 160D-1402
West's North Carolina General Statutes Annotated
Chapter r6oD. Local Planning and Development Regulation
Article 14. Judicial Review
N.C.G.S.A. $ r6oD-r4oz
$ r6oD-r4oz. Appeals in the nature of certiorari
Effective: October LS, 2o2L
Currentness
(a) Applicability.--This section applies to appeals of quasi-judicial decisions of decision-making boards when that appeal is
in the nature ofcertiorari as required by this Chapter.
(b) Filing the Petition.--An appeal in the nature of certiorari shall be initiated by filing a petition for writ of certiorari with the
superior court. The petition shall do all of the following:
( 1 ) State the facts that demonstrate that the petitioner has standing to seek review
(2) Set forth allegations sufficient to give the court and parties notice of the grounds upon which the petitioner
contends that an error was made.
(3) Set forth with particularity the allegations and facts, if any, in support of allegations that, as the result of an
impermissible conflict as described in G.S. l60D-109, or locally adopted conflict rules, the decision-making body
was not sufficiently impartial to comply with due process principles.
(4) Set forth the reliefthe petitioner seeks.
(c) Standing.--A petition may be filed under this section only by a petitioner who has standing to challenge the decision being
appealed. The following persons have standing to file a petition under this section:
(l) Any person possessing any of the following criteria:
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I
1
S 160D-1402. Appeals in the nature of certiorari, NC ST S 160D-1402
a. An ownership interest in the property that is the subject of the decision being appealed, a leasehold interest in the
property that is the subject of the decision being appealed, or an interest created by easement, restriction, or
covenant in the property that is the subject ofthe decision being appealed.
b. An option or contract to purchase the properfy that is the subject ofthe decision being appealed
c. An applicant before the decision-making board whose decision is being appealed
(2) Any other person who will suffer special damages as the result of the decision being appealed.
(3) An incorporated or unincorporated association to which owners or lessees of property in a designated area belong
by virtue of their owning or leasing property in that area, or an association otherwise organized to protect and foster
the interest of the particular neighborhood or local area, so long as at least one of the members of the association
would have standing as an individual to challenge the decision being appealed, and the association was not created in
response to the particular development or issue that is the subject ofthe appeal.
(4) A local government whose decision-making board has made a decision that the governing board believes
improperly grants a variance from or is otherwise inconsistent with the proper interpretation of a development
regulation adopted by the governing board.
(d) Respondent.--The respondent named in the petition shall be the local government whose decision-making board made the
decision that is being appealed, except that if the petitioner is a local government that has filed a petition pursuant to
subdivision (4) of subsection (c) of this section, then the respondent shall be the decision-making board. If the petitioner is
not the applicant before the decision-making board whose decision is being appealed, the petitioner shall also name that
applicant as a respondent. Any petitioner may name as a respondent any person with an ownership or leasehold interest in the
property that is the subject of the decision being appealed who participated in the hearing, or was an applicant, before the
decision-making board.
(e) Writ of Certiorari.--Upon filing the petition, the petitioner shall present the petition and a proposed writ of certiorari to the
clerk of superior court of the county in which the matter arose. The writ shall direct the respondent local government or the
respondent decision-making board, if the petitioner is a local government that has filed a petition pursuant to subdivision (4)
of subsection (c) of this section, to prepare and certifu to the court the record of proceedings below within a specified date.
The writ shall also direct the petitioner to serve the petition and the writ upon each respondent named therein in the manner
provided for service of a complaint under Rule 4(j) ot the Rules of Civil Procedure, except that, if the respondent is a
decision-making board, the petition and the writ shallbe served upon the chair of that decision-making board. i.ule a(j)(5)d.
of the Rules of Civil Procedure applies in the event the chair of a decision-making board cannot be found. No summons shall
be issued. The clerk shall issue the writ without notice to the respondent or.espondents if the petition has been properly filedand the writ is in proper form. A copy of the executed writ shall be filed with the court.
Upon the filing of a petition for writ of certiorari, a party may request a stay of the execution or enforcement of the decision
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S 160D-1402. Appeals in the nature of certiorari, NC ST S 160D-1402
of the quasi-judicial board pending superior court review. The court may grant a stay in its discretion and on conditions that
properly provide for the security ofthe adverse party. A stay granted in favor of a city or county shall not require a bond or
other security.
(f) Response to the Petition.--The respondent may, but need not, file a response to the petition, except that, if the respondent
contends for the first time that any petitioner lacks standing to bring the appeal, that contention must be set forth in a
response served on all petitioners at least 30 days prior to the hearing on the petition. If it is not served within that time
period, the matter may be continued to allow the petitioners time to respond.
(g) Intervention.--Rule 24 of the Rules of Civil Procedure governs motions to intervene as a petitioner or respondent in an
action initiated under this section with the following exceptions:
(l) Any person described in subdivision (l) of subsection (c) of this section has standing to intervene and shall be
allowed to intervene as a matter of right.
(2) Any person, other than one described in subdivision (l) ofsubsection (c) ofthis section. who seeks to intervene as
a petitioner must demonstrate that the person would have had standing to challenge the decision being appealed in
accordance with subdivisions (2) through (4) of subsection (c) of this section.
(3) Any person, other than one described in subdivision (l) of subsection (c) of this section, who seeks to intervene as
a respondent must demonstrate that the person would have had standing to file a petition in accordance with
subdivisions (2) through (4) of subsection (c) of this section if the decision-making board had made a decision that is
consistent with the relief sought by the petitioner.
(h) The Record.--The record shall consist of the decision and all documents and exhibits submitted to the decision-making
board whose decision is being appealed, together with the minutes of the meeting or meetings at which the decision being
appealed was considered. Upon request of any party, the record shall also contain an audio or videotape of the meeting or
meetings at which the decision being appealed was considered if such a recording was made. Any party may also include in
the record a transcript of the proceedings, which shall be prepared at the cost of the party choosing to include it. The parties
may agree that matters unnecessary to the court's decision be deleted from the record or that matters other than those
specified herein be included. The record shall be bound and paginated or otherwise organized for the convenience of the
parties and the court. A copy of the record shall be served by the local government respondent, or the respondent
decision-making board, upon all petitioners within three days after it is filed with the court.
(i) Hearing on the Record.-The court shall hear and decide all issues raised by the petition by reviewing the record submittedin accordance with subsection (h) of this section. The court shall allow tire reiord to bL supplemented with affidavits,testimony of witnesses, or documentary or other evidence if and to the extent that, the petition raises any of the followingissues, in which case the rules of discovery set forth in the North Carolina Rules of Civil procedure apply to thesupplementation of the record of these issues:
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S 160D-1402. Appeals in the nature of certiorari, NC ST S 160D-1402
( I ) Whether a petitioner or intervenor has standing.
(2) Whether, as a result of impermissible conflict as described in G.S. I 60D- 109 or locally adopted conflict rules, the
decision-making board was not sufficiently impartial to comply with due process principles. A failure to object at a
hearing by a person with standing under subsection (c) ofthis section shall not constitute a waiver ofa right to assert
impermissible conflict involving a member of the decision-making board.
(3) Whether the decision-making body erred for the reasons set forth in sub-subdivisions a. and b. of subdivision (l)
of subsection () of this section.
O Scope of Review.--
(l) When reviewing the decision under the provisions of this section, the court shall ensure that the rights of
petitioners have not been prejudiced because the decision-making body's findings, inferences, conclusions, or
decisions were:
a. In violation ofconstitutional provisions, including those protecting procedural due process rights.
b. In excess of the statutory authority conferred upon the local govemment, including preemption, or the authority
conferred upon the decision-making board by ordinance.
c. Inconsistent with applicable procedures specified by statute or ordinance.
d. Affected by other error of law
e. Unsupported by competent, material, and substantial evidence in view of the entire record.
f. Arbitrary or capricious
(2) when the issue before the court is one set forth in sub-subdivisions a.through d. of subdivision (l) of thissubsection, including whether the decision-making board erred in interpreting an ordinance, the court shall reviewthat issue de novo. The court shall consider the interpretation of the decision-making board, but is not bound by thatinterpretation, and may freely substitute its judgment
law, reviewable de novo
as appropriate.Whether the record contains competent, material,,_--and substantial evidence is a conclusion of
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S 160D-1402. Appeals in the nature of certiorari, NC ST S 160D-1402
(3) The term "competent evidence", as used in this subsection, does not preclude reliance by the decision-making
board on evidence that would not be admissible under the rules of evidence as applied in the trial division of the
General Court of Justice if (i) except forthe items noted in sub-subdivisions a., b., and c. of this subdivision that are
conclusively incompetent, the evidence was admitted without objection or (ii) the evidence appears to be sufficiently
trustworthy and was admitted under such circumstances that it was reasonable for the decision-making board to rely
upon it. The term "competent evidence," as used in this subsection, shall, regardless of the lack of a timely objection,
not be deemed to include the opinion testimony of lay witnesses as to any of the following:
a. The use of property in a particular way affects the value of other property
b. The increase in vehicular traffic resulting from a proposed development poses a danger to the public safety
c. Matters about which only expert testimony would generally be admissible under the rules of evidence.
(l) Action Not Rendered Moot by Loss of Property.--Subject to the limitations in the State and federal constitutions and
State and federal case law, an action filed under this section is not rendered moot, if during the pendency of the action, the
aggrieved person loses the applicable property interest as a result of the local government action being challenged and
exhaustionofanappealdescribedhereinisrequiredforpurposesofpreservingaclaimfordamagesunderC.S. l60D-1403.1.
(k) Decision of the Court.-Following its review of the decision-making board in accordance with subsection O of this
section, the court may affirm the decision, reverse the decision and remand the case with appropriate instructions, or remand
the case for further proceedings. If the court does not affirm the decision below in its entirety, then the court shall determine
what relief should be granted to the petitioners:
(l) If the court concludes that the error committed by the decision-making board is procedural only, the court may
remand the case for further proceedings to correct the procedural error.
(2) If the court concludes that the decision-making board has erred by failing to make findings of fact such that the
court cannot properly perform its function, then the court may remand the case with appropriate instructions so long
as the record contains substantial competent evidence that could support the decision below with appropriate findings
of fact. However, findings of fact are not necessary when the record sufficiently reveals the basis for the decision
below or when the material facts are undisputed and the case presents only an issue of law.
(3) If the court concludes that the decision by the decision-making board is not supported by competent, material, and
substantial evidence in the record or is based upon an error of law, then the court may remind the case with an orderthat directs the decision-making board to take whatever action should have been taken had the error not been
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S 160D-1402. Appeals in the nature of certiorari, NC ST S 160D-1402
committed or to take such other action as is necessary to correct the error. Specifically:
a. If the court concludes that a permit was wrongfully denied because the denial was not based on competent,
material, and substantial evidence or was otherwise based on an elror of law, the court shall remand with
insffuctions that the permit be issued, subject to any conditions expressly consented to by the permit applicant as
part of the application or during the board of adjustment appeal or writ of certiorari appeal.
b. If the court concludes that a permit was wrongfully issued because the issuance was not based on competent,
material, and substantial evidence or was otherwise based on an error of law, the court may remand with
instructions that the permit be revoked.
c. If the court concludes that a zoning board decision upholding azoningenforcement action was not supported by
substantial competent evidence or was otherwise based on an error of law, the court shall reverse the decision.
(/) Effect of Appeal and Ancillary Injunctive Relief.--
(l) If a development approval is appealed, the applicant shall have the right to commence work while the appeal is
pending. However, if the development approval is reversed by a final decision of any court of competent jurisdiction,
ihe applicant shall not be deemed to have gained any vested rights on the basis of actions taken prior to or during the
pendency ofthe appeal and must proceed as ifno development approval had been granted.
(2) Upon motion of a party to a proceeding under this section, and under appropriate circumstances, the couft may
issue an injunctive order requiring any other party to that proceeding to take certain action or refrain from taking
action that is consistent with the court's decision on the merits of the appeal.
(/l) Effect of Appealof Quasi-Judicial Relief.--lf a special use permit is issued by the applicable decision-making board after
remand llom an order of the court of competent jurisdiction and no injunction prevents the issuance of a special use permit,
any appeal of the court's remand order or the subsequently issued special use permit is rendered moot.
(m) Joinder.--A declaratory judgment brought under G.S. 160D-1401 or other civil action relating to the decision at issue
may be joined with the petition for writ of certiorari and decided in the same proceeding.
(n) Stays.--An appeal under this section is stayed as provided in G.S. l60D-40-(
Credits
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S 160D-1402. Appeals in the nature of certiorari, NC ST S 160D-1402
Added by S.L. 2}l9-ll l, $ 2.4($ l6OD-14-2), eff. June 19,2020. Amended by S.L. 2020-25, $ 45, eff. June 19, 2020; S.L.
2021-168, $ 4, eff. Oct.15,2021.
N.C.G.S.A. $ l60D-1402, NC ST $ l60D-1402
The statutes and Constitution are current through 5.L.2025-97 of the 2025 Regular Session of the General Assembly, subject
to made
End of Document
to Revisor of Statutes.
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