A developer who was denied a special use permit to build a second McDonald’s location in Mebane is now asking a superior court judge to review the city council’s decision, which the developer contends failed to follow the criteria outlined in a state law that governs the zoning process.
The city council had voted 3-2 on June 3 to deny a special use permit that would’ve allowed the construction of a McDonald’s on a 1.06-acre outparcel at the North First Street entrance into the Oak Manor Market shopping center anchored by Food Lion on the north side of the city.
The city’s current zoning for the outparcels at Oak Manor Market limits allowable uses to dine-in restaurants, in keeping with restrictions put in place when the zoning for the shopping center was originally approved.
In order to win support for the shopping center in 2002, the developer had agreed to a stipulation that no restaurants with a drive-thru would be built on any of the four outparcels surrounding Oak Manor Market.
In its petition for judicial review of the city council’s vote to deny the special use permit, Outparcels LLC contends that the city of Mebane amended its development ordinance since the 2002 rezoning for the shopping center to allow for restaurants with drive-thru windows. “Currently, both a shopping center and restaurant with a drive-through window are permitted uses in the B-2 zoning district so long as the proposed development satisfies certain objective dimensional standards,” the petition states.
McDonald’s USA is listed as both a respondent, along with the city, “in a nominal capacity,” because state law requires “any non-applicant petitioner” to also be named as a respondent, according to the court file.
Mebane’s planning board had previously voted 8-0 to grant a special use permit for the construction of what would be a second McDonald’s location within the city.
In June, Mebane mayor pro tem Tim Bradley and councilmen Sean Ewing and Jonathan White voted to deny the special use permit. Council members Katie Burkholder and Montrena Hadley voted against the denial.
During a required public hearing that immediately preceded their June 3 vote, council members heard concerns ranging from the potential uptick in traffic – in particularly, how it might affect the Children’s Garden Montessori School located across the entrance into the shopping center – to the possibility of siphoning business away from other, nearby locally-owned restaurants.
An attorney for the developer, Patrick L. Byker, countered at the hearing in June that the testimony of three residents who spoke against the proposal didn’t quality as expert witnesses under the relevant state law, which requires such testimony to be specific, and when assessing the potential impact on traffic or property values, to be given by “expert witnesses” with credentials in those areas.
Among those who testified in support of the proposal during the public hearing in June were: an independent certified land planner who concluded that proposed McDonald’s “complies with all city of Mebane regulations, will be in harmony with the area”; a traffic engineer hired by the developer, who testified that the proposed restaurant with a drive-thru met all applicable requirements and wouldn’t endanger public health or safety; and a real estate appraiser who said the proposed McDonald’s wouldn’t drive down neighboring property values, according to the petition.
“Comments made by certain members of [the] city council following the hearing indicated that [the] city council denied the special use permit application based on the conclusion that the proposed development will not be in harmony with the area in which it is to be located,” the petition states. “The conclusion that the applicant’s proposed development will not be in harmony with the area has no basis in law or the record evidence.”
The developer points to several court precedents: A 1980 decision by the North Carolina Supreme Court (Woodhouse v. Board of Commissioners, for the town of Nag’s Head), which established, “The inclusion of a particular use in the ordinance as one which is permitted under certain conditions ordinance is the equivalent of a legislative finding that the prescribed use…is in harmony with the other uses permitted in the district,” the petition states.
In 2005, the state Court of Appeals (in MCC Outdoor, LLC v. Town of Franklinton Board of Commissioners) ruled, “The mere fact that a use is allowed in the district ‘establishes a prima facie case’ that the use is in harmony with the surrounding area.”
To support its petition for judicial review, Outparcels LLC contends that “no competent evidence submitted at the hearing” in opposition to the special use permit could have concluded that the proposed use was not in harmony with the surrounding area, and the developer “was entitled to the special use permit as a matter of law.”
The subsequent written decision issued by the city on July 24 states that the application for the special use permit was denied “due to the failure to satisfy [the requirement] that the development would be in harmony with the area in which it is located.”
The petition – known as a petition for a writ of certiorari – was filed in late August by Henderson-based real estate developer Outparcels, LLC in Alamance County civil superior court to review the council’s 3-2 vote to deny rezoning at its June meeting, which city officials subsequently codified in writing on July 24, according to the court file.
A state law that governs the process for judicial review of such decisions gives the respondents 30 days from the date of service for the action to produce all documents related to the decision.
Byker, along with attorney Jeffrey L. Roether, both of the Morningstar Law Group in Durham, filed the petition on behalf of the developer, Outparcels, LLC.
Outparcels, LLC is a real estate acquisition and management company, which is managed by Hall F. Barnett and HFB Properties, Inc. of Henderson, according to the Secretary of State’s office.
The city has not yet filed a response to the petition; and a date for a hearing in Alamance County superior court has not yet been set.
