Mebane’s city council has reversed an earlier decision to deny a special use permit for the construction of a second McDonald’s location, allowing the project to go forward in order to resolve litigation filed by the developer.
Following a brief closed session with their attorney, Mebane city council members voted 5-0 Monday night to issue a special use permit for the project, settling an appeal that Outparcels LLC had filed in Alamance County civil superior court in August, asking a judge to review the council’s 3-2 vote to deny the special use permit.
Following an 8-minutes long closed session with the council Monday night, the city’s attorney, Lawson Brown, said that the developer had agreed not to seek the attorneys’ fees and court costs it would otherwise be entitled to – should Outparcels LLC prevail in court – in exchange for the special use permit.
Outparcels LLC had filed an appeal, i.e. a petition for judicial review, on August 22, contending that Mebane’s city council had failed to follow criteria outlined in a state law that governs the special use permitting process.
The city subsequently filed a motion for a 30-day extension of the deadline to respond, which was granted September 11, according to the court file.
“Your opinion is that legally we would not be successful in winning this appeal?” Mebane mayor pro tem Tim Bradley asked Brown prior to the council’s unanimous vote Monday night.
“That is correct,” the attorney confirmed. “I think the case law would compel the judge to rule in the applicant’s favor…so we are saving city resources.”
The council’s agreement to issue the special use permit will now allow the McDonald’s to be built 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 Mebane.
The existing zoning for the outparcels at Oak Manor Market had limited allowable uses to dine-in restaurants, in keeping with restrictions put in place when the zoning for the shopping center was originally approved in 2002.
Those restrictions had stipulated that no restaurants with a drive-thru would be built on any of the four outparcels surrounding Oak Manor Market.
Outparcels LLC contended in its petition that the city had 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 developer asserted in its petition.
Mebane’s planning board voted 8-0 this spring to grant a special use permit for the McDonalds to be built at Oak Manor Market.
During a required public hearing that 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 countered at the public hearing in June that the testimony given by opponents of the proposal didn’t quality as credentialed expert witnesses.
A state law that governs special use permits requires testimony to be specific and from professionally-qualified experts when evaluating a project’s potential impact on such things as traffic generation and property values.
The city council also heard during its public hearing on June 3 from several speakers who testified that the 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 McDonald’s wouldn’t endanger public health or safety; and a real estate appraiser who said the project wouldn’t drive down neighboring property values, according to the petition.
Outparcels LLC claimed in its subsequent petition that, based on their comments following the public hearing, several city council members had concluded that the development would not be in harmony with the surrounding area, which the developer contended had “no basis in law or the record evidence.”
In its petition, the developer cited several state court precedents. A 1980 decision by the North Carolina Supreme Court (Woodhouse v. Board of Commissioners, for the town of Nag’s Head) 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 stated.
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.”
Mebane’s city council issued a formal, written decision to the developer on July 24, which stated that the application for the special use permit had been denied “due to the failure to satisfy [the requirement] that the development would be in harmony with the area in which it is located.”
Brown confirmed for the council Monday night the developer will adhere to the site plan it had originally submitted earlier this year.
The Morningstar Law Group in Durham represented Outparcels LLC for its petition for judicial review, known formally as a petition for a writ of certiorari.
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.
