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SMITHFIELD — After a two-year conflict over a proposed RV park, the North Carolina Court of Appeals has affirmed a Superior Court ruling rejecting the town’s denial of a conditional-use permit to the developer.
The dispute dates back to July 2017 when Smithfield developer Theron McLamb applied for a conditional-use permit to build a Smithfield KOA on South Equity Drive near the Pine Acres subdivision. The campground, to be built on a 33-acre tract, would have a swimming pool, dog park and camp store.
The Smithfield Planning Board voted 4-3 in August 2017 to deny approval of McLamb’s permit.
On Oct. 3, 2017, the Smithfield Town Council held a public hearing on the application and voted 4-2 to deny the permit.
In December 2017, Selma attorney Chip Hewett, representing McLamb, sued the town in Johnston County Superior Court. Judge Jeff Easter heard the case on March 28, 2018. Easter said he wanted to view a video of the public hearing and review other documents before ruling on the case.
Three months later, in June 2018, Easter ruled against the town, finding that McLamb had met his burden of proof and the town had acted outside its scope of authority. Easter said Smithfield should also pay McLamb’s legal fees of more than $14,000.
The Smithfield Town Council voted later that month to appeal the ruling.
Writing for a unanimous three-judge panel, Court of Appeals Judge John S. Arrowood concluded the town denied McLamb’s permit for unlawful reasons.
“We agree with the Superior Court that respondent’s findings are unsupported by competent, material and substantial evidence and its conclusions thereon, as a matter of law, are erroneous,” Arrowood wrote.
The judges did rule, however, that Easter erred in concluding McLamb was entitled to have his legal fees paid.
“We reverse the award of fees based on the Superior Court’s failure to make findings of fact to support the award and remand for further review,” Arrowood wrote.
Hewett, the developers’ attorney responded to the court’s ruling.
“I am glad that the Court of Appeals followed the established case law and affirmed Judge Foster’s opinion,” said Hewett. “The town can file a writ to the N.C. Supreme Court, who has discretion to hear or deny the appeal. It will be up to Smithfield to decide to appeal.”
Town Manager Mike Scott said the legal process is ongoing.
“We are in the process of determining a path forward,” said Scott. “This will begin by the town’s attorney and Mr. McLamb’s attorney having discussions and making those recommendations. This remains a legal process.”
But Scott did hold out hope a state Supreme Court appeal might be avoided.
“While an appeal is possible, we would hope to avoid that by working with the McLamb team,” said Scott. “We respect and thank the Court of Appeals for their diligence and their hard work evaluating this case. We look forward to Smithfield’s continued growth both economically and residentially as we continue working hard for our citizens.”
Judges Lucy Inman and Reuben Young joined Arrowood’s opinion handed down June 4. The unanimous opinion is unpublished, which means it doesn’t constitute binding precedent for lower courts to follow. Designating an opinion unpublished often signifies that existing case law already settles issues raised in the lawsuit.