Habitat will build in Pinebluff after all.

Senior Superior Court Judge James M. Webb has ordered the town to grant Habitat for Humanity of Moore County a conditional-use permit.

Last fall, in a 3-2 vote, town commissioners turned down Habitat's request for a conditional-use permit for the nonprofit ministry's proposed 75-home development on an 81-acre tract in Pinebluff.

Habitat appealed to Superior Court. Its attorney, Douglas R. Gill of Southern Pines, argued that the Town Board proceeding only "purported to be a hearing" and that the town "arbitrarily and capriciously denied the permit."

Gill contended that the town commissioners "improperly determined that the permit should not be granted improperly determined that it was within its legal authority to deny the permit failed to follow the proper procedure applied rules that violated due process (and) violated the open meetings law"

Webb found that the evidence showed the town had acted capriciously and arbitrarily. He upheld Habitat after considering arguments and town records presented during a hearing Dec. 13. He ordered Pinebluff to grant the permit Habitat sought.

Neighboring property owners had objected to the proposed Habitat subdivision and asked to be allowed to respond to the appeal. Webb granted their motion, over an objection by Gill.

Attorney David M. Rooks III, of Chapel Hill, represented the property owners: H. Clifton Blue, Patricia Blue Bailey, H.C. Blue III, John L. Blue, Laurel Springs Holding, LLC Lori Gotch, Deborah Rosy, Robert W. Schaefer, Andrew White and Elisabeth Blue Willett. Rooks argued that the value of the neighboring property would be adversely affected by Habitat homes nearby -- if not immediately, in the rate or amount of increase in value in the future.

Rooks contended that Habitat's development was not in harmony with the surrounding area.

William Morgan Jr., the attorney representing the town, defended the board's decision as proper and reasonable and appropriately based on the objections raised about Habitat's proposed 75-home development as not being in harmony with the area.

The Pilot was unable to reach the attorneys for the town and the property owners for comment.

Gill said that tract had been zoned for development for many years, that there was a subdivision on one border already, and that the record showed no real evidence was presented at what Pinebluff called a hearing.

"None of it was sworn testimony," Gill told Webb during the hearing. "There is not a single case in North Carolina that is anywhere close to the paucity of evidence in this case."

Public safety or a proposed use not being in harmony with the area are the only basis on which boards can deny conditional-use permit applications. Hearings are judicial in character. Town boards can hear only sworn testimony on matters of safety and/or harmony. People coming before the board must testify under oath. They have to offer more than opinion. It is not enough merely to dislike a plan.

The whole record of a hearing is considered by the court when it is appealed. Based on the "whole record," the judge decides whether it a board's decision was based on competent evidence.

Webb ruled it did not, after going over transcripts and other records of a proceeding Gill said had "mere statements" -- no evidence, no sworn testimony, nobody under oath.

"The record did not support the decision by competent, substantial, and material evidence," Webb found. " Denying the conditional-use permit was arbitrary and capricious."

He reversed the town's denial of the permit, sent Habitat's petition back to the Pinebluff board, and ordered the board to grant the permit.

Late Monday afternoon, Gill filed a certificate of service with the clerk of court of Moore County, certifying that Webb's order in the matter had been served on all parties by mail.

John Chappell can be reached at 783-5841 or by e-mail at jchappell@thepilot.com.