The North Carolina Court of Appeals published a decision Tuesday deciding that the City of Fayetteville should have approved Dismas Charities' permit request to build a halfway house in Downtown Fayetteville.
Dismas Charities Inc., of Louisville, Kentucky, wanted to build a 14,339 square foot, 100-bed halfway house for federal prisoners at 901-905 Cain Road. Dismas Charities is a private company contracted by the Federal Bureau of Prisons to operate residential reentry centers. The BOP has the authority to place inmates in reentry halfway houses to serve the remainder of their sentences which it says is normally six months to a year. If built as proposed, the Cain Road institution would have been the company’s largest center.
However, the City of Fayetteville denied the permit by a 5-4 vote based on its conclusion that Dismas did not meet its burden of production to show that its use met a certain standard in the City’s ordinance which requires a showing that the special use sought “allows for the protection of property values and the ability of neighboring lands to develop the uses permitted in the zoning district.”
The firm appealed, and on Sept. 3, 2020, Superior Court Judge Mary Ann Tally affirmed the city council’s decision.
However, the appeals court concluded that the superior court should have conducted a de novo review, rather than applying the whole record test, to determine whether Dismas met its burden of production. Based on the appeals court's de novo review, Dismas did meet its burden of production. The court found that there was no competent, material, substantial evidence offered to counter Dismas’ evidence. Therefore the Court decided that the City Council was required to approve Dismas’ permit application.
"Accordingly, we reverse the decision of the superior court and remand with instructions to remand to the City Council to approve Dismas’ permit request," the appeals court opinion read.