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Forest Hills officials relent; Summit to add building
By Carey King
Owners of the Summit apartments got the go-ahead Monday (Jan. 3) to put up a fourth building on their property, but wondered what took Forest Hills officials so long to make that decision.
"Can you explain why it's taken since August?" attorney Charles Clement asked on behalf of his clients, Van Stayton and Mark O'Briant.
The pair currently have three apartment buildings on a 14-acre site located across N.C. 107 from Western Carolina University. They want to add 15 buildings more, but since early last year have been blocked by Forest Hills zoning administrator Dick Iobst, who said the project would violate a town ordinance mandating that multi-use dwellings not exceed 10 bedrooms per acre.
The three standing buildings total 132 bedrooms, and according to Forest Hills regulations, only eight more bedrooms can be built, Iobst said, since 14 acres may hold only up to 140 rooms.
The town's zoning board upheld Iobst's decision in early September, but the group met this week to reexamine their opinion under advice from their attorney, Jay Coward.
Though the officials ruled against allowing more apartment buildings to go up, Coward said he reviewed the case and thinks Stayton and O'Briant have vested rights in going through with plans for a fourth building. He said he still feels the zoning board is correct in barring 14 other buildings on the property's remaining 10 acres.
"I know that's different from the conclusion you reached at the end of your hearing, but I felt it was incumbent on me to (bring this to your attention)," Coward said.
The change comes in the face of Clement's September threat to appeal the zoning board's decision to Jackson County Superior Court and "to the Supreme Court, if we need to."
Since that time, Forest Hills officials have stated concerns about the effect an expensive court battle could have on the town's small budget.
"We're not in a negotiating position," Mayor Jim Davis said.
Stayton and O'Briant have claimed vested rights since they first filed their appeal, stating that they purchased the property in 1997, before Forest Hills incorporated and began issuing zoning regulations.
"The first time we learned we were in Forest Hills' extraterritorial jurisdiction was in 2002, when we went to the county to apply for a permit for our fourth building," Stayton said in August. "It was denied because Forest Hills had enacted a moratorium."
By that time, Stayton and O'Briant had already taken out a $3.5 million loan for the fourth building, he said. Clement said the pair ran water lines to the property that indicate plans to build a total of 18 buildings.
"Our focus all along was to develop the whole tract," Clement said, claiming vested rights for the entire property.
Before voting to reverse their decision, zoning board members questioned Coward about the impact of doing so.
"If we change our minds and say, 'OK, Summit can build a fourth building,' do we have any assurance they're not going to pursue legal action to get the other buildings they want?" asked Sue Burton.
"It seems to me we're opening the gate to anything they want," said Jim Wallace.
Coward said he thinks the 10-bedroom-per-acre rule will apply to Stayton and O'Briant's remaining 10 acres, saying it appears the project is being done in phases and that any construction beyond the current three and planned fourth buildings should be subject to the town's zoning code.
However, he said, the legality of that opinion will be tested if Clement follows through on his claim to take Forest Hills to higher courts.
"I do know there could be a different interpretation later on," Coward said.
Clement said in September that Stayton and O'Briant began the Summit project with the intention of helping WCU house its growing student population. They plan to continue in that pursuit, he said, because they've got "millions of dollars on the line."
Burton suggested the developers take another tack in their plans, instead building housing for the large number of faculty WCU Chancellor John Bardo has said he expects to hire for the fall term.
"His thought and my thought, never having talked to each other before, was that Summit could build condos," Burton said, recalling a conversation with Bardo. She added that such construction could help Forest Hills "alleviate student problems."
Neither Clement nor his clients commented on Burton's speculation, instead focusing criticism on Forest Hills' handling of the zoning appeal process. Clement questioned why it took four months for Coward to complete the paperwork on the board's September decision, saying he had considered filing a lawsuit to force Coward to do so. He also repeated his September concern that Forest Hills' zoning board is almost completely composed of town board members, and that at the time of the Summit decision, its zoning administrator also sat on its zoning board.
"You're supposed to be an unbiased judge, yet you've got an opinion about where you want this case to go," he said.
Iobst resigned from the zoning board Monday, saying he was "under advisement from Raleigh" that zoning administrators should not sit on the boards to which their decisions are appealed.
That move leaves Mayor Davis and three of Forest Hills' four town board members – Burton, Wallace and Joe Rossano – still on the zoning board. Lee Budahl has been appointed to replace Iobst, but has yet to be sworn in.
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