|
Summit appeals Forest Hills decision
By Carey King
As promised, owners of the Summit Apartments in Cullowhee have filed for an appeal of the Forest Hills decision banning them from building the second phase of an 18-building complex.
The move comes following Summit attorney Charles Clement’s September pledge to appeal the board’s decision to Jackson County Superior Court and “to the Supreme Court, if we need to.”
Summit already has three buildings up on its 14-acre site across N.C. 107 from Western Carolina University. In May 2004, Forest Hills Zoning Administrator Dick Iobst blocked any further construction, saying it would violate a town ordinance mandating that multi-use dwellings not exceed 10 bedrooms per acre.
In September, town zoning board members upheld that ruling, but changed their minds during a Jan. 3 session after town attorney Jay Coward reviewed the matter and found that Summit had a case for claiming vested rights for a fourth building. Board members then gave that building their go-ahead, but continued to rule against the 14 additional structures.
In an appeal filed by Boone-based attorney Clement on Feb. 11, owners Van Stayton, who lives near Atlanta, and Michael Winstead Jr., Joe McKinney and Mark O’Briant, all of Greensboro, continue to contend that they have vested rights in going through with the whole 18-building project. Water and sewer lines to the entire 14-acre tract were completed in the spring of 1998, the petition for appeal states, well before Forest Hills’ Dec. 2001 decision to establish an extraterritorial jurisdiction that includes the property. The town did not adopt zoning regulations for the area until June 2002.
Both Iobst and the zoning board made their decisions with “manifest abuse of authority” and “in reckless disregard of the facts,” the petition claims.
It says the zoning board hearings “involved a lack of due process” since the board “acted as both judge and adversary.” Clement expressed concern both in September and January that Forest Hills’ zoning board is almost completely composed of town board members.
“You’re supposed to be an unbiased judge, yet you’ve got an opinion about where you want this case to go,” he said in January.
He also said in September that it was inappropriate that zoning administrator Iobst sat on the zoning board – the body to which his decisions were appealed.
Iobst resigned from the zoning board in January.
Forest Hills officials have expressed concern since the zoning board hearings began of the havoc an expensive court battle could wreak on the town’s small budget.
However, Mayor Jim Davis said Tuesday (Feb. 15) that he still has hopes the matter won’t see time before a judge.
“It’s my understanding they’ve just filed an appeal and have not yet found out whether or not they’ll be granted a hearing,” Davis said. “At this point, I’m thinking ‘no,’ because they’ve got most everything they wanted. I don’t think they can build those 14 buildings.”
That idea concurs with attorney Coward’s January assertion that the remaining buildings do not meet vested rights standards because they were conceived as the project’s second phase.
Davis said he thought Clement had lost rights to appeal since he filed Summit’s petition Feb. 11, more than a month after Jan. 4, when Clement received an e-mail containing notice of the zoning board’s final decision.
Individuals have 30 days to file for appeal after such an order has been issued.
However, Clement said the e-mail version did not meet the state requirement that the notice be signed and sent by certified or registered mail. Clement received that official version Jan. 13.
Davis also said he’d heard that court proceedings could be slowed due to the fact the Summit was up for sale.
Clement denied the assertion.
“Property has not been offered for sale and we don’t know where that rumor came from,” Clement said. “Once all the apartments are built and occupied, the owners may entertain requests to sell. Right now, that’s pure speculation.”
|
