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Judge rules for Summit in lawsuit against Forest Hills
By Carey King
Owners of Cullowhee’s Summit Apartments have secured the go-ahead to continue to develop their 14-acre tract near Western Carolina University.
Superior Court Judge Ronald Payne ruled March 30 that Forest Hills’ May 2004 action to block construction was “arbitrary, capricious and oppressive,” showed “manifest abuse of authority” and displayed “reckless disregard of the facts.”
The Summit partnership – made up of Van Stayton of Atlanta, and Michael Winstead Jr., Joe McKinney and Mark O’Briant, all of Greensboro – has shown vested rights and must be allowed to proceed, Payne said.
Summit attorney Charles Clement of Boone released a statement Monday saying his clients had “finally been vindicated” and that they intend to resume construction immediately. Three apartment buildings are now up, but final plans call for a total of 18, plus a clubhouse, pool, and tennis and volleyball courts.
“From the testimony and record presented in the case, it was apparent that the principal reason that the village was established in the first place was to put a stop to the Summit project,” the statement said.
Forest Hills leaders went into closed session Monday at their monthly meeting to discuss the matter, then decided to continue the closed session at 7 p.m. Thursday, April 14, at either the Jackson County Recreation Center or Mayor Jim Davis’ house.
Whether the town will decide to appeal Payne’s ruling has yet to be determined, said town attorney Jay Coward.
Following Forest Hills’ December 2001 decision to establish an extraterritorial jurisdiction that includes the Summit property, and the town’s June 2002 adoption of zoning laws for the area, Summit owners in November 2003 filed with the town for determination of vested rights so that their non-conforming construction could proceed.
Former Forest Hills Zoning Administrator Dick Iobst ruled last May that construction of any more than Summit’s three current buildings would violate the town’s ordinance against structures exceeding 10 bedrooms per acre. Zoning board members upheld that ruling in September, then changed their minds during a January session. The reversal came after Coward reviewed the matter and found Summit had vested rights for a fourth building. Board members gave that fourth building their go-ahead, but continued to rule against developing any more.
The Summit partnership filed for an appeal in February and the matter was heard in Superior Court March 22.
Payne found that it had been Summit’s intention to build 18 buildings ever since acquiring an option to purchase the property in July 1997. He accepted evidence that, in January 1998, the developers presented a site plan showing 18 buildings to Hometown Bank, the property’s previous owner. In winter 1997 and spring 1998, Payne found, Summit owners paid Parker Excavating to install sewer, water and drainage lines to accommodate all planned buildings.
It was more than three years later that Forest Hills leaders created the ETJ and its zoning laws. Summit owners had acted in good faith and invested $2.8 million in the project before that time, Payne found.
Forest Hills had contended that Summit owners never had an overall plan for the development and only intended to “build as they went along.” The developers knew about the ETJ but proceeded anyway, Coward said in court.
In their statement, Stayton, Winstead, McKinney and O’Briant said they hope to provide “the area’s most up-to-date and convenient housing accommodations for the students of Western Carolina University.”
“(The students) are the real winners in this case,” they said.
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