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Forest Hills loses lawsuit to Summit
By Justin Goble
The Jackson County Superior Court has once again sided with the developers of Summit apartments in their suit with the town of Forrest Hills’
Superior Court Judge Marlene Hyatt Jan. 17, found that town officials had overstepped their bounds in denying Summit’s 2004 request to build additional housing units on its 14.7-acre tract.
Hyatt’s decision backs that of Superior Court Judge Ronald Payne, who ruled in March 2005 the town’s actions were “arbitrary, capricious and oppressive,” showed “manifest abuse of authority” and displayed “reckless disregard of the facts.”
Hyatt said in her decision that Summit’s whole tract is “vested with rights to construct its Summit at Cullowhee multi-unit housing without regard to the ETJ zoning ordinance of the village of Forest Hills, and without the necessity of applying to the village of Forest Hills for any zoning certificate.”
Developers of the Summit apartment complex in Cullowhee won a victory last week when Superior Court Judge Marlene Hyatt handed down a decision that will allow them to build additional housing units on their 14.7-acre tract. Owners filed suit with the town of Forest Hills in 2003 after town officials extended their zoning control over Summit’s property by including it in an extra-territorial jurisdiction. Superior Court Judge Ronald Payne ruled for the developers in March 2005. Forest Hills officials appealed the ruling, and the case was remanded to Superior Court in October. – Herald photo by Nick Breedlove.
According to Summit owner Van Stayton, this latest decision only backs up the stance he’s had since the suit was filed more than two years ago.
“We contended all along that we had vested rights to build,” he said.
Now that the lawsuit is over, Stayton said he wants to begin building more student housing as quickly as he can.
“Unless the town gets a stay on construction, we’re wanting to begin the engineering phase as soon as possible,” Stayton said.
Forest Hills officials have 30 days from Jan. 17 to file an appeal.
Forest Hills Mayor Jim Davis was hospitalized Saturday evening and unavailable for comment.
According to Vice Mayor Sue Burton, town officials will wait until their Feb. 5 meeting to decide whether to appeal the decision.
“We were shocked by the judge’s ruling,” Burton said. “We’ve not made a decision whether to appeal or not. The board will meet the first Monday in February, and we will discuss it then.”
Hyatt’s decision comes after Mayor Jim Davis announced Oct. 10 that the lawsuit between the town and Summit Apartments had been remanded to Superior Court, where the case was first heard in 2005.
“The appellate court decided the Superior Court had made an error by not taking in all the facts of the case,” Forest Hills’ town board member Joe Rossano said in October. “Rather than deal with the issues of the law at that level, they gave the Superior Court a ‘slap on the wrist.’ It was kind of like saying, ‘you didn’t do it right the first time, so do it again.’ ”
Following Forest Hills’ December 2001 decision to establish an extra-territorial 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 suit against the town for determination of vested rights so that their non-conforming construction could proceed.
Former Forest Hills Zoning Administrator Dick Iobst ruled in May 2004 that construction of any more than Summit’s three buildings would violate the town’s ordinance against structures exceeding 10 bedrooms per acre. Zoning board members upheld that ruling in September 2004, then changed their minds during a January 2005 session. The reversal came after town attorney Jay 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 Summit’s additional planned units.
The matter was heard in Superior Court March 22 of that year.
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 extended zoning control over the Summit property. Summit owners had acted in good faith and invested $2.8 million in the project before that time, Payne found.
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