Lawsuits stack up over housing boom in Waynesville

By By Becky Johnson, The Mountaineer, Waynesville, N.C.

Waynesville is now facing not one, but two civil lawsuits from neighbors of proposed housing developments who fear the high-density projects will be detrimental to their communities.

The latest lawsuit is over a 46-unit duplex project on Allens Creek. There is also a lawsuit over a 200-unit apartment complex on Plott Creek. Both developments had been opposed by neighbors at public hearings, who claimed the projects will devalue their own property, will unduly increase traffic and nuisances, will harm the environment and are generally incompatible with the community’s character.

The legal challenges are a result of natural tensions surrounding unprecedented growth, said Waynesville town planner Elizabeth Teague.

“I think it is really hard for us as a community to be witnessing this change,” Teague said. “There is a known need for housing, particularly rental housing. Private developers go where the market is. So we are seeing in Waynesville this development pressure that we haven’t seen before.”

Residential construction has been on the rise across Haywood County — due both to the solid economy driving home sales and a spill-over effect from Asheville. The growth rate of residential construction in Haywood outpaced every other county in WNC for the first half of 2018, based on an analysis of home building permits compared to the same period last year.

Simply not wanting apartments or duplexes next door isn’t grounds for a legal appeal, so both lawsuits have attempted to poke holes in the town’s zoning procedures and find inconsistencies with the developments don’t meet the letter of town ordinances.

The town is carefully reviewing both complaints to discern whether there are valid arguments that need to be fixed.

“We want things to be correct and we want things to be fair,” Teague said. “Anytime somebody questions whether things are done according to the ordinances we will look at it and see if it needs to be corrected. We want it to be done right.”

In the case of the Plott Creek apartment lawsuit, the town has already decided to have a do-over of its public hearings — three in all of them — to fix technicalities pointed out by the lawsuit. The first of the public hearing do-overs will be Monday, Oct. 15, followed by one in November and one in December.

As for the Allens Creek lawsuit, it is still too fresh for the town to have a response.

Meanwhile, the developers have to decide whether it’s worth their time and trouble to fight the appeals. Both have already purchased their respective tracts.

Waynesville Mayor Gavin Brown addressed the controversy over the large-scale housing complexes at a town meeting in July. Neither had hit the court system yet, but opponents were publicly disparaging the town over the developments and hinting at possible appeals.

Brown said an impassioned public isn’t a bad thing, however.

“It is not bad stuff folks. If there’s no controversy, that means we aren’t doing anything,” Brown said. “I am much happier when there is controversy than apathy. Apathy creates a situation where people aren’t engaged.”

The mechanism to appeal a town zoning decision is by filing a complaint through the court system. Here’s an overview of each appeal.

Legal appeal #1: Allens Creek duplexes

Project specs: A 46-unit duplex project on seven acres along Allens Creek. The two-bedroom duplexes of 1,000-square-feet would all be rentals, going for $1,000 a month. The developer is Marek Hevier of Florida, a second-home owner in the area.

How it got approved: The site plan for the duplex project first came to the planning board in June, but was deferred to July because it initially didn’t meet all the town’s subdivision requirements.

The modified plan — which scaled back the project from 52 to 46 units — passed with a vote of 6-to-1, with the lone dissenter claiming some criteria of the town’s land-use plan still hadn’t been met.

Lawsuit complaint: A string of changes made to the site plan at the 11th hour — right up to the day of the second hearing — didn’t allow the public an opportunity to vet what was being voted on, the suit claims.

“Interested parties did not have sufficient time to review it, determine what damages might be suffered from it, prepare cross-examinations, compile testimony to rebut assertions of the applicant and prepare and present their side,” the lawsuit states. “In short, the applicant and the town presented an essentially new plan and brought it to a vote one hour and 15 minutes later before anyone could adequately oppose it.”

The suit also claims opponents who came to the public hearing weren’t given a fair chance to speak because the rules were poorly explained at the outset. When Planning Board Chair Patrick McDowell asked anyone with standing to come forward and get sworn in, those in the audience didn’t understand what he meant or who it applied to, the lawsuit claims.

The lawsuit also claims the development falls short of several requirements in town ordinances, including right-of-way width of the entrance road, open space set-asides, and street and driveway design.

Half the low-lying land lies in the flood plain. It’s boggy and allegedly has sink holes, according to neighbors. Developing the site, which includes a wetland and creek, will push run-off onto the neighbors downstream.

The appeal is brought by neighbors Charlie and Frank Deaver, represented by Waynesville attorney Chase Wells.

What neighbors say: Charlie Deaver, who lives beside the proposed duplex project, said the legal appealing is costing him a lot of money, but he couldn’t stand by without trying.

“I felt if we didn’t do nothing they were gong to sneak this by,” Deaver said. “The town has laws and has ordinances they are supposed to go by and they’re not doing it. For a major subdivision, you can’t just meet three-quarters of them you have to meet them all.”

What the town says: The lawsuit is still new and the town doesn’t have a formal response yet.

“We honestly haven’t had a chance to digest that one,” Teague said.

What happens next: Teague said the onus will fall largely to the developer to answer for the project and make changes to the site plan if needed.

“If there is something that needs to be addressed, they might end up having to do that,” Teague said.

Legal appeal #2: Plott Creek apartments

Project specs: A 200-unit apartment complex on 41-acres along Plott Creek, including five apartment buildings up to four-stories tall, a club house, and a pool. The one-, two- and three-bedroom units will all be rentals, ranging from the $800s to $1,300s a month.

The developer is Southwood Realty out of Gastonia, a firm with myriad large-scale apartment complexes across the state, including more than half a dozen in Buncombe County in as many years.

How it got approved: Plott Creek didn’t previously allow multi-story apartment complexes, so this project required two-step approval. First, the developer asked the town to change the zoning rules for Plott Creek to allow apartments — with public hearings before the planning board and board of aldermen in May.

The specific site plan was then approved at a six-hour public hearing before the planning board in July.

Lawsuit complaint: The suit claims the town went out of its way to accommodate the project and favored the developer, abdicating its duty to protect neighboring property owners. The development is “disharmonious” with the existing character of Plott Creek and will destroy neighbors’ enjoyment of their own property with additional traffic, noise and water quality impacts, the suit claims.

The kicker, however, is that the town failed to comply with a new state statute when voting to change Plott Creek’s zoning to allow apartments. The town was supposed to stipulate how and why the zoning change was consistent with the town’s overarching land-use plan. The town board verbally discussed its rationale at a public hearing, but didn’t incorporate that language into its formal motion as required by the little-known statutory change.

The lawsuit is brought by two neighboring land owners, Ruth Plott and Stone Haven Farms, the estate of Waynesville businessman Thom Morgan, who are being represented by Asheville Attorney Craig Justus.

What neighbor’s say: Opponents to the project, which packed the first round of public hearings in May, are once again gearing up to make their voice heard. While the do-overs could lead to the same result again, Mary Thomas said the Save Plott Creek Advocates are seeing this as a second chance.

“We sort of hung up the sword said ‘OK, we have done what we can do and we’ll wait and see what the next step is,'” Thomas said. “In my opinion, it’s not over until they move the first backhoe in.”

What the town says: The town has set the wheels in motion for a procedural do-over to fix the technicalities raised by the lawsuit. The do-over would render much of the lawsuit moot by pre-emptively cleaning up semantics in the town’s approval of the apartment complex.

As such, the lawsuit is on hold pending the do-over, per an agreement by all the parties — including the town, the developer and the neighbors.

“What the lawyers are cooperating in doing is minimizing any unnecessary work and duplicaties and expense,” explained Waynesville attorney Bill Cannon. “There may be issues that would still need to be addressed but there is no point spending a lot of time on other issues that would be moot.”

What happens next: The town will first re-do the public hearings on the zoning change to allow apartments in Plott Creek — once before the planning board at 5:30 p.m. Monday, Oct. 15, and again before the board of aldermen at 6:30 p.m. on Tuesday, Nov. 13.

Once that’s done, the planning board will re-do its public hearing on the specific site plan, likely in December.

In addition to using the right wording in its motion this time, the town will make a few other small fixes in the do-over to head off other technicalities raised by the suit.

This article provided by NewsEdge.