Developer takes Jackson to court over permit denial
Denial of a permit to build a 388-bed student housing complex in Cullowhee will land Jackson County in court after Atlanta-based Mallory & Evans Development filed a motion asking for a judge to overturn the decision.
“The decision is the result of errors in law on the part of the Cullowhee Community Planning Council, is unsupported by substantial material and competent evidence, and is otherwise arbitrary and capricious,” states a petition for writ of certiorari filed Aug. 8.
The development in question was proposed to go in along South Painter Road, right across from the Cullowhee Community Gardens and near the intersection with Monteith Gap and Ledbetter roads. Plans called for a gated town home development for Western Carolina University students that would include 97 units located in 12 buildings on the 11.6-acre property.
The proposed development has been the subject of public criticism throughout the planning process, with many community members worried about the additional stress that the nearly 400 additional residents would place on the windy rural road. Traffic safety issues have been a topic of concern in Cullowhee for years as more and more student developments have popped up on roads not constructed to handle such traffic, with the presence of pedestrians and cyclists further complicating the picture. The issue culminated last year with the death of pedestrian Daniel Brown when a WCU student driving on nearby Ledbetter Road accidentally hit him.
This isn’t the first time Jackson County has heard development plans for the 11.6 acres on South Painter Road. In 2015, the Jackson County Planning Board OK’d a 488-bed development planned by Charlotte-based Monarch Ventures, but the company wound up dissolving following a lawsuit between its co-owners. Development plans fell by the wayside, and by the time Mallory & Evans became interested in building there the zoning rules of the new Cullowhee Community Planning Area had gone into effect, placing more restrictions on development than had been the case when Monarch Ventures was in the picture.
In order to begin development, Mallory & Evans had to get permissions from three local government entities: the Jackson County Planning Board, the Jackson County Commissioners and the Cullowhee Community Planning Council. Each approval related to a separate need or requirement, with the Cullowhee Community Planning Council hearing representing the most difficult hurdle for the developer to clear. The first two bodies approved the requests presented to them, but the Cullowhee Community Planning Council denied the company’s request for a permit.
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Approving the permit would have required the majority of the six board members present to vote that the development plans met all six of the standards outlined in the zoning ordinance. However, the vote fell short of a majority approval in two of the standards: that the use would be “reasonably compatible with significant natural and topographic features” in the area of development and that the use won’t cause traffic hazards or congestion.
A traffic study completed by Waynesville-based J.M. Teague Engineering concluded that the development would not negatively impact the roads, but several councilmembers expressed skepticism about that conclusion. At the N.C. Department of Transportation’s direction, the study included only the intersection of South Painter and Monteith Gap roads, and did not measure impact on the remaining length leading out to Old Cullowhee Road. In addition, councilmembers pointed out, the car counts used for Monteith Gap Road were based on 2014 data compiled before construction of the 500-bed Riverwalk complex.
Regarding the standard about compatibility with natural and topographical features, some councilmembers felt that the idea of grading the site and installing retaining walls would conflict with the word “natural.”
While the proposed development was an emotional topic for many in the Cullowhee community — especially after the 2016 pedestrian death — during the June hearing county staff repeatedly reminded councilmembers that the law requires them to vote based on the evidence presented, not based on gut feeling or emotion.
“Can we talk about what evidence was presented that you’re using to get your opinion?” County Attorney Heather Baker asked at one point during the deliberations, a request repeated in various forms throughout the discussion.
When the vote concluded, reaction from Mallory & Evans was immediate.
“Those standards that were denied, all I heard was, ‘I don’t like it,’” said Gary Miller, the company’s attorney, following the vote. “I didn’t hear any objective criteria that was introduced to support those decisions. So it seems to me that those are arbitrary, capricious, in the class of a lawsuit setting.”
The implication hung unfulfilled for more than a month before Mallory & Evans filed its petition, with the Jackson County Commissioners discussing the matter in closed session Monday, Aug. 28. Coming out of closed session, commissioners voted unanimously to engage Charlotte-based Parker Poe Adams & Bernstein LLP to represent the county in the dispute. The engagement letter outlines terms of $380 per hour according to metting minutes.
In its complaint, Mallory & Evans alleges that the Cullowhee Council made its decision without any support from evidence presented. The developer argues that it met all the zoning requirements outlined in the ordinance and presented evidence showing that it met all six criteria to be issued a special use permit. The decision to deny, therefore, was “erroneous” and with “no legitimate basis in law or fact,” depriving Mallory & Evans “of its right to due process and equal protection under the laws.
A July 12 record of decision signed by Council Chairman Scott Baker outlines the council’s decision-making process. This document cites the need for retaining walls of up to 20 feet as well as significant grading and asphalt as evidence that the plans wouldn’t be compatible with the site’s topography. It also states that the developer failed to offer evidence on several points key to determining whether the development would create a traffic hazard — among those points are evidence regarding cyclist and pedestrian safety and impact on the intersection of Monteith Gap and Old Cullowhee roads, where significant construction is underway.
On Oct. 9, the county filed its complete record of the case with the courts. Mallory & Evans is asking the court to consider that record and overturn the council’s decision, as well as order the county to pay the company back for its legal costs. The court could agree to do that. It could also send the case back to the Cullowhee Council to hear anew or decline to act at all.
A court hearing will likely be scheduled for sometime in early 2018.
