The neighborhood covenants of a Maggie Valley homeowners association were put to the test in court recently.

A developer sued the Sherwood Forest homeowners association after they tried to block his foray into rental condos. David G. Baker, formerly of Charlotte, wanted to develop a six-unit condo and extend town water and sewer to the property. The only problem — the covenants of Sherwood Forest forbade multi-family units. The covenants define Sherwood Forest as a neighborhood of single-family houses.

Baker attests that he wasn’t aware of the covenants when he purchased an existing home in the subdivision in 2006, and that no one, including his Realtor, informed him of their existence.

“He felt the information he received when he purchased it was that he was entitled to (build the condo),” said Baker’s attorney, Bryant D. Webster of Black Mountain.

Apparently, the conflict between Baker and the homeowners association started when residents of the subdivision witnessed construction work on the property and notified the homeowners association that it appeared to be in violation of the neighborhood covenants, according to the lawsuit.

The existing home on the lot already had the makings of a multi-family unit, Baker argued. The three-floor house had a separate kitchen and bath on each floor, as well as a coin laundry in the basement.

But this is where the situation gets murky. Both sides agreed that the property was used to house members of the same extended family up until it was sold in 2003, which would explain the separate kitchens. However, Baker contended that in 2005, the property was entered into a multi-leasing situation, with three separate, unrelated individuals renting out each floor.

The homeowners association didn’t agree. It claimed the leases that Baker presented as evidence were insufficient proof that the unit was ever rented out by floor, according to the lawsuit. And members of the homeowners association filled out sworn affidavits attesting that they only became aware of the multi-family use of the property after Baker bought it in 2006. They said there was nothing in the external appearance of the building to indicate it was used as a multi-family unit, and that there were never more than one or two cars there at any given time.

Baker ended up suing the homeowners association to construct his six-unit condo. His main defense was that the homeowners association failed to complain about the multi-family nature of the structure within the required six-year statute of limitations, which he claims started ticking when the unit was first built.

“We felt it was a very strong argument that ... they had not exercised those rights within the applicable time period,” Webster said.

In a judgment handed down March 23 in Haywood County Superior Court, neither party was a clear winner, or a clear loser. The court found that Baker’s structure had been used for multi-family purposes in the past, and could continue to be used as such. However, the court restricted Baker to the three units — one on each floor — and didn’t grant him permission to build three more like he had planned. It also didn’t grant Baker rights to town water and sewer.

“What the court did was in essence split the baby and found that ... it would not be fair to prevent Baker from using it as a three-family unit, but that it would not be permitted to be anything more than that,” said Homeowners Association Attorney Bill Cannon of Waynesville. “The covenants of the subdivision remain intact.”

Cannon said he believes most of his clients — in total, the owners of 38 separate homes named in the lawsuit — were satisfied with the outcome.

Bryant said he felt “both sides got some of what they wanted.” However, he questioned whether the judge should have allowed the six condos Baker wanted since it was already classified as a multi-family structure.

“Our position is multi-family is multi-family, and once that is permitted, whether (Baker) does six units or three is of no real difference,” Bryant said. “Obviously the court didn’t see it exactly that way and we certainly respect the process and the wisdom of the judge who decided, and sometimes getting some of what you want is the best you’ll do.”

Residents of a downtown Waynesville neighborhood are up in arms about a proposed three-story, 64-unit condo development that would provide affordable housing for senior citizens — and, they fear, also lower the property values of their homes.

The development, called Richland Hills, is under the wing of Asheville-based nonprofit Mountain Housing Opportunities, which has several developments in Buncombe County. Rent will range between $300 and $500. To be elligible, you have to be over 55. There is also an income cap.

“Low income is not going to fit here,” said neighbor Lela Eason, who is leading the opposition to the development. “This is a well-established neighborhood, and it will completely change the face of it.”

Mountain Housing Opportunities Project Director Cindy Weeks contends that the neighbors would like the development if they understood it better. The architect designing the building is the same one who worked on the Laurels of Junaluska, another senior development in the county, and the building will use green features.

At this point, there’s probably little Eason and her neighbors can do to halt the project, said Town Zoning Administrator Byron Hickox. The project has already been approved unanimously by the town’s planning board and community appearance commission. It meets all the required building, architectural and landscaping guidelines.

The development is located in the East Waynesville Neighborhood District, where high density development is allowed, said Hickox. Town zoning allows for 16 units per acre in that area, and though Richmond Hills will be three stories tall, it still falls just under the maximum allowed height of 35 feet.

None of that has deterred Eason and her neighbors from waging a protest against the development. Eason faults the town for not informing her community of the development sooner. She says her sister-in-law was the only person to get a letter notifying of the proposed project, and that only came last week.

“It’s kind of sneaky that the whole community doesn’t know about it,” Eason said. “There are people who can see it from their properties who are furious, and they have no clue it’s about to take their property values down.”

A poor fit?

A sheet of paper being passed around the East Waynesville district accuses the proposed Richmond Hills development of catering to low income individuals at poverty level. The paper states that drugs are sold out of similar communities in Asheville, and that the safety of the neighborhood may very well be jeopardized should this development be built.

The “low-income” stigma is one Mountain Housing Opportunities has battled many times in its 20-year history. The idea that the nonprofit builds housing projects is incorrect, says Project Director Cindy Weeks.

“People in their heads have some idea about public housing, but that’s not us,” Weeks said. “Nothing about this will be remotely related to public housing. We’re very selective about tenants, and we get background checks and even credit checks.”

Weeks is used to dealing with skeptics. Her answer? She tells them to check out the non-profit’s other developments.

“One-hundred percent of the time, they’ll come back and say it’s beautiful,” Weeks says. Contrary to the reported drugs sold in these complexes, “we’ve never had problems with neighbors; no complaints; no police problems,” she says. “Here in Asheville, it’s gotten to the point where we don’t have much concern over what we’ve built.”

But Mountain Housing Opportunities is dealing with unfamiliar territory in Waynesville. The Richmond Hills project is the group’s first outside Buncombe County. The town was picked based on the results of a market study the nonprofit conducted, which identified Waynesville and Haywood County as having a need for senior apartment homes.

“There’s a lot of seniors in the western part of the state that might be living in substandard housing, not close to medical services or shopping,” Weeks said. “This would be an alternative for them.”

Weeks said a downtown Waynesville location seemed ideal for its accessibility, among other reasons.

“What we liked about the location was that it was well-located to shopping and services in the downtown,” she said. “The site is relatively flat and easy to develop, and we can get access to utilities. Plus, it’s just a nice neighborhood.”

Maybe a little too nice for such a development, says Eason. A one-story, high-end apartment complex would be a better fit, she says — the Richmond Hills complex might be better suited to other areas of the county.

Downtown Waynesville Association Director Buffy Messer doesn’t agree. She says the development will be a good fit downtown.

“I think its actually a very good addition to the area,” Messer says. “We are encouraging more residential in the downtown area. The goal is to expand both shopping and residential.”

Messer says she thinks fear is the driving factor of the opposition to Richmond Hills.

“In many other cities with what is considered low-rent housing, there have been some serious situations with drugs, alcohol and domestic problems,” Messer says. “But we already have some affordable housing throughout the town of Waynesville that probably people don’t even know about.”

Messer says the development is a good way to get seniors living downtown.

“I think so many of our seniors are having to move outside the town and county because we don’t have affordable options,” she says.

With an income cap to qualify, however, it is unclear whether residents will be big patrons of downtown shops. Similar developments by the same entity in Asheville have an income cap of $22,000.

Too late?

Hickox says the residents of the East Waynesville district should have raised their protests earlier.

“The bottom line is that now is not the time to make the argument of if it’s a good fit for the community,” Hickox said. That should have been done more than six years ago, when the zoning guildelines were established that allowed for high density development in the district.

“If you wait until they’ve already proposed the project, you’re too late; you’re too far behind,” said Hickox. “If it meets the standards, the town doesn’t have the legal ability to deny it.”

The Richmond Hills project still has to go before the town Board of Adjustment — the final step before it’s approved. That meeting isn’t really for public comments, Hickox said. Those could have been given at the planning board and community appearance commission meetings. Someone making a case before the Board of Adjustment needs to present hard evidence of why the project shouldn’t be allowed. An example would be a history of traffic patterns in the area and evidence of why the project would clog traffic.

The Board of Adjustment meets on Tuesday (April 7), just after The Smoky Mountain News has gone to press. If Richmond Hills is OK’d — and there’s no indication it won’t — Mountain Housing Opportunities will start getting financing in place.

Construction of Richmond Hills is slated to begin within six to eight months — but not without a fight, vows Eason.

“We have a community crying out saying ‘no,’” she says.

By Julia Merchant • Staff Writer

When Wilbur Davis looked out his storefront in downtown Canton recently and saw three young moms pushing babies in strollers, he paused to watch. It’s not that women with babies are a particularly unusual sight in downtown Canton, but not too long ago it would have been.