ASHEVILLE — A proposed 214-unit apartment complex project in East Asheville has stalled after a Buncombe judge upheld a county board decision prohibiting the developer from starting construction.
The decision by Superior Court Judge Marvin Pope upholds the rejection of the project rendered in May by the county Board of Adjustment. Developer Michael Posey and RAB Builders appealed the board’s 5-2 rejection in which several members, including Chairman George Lycan, said the project didn’t meet the county’s standard for issuing a conditional use permit.
Posey and RAB Builders can appeal the decision in the North Carolina Court of Appeals, though it remains unclear this week if they plan to do so. The developer’s attorney, Craig Justus, did not respond to multiple requests for comment.
In his Sept. 6 ruling, Pope said the BOA committed "no errors of law" in its denial of the project and argued the developer "did not meet its burden of showing compliance with the standards and conditions required for a conditional use permit."
Pope said the developer also failed to prove the project wouldn’t be harmful "to the public welfare or injurious to property or public improvements in the neighborhood."
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Neighbors from nearby Eastmoor and Botany Woods, led by Timothy and Jennifer Heim and Timothy Burleson, were allowed by Pope to intervene in the developer’s appeal. Dozens of neighbors addressed the BOA in May, arguing the project at at 423 Moffitt Road was too large, would generate too much traffic and was generally incompatible with the surrounding area.
Their attorney, John Noor, said neighbors are "very excited" about Pope’s decision.
However, Noor said East Asheville residents did not have adequate time to state a case against the developers in May. He said the group ended up fortunate in the BOA’s ruling and were able to address the board with professional expertise, as Jennifer Heim is an architect and Timothy Heim is a civil engineer.
Most neighborhoods staring down unpopular development projects generally don’t have that luxury, Noor said.
"This isn’t about stopping development. It’s never about that," he said. "(It’s about) what can Buncombe County and Asheville do to make sure neighbors have a reasonable amount of time to respond to these applications, because once they’re granted, that’s it. The consequences are what the consequences are.
"Nobody ever goes back and says let’s make sure it turned out the way it should have turned out."
Because some neighbors work in development, Jennifer Heim said they tend to support "responsible development." She said they attempted to work out a compromise with the developer following the May decision, but noted "RAB did not respond to our offer," instead pursuing legal action.
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Attorney John D. Noor of Asheville-based Roberts & Stevens meets with East Asheville residents July 31, 2018 outside the Buncombe County Courthouse. Noor was hired to represent the neighborhood by Timothy and Jennifer Heim and Timothy Burleson.
(Photo: Dillon Davis/dwdavis@citizen-times.com)
Heim, like Noor, said the neighbors’ case was about challenging a process "that doesn’t provide citizens with a fair opportunity to challenge irresponsible development in Buncombe County."
She said obtaining expert testimony is needed but can be challenging. Neighbors received notice of the project only about a week prior to the BOA hearing, she said.
"No one can get an expert report on the traffic impact of a development," Heim said, "or the environmental impact of a project in less than 10 days, which means the process is biased in favor of developers who have all the time they want to hire experts prior to submitting their development proposals.
"We believe this has to change."
In August, Justus told the Citizen Times that Posey and RAB met the standard for a conditional use permit "and folks didn’t like it." He said neighbors opposing the project showed up at the BOA meeting with no experts to counter the proposal, remarking "it became a popularity contest, which is not the standard."
Buncombe Public Information Officer Kassi Day said in an email Tuesday the county does not have an official reaction to the court’s decision, saying the county’s BOA process "was never called into question because we followed it." Day said the county "far exceeds" minimum notification requirements for residents with a 1,000-foot notification ring.
The city of Asheville, in comparison, requires a 200-foot notification ring.
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A 214-unit apartment complex project submitted to the county by Michael Posey of RAB Builders, LLC appears to have stalled after Buncombe County Superior Court Judge Marvin Pope upheld a rejection this month of its county’s Board of Adjustment. The board voted 5-2 against issuing a conditional use permit for the project during a quasi-judicial hearing in May.
(Photo: Buncombe County Board of Adjustment)
Asked about finding the middle ground between what community members want versus what developers are entitled to, Day acknowledged that "development will always be controversial to some degree," and especially multifamily projects.
The county took a step to address development concerns this year when Buncombe County commissioners approved an amendment to its zoning rules requiring property developers complete a traffic study for projects of more than 75 units. Day said the traffic study example is one way the county hopes to balance needs and expectations in the county.
Still, she said residential demand for housing exceeds the area’s supply, bolstering the need for development.
"(W)hen you include a geographically diverse population that move here from across the nation and sometimes world, as you will find in our county, citizens often import their expectations of how our community should be developed," Day said. "This can come to a boil when an established neighborhood sees a proposal to develop a large vacant tract in near proximity or a multigenerationally owned large estate lot is sold to a developer."
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