A tale of two hearings in one night

The neighbors of the former Wake Forest Country Club came to the Wake Forest Town Hall last Thursday night, March 23, prepared to attack a plan by the new owner, E. Carroll Joyner, and the McAdams engineering firm on at least six fronts. The plan for houses and townhouses had, after all, been turned down by the Wake Forest Planning Department five times.
The McAdams personnel – Joyner was not at the hearing – meanwhile pursued the goal their formal request had set out, which was to amend a Special Use Permit from 1999 by removing about 125.79 acres from the SUP which was also part of the Planned Unit Development Joel Young had town approval to place on the site he then owned.
Later that year, in December of 1999, the then-town board refused to accept the request or consider it. The town had to defend its decision not to accept the application for the change by Young to the tune of $45,139.50 and the later decision not to hear it that cost $22,342.50. The case went all the way to the North Carolina Supreme Court, which found for the town.
The March 23, 2023 hearing was set and advertised as a quasi-judicial one with testimony only considered from experts in their fields who were given standing under the rules of that kind of hearing as painstakingly set out by Town Attorney Hassan Kingsberry.
That was a requirement by state law as was Kingsberry’s questioning of the mayor and commissioners if they had had any communications about the hearing, which are forbidden by that law.
Surprisingly, Commissioner Nick Sliwinski, wiping tears from his eyes, said he would have to recuse himself though not stating the reason. He left his seat after he spoke.
Then Kingsberry had to decide who had standing to testify. Richard Ostergard, the head of the Concerned Citizens for the Preservation of Wake Forest Open Space which has been campaigning against the Joyner-McAdams plans, based his request for standing on a 1990 agreement between Joel Young and the owners of four properties in the Hawkshead subdivision which backed up to the then-golf course. The agreement set a buffer zone on the golf course land which could, under certain circumstances, only be used for residential lots of 30,000 square feet each. Ostergard now lives on one of those four properties.
Attorney Nil Ghosh of Morningstar Law Group of Durham, acting for McAdams, objected to Ostergard’s request and challenged him to provide proof of such an agreement. A lengthy kerfuffle ensued with Ostergard saying he had sent in a copy of the agreement and then trying to look it up on a borrowed computer. Since the conflict could not be resolved quickly, Mayor Vivian Jones said the board would make the decision, after which they went into an adjoining room and returned to declare that Ostergard did not have standing.
Wanda Mukherjee also claimed standing, saying that she had been told by Commissioner Keith Shackleford that “all citizens of Wake Forest have standing.” That was denied. Mukherjee next claimed standing as a property owner in the adjacent Riverstone subdivision, but Jones said, “Proximity does not give you standing.” Mukherjee’s final argument for standing that she was affected by the increased traffic on Chilmark Street then failed.
“It is a big hurdle when citizens try to get standing,” Mukherjee said before she left the podium.
Senior Planner Patrick Reidy then briefly went through the request for a change in the special use permit and said the planning staff had found that all the requirements, all the findings of fact, had been met.
Commissioner Chad Sary asked if all the old buildings, the clubhouse, swimming pool and tennis court, would be removed, and Reidy said yes.
The hearing then went to a review of the personnel documents – the papers that said the three McAdams experts were indeed experts – and by that time it was 7:50 p.m. in a hearing that began at 6. It would not be closed until 10:15.
Somewhere in here it became clear that the new SUP would consist of the two clusters of buildings built after the PUD was approved – the 20 townhouses close to the entrance and 10 houses nearby – but that the required open space would not be adjacent to either. Instead the open space is designated as the three ponds and a small portion of the open space for the Horse Creek watershed. The residents of the townhouses and houses had asked for adjacent usable open space.
The result of an approved SUP would be that there would then be 125.79 acres of land zoned R3 with a Falls Lake watershed overlay and special highway overlay.
The three experts for McAdams all testified briefly, all saying that the Joyner-McAdams request for the special use amendment met all the required findings of fact.
Then it was the turn for the opponents to speak, and 17 of them did with the attorney Ghosh objecting to many.
David Michaels led off, reminding the commissioners and mayor that in 2009 the town board fought a similar request all the way to the state Supreme Court and “. . . won that it should be preserved as open space.” And “You rejected this once before.” He suggested deeding the open space to the homeowners association.
Edie Heath suggested the town board take no action.
Bernie Vollmer said the HOAs on the two collective dwelling units had asked that the open space be contiguous and been turned down. “We ask that you consider our request.” Leslie Finnegan echoed his request.
Ann Garrett had a different tack, the soil in the old golf course which, because of the various applications to the grass, now contained arsenic, barium, cadmium, lead, mercury and selenium. As she tried to explain how the soil was tested, Mayor Jones said, “You have to have the expertise to analyze these findings. I don’t believe you have the expertise.”
Similarly, when Gina Micchia started speaking about some “hexavalent” findings in the soil, Ghosh interrupted, objected and said that topic had not been introduced in this hearing.
The mayor did say two or three times that the rules require witnesses be experts. “I don’t want to sit here and say you can’t talk, but I have to.”
Sam Joyner said, “A sleight of hand has been done tonight,” because instead of a hearing about the plans for a subdivision “that the planning department has turned down five times,” there is the special use permit cutting off the developable acreage.
Mary Kircher returned to podium to say, “We are not rich people” and we cannot afford to hire the experts this kind of hearing demands.
A bright spot was Phillip Doerr, a wildlife biologist who painted a picture of a green haven where he found native vegetation reclaiming space and 71 species of birds, including seven warblers. He called it an “incredible green spot” that is highly valuable from an environmental point of view, and the town’s best use would be to preserve it,
And John Carleton wound up the testimonies by echoing Doerr. “It is a wildlife refuge that supports the communities around it. Let’s keep it open space.”
Now, finally, it came down to the town board.
Commissioner Adam Wright noted, “We have the option of not doing anything.” No one joined him. Later he said, “It does not put us in a great position. We only have to consider the findings of fact.” Wright consulted with the town attorney for several minutes and made a motion to deny because of a “manipulation of the valuation of the land” which did not get a second.
Commissioner Chad Sary then made a motion to approve the request with a second from Commissioner Jim Dyer, and both voted for the motion while Wright and Commissioner Keith Shackleford voted no.
That left the deciding vote to the mayor, a rare event, and she voted yes.
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