On Tuesday, Nov. 25, Resident Wake County Superior Court Judge Paul Ridgeway issued his ruling in the case of Ninety Eight Bypass Associates, the petitioner, and the Town of Wake Forest, ordering the decision by the Wake Forest Board of Commissioners be reversed and that the board must grant a special use permit for 99 townhouses on the north side of the N. C. 98 bypass.
Ridgeway found that the commissioners’ decision to deny the special use permit in August of last year because it is “unsupported by substantial, competent evidence in view of the entire record and is arbitrary and capricious.”
“We agree with Judge Paul Ridgeway’s ruling and look forward to developing our townhome project there and being a part of Wake Forest’s growth. Zoning allowed apartments but we felt townhomes are a more compatible transitional use for that land. Its unfortunate we had to go to this extent to do the right thing,” Russell Gay, a partner in Ninety Eight Bypass Associates, wrote in an email this week.
Town officials and the town’s attorney in this matter, Tobias Hampson with Wyrick, Robbins, Yates & Ponton, do not want to comment until they can review the ruling. The town can choose to appeal the ruling. It has 30 days to file with the North Carolina Court of Appeals.
The ruling is the latest event in an unfolding drama which began in 2012 when the Ninety Eight Bypass Associates, which owns two parcels on the north side of the N.C. 98 bypass (the Dr. Calvin Jones Highway) just west of the South Main Street intersection, filed a request for a special use permit to build 102 townhouses on 18 acres.
It has become one of the most contentious land use wrangles in recent town history. The plan – and the second plan a year later – involved extending Siena Drive to the bypass from its present dead-end in the Holding Ridge subdivision. Residents in that subdivision as well as those in Pineview Estates just to the north of the property were opposed to the plan and wanted office buildings that they thought were assured with the office and institution zoning. Townhouses were also a permitted use with conditions, hence the special use permit request.
The homeowners in those two subdivisions said the project would increase traffic through their streets, streets sometimes overwhelmed by the traffic created by the parishioners at St. Catherine of Siena Catholic Church. They also said the project would lower the value of their homes.
Gay, a commercial realtor who developed a small office park across the bypass, denied the claim of lower home values and said the lowest price point for the townhouses would be $190,000. “Our goal is not to disturb the neighborhood.”
Members of the planning board and town board were critical of the 2012 plan because the it did not include a clubhouse or amenities center – the Community Plan says those should be in a central location – and because the open space was around a bio-retention pond across Siena Drive from the townhouses. There were also concerns about the lack of sidewalks along the bypass and the lack of a walkable connection to downtown and other town areas.
The planning board split evenly, four to four, on whether to recommend the commissioners approve the request. The commissioners all voted for Commissioner Margaret Stinnett’s motion to deny because “I’m of the conclusion that this particular project does not meet all of the town policies.”
In October the commissioners also voted not to approve a request to waive the six-month wait before the project could be reheard.
The request was heard again on July 9, 2013, this time with a few changes. It was now 99 units on 19 acres and there was more than the town-required open space, about 8.56 acres. Half of that was planned for small parks in the project’s corners and a tot lot in the middle. The other half, 4.11 acres, was across Siena Drive with a mulch walking trail circling the stormwater detention basin.
There would be a 50-foot wooded buffer along the bypass and 20-foot wooded buffers shielding Siena Drive, Pineview Estates and the Weatherstone townhouses.
Although the town’s new Unified Development Ordinance had been approved by the time of the hearing, the request had been filed before its approval and therefore the quasi-judicial hearing was held under the previous town ordinances. North Carolina law requires the quasi-judicial hearings with sworn testimony by experts or credible witnesses for special use permits.
The four-hour-plus public hearing involved dueling experts and attorneys who also asked each witness to repeat almost all of his or her testimony.
The essence of the requesters’ argument was voiced by Gay, who said the property is “an ideal place for townhouses . . . [which] act as a buffer between single-family to the north and offices and the bypass to the south.”
The planning department staff recommended approval for each plan.
Neighbors in Pineview Estates and other nearby neighborhoods strongly protested the project both times it came before the planning and town boards. In 2013, though, some neighbors hired an attorney and a qualified real estate appraiser to bolster their testimony.
After the long hearing, the planning board deferred action on the request to its Aug. 6 meeting. On that date the six members present voted four to two against the project.
When the town board met on Aug. 20, Stinnett again made the motion to deny the special use permit because the request failed to prove the project would not substantially injure the value of adjoining or abutting property and also failed to prove the project would not create undue traffic congestion or create a traffic hazard. She was objecting to two of the eight findings of fact that applicants must meet to be granted to a special use permit.
She agreed to Drake’s request to add a third finding, that the applicant failed to prove the project meets all the rules and regulations within the zoning ordinance and all existing town policies.
Ninety Eight Bypass Associates filed an appeal with the Wake County Superior Court on Oct. 16, 2013, and the matter was heard on Sept. 2, 2014, after which Judge Ridgeway took it under advisement before issuing the ruling this Tuesday.
The judge’s preliminary personal notes on the ruling were provided to the attorneys for both sides before the final document was framed, and those notes were the basis for an article in a local publication.
In his official filed ruling, Judge Ridgeway found that “the Petitioner [Ninety Eight Bypass Associates] produced competent, material and substantial evidence in support of Finding #3 [The proposed use would not substantially injure the value of adjoining or abutting property] through, among other proffers, an Impact Study prepared by Certified General Appraiser Winston T. Morgan, which after detailing evidence of a market study, concluded that the proposed development would have ‘no material impact on the value of properties that adjoin or abut the proposed development.’ “
He continued: “The Court also finds and concludes the Petitioner produced competent, material and substantial evidence in support of Finding #8 [The proposed use or developments meets all other rules and regulations within the zoning ordinance and all existing town policies] through, among other proffers, the Planning Department’s Staff Report and Assistant Planning Director (sic) Yokley’s testimony, which established that the Petitioner’s application complied with each of the eight Findings (including Findings 3 and 8) and that the staff recommended approval of the Special Use Permit. These proffers by Petitioner constitute competent, material and substantial evidence to support both Finding #3 and Finding #8 and, because no other Finding was cited by the Board of Commissioners as grounds for denial of the permit, Petitioner has established that it is entitled, prima facia, to the issuance of the special use permit requested in its Application.
“Because a prima facia entitlement to a permit has been established by Petitioner, the denial of the permit by the Board of Commissioners must be based upon findings contra which are supported by competent, material and substantial evidence appearing in the Record. Upon review of the whole Record, the Court finds and concludes that the record before this Court, as it applies to Findings #3 and #8, does not contain competent, material or substantial evidence contra and therefore, the denial of the Application must be reversed because such denial is unsupported by substantial, competent evidence in view of the entire record and is arbitrary and capricious.
“Based on the foregoing, it is HEREBY ORDERED, ADJUDGED and DECREED that the decision by the Board of Commissioners is reversed and this matter is remanded to the Board of Commissioners with instructions that the Board of Commissioners enter its decision approving Petitioner’s Application for Special Use Permit in the above-captioned matter. SO ORDERED, this 25th day of November, 2014.”
