Ruling Awaited In Habitat Case
Habitat for Humanity, the Pinebluff Town Board and neighbors of an 81-acre tract where the nonprofit agency hopes to build homes are waiting on a decision by Senior Resident Superior Court Judge James M. Webb.
On Wednesday, attorneys for all sides made their cases in an appeal brought by Habitat for Humanity of Moore County over denial of a conditional-use permit by Pinebluff commissioners following a Sept. 21 hearing.
Ordinarily such hearings are quasi-judicial proceedings in which town boards sit as courts, hearing sworn testimony and weighing evidence introduced in support of or opposition to conditional uses being sought. Safety and whether the proposed use is in harmony with the area are factors which boards must base their decisions.
In September, however, no one who spoke during the hearing testified under oath.
"The Town Council then went into a closed session for half an hour," said Douglas Gill of Southern Pines, the attorney for Habitat, during the hearing before Webb. He was referring to minutes and transcripts from that hearing. "They came out and voted three to two to deny. Denial was 'because there was not enough of a traffic study We do not know what effect it would have not in harmony."
Gill was followed by David Rooks, an attorney representing a group of neighboring property owners who had asked to be admitted as respondents in the matter, and then William Morgan Jr., an attorney representing Pinebluff.
Gill had objected "for the record" to Rooks' motion to allow the neighboring property owners to join the matter, but said he would not argue it. After hearing briefly from Morgan and Rooks, Webb allowed the motion.
Gill contended that since the land in question was zoned R-30 and had been so zoned for many years and that absent "competent evidence" on safety hazards or that the proposal was not in harmony, the Town Council was bound by law to approve the conditional use. He pointed out that a residential subdivision already exists on one border.
"Such 'evidence' cannot be sentimental, vague, or generalized fears," he said. "It cannot be subjective. Uses for which land is zoned for are presumed to be in harmony. I believe all of these are clear statements of the law of North Carolina, and -- I suspect -- everywhere else in the United States."
Gill read from the transcript a number of statements made at the hearing, contending no real evidence existed in the record.
"That is, your Honor, as far as I can tell is squeezing everything out those that hearing," he said. "None of it was sworn testimony. There is not a single case in North Carolina that is anywhere close to the paucity of evidence in this case."
Rook said his clients -- H. Clifton Blue, Patricia Blue Bailey, H.C. Blue III, John L. Blue, Laurel Springs Holding, Lori Gotch, Deborah Rosy, Robert W. Schaefer, Andrew White and Elisabeth Blue Willett -- have interests that differed from the town. The value of their property would be adversely affected, he contended -- if not immediately, in the rate or amount of increase in value.
He called attention to what he contended was a flaw in Habitat's application. The application filed with Pinebluff indicates a different owner of the property than "a Mr. and Mrs. Edwards" who are the real owners according to county records.
"This is a 'threshold' question that can be raised at any point," Rooks said. "No one who has standing is in court today. The appropriate response is to dismiss the appeal."
He also argued that issues of harmony were in fact raised at the hearing as shown in the transcript and minutes.
"The issue of harmony is clearly on the table at the hearing," Rooks said. "You don't have to have expert testimony on the harmony issues."
Rooks also called the attention to a number of statements made at the September hearing.
Morgan also cited those records. Earlier, he had indicated to Webb that two copies of the transcript were submitted. In one, speakers were identified only as "male voice" or "female voice." The other had been amended with names of the speakers inserted to identify them.
"My home is probably going to be appraised for over a million dollars," one woman had said. "Now we are going to have all these houses across the fence."
Others had said they owned large pieces of property -- 800 acres across from this land in one case, that would be worth less if the Habitat request was approved. Another had 125 acres "on conservation lease."
Morgan defended the 3-2 decision against Habitat as proper and reasonable and appropriately based on the objections raised about Habitat's proposed 75-home development not being in harmony with the area.
Responding to Rook, Gill pointed out references in the record indicating Habitat's contract to buy the land from the Edwardses. There was no need for the application to have what Rooks called "the magic words" saying the contract was contingent on conditional-use approval, he said.
"On at least one side, it is completely built up," Gill said, addressing the harmony issue. "There is nothing specific about how it is out of harmony. Again I say, there in no case that comes anywhere close to upholding a denial on evidence that is not even evidence: mere statements."
Webb collected the transcripts and minutes along with briefs submitted in the case.
"I have a lot to go over," he told them.
When Webb reaches a decision, he said, the clerk will reach the parties by telephone so orders can be prepared by the appropriate attorney for his signature.
John Chappell can be reached at 783-5841 or by e-mail at firstname.lastname@example.org.
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