Pinebluff Appeals Ruling in Habitat Case
Pinebluff is appealing a court order requiring the town to issue a conditional-use permit to Habitat for Humanity of Moore County.
Town Attorney William Morgan Jr. filed documents with the office of the Moore County Clerk of Court challenging a decision by Senior Resident Superior Court Judge James M. Webb Jr. Webb had ruled in Habitat's favor.
"The record did not support the decision by competent, substantial, and material evidence," Webb said in the ruling. He found that the town decision to deny the conditional use permit was "arbitrary and capricious."
Webb's order reversed the decision of the Town Board of Commissioners denying the permit to Habitat. He sent the case back to the Board of Commissioners and ordered it to issue the permit.
Habitat wants to build houses on some 80 acres in Pinebluff's extraterritorial zoning district (ETJ). Opponents, including a number of neighboring landowners as well as the Town Board, say the land in question was zoned R-30 years ago. Since then, they say, things have changed.
Land around that area is being used more for horse farms, or for big plots with big homes, their original briefs in the case contended. Habitat's plans are no longer in harmony with surrounding land use, they said.
The notice of appeal says Webb erred in deciding Superior Court had jurisdiction, that he was wrong to rule Pinebluff commissioners acted "arbitrarily and capriciously," and that his order to grant the permit was also in error.
No briefs have yet been filed in the appeal. Records that will be submitted to the Court of Appeals must be assembled and filed. Habitat's attorney, Douglas R. Gill of Southern Pines, will have time to respond. The case could conceivably take a year or more to find its way through the judicial system.
"It's a mess," said Pinebluff Mayor Earlene D. McLamb. "It is just a mess. But it is our duty to protect the people in our ETJ. That is the town's duty."
The listed owner of the property involved did not sign the application, she said. That is why the jurisdiction of the court was challenged. That issue was raised before Webb when the case was heard in Carthage last month, and Gill's reply satisfied the court at that time. Webb ruled accordingly.
Webb was wrong, the Pinebluff appeal claims. Habitat does not have standing to appeal the Town Board's denial, they claimed at the time and will still claim on appeal, according to McLamb.
Habitat homes in the Roseland area, not far from Pinebluff, indicate there is a safety concern, McLamb said. She said there had been numerous police calls to the development. This issue, too, was raised in the initial briefs, which contended it takes too long for deputies of the Moore County Sheriff's Department to respond to calls in Pinebluff.
Harmony with surrounding development and public safety are the two issues on which town boards may deny conditional-use permit requests.
In the hearing, Gill contended the original hearing did not follow proper procedure. No sworn testimony was heard, and no evidence was offered. At the time, the board did proceed to discuss various conditions the town might want to require if the permit were to be granted. The town's Planning Board had recommended in favor of Habitat's request.
Town Commissioners did not decide the matter at that first meeting, tabling it until the next session. At that following session, many residents spoke in opposition during a public-comment period. None were sworn, and the board had ruled that Habitat's application was in order.
Commissioners subsequently voted 3-2 to turn Habitat down. After Habitat's appeal was heard, and Webb ordered Pinebluff to issue the permit, the board voted unanimously to appeal his rulings and his order.
John Chappell can be reached at 783-5841 or by e-mail at firstname.lastname@example.org.
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