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Developer's motion targets Taft, Mercer

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Calvin Mercer speaks during the a mayoral forum at the Hilton Tuesday, Oct. 17, 2017.

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By Beth Velliquette
The Daily Reflector

Thursday, October 19, 2017

A company that wants to build a student apartment complex on Charles Boulevard filed a court motion on Wednesday that claims some Greenville Planning and Zoning Commission members may have been unduly influenced by a City Council member and a competing developer.

The motion filed in Pitt County Civil Superior Court by LCD Acquisitions was supplied to The Daily Reflector by an anonymous source as At-Large Councilman Calvin Mercer is campaigning for mayor. The motion, verified by the paper, also names Tom Taft Sr., a Greenville attorney and developer and a supporter of Mercer, and other city officials.

LCD Acquisitions, also known as Landmark, applied to build “The Retreat” on Charles near Fire Tower Road. It filed the motion Wednesday to add additional evidence to its appeal of a May 17 Planning and Zoning Commission decision that denied it a permit to build 178 cottage-style student housing units on 26 acres just north of Grace Church.

Landmark claims a 5-4 vote that denied the permit request came after commission members had been contacted by Taft, who is developing a student housing complex on 10th Street called Campus Edge.

State law says that decision should have been made based only on the evidence presented during the May hearing, the court documents said.

Landmark claims that — based on depositions of the Planning and Zoning members — Taft met with, dined with and drank wine with some planning board members while he discussed his concerns about Landmark’s project.

The motion also claims that Mercer discussed the project with at least one planning board member and tried to contact others before the board voted on the project.

The motion claims that Mercer “initially opposed a rezoning relating to the project before the Greenville City Council because he thought LCD’s project may make it more difficult for Mr. Taft to finalize financing for a competing development.”

In his deposition, Mercer said he felt that way because he wanted to “protect the city’s commitment to a particular project going forward in center city.” He also said, “It’s not going to help us in recruiting businesses and developers to come to Greenville, if we make some commitment to them and then we pull back.”

When contacted Thursday Mercer issued the following statement: “This involves a lawsuit against the city. I consulted the city attorney who approved this statement. It would be inappropriate for a council member to comment on an ongoing lawsuit. The focus of the lawsuit is not about my actions. I will not comment further while the lawsuit is in process.”

Landmark contended that: “Much like the normal judicial process, ex parte communications between board members and outside parties regarding permit applications before the PZC are forbidden.”

The motion claims that the planning board did not abide by those rules, and it asks that the court accept evidence that there was communication between LCD’s direct competitors and the planning board members prior to its denial of the special-use permit.

LCD also discovered through the Freedom of Information Act that Fred Pierce, a competitor of LCD, attempted to contact the planning board via email the day before the hearing, and that Chuck Pascarelli, another competitor of LCD, contacted the planning board by email before the hearing to voice his opposition to the project.

LCD claims in its motion that some members of the Planning and Zoning Commission did not know what a quasi-judicial hearing was and did not know what ex parte meant and thought LCD had to carry the burden of demonstrating it was not a threat to health and welfare.

“Raising yet another due process concern, some members admitted during depositions that, in adjudicating LCD’s permit application at the May 16 meeting, they improperly considered undisclosed information and facts derived from their personal observations (as opposed to on the record at the hearing) regarding students generally, Greenville’s student housing market, and traffic in the area around the Project.”

“Because this information was not presented at the hearing, LCD was unable to refute it and it was not competent evidence under North Carolina law,” the motion claims.

The motion to include additional evidence concludes: Discovery conducted by LCD shows that there are serious due process concerns related to the PZC’s denial of LCD’s special use permit. The PZC members were subjected to significant ex parte pressure by opponents of LCD’s Project.

“A fair hearing requires that the PZC members understand their quasi-judicial role, comprehend who bears the burden of proof on key issues, and consider only evidence submitted on the record at the hearing. That did not happen here,” the motion states. “Petitioner respectfully request that this grant Court (sic) its Motion to Supplement the Record so that this important evidence can be brought before the Court.”

Greenville City Attorney, David Holec, said the city had not yet received the motion to add additional evidence but had seen the appeal that was filed in June.

Holec said the issue revolves around what the members of the planning board considered matters outside of the hearing when they made their decision. The minutes of the meeting indicate that the members of the planning board were asked if they had had any ex parte communications about the project and some of them disclosed that they had, but that it did not influence their decisions.

Holec said he expects that a judge will hear the case in the next couple of months.

The motion for Landmark was filed by Ashley H. Story of Troutman Sanders LLP in Raleigh.

Contact Beth Velliquette at bvelliquette@reflector.com or at 252-329-9566.

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