Student housing case against the city to be decided next week
By Seth Thomas Gulledge
The Daily Reflector
Tuesday, January 23, 2018
The results of a lawsuit against the city over the denial of a special-use permit for a student apartment complex are expected early next week, after a short trial in Pitt County Superior Court on Monday.
LCD Acquisitions, also known as Landmark Development, is hoping to overturn a decision made by the Greenville Planning and Zoning Commission at its May 17 meeting. The commission denied the development company a special-use permit to operate “dormitory-style units,” where more than three unrelated individuals can live together.
Landmark was planning to use the permit to build The Retreat, a 656-bed student housing complex, off of Charles Boulevard near Fire Tower Road.
The case was heard by Judge Kent Harrell. Spence Johnson, with Johnson, Marlowe, LLP in Athens, GA represented Landmark, and Emanuel McGirt represented the city. Jerry and Jimmy Eatman represented Tara Condominiums. The Landing student apartment complex, and Charles Pascarelli, all of which opposed the project.
Landmark's case against the city was based largely around two points: the violation of due process and the failure of those in opposition of the permit to provide actual evidence as to why the the permit could not be issued.
“It was a tainted, unfair process that was basically being conducted by people that did not understand what they were doing,” Johnson said. “Or considering evidence that was not part of the record, or basically advancing an agenda, being advanced improperly by an ex-parte developer, trying to deprive (Landmark) of the right they had established on the record.”
Central in the discussion was the commission's quasi-judicial role at the May 17 meeting. That role gave the Commission the power to make a judgement on the request for a permit, but it also outlined certain requirements for the judgement was to be made. According to state law, the decision needed to be based on evidence presented during the hearing for the permit. State law also stipulates certain requirements for what constitutes evidence.
The commission was tasked to judge the permit application for the permit by several parameters. If the applicant failed to meet one of those parameters, the application would be denied. Included were stipulations on how the permit would affect traffic and health and safety, the two categories that members of the commission cited before voting against the project.
Johnson centered his argument on what he believed was a breach of due process, and evidence that commission members did not adequately understand their role or how they were suppose to make their decision. Former City Attorney Dave Holec explained these parameters to the commission before their hearing, which Johnson referred to frequently in his arguments.
Johnson also referred depositions taken of the commissioners who voted against the permit.
Johnson said the actual rezoning of the land for the complex was approved by both the commission and the City Council prior to the permit hearing. He said the approved rezoning request permitted the company to build 1,092 bed spaces on the property. The hearing for the special-use permit he said, should have only pertained to what effect allowing 4 bedroom units would have, not student housing. Instead, he said the hearing became a retroactive hearing on their already-established right,
He said the Commision was only allowed to rule of the permit application based on evidence presented at the hearing. He pointed to the deposition of Commissioner Christine Darden, who said on the record that she made her decision based on personal perceptions of the situation, and the deposition of Commissioner Hap Maxwell, who said he went into the hearing with a bias against issuing the permit as just two examples of the breakdown of due process.
Also concerning to Johnson was at the beginning of the May 16 hearing, all five members who voted against the hearing admitted to being contacted by another land developer about concerns with the student housing market.
McGirt and Jimmy Eatman's main argument against the allegations centered on the testimony given by several property managers and developers. McGirt said these individuals provided capable, firsthand evidence that the construction of student housing could be harmful to the general welfare of the city.
Eatman also said the members of the commission disclosed their ex-parte communication before the meeting, and to expect a full discovery to be undertaken at the meeting regarding that admittance is unrealistic.
“These were disclosed, and granted they were not disclosed in full, complete detail,” he said. “But considering the circumstances we think these were disclosures. It is not reasonable to expect the same level of detail on the spot at a public of hearing.”
Harrell said he would review both arguments to determine if there is a case for the decision to be overruled. That decision is expected to be made by next week.
Contact Seth Gulledge at Sgulledge@reflector.com and 329-9579.