Court orders city to allow student housing on Charles
By Seth Thomas Gulledge
The Daily Reflector
Monday, February 12, 2018
A Superior Court judge has overruled a decision by Greenville’s Planning and Zoning Commission and ordered it to approve a special-use permit for a firm that wants to build a large student housing complex on Charles Boulevard.
Judge Kent Harrell issued the ruling late Friday, nullifying the commission’s May 17 decision that anticipated traffic hazards generated by the complex justified the permit’s denial. Harrell’s judgment said the city decision was not supported by substantial and competent evidence.
Georgia-based LCD Acquisitions, also known as Landmark Development, challenged the commission’s decision during a hearing in Pitt County Superior Court on Jan. 22. Landmark wants to build a mixed-use development on an 85-acre farm just north of Fire Tower Road.
The development plans call for single-family homes, offices and a 656-bedroom student apartment complex called The Retreat. Plans call for 16-two bedroom units, 40 three-bedroom units and 130 four-bedroom units on 26 acres across from The Landing, an existing student apartment complex on the west side of Charles, and Tara Condominiums.
Based on Harrell’s ruling, the commission must issue the special-use permit to Landmark by its next scheduled meeting, which is on Feb. 20. The permit is to be issued with the following conditions, which originally were outlined at the May meeting:
■ Occupancy must be limited to one bed and one person per bedroom.
■ Outside recreation equipment must be restricted to the designated recreation areas.
■ The owner/manager must request East Carolina University student transit service and cooperate fully with the university in the provision of such service. The project must be designated to accommodate bus service interior to the development.
Spence Johnson of Johnson, Marlowe, LLP of Athens, Ga., represented Landmark in the January hearing, and City Attorney Emanuel McGirt represented the city. Jerry and Jimmy Eatman represented Tara Condominiums, The Landing and Charles Pascarelli, all opposed to the project.
Landmark's appeal was based largely around two points: the violation of due process and the failure of those in opposition of the permit to provide evidence as to why it could not be issued.
Central in the discussion was the commission's quasi-judicial role at the May meeting. That role gave the commission the power to make a judgement on the request for a permit, but the rules require the board to base its decision only on evidence and testimony presented at the hearing. Board members were not allowed to draw conclusions based on their own knowledge, hearsay or testimony by unqualified witnesses.
The board had to determine whether evidence presented by Landmark showed it met requirements in multiple areas including utility services, health and safety, public welfare and injury to other property. The board approved the request in five of six categories but voted 5-4 against Landmark when it came to traffic concerns.
Johnson argued in court that no evidence was presented by a credible witness to support the traffic claims. He said quasi-judicial hearings dictate the burden of proof for claims against a request are on those making the claims. He argued that the members had been lobbied by a competing developer.
“It was a tainted, unfair process that was basically being conducted by people who 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.”
Harrell entered his decision in the case late Friday afternoon. The Daily Reflector received the decision on Monday. Included in the decision was notification that a Feb. 2 letter from McGirt stating the city would drop any opposition to Landmark.
Landmark also discharged any claims against the city and individuals related to the city, including but not limited to damages and attorney’s fees. The discharge of claims against the city is effective upon receipt of the special-use permit.
Contact Seth Gulledge at Sgulledge@reflector.com and 329-9579. Follow him on Twitter @GulledgeSeth