By Tom Joyce email@example.com
June 8, 2014
DOBSON — An additional court filing has occurred against the city of Mount Airy and other defendants in the wake of a controversial decision to rezone land off South Franklin Road for apartments.
A pleading for a declaratory judgment was entered this past week in Surry County Superior Court by James T. and Gladys P. Henson, a retired businessman and wife who live near an 11-acre site where the 60-unit Stonebrooke Terrace complex is eyed.
The apartments would be spread out into 15 quadruplexes with four units each, according to plans by The Flatiron Group Inc., a Charlotte developer — but opponents are hoping to keep the first nail from being driven.
The Hensons were among a group of neighboring property owners who said during a March 20 “quasi-judicial” public hearing that the close-knit area is unsuitable for such housing geared toward low-to-moderate-income tenants. They cited a long list of traffic, crime, environmental and other concerns.
On April 3, the commissioners approved the rezoning of the site to allow for multi-family as well as single-family use, but in an unusual way with a 2-1 decision resulting. This occurred after two other commissioners, who live nearby and likely would have voted against the rezoning based on their comments, recused themselves from any discussions and the vote because they’d already formed opinions.
The vote led to a writ of certiorari challenging that action being filed on May 2 by the Hensons, who are represented by Winston-Salem attorney Donald M. Nielsen. A writ of certiorari seeks a judicial review, in this case by Surry Superior Court, of a proceeding, specifically the rezoning action by Mount Airy officials.
As part of the filing of the writ, the city government was ordered to turn over all records of the case to the court.
The most recent filing of the pleading for a declaratory judgment generally occurs in cases when a party is threatened with a lawsuit, but one has not yet been filed, according to online definitions. The declaration serves as a determination by a court which resolves uncertainty for the potential litigants.
It is a legally binding, preventive type of disposition in which a party involved in a civil dispute and possible lawsuit can ask a court to conclusively rule on and affirm the rights, duties or obligations of affected parties.
The two actions brought by the Hensons can be considered companion cases. Named as defendants in both — in addition to the city of Mount Airy and its board of commissioners — are The Flatiron Group and Rick Shelton, a Cana, Va., resident who owns the property off South Franklin Road.
The plaintiffs are seeking the declaratory judgment as to the validity of “a purported amendment” to Mount Airy’s zoning ordinance and the subsequent issuance of a conditional-use zoning permit allowing the apartments. Such permits allow developments to proceed under certain conditions.
Court documents filed on the Hensons’ behalf ask that the city’s April 3 action granting the rezoning “be declared invalid and void.”
This should be done on the grounds the city government violated its own comprehensive planning and zoning procedure and that the action granting the apartments is a case of unlawful spot zoning, documents say.
Among the points cited is that wording in the Mount Airy Zoning Ordinance states that requests for conditional-use zoning shall be handled in the same way as conventional zoning requests.
But at some point, plaintiffs say, a decision was made to hold a “quasi-judicial” rather than normal public hearing on March 20, with no advance notice to the public. This led to a hearing conducted similar to a court case, including speakers having to be sworn in and offering only direct “evidence” rather than hearsay.
That spawned numerous errors, the plaintiffs charge, including the alleged improper exclusion of commissioners Shirley Brinkley and Steve Yokeley from the discussion and vote.
Among other problems, court documents point out that the hearing on March 20, when no quorum of the board was present due to Commissioner Jon Cawley’s absence, should have been continued to April 3.
The Hensons’ filing further charges that both the city and The Flatiron Group failed to follow requirements for conditional-use zoning under state law.
It also claims that a decision to amend the zoning ordinance for the general residential conditional use was not made in accordance with a required comprehensive plan for the area as a whole.
The court filing further alleges that the conditional-use zoning was an “arbitrary and unreasonable spot zoning creating a special benefit for the owner of the rezoned property.”
“The rezoning of the subject property to a (general residential) conditional-use district constitutes illegal spot zoning and should be declared invalid and void,” documents state.
In addition to the declaration, the plaintiffs seek to be awarded suit costs.
City Attorney Responds
Reached Saturday for a reaction to the latest court filing, City Attorney Hugh Campbell said he had reviewed the issues cited by the plaintiffs and is “confident” Mount Airy officials acted properly during the rezoning process.
“We were aware it was going to be filed — they had sent a letter,” Campbell said on behalf of municipal leaders.
“The city is aware of it, and we disagree with some of the legal conclusions that they have made about the procedure,” the attorney added of the plaintiffs’ allegations.
“I think the court will find that the city acted…correctly in terms of the quorum and the commissioners who recused themselves, and we look forward to presenting that in court,” he said.
“I’m very confident with the procedures that we followed, and we’ll see what happens.”
No dates have been announced for hearings or other proceedings regarding the court actions filed so far over the apartments.
Tom Joyce may be reached at 336-719-1924 or on Twitter @Me_Reporter.