This reporting was made possible by a grant from the Fourth Estate Fund.
Tuesday night’s meeting of the New Hanover County Board of Adjustment had a capacity crowd and then some, with attendees overflowing into a separate room in the government center. Many of the people there wore green in support of Save Sledge Forest, an organization that’s opposing the proposed Hilton Bluffs development that’s moving forward in the northwest part of the county.
The Board of Adjustment ultimately agreed to a stay — a temporary pause in permitting for the development — and a full hearing to decide whether the project can move forward as proposed is now scheduled for the summer.
The Sledge Forest property is over 4,000 acres, much of which is old-growth forest and wetlands, and has a lower-density agricultural or residential zoning. The developer, Charlotte-based Copper Builders, is relying on a provision in the county’s development code, sometimes called a ‘performance bonus,’ that allows them to cluster denser buildings while preserving other parts of the land. As such, the county considers the project a ‘by-right’ development, meaning that while it needs technical permitting approvals, there’s no legislative vote by county commissioners necessary for it to move forward.
Related: Where do things stand with the 'Save Sledge Forest' efforts?
Copper Builders founder Wade Miller has said on several occasions that he shares many of the same goals as Save Sledge Forest, but opposition has remained intense.
On Tuesday, the Board of Adjustment heard two requests for stays on the issuance of all permits for Copper Builders’ work on Hilton Bluffs. While the board can’t change county policy, it can hold quasi-judicial hearings to allow variances and to hear appeals if someone claims the county’s planning director or technical review committee has made any errors applying county regulations.
The board has to follow the evidence that’s presented. Each party presented its case for 20 minutes, followed by five minutes for board questions, and another five minutes for the other party’s rebuttal.
Opponents make the case for a stay
Attorney Elizabeth Rasheed, a lawyer with Southern Environmental Law Center in Chapel Hill, presented the first case representing individuals who live in the immediate area of the proposed development. She explained that this hearing was just asking for a stay on decisions for county permits and that work behind the scenes towards getting other permits could continue.
Her argument addressed two criteria for the board to approve a stay, which are not part of the county code but have been applied to other cases: First, the reasonable likelihood that the full hearing at a later date would be decided in the appellants’ favor, and second, that her clients would be harmed if the stay was not granted. She argued that the county made an error when it applied the Unified Development Ordinance to this development, which is on a National Heritage Site due to its unique habitat. She noted the species that live there, with more than 1,000 significant trees, including some longleaf pine over 300 years old and some bald cypress over 500 years old. She said the county skipped a step in applying the formula to the amount of land that could be developed and how many houses could be on it.
Rasheed’s second argument was that if the stay were not granted, her clients would suffer immediate harms, such as the loss of forest, loss of flood protection, construction noise, and light pollution.
G. Grady Richardson, an attorney with a local practice in Wilmington, represented the second appellant. His argument mostly covered maps and plats, saying that legal precedent held that people should be able to expect what was listed in their land plat to hold while they own the property. People in the neighboring developments were promised rural residential and agricultural property. The Hilton Bluffs development would make this no longer a rural area. In addition, the developers want to use two residential lots from a neighboring development as a secondary and emergency exit from their land. This would entail building a bridge and using the properties for intentions they are not zoned for. He also argued that the construction would interfere with residents’ riparian rights to the creek.
Richardson explained that the developers need a 60-foot-wide road to access the Hilton Bluffs’ property, but the road they want to connect to, Marathon Avenue, is only 25 feet across. And he argued that once the trees are cut down, you can’t get them back unless you wait hundreds of years. He mentioned that the conservation plan from the developer was vague.
“[The owner of Copper Builders is] asking to scorch the earth and triple or more the density on a sensitive environmental land that he’s saying he’s going to put some of it into a conservation, but he doesn’t know the mechanism by which he’s going to do that," he said.
Richardson said a two-month stay would not substantially harm the developer. He has also filed a complaint in Superior Court against the developer about private property rights related to this development.
Attorney for Copper Builders makes their case
Attorney Sam Franck represented Copper Builders and presented his case last. He said that the board only has the power to decide on appeals to final approvals, not preliminary ones. The main permit of contention was a preliminary approval, he said.
Several times, Franck said that if there was an end date to the stay, they would have a different perspective on the proceedings. He claimed there should be three criteria for granting a stay, not two. He agreed with the ideas of the first two mentioned by Rasheed, but he added a third: that the harm to the appellants should be “substantial and irreparable.” He said that this condition was not met because the land involved in the development did not belong to the appellants, so they couldn’t claim a “general harm of a lawful development” just because they were angry about it.
Franck stated that the conservation land has been set aside permanently and that there are “no specimen trees on the portion of the property that is designated for development of lots.” For clarification, specimen trees and significant trees are judged by specimen, size, age, and cultural significance. In general, specimen trees are more valuable, larger, and older, requiring more restrictions and higher replacement standards than significant trees.
A person in the crowd shouted, “Can you prove that?”
Board Chair Caleb Rash told the crowd, “Please refrain from hooting and hollering, talking, or clapping.”
Franck said of the appellants’ full 500-page appeal, “Don’t mistake quantity for quality,” adding that they have no evidence to support their claims. He said, “The code has to be twisted pretty substantially to reach the conclusion that performance residential does not support the clustering of density that’s been approved on this plan.”
If the permit were overturned later, Franck stated that the risk of any work is “entirely on the permittee…if the basis for that permit is overturned, the permittee is the one that’s responsible for unwinding that construction.”
When asked what the harm to the developer is in waiting a few months, Franck replied simply, “Time and money.”
Board Member Laura King asked Franck a question about all North Carolinians having an interest in Marathon Avenue since it is a state road. Franck was facing her. Her next comment was, “I don’t appreciate the expression on your face.”
When asked about significant trees, Franck stated that there are no specimen trees on the land slated to be developed, but there are some significant trees. He said, “The land is subject to a forestry plan today.” He added, “The person with rights to the tree is the one who owns the land.”
During the rebuttals, Attorney Susan Keelin, Rasheed’s co-counsel, stated that the main issue is whether or not this board wants to use its discretion to grant a stay. She said, “Please maintain the status quo, it’s common sense.” Richardson restated his earlier arguments and added, “You can’t unwind” a hundred-year-old tree that’s been cut down. “It’s not that simple.”
Franck rebutted that the appellants don’t have a claim to harm. He warned the Board against “handcuffing a private property owner from doing what they’re lawfully entitled to do” on their own land, adding, “It’s like the equivalent of me asking this board to prevent one of you from doing anything to landscape or improve the deck on your lot until we had a chance to argue about it later.” This comment brought some murmurs and groans from the crowd.
Board decision, next steps
During the board’s discussion, members made a point of saying that this is the most people who have ever shown up to one of these hearings. Rash spoke first and said, “This project is too big, too important to get wrong. It seems intuitive to grant some sort of stay.” He pulled out his calendar so a date could be chosen for the full hearing, where the board will decide whether or not the project can proceed as currently proposed.
After some discussion, the end date for the stay was set at July 31 or when the appeals are fully settled, whichever comes first.
Save Sledge Forest founder Kayne Darrell said she is “beyond grateful to Southern Environmental Law Center and Susan Keelin for their help over the last year and a half.” She called them “the dream team.” She was happy with the outcome of the hearing and hopeful that their team would prevail at the hearing.
According to the county, “tentative dates of June 23-24 were identified for the public hearings, but additional time was provided since the record for the case has not been settled yet. Staff is also working to identify potential dates in July, as settling the record can take several weeks.”
Copper Builders has 30 days to file an appeal to the stay.
