The New Hanover County Board of Adjustment voted 3-2 on Tuesday to grant a continuance in the ongoing Hilton Bluffs development project case. The Board and all parties agreed to a final public hearing on November 4th at 9 a.m. to settle each of the remaining appellants represented by the Southern Environmental Law Center (SELC).
Hilton Bluffs is a controversial proposed development in northwestern New Hanover County, an area known as Sledge Forest that contains old-growth forests, timberland, and important wetland areas. Facing public pushback, Charlotte-based developer Copper Builders has scaled back its proposal, dropping a planned golf course and reducing the total units from 4,000 to 1,800. Copper Builders also offered a deal to preserve 3,200 acres of the 4,000-acre property – but only if their project is approved as currently proposed. However, neighboring residents and environmental conservationists have pressed ahead with technical and legal challenges. The Save Sledge Forest group, a local nonprofit created to oppose the project, has said they’d prefer to see zero development – and the region preserved as a nature reserve or park.
The Board of Adjustment meeting began in front of a small crowd on Tuesday morning, where they heard testimony from three parties on the issue of the development project in Sledge Forest. They began by asking all parties for an update since the last meeting in July, when a last-minute agreement between Copper Builders and appellants represented by Grady Richardson caused the board to delay the public hearing until September.
Related: One appeal over Hilton Bluffs development in Sledge Forest resolved, another continued to the fall
Karen Richards, an attorney representing New Hanover County, gave a succinct update first.
“Since our July hearing, a consent order has been entered between Copper Builders and the Marathon Colony and the Wooden Shoe developments in Superior Court,” she said.
That consent order essentially meant that Copper Builders had agreed not to use two of the planned entrances listed on the development plan that was conditionally approved by the TRC on March 10. Since Copper Builders resubmitted their plan without the two entrances in early August, the TRC still hasn’t made a decision on that revision.
On September 16, however, New Hanover County Manager Chris Coudriet issued an administrative denial based on Copper Builders’ plan to develop their project without those two essential entry points. He denied the plan based on concerns over what might happen in the case of a flood or a fire, when emergency services would be limited in their ability to serve the community of 1,800 homes that Copper Builders plans to build on the forest area, surrounded by the Cape Fear River and Prince George Creek. He said there were “unacceptable operational and life safety risks.”
While that letter was not on the table for Tuesday’s meeting, it certainly set up the meeting for an almost assured outcome: the board would likely vote on a continuance, putting the meeting on the calendar a few months out, as they had twice already, until all the plans were correct and the appellants could revise their case.
A long, complicated process
Sam Franck, the attorney representing Copper Builders, noted that this process had dragged on for over six months, “that is four, five times as long as the typical process would be.”
When Chair Caleb Rash asked Mr. Franck about how to “get around the issue” that might play out if Copper Builders decided to appeal the county manager’s letter while these appeals remained in a state of continuance, he noted that was a possibility, and that he had no way of knowing how it might play out.
“It’s possible that someone might choose to challenge the county manager’s letter, not just the applicant,” noted Franck. “The Coastal Land Trust has the sweetheart deal to buy over 3,000 acres of land that’s subject to that plan approval. They’ve got an interest in this, too... the answer to your question though, is a quandary that I’m not empowered to resolve.”
Susan Keelin, representing seven appellants with the SELC, offered a solution and said plainly, “instead of a cycle of continuances, so to speak, the current plan, because there is no currently exercisable development right under it, should appropriately be dismissed without prejudice. And I say without prejudice simply because we as the appellants are not comfortable just dismissing our appeals without knowing whether or not we’re falling into some sort of a trap that could come back to bite us.”
Essentially, Keelin and her clients were asking for the case to be paused until a new plan was proposed, rather than kick the can down the road again. That way, they could reorganize their appeals based on the new plan that Copper Builders will eventually put on the table, without worrying about being barred from reopening a complaint that they voluntarily dismissed on the basis that the last plan was irrelevant. Keelin wanted the Board to make the distinction that the point was moot so that her clients were protected from that possibility.
Richards suggested remanding the issue back to the Technical Review Committee.
“This is a nightmare.” She laid out the best path forward that she could recommend, “I want to be very basic: this is a mess. The easiest way to clean it is to start a new application.” She continued, “And if it’s this board’s decision to remand it back to TRC to consider everything in front of them, including that this plan doesn’t work, then that’s an option that you have.”
Sam Franck and Copper Builders disagreed with the notion that their conditional approval was invalid. He said, “The March 10th approval has not been terminated. It hasn’t expired. There’s nothing to suggest that that approval is no longer 100% valid.” He added, “when one asks for a permit to be revised, they don’t surrender the original permit. The question now before the county is, will those revisions ultimately be approved, or will the original permit stand in its original fashion?”
He continued by adding that he was “perplexed” by the SELC’s request for dismissal.
“Substantively, 100%, absolutely these appeals should be dismissed. They were brought by seven individuals who do not have legal standing. They have proven more than willing to use this process to expend time, resources, and money of the county in the interest of delaying and postponing lawful development of the land,” he said.
Richards argued, on behalf of the county, “I’m sorry if it seems like I’m lecturing, but we have a conditional approval that is based on a plan that cannot happen. I heard Mr. Franck, but I think the law shows a little bit different.”
Next steps
Ultimately, the Board chose not to remand the issue back to the TRC without making a judgment on the appeals. They voted 3:2 to grant a continuance, and they decided on November 4 for a final meeting to hear all parties.
That means public testimony, either virtually or in-person, by witnesses who can also be cross-examined by all parties. The meeting will be open to the public. All parties will have the chance to make their case for each individual appeal.
The hope is, by then, that all parties will have an updated plan to argue over. In the meantime, the complaints brought forward by the appellants represented by the Southern Environmental Law Center hang in a “cycle of continuances, so to speak.”
Kayne Darrel, one of the appellants and the co-founder of the Save Sledge Forest campaign, said after the meeting, “We have to stop asking ‘how do we make the Hilton Bluffs project fit this location,’ instead the question needs to be, ‘does the Hilton Bluffs development project belong here at all?’ Instead of just revisions and modifications and withdrawals and denials. The fact that we’re still here, after over two years, it’s not because of our appeals or our efforts. It’s because of the project. You’re trying to make this work and it clearly doesn’t.”
One party of appellants, represented by Grady Richardson, already dropped their appeals back in July, minutes before the meeting to discuss them was set to begin, when Copper Builders decided to consent to get rid of the entryway roads through their neighborhoods. That revision prompted the County Manager to issue a denial of the project on September 16. Now, the other group of appellants, represented by the SELC, will have to make their arguments for their complaints about a conditional approval that can’t happen anyway, unless something changes before November 4.
The Board of Adjustment is not going to make the final decision on this issue. They cannot kill or advance the development project. The Board’s abilities are limited, though they will act as a quasi-judicial governing body for the hearing. They are solely responsible for deciding the merit of the appeals made on the county’s decision to issue the permits to Copper Builders.
If the Board of Adjustments finds any of the complaints to be valid during their quasi-judicial proceeding on that date, they will send those findings back to the TRC to decide how to proceed from there.
The hope seems to be, as it was the last time they issued a continuance, that all these matters will be resolved before the public hearing, and they’ll hear new arguments on a new, valid, and green-lit permit. We’ll have to wait until November 4 to see if that’s the case.
