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BOA Dismisses Subdivision Appeal


Last updated 8/14/2021 at 4:22pm

A special-called meeting of the Brevard Board of Adjustment (BOA) came to an anti-climatic conclusion on Tuesday afternoon as board members unanimously dismissed an appeal related to a subdivision lot currently under construction on West Probart Street.

The issue at hand was whether or not the subdivision violated the city’s Unified Development Ordinance (UDO) as it pertains to “flag lots” –– which are loosely defined as lots that are connected to a public right-of-way via a long strip of land.

However, that debate never got off the ground as three members of the public, including the one who filed the appeal which led to Tuesday’s meeting, were deemed by the board as to not have the proper standing to move forward with the process.

In attendance at the meeting were all five BOA members – Judy Mathews (chair), Tom Tartt (vice chair), Kevin Jones, Tad Fogel and Allen Delzell – along with board attorney Brian Gulden.

Also present, representing the city Planning Department, were Planning Director Paul Ray and Assistant Planning Director Aaron Bland. Mack McKeller was present to serve as attorney for the city.

In her opening remarks, Mathews said Tuesday’s meeting constituted a “quasi-judicial proceeding” under state statute, adding that the board had to make specific findings of fact regarding the appeal and that any evidence presented must be “competent, material and substantial.”

The board’s decision was whether to reverse or affirm, wholly or partly, the initial decision by the Planning Department as it relates to the subdivision and the UDO.

A key component of the appeal was the concept of “standing.”

Gulden said while anybody could file an appeal, the right to follow through with that appeal, and argue one’s case before the board, was limited to those with standing –– those who suffered damages that were unique and separate from the community at large.

“An aggrieved party must suffer some type of special damages distinct from the rest of the community,” Gulden said, adding that examples typically involve depreciation in property value related to traffic, noise, lighting glare, littering, etc.

While he didn’t file the appeal, Tom Norton was the first to plead his case for standing.

Norton said his property abuts the subdivision and that his driveway splits into the project.

Norton cited damage to his driveway as a result of water runoff and safety at his curb cut, which, he said, in his opinion, is not sufficient for two-way traffic.

Board members proceeded to vote 5-0 in agreement that Norton had standing.

Next to speak was Greg Hunter, a member of the Brevard Planning Board who filed the appeal. Hunter said he was addressing the board as a private individual and not on behalf of the Planning Board.

Hunter made his case for standing based on the increase in traffic and noise that the new subdivision would bring.

McKeller argued that Hunter would suffer no more adverse affects from the potential traffic/noise increase than any other resident of Probart Street and that he couldn’t show any special damages his property might incur as a result of the decision.

McKeller went on to say that the BOA had no jurisdiction or authority to make a decision unless the person filing the appeal can show they have standing. Jones agreed before making a motion to deny Hunter’s appeal based on lack of standing.

The motion was seconded and passed unanimously 5-0.

The last petitioner was Probart Street resident Joe Kelly.

Kelly said he was concerned about the potential decrease in his property value, as well as the speed of traffic and the safety of those walking up and down the road.

In addressing the board, Gulden said that any evidence presented must be “substantial, competent and material” and that it could not include any lay witness testimony regarding “matters about which only expert testimony would generally be admissible.”

“What I’m not hearing from anybody, in their forecast of evidence that is presented, is, ‘I have an expert traffic engineer who is going to come in and say that the traffic is going to affect the safety of individuals…’ I’m not hearing anything about an appraiser giving an opinion on value of property,” Gulden said.

With those consider-ations in mind, the board voted 5-0 against granting Kelly standing in the proceedings.

McKeller was the next to take action, making a motion to dismiss the case, as none of the appellants were found to have standing.

In regard to Norton, who was originally given standing, McKeller said his complaint was filed well after the 30-day window during which appeals must be filed.

McKeller also cited N.C. general statute 160D-1403, subsection B, which states an appeal action related to approval of a subdivision plat must go through the Superior Court.

McKeller added that it is “not a very clear statute,” one that is “brand new” and doesn’t have any case law behind it.

That being said, he argued that petitioning the BOA was the “wrong forum,” to address the issue, saying that both City Council and the Planning Board are legislative bodies better suited to handle such matters.

“This is just not the right way to do this, and I ask that you dismiss this matter at this time because the appellant simply has no standing to move forward and no other person here has made a timely appeal of the administrative decision, to this board or to the Superior Court,” McKeller said.

Fogel asked where that argument left Norton’s place of standing. McKeller said, speaking on behalf of the city, it was his belief that Norton’s appeal came well after the 30-day window for appeals to be filed and, as such, it shouldn’t be recognized.

At that point, Allen made the motion to dismiss the appeal, which Delzell seconded.

The motion passed unanimously 5-0.


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