Updated with reaction: MRA lodge is approved after nearly 50 hours of hearings
After nearly 50 hours and eight sessions spanning four months, the Montreat Board of Adjustment approved the special use permit for the Mountain Retreat Association's new lodge proposal on Jan. 6.
"I move that the Board of Adjustment shall approve the special use permit because we have concluded that the requested permit is within the jurisdiction to grant according to the table of permitted uses," said member Robert Sulaski, concluding the hearing at Montreat Town Hall.
The board voted 5-2 to approve the special use permit, under four additional conditions, arriving at its decision after two hours of deliberation.
The four additional conditions for the MRA:
- Comply with county and town stormwater ordinance.
- Comply with the town's noise ordinance.
- Create a landscape plan to interrupt the sightline between the adjacent houses and the lodge.
- The contractor will use best practices and measures to restrict activities to the site and protect the neighboring properties.
Roughly 20 of the total 50 hours took place Jan. 4-6 at Montreat Town Hall.
"We're obviously gratified by the decision, looking forward to next steps," said Richard DuBose, the president of the MRA. "It has always been and remains our intention to be good neighbors and to attend to the issues."
DuBose said the added conditions from the Board of Adjustment were not anything the MRA board hasn't previously taken into consideration and he expressed his appreciation for the work of the board and the town staff in coming together with the community to make the decision throughout the lengthy process.
On the other hand, Priscilla Hayner said the process did not play out as required by town laws and ordinances. The Hayner family comprised half of the group opposing the lodge during the hearing. She said after watching the board's deliberations, she didn't see the board arrive at its decision based on contended facts, as required per the town zoning ordinance.
"We are profoundly disappointed," Hayner said. "Anyone watching the eight days of hearings saw that there were numerous areas where the application as submitted violates the Montreat zoning ordinance."
Hayner said the opposition plans to consult its legal counsel for next steps.
"These things can get contentious, but I've noticed the kindness on both sides, and I appreciate that," said board chairman Mark Spence on Jan. 4. "Our job is to get to the bottom line here, and I don't want to rush or minimize any testimony that would affect either side."
Attorneys John Noor and James Whitlock represented the opposition, made up of the Jones and Hayner families, who's properties sit adjacent to the site of the lodge. T.C. Morphis and his co-counsel, Bob Oast, represented the MRA.
The proposal for the lodge plans to remove three of the original structures on the MRA property: Galax House, Chestnut Lodge and Lord Apartments. In addition to the buildings, 60 trees need to be removed with the project planning to replant 80.
Located between Assembly Drive and Georgia Terrace, the proposed lodge would include 40 guest rooms, complete with private baths, a large courtyard area and a 30-space parking garage. Including the half-basement and parking garage, the area totals 40,000 square feet.
Jan. 4: The first hearing of the week
More evidence was presented by the opposition to the MRA's proposal, with an expert witness testifying that the lodge would not conform to the town's comprehensive plan in relation to historical preservation.
Previous coverage of the hearing:
Barrett Kays, an expert witness for the opposition who testified on the impact of stormwater damage to Flat Creek on Dec. 15, retook the stand remotely via Zoom for cross examination. Kays testified that the lodge filtration system would not filter out the minimum amount of solid waste, determined by the town ordinance, before entering the creek.
"The conclusions I put in the report are well-founded," Kays concluded.
After Kays, the opposition called Annie McDonald to the stand, a senior architectural historian with Richard Grubb & Associates who testified as an expert witness in historical preservation and preservation planning.
McDonald testified that due to the specific language relating to historical preservation in the town's comprehensive plan, the new lodge would not be in compliance.
"The size, scale and massing of the proposed hotel are not consistent of the language used in the plan to define character of historic buildings that overwhelmingly represent Montreat," McDonald said.
Cross examination of McDonald by Morphis led to questions from the board regarding why Montreat doesn't hold a national historical designation despite recommendations to do so. McDonald named multiple possibilities, including a lack of town funding, resources or time.
The four-hour session ended with Priscilla Hayner, a member of the Hayner family in the opposition, briefly taking the stand to corroborate and authenticate photos she took that were included later in the opposition's presentation.
Jan. 5: Opposition concludes presenting evidence
In concluding its evidence, the opposition presented expert witnesses in planning and real estate appraisals as well as the clients themselves to tell their stories.
"If this is approved, it is substantially damaging," said Harry T. Jones, a member of the opposition. "Qualitative and quantitative."
The second hearing of the week began with Chris Collins on the stand, accepted as an expert witness in land use and planning. He testified that the proposed lodge does not fit the special use permit criteria as it relates to maintaining the character of Montreat.
"We look at the concept of character and we've defined character," Collins said. "The built environment, including architecturally significant structures and significant historical structures as called out by the Montreat zoning ordinance."
Previously, during the MRA's presentation of evidence, the applicant called Scott Shuford to the stand to testify as an expert in planning. Collins' testimony agreed with Shuford that each lodge on the property, from the new hotel to the three other lodges on the site, would each function individually as principle buildings.
According to Collins, the town allows for only one principle use. Conversely, town Zoning Administrator Scott Adams testified that the other buildings would be accessory rather than principle.
Nevertheless, Collins said, for the sake of argument, even if the other buildings were considered accessory, there would still be one too many buildings under the ordinance.
Don Read, the final expert witness for the opposition, took the stand after Collins. Read was accepted as an expert witness in real estate appraisal.
Read's testimony included his appraisal of the Jones house at $733,000, estimating a 15% reduced value due to the construction of the lodge at $109,950 in damages. He appraised the Hayner house at $405,000, estimating an 18% loss for $72,900 in damages.
"That is substantial," Read said of the losses to value. "It's much more impactful on their property than on the Jones property."
After much debate and nearly three hours on the stand, Read retired and Kate Hayner took the stand. She is a part-owner of the Hayner's house and associate professor at Samuel Merritt University in California.
Kate Hayner discussed her background, her experience and her family's love and appreciation for the 119-year-old house. She repeatedly referenced previous testimonies, and Morphis and Oast reminded the board she did not possess the qualifications to offer an expert opinion.
Kate Hayner testified that the new lodge would significantly reduce her use and enjoyment of her home as well as Flat Creek, referring to testimony of Kays on possible pollution to the creek. She also noted the MRA did not complete a noise assessment to determine the impact of HVAC units planned to be installed behind the Hayner's house.
"Experts have discussed that our property value will be substantially diminished and that will completely change how we use the property," Hayner said.
After a brief cross examination by Oast, Jones, the other half of the opposition and a part-owner of the Jones house, took the stand for a passionate testimony on his 65 years of coming to Montreat.
Jones spoke emphatically of his childhood as well as his adult life, playing in Flat Creek with his grandchildren, and how the new lodge would significantly impact his enjoyment of his family's house.
"We're talking about a six figure loss in value," Jones said. "This would be injurious to our use and enjoyment."
In closing, the MRA offered a written closing argument to which the opposition objected, asking the closing arguments to be oral. Spence agreed to keep closing to a verbal summation.
Jan. 6: Rebuttal, deliberation and resolution
Upon concluding evidence from the party with standing in the hearing, the MRA presented rebuttal testimony, sparking a debate between both parties as well as the board as to what would be fair and admissible as more evidence came to light as the hearing neared its end.
Anne Hayner, the only member of the public deemed to have standing in the hearing, presented her one witness, her son, Brendan Hayner-Slattery, to start the proceedings. Hayner-Slattery provided similar testimony as his aunt, Kate Hayner, who testified Jan. 5, about his experience within his family's home and his concerns regarding the new lodge.
"The MRA hasn't brought up any expert to talk about what sort of noise this hotel would create," Hayner-Slattery said. "They promised they'd hire someone to look into that."
Hayner-Slattery discussed his concerns regarding noise, drilling and the size of the lodge. After he testified that certain drillings presented in the MRA's application were fabricated, Morphis objected on the basis of due process, having no time to recall the applicant's geo-technical engineer to confirm.
After a brief recess, Anne Hayner agreed to have Hayner-Slattery's testimony on the drillings struck from the record.
With all the direct evidence completed, the MRA began its rebuttal witness testimony, starting with Charles Krekelberg, who took the stand in November as an expert witness in site design. Krekelberg left the stand after objections from the opposition were sustained regarding authentication of illustrative documents he provided.
Mark Dunnagan took the stand after Krekelberg as an expert witness in commercial construction and construction management. Dunnagan discussed alternatives for soil shoring for the proposed below-ground parking garage, in contrast to Matt Sams, a civil engineer for the opposition, who had said such an undertaking would be impossible.
"My opinion is based on how we do this in areas that are commonly like this," Dunnagan said. "There is more investigation that needs to be done before the actual solution is engineered."
During cross examination, Noor contended that Dunnagan, who is not a structural engineer, did not hear Sams' testimony about the impact of drilling near the Hayner house. Although Morphis pointed out that construction drawings would be premature at this stage, and Dunnagan has completed many similar projects, he was unable to say for sure that there would be no damage to the Hayner's house.
The MRA then called John Kinnaird back to the stand. Kinnaird testified in November as a civil engineer for the MRA. He testified during rebuttal that there would be plenty of room between the Hayner house and the lodge for a buffer of trees in addition to a stormwater swale, in contrast to Sams' testimony from December.
Additionally, Kinnaird said that Kays, who testified for the opposition on the impact of stormwater, had falsely identified the type of system the lodge would use to filter stormwater.
A lengthy debate began between the opposition and the MRA regarding the new information provided by Kinnaird. Noor and Whitlock argued that the information should have been presented as part of the application and the MRA presented new figures at the end of the hearing so as to avoid review from the opponent's experts.
"It was not presented as part of their case in chief when they had the burden to present such evidence so we can review it," Whitlock said. "It's just highly inappropriate."
In short, while Morphis maintained that Kays identified the wrong system, giving the MRA the right to posit a correction, Noor and Whitlock argued that Kays identified the system he was shown, not the actual one the MRA intended to use.
The board recessed with the town attorney to discuss procedures in private. Upon returning, Spence said all the evidence would be included and the board could decide the weight it was given during deliberation.
Noor asked that Kays be brought back for rebuttal, even though it may send the hearing into February.
"Due process is important," Spence responded.
Returning after another recess, to avoid additional debate, both parties came to an agreement that Kinnaird would not present any further testimony, his documents would be withdrawn and the opposition would not return Kays to the stand for rebuttal.
DuBose retook the stand via Zoom as the final rebuttal witness for the MRA. He spoke of other possible infill locations for the lodge and how these sites were considered but ultimately did not fit the needs of the MRA.
"We know what our guests want and that is convenient access to our ministry," DuBose said.
Both parties' attorneys presented closing arguments after DuBose left the stand and the evidentiary portion of the hearing closed. While the MRA's argument focused on summarizing the evidence, the opposition's argument focused on finding falsities within the MRA's expert witness testimony. Both parties criticized each others' expert witnesses in property appraisals.
"We believe the MRA has met its burden," Morphis said during final arguments. "The MRA has jumped through every hoop it had to, and some it did not have to."