Montreat Board of Adjustment dismisses appeals in MRA special use permit follow up

Ezra Maille
Black Mountain News

MONTREAT - The Montreat Board of Adjustment voted March 16 to dismiss appeals submitted by the opposition to the Mountain Retreat Association's new lodge in a special call meeting. 

Attorney Cindy Rice represented the town, presenting her argument for dismissal of the appeal.

In a 6-1 vote — Bill Solomon was the only board member to vote no — the board dismissed the appeal without hearing it after arguments from the town's attorney, the attorneys for the MRA and the attorneys representing Kate Hayner and the Jones family, the opposition to the MRA. 

"I attended the hearings, I reviewed the proposal," said Board of Adjustment Chairman Mark Spence. "The order before the board accurately reflects, in my opinion, that determination made by the board to approve the MRA's special use permit."

On Jan. 6, the Board of Adjustment approved a special use permit for the MRA.

Two new board members, Arrington Cox and Danny Sharpe, who were voted onto the board Jan. 13, oversaw the proceedings with the rest of the board. Board member Eleanor James was absent, represented by alternate David Neel. 

"We now have to look at next steps in terms of a bigger appeal," said Priscilla Hayner, Kate Hayner's sister. "We haven't decided on it, but we will decide quite shortly."

Though attorneys James Whitlock, representing Kate Hayner, and John Noor, representing the Jones family, filed separate appeals, they combined arguments due to the near identical nature of the appeals.

The appeals sought to overturn the testimony of Town Zoning Administrator Scott Adams, given Dec. 13 as part of the initial hearing process to grant the MRA a special use permit for its new lodge. 

The town and the MRA each made motions to dismiss the appeals. All parties were given a chance to present arguments. 

Prior to hearing arguments, the Board of Adjustment's attorney for legal counsel Brian Gulden explained the process and purpose of the special meeting. Gulden read from the state ordinance on quasi-judicial proceedings, explaining that the meeting was not a time to debate facts presented in the original hearing. 

"Today, after many hours of hearings and a vote by a prior board, there was an order drafted that reflects the board's decision," Gulden said. "This board is here today to approve that board's decision. We don't get to rehash the facts. We don't get to debate."

Attorney Cindy Rice, representing the town, cited four reasons for dismissing the appeal, saying she needed to prove only one as all four were grounds for dismissal. 

Rice said the appellants stated Adams' testimony was a final determination, something she said was untrue. If it had been Adams who made the final determination, Rice said, it would have been his decision and not the board's in writing. 

"The second issue is we do not believe the appeals were timely filed," Rice said. 

The third issue cited by Rice addressed the doctrine of collateral estoppel. In simple terms, the doctrine states that a settled issue cannot be raised again. 

Rice explained that since the decision has already been given by the Board of Adjustment, the appellants cannot return to the same board for re-discussion. She said the appellants could file an overall appeal of the board's decision to a higher, county court, but not to the Board of Adjustment.

"They don't get a second bite at the apple," Rice said. 

Finally, Rice said the appeal was premature. 

New faces appeared on the Board of Adjustment with newly appointed members such as Arrington Cox ruling on the dismissal of the appeal.

Morphis, in presenting arguments for dismissal on behalf of the MRA, kept his comments brief, agreeing with Rice. He added that the opposition's appeals were now "moot," meaning the issue no longer stands before the board. 

Whitlock began the appellants' argument with a few additional comments from Noor. Whitlock argued that a final determination from Adams was made possible by the transcription of the hearings from the court reporter. 

"It was recorded, it was sworn testimony offered at a public hearing and in fact was recorded in writing," Whitlock said. 

According to Montreat Mayor Tim Helms at a Board of Commissioners meeting on March 10, the town has spent $74,000 on attorney fees for the Board of Adjustment hearings. The series of hearings spanned nearly 50 hours and eight sessions over the course of four months.

With the permit approved, the MRA has begun next steps, according to the organization's President Richard DuBose on March 7. 

The lodge plans to remove three original structures on the MRA property: Galax House, Chestnut Lodge and Lord Apartments. Sixty trees will also need to be removed, but the MRA plans to replant 80. 

Planned to be built on the lot between Assembly Drive and Georgia Terrace, the lodge plans for 40 guest rooms with private baths, a courtyard and a 30-space parking garage. With the inclusion of the half-basement and garage, the area totals 40,000 square feet.

"At the end of the day, this building stands to support our mission and ministry for the next 50 to 100 years," DuBose said. "We're prepared to do what it takes to make sure we can do it."

Priscilla Hayner said the unintended consequences of dismissing her family's appeal before hearing its content will be significant for Montreat. She said the town will have to deal with the ramifications if development will be allowed unrestricted as a result of Adams' testimony.

"That has implications for Montreat as a whole," Prisicilla Hayner said. "If we appeal it would be a very strong case."

Ezra Maille covers the town of Black Mountain, Montreat and the Swannanoa Valley. Reach him at 828-230-3324 or emaille@blackmountainnews.com. Please support local journalism with access to more breaking news by subscribing.