STATE OF NORTH CAROLINA IN THE GENERAL COURT oF JUSTICE sy 2SUBERIOR COURT DIVISION covNTY oF BuNCoMBE 1 wat 2S HERB coy 294 SUNCOM! CITIZENS FOR RESPONSIBLE LAND USE, INC; ALEX Jin BERNSTEIN and TESST BERNSTEIN, ) 5 WRIT OF CERTIORARI Petitioners, ) ) v ) ) ‘TOWN OF WOODFIN, NORTH ) CAROLINA and HS, ROBINHOOD OWNER, LLC, } ) Respondents. ) THIS MATTER COMING before the undersigned Clerk of Superior Court upon Petitioners Petition for Wet of Certiorai to he iste hy this Court to Respondent Town of Woodln, Noth Caotna (Town), pursuant to N.C, Gen, Stat, § 1600-1402, requiring that the Town crtityand deliver to this Cour the complet record ofthe proceedings concerning the April27, 2023, Ondo fram the Town of Woods's Board of Adjustment ("BOA’ TIS HEREBY ORDERED THAT the Town shall certo this Court within sist (60) days from the date ofthe execution of this Writ the complete record inthe above-referenced matter including but not limited to: all exhibits (including original enlarged sizes) submited to the BOA, all documents submitted or considered by any BOA member regerding the Proceedings, all staff reports and transmits to the BOA, all minutes of the heating, all stenographic recordings and any audio or videorecording ofthe hearings, cerifed copy of the applicable zoning ordinance, a certified copy ofthe Town's zoning map, and anyother document (including email communications) provided 19 any BOA member regarding the proceedings, asiaIT IS FURTHER ORDERED THAT Petitioners shall seve the Petition and the Writ lupon each Respondent named herein in the manner provided for service of « complaint under Rule 4G) of the Rules of Civil Procedre This the 26° day of May 2028, Giana used) Ast CLERK OF SUPERiOR COURTSTATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DWISIO ‘COUNTY OF BUNCOMBE FILENO. 230V. eUSE CITIZENS FOR RESPONSIBLE =) LAND USE, INC} ALEX ) BERN TEIN and TESSICA a BERNSTEIN, ) > ee WRIT OF CERTIORARI Petitioners, 5 2 2 » ) 22g ) fe 2 TOWN OF WOODFIN, NORTH) So 2 CAROLINA and HS, ROBINHOOD Soo oe OWNER, LIC, ) 3° 5 By Respondents 3 o 6 NOW COME Petitioners Citizens for Responsible Land Use, Ine| (*CRLU"SaAlex Demsein, and Jessica Des cin Gollestively “Petitonets"), pursuant w N.C. Get Sat §160D- 1402, Seetion 54-83 of the Town of Woodfin Code of Ordinance (the “Ordinance” or “Z0"), and ‘ther applicable law, to respectfully petition the Superior Court of Buncombe County to issue a ‘Writ of Certiorar for judicial review of the Town of Woodfin ("Town" or "Woodfin") Board of Adjusiment’s (the "BOA" of "Board") March 9, 2023 decison om Petitioner's Appeal of the September 30,2023 Administrative Determination of Shannon Tueh (the “Appel"). A copy of the BOA'S Order on the Appeal is attached hereto a8 Exhibit | and incorporated by reference. Petitioners offer he following in support ofthis Petition |. Petitioner CRLU is a non-profit corporation incorporated unde the laws ofthe Slate of North Carolina wit its principal office in Asheville, North Carolina, CRLU's mission is to advocate for responsible land use in the Now Asheville and eastem Woodfin areas located in and around the proposed development site that is the subject of the administrative determinationsat issue in this appeal (PINs 974928896800000 and 9740129934S00000 (the "Site"). As stated in its current Amended Articles of Incorporation, CRLU'S purpose is (to prevent any high-density development on seep slope property by any legal ‘means available; (i) filing to prevent development, to ameliorate the negative impacts of development by any legal means available; (i) to work towards placement of sleep slope property Talo an appropriate conservancy; and (iv) 10 provide educational opportunites to the public regarding the negative effects of high-density development on steep slopes in Western Nort Carolina, 2 AC lest two of CRLU'S members own property immediately adjacent to te proposed development Site and the non-profit has numerous members who lve throughout the neighborhood surrounding the proposed development Site 3, ERLU was organized on of around May 3,2016, and was not crated in response to the development applications or administrative determinations at issue inthis appeal 4. Pettoners Jessica and Alex Betnstein ive immediatly adjacent tothe proposed development Site and associated with the address 36 Beaverbrook Road, Asheville, Noth ‘Carolina 28804 (Buncombe PIN 974039014500000) (the "Bernstein Home"). The Berstins are members of CRLU and Me. Bernstein serves on its Board of Directors 5. "Through afidevis, expert testimony from Dr. Daniel Findley, PE. (ivi afi ‘enginees), Mr. Richard Robson, MAI (apprise), and Ms. Jesica Bemstin, as well as documentary evidence presented duting the hearing, Petitioners slleged and established by 9 preponderance of the evidence that they had standing to file thee appeal pursuant o N.C. Gen Sat § 1600-1402(6\(1-3 6 ‘The Board found that Petitioner’ had standing because, among ether reasons, ‘they would suffer special damages distinct fom the community a large because the proposed evelopment that is the subject of the administrative determinations would: (a) diminish andimpaic the value ofthe Bernstein Home, and (b) result ina deterioration of roadway safety along Beaverbrook Road and Beaverbrook Court. 7. ‘The Bemstein Home is also part of a development that includes portion of the proposed development Site (PIN 974029934500000) (the "Lot"). The Lot and Bernstein Home are subject to restrictions andfor covenants that are contained ia, among other places, Deed Book 1038, Page 385 (Bernstein Home) and Deed Book 1046, Page 617 (Lod. 8. The Woodfin Board of Adjustment determined that CRLU had standing to participate as party inthe Appeal 9. The Woodfin Board of Adjustment determined that both Jessica and Alex Bernstein had standing to participate asa party inthe Appeal 10. Respondent Woodfin appointed the Woodfin BOA as the quasi-judicial board ‘harged with, infer alla, heating appeals of adminisuative detesninations pursuent to Section $4 7G) of the ZO. ‘The Town is the locel government whose decision-making board made the decision that is being appeated and is a necessary party to this Petition pursuant to N.C. Gen. Stat. § 1600-14024). LLFACTUAL BACKGROUND 11, Respondent HS Robinhood Owner, LLC (the "Developer" isa limited lability company organized under the laws of the State of North Carolina with this principal office in Allanta, Georgie. The Developer isthe owner ofthe Site that isthe subject of the administrative Sent Money, May 17,2021 2.03 PX Tor Shaun anor eetanenSedeen. cons; Chie Day cer Warren Suge aut 3cacen.c00 Subject: RE: Rabinhood Property - Zang Comphanc Submit We lootad over the site plan and have es folw up quessons requng adaionl information. Let me krow you have questions. 1. We eed cartcaton onthe type of bul you ae proposing. Wilthesa be townhomes. partments, cottages et? 2 Theordinance was recent updated tales or 8 units per acre [but ithas nt been update in Municode). You net the density requirements but wl ned to change the permied density lated on the ste pon. 3. Canyou provide some more information on parking? Specialy where the parking wil be loested foreach nt snd whether be rack lb ponies > Appian EnginerPlaning Dietor Conespondeace re: May 202) Applicaton, Ena from Aisne D. Iuetower, Zoning Administer, Shawn Sans and Chis Ds, Developers Eapncts (May 17,2021 203 PM)4 Doyou hae landscaping plan? The ordinance requirements are 38 fol Landes ng andor butlerg sha be provided ae part ofan approved mast: plan Sach lan al nnigees oy s loaneed te andecape aretet 9d mut be spproved a part ofthe Mase an | munmnun the lndscape san shal roca ar 4 andcep ur beteen the Mountain Vilage Sreasjcent ones rast oes on both ies of na ane xs tees a erat of One tee pa 0 foot ude planting Sp plates with wees and sas: nein andscoing of parting ats aaah 7 ue a cn: inte eieaping suey catsutes ‘hraughout te parang aren ith paring soace ocied mor than €0 feet ora tree and bufenogofreiienn tes rom nonresana see th landsaged berth mur ‘eth 5 fest ence wines thee user loated he vilage cane Amro 73 percent ot the lar tent used ts meet en andcaping and uteing requirements nll ne nab late 5. Forthe open space provided, lithe lanccaped ol nit’ natural state? 6. Areyou planning for this tobe hetrd by the planing stdin ane? ‘Thanks, 15, The next day the Developer's contractors responded that "[we are working on a ‘ew details to respond to your comments. Please do not put this on the agenda until we ean get back with you."® 16, The Town did not receive any response to Ms. Isenhowser’s email until October 15, 2021, when second application was submited by the Developer proposing a different development plan (the “October 2021 Application”)? The October 2021 Application inclded fewer, but larger buildings and also moved the entance ofthe development from the end of Beaverbrook Road toa fection immediately aross from the Bersteins! home, as shown below: * 1d at Ei om Chis Day, Developers Engines 19 Aden eenkower, Town's Zoning Administ (May 200552 PMD. "nine Permit bial 2.17, The October 2021 Application was also accompanied by a leter from the Developer's engineer in which he represented that “feloncurrent with this letter, we have submitted an application fora proposed residential development project to be built on . (PIN 9740-28-8968). ... Please confirm thar the materials we have submitted are sufielem 10 constitute an application under the Town of Woodfin Zoning Ordinance in effect as of the date ‘of your receipt of this leer..." Nothing inthe letter identifies the October 2021 Application as being an amendment to the May 2021 Application or in response to Ms, senhower's May 17" email rather, it expressly indicates that its anew “application” and asks that it be subject to the " ia Leer fom Cis Duy, Developer's Eagle, Adrienne Iethower, Towns Zoning Administrator (x 20m,version of the 20 in effect as of October 13, 2021.!" ‘The October 2021 Applicaton alse filed to include some ofthe required information requested by Ms. Isenhower in response tothe May 2021 Application. Specifically, the developer did not provide a landseaping plan designed by 2 licensed state landscape architect. As a result, even if the October 2021 Application was intended to respond to the zoning administstor’s May 17 requess, it di not provide al ofthe equiced information and was therefore incomplete 18, The October 2021 Application was followed by the submission of yet another addtional application for a potemtial alternative option forthe projet” (he "November 202] Application)" The November 2021 Application was similar to the October 2021 Application, but included for the first time, the addition ofa "spa fail, and indicated thatthe proposed units would be used a5 "shor-erm rentals ides the Nuvernter 19, The Developer's engineer expressly asked thatthe Town ca 2021 Application as "an addition to ~ notin place of - the October 2621 Zoning Submit." as shown below! i "Zoning Perit Submital #3 (Nov. 122021, ' ida eter om Cis Day, Developers Engines, 9 Adveme Isenhower, Town's Zoning Administ, Nov. 12,2021), sheet 201, oy ° Zoning Pent Submit #3 Nov. 12, 2021,20. The November 2021 Application was eventually abandoned in a leter from the Developer's engineer dated December 20, 2021, which stated that “after intemal discussions on ‘he mater, our clients wish to abandon the proposed "LodgelSpa Facility” and therefore rescind the [November 2021 Application." (the "December 20% Letter). The December 20" Lever goes on to state that "we have updated our original October 13% submital with General Note #2 Stating residential units shall have the right to be used as short-term rentals..." 21. Accordingly, the December 20 Letter provides changes to the Octaber 2021 Application, does not mention the May 2021 Application, and still does not provide a ' Zesing Permit Sobmitl #4 (De, 2,201) Let fom Chis Day, Develops Engines, o Aden Isto, owes Zoning Administrator (Dee 20,2021) Uslandscaping plan designed bya licensed state landscape architect as requested bythe Town!" At the time the December 20% Leter was provided to the Town, more than six (6) months had passed ffom the date when the Towns zoning adminiseator requested adiional information ‘concerning the May 2021 Applicaton. 22, On January 6, 2022, the Developer's engineering firm reached out tothe Town to “verify that notices were not sent to the neighbors and that we are not on the Janvary 108 Panning Board of Adjustment meeting agenda." The Town's zoning administrator confiemed that "you are not on the January agenda” and asked ifthe developer had "a titline in mind at this point for wihen you would lke to he on an agenda?" The Developer's engineer responded that she was “tying to ge that same information from the client 23. On January 19, 2022, the Developer’ attomey sent a fete to the Town arguing that board review was ot eyvied fo dhe loup development and that dhe Developer wanted to proceed wi his May 2021 Application.» The Developer also argued that “ve othe timing of ‘our clients! application submission for the projet, the applicable ordinance is the Mountain Village ordinance found in the pre-May 18, 2021, Town of Woodfin zoning regulations. This was tho Fst time the Developer had indicated since proving the May 2021 Application tthe ‘Town that it wanted to proceed or atherise use the May 2021 Applicaton going forward. This 1d ° id; Applicat EngineerPlanning DieciorCorespnsece ce: May 2021 Applicaton, Email fom AdtemeD. Iseahower, Zoning Administ to Shae Sans and Cis Duy Developers Ener (May 17, 2021203 PM) > Applicant EnginsPlaming Dicsor Covesponience {22021-1022 Emal tom Shavn Sass, Developers [Eighty to Adrien Lenbower, Tow Zoning Admisatr (Jn. 6202313 PM). 27d at Email fom Adin Iseibowe, Towns Zoning Aaministaoro Shan Snes, Developes gine an 6202 15 PM). Ida ral rom Shon Sane, Developers Eagle, to Adrien enower, Town's Zoning Administrator (an 6,202 945 PM) 2 Late from Jesse Swords, Developers Atomey, to Asians Iseohowe, Town's Zoning Adminstrator p 1, an 19,2029, bthletter was also sent over seven (7) months after the Town requested addtional information ffom the Developer on May 17, 20218 24, The Town provided a response on February 11, 2022, rejecting the Developers argument and confirmed that Planning Board's approval was requited forthe project ® The Developer's attomey then followed up with an esl stating that his client wanted "to have the Robinhood project placed on the March I Planning Board Agends,"®” Further, he stated that "as ‘we discussed on the phone, we plan 10 go forward with a 128 unit version of the development ‘based on what was submited in May’ 2021, but abviously we will need to update the draveing to ‘how everything called for by the MV ordinance." Accordingly, es of February 11,2022, the Developer acknowledged that it had not provided the Town with al ofthe information needed under the Town's zoning ordinance. 25, The Develycr eventually seyuested thet the May 2021 Application be pulled from the Planning Boar's agenda and on August 8, 2022, submitted another application (the "August 2022 Application’) attempting to amend the May 2021 Applicaton, as shown below: 2 Applicam EngnceuPinning Director Corespondence re: May 2021 Applicaton, Emil fom Adem D, Inenbovter, Zoning Adina, 0 Shawn Sane nd ovis Ds, Developer Egners (May 17.2021 203 PM) Leer fom Sam Craig. To's Atorey fo Aint nenbowe, Towns Zoning Admins Fb, 9,202) 2 Fnmall rom Jesse Swords, Developers Alorey, to Ademe Lenower and Sam Cig, Toon Zoning ‘Admirsrator and Atorey (Fb. 1, 2022 1228 PM). 2d emphasis added), on26. On September 29, 2022, the Developer's attorney asked the Town's zoning administrator (Ms. Shannon Tuch) to make several zoning determinations."” The fist group of ‘questions asks Ms, Tuch the following tts our understanding from our discussion tha, if HS Robinhood Owne, LLC revised the masterplan it submited on August 8, 2022 to feature s single building, then: @ the maser plan il include no conditional uses requring public hearing or approval from the Planning Board, Board of Adjustment, or Board of Commissioners; and (i) witout any conditional wes, te approval process insoles an admiisratve decsion by) Ms. Tach that 1s lined 10 ‘etermining whether the masterplan satisfies the technical requirements the “applicable Mountain Village Ordinance tn efeet on May 17, 2021..Can you plese confirm our understanding ofthe review and approval process is corest Under thse circumstances? If our understanding is correct, can you also provide 4S withthe elevan legal authority that authorizes Ms, Tuch wo make binding sdminstative decision approving the masterplan on behalf of the Town of ‘Woodfin withou the need for any subsequent approval fom the Planing Board or Board of Commissioners?" 2 pall fom Bo Carpenter, Developers Atoeney, 19 Shannon Tush and Joka Henning, Tova's Zoning Administrator and Atomey (Se 29,2022 9:38 PA). Ma27. Ms. Tuch responded on September 30, 2022, and determined that "a revised site plan that consolidates all of the residential units and amenity ateas into a single building would ‘not be defined as a ‘group development’ and would, instead, be classified as a multi-family building. As a multi-family building the use is classified as « permited use provided al ther technical standards are saisfied."™” Additionally, Ms. Tuch determined that "the review would bbe ministerial in nature and would be based on the rules in place at the time of application (May 17,2021) unless we ae instructed otherwise." 28. ‘The second group of questions concemed the ining af review and confirmation that the Planning Board can vote on the proposal during its November 2022 meeting Specialy the Developer asked Lastly, we would lke t0 confirm timing of () Ms. Tuch’s administrative review of a revised masterplan and (ji) the boaed’s vote to create the overlay zoning istrict under Section 3044. Cas you please contin Ut, / HS Robinhood! Owner, ‘LLC submits a revised master plan withthe single building by October 18, 2022, that would be sufficient time for Ms. Tuch o review and approve the revised plan ‘prio fo the board's November 2022 meeting so the hoard can vore on the overlay Zoning district during the November 2022 meeting? ™ In response, Ms, Tuch confirmed thatthe new "ste plan for the Robinhood Development would receive a ministerial review by the Woodfin Planning Board, not by tat 29. After Ms. Tuch made her determinations, the Developer submitted another application on October 18, 2022 (the "October 2022 Application’), which is shown below: 5 Leer fom Shannon Tach, Towns Zoning Administer and Manage, o Bo Carpenter, Developer Atrney (Sept 30,202) Sreaep » Enall fom Bo Carpenter, Developers Atoney, (2 Shanon Tuck and lok Henning, Town's Zoing ‘Administrator and Atomey (Sept. 29,2022 9:38 PL). 2 ter fom Shanaon Tach, Tos Zoning Admitratr and Manager, 0 Bo Carpenter, Devel? Adorney (Sept 30,2022)30, Asmoted above, the latest version ofthe application bears litle resemblance tothe “May 2021 Application and proposes construction of 110-unit development on the Site.” 1, Pattones filed their appeal of Ms. Tuch’s zoning determinations on October 28, 2022, which was within tity (30) days of Petitioners receiving notice of Zoning Adminisrto’s Zong Submit #633. On Apri 27, 2023, the BOA was presented with «proposed order affirming the Zoning Adovivistato’s determination subject tothe above-sated modification. Petitioners, by and through counsel, fled a writen objection to the proposed order due tothe fact tha, inter ala, the proposed order filed to accurately reflect the deliberations of the Boards rquited under North Caroli law 34, Despite Pettonees' objection, the BOA voted to approve the proposed order and the order was issued and executed on April 27,2023. 38, Petitioners recived notice of the BOA Onder. Pursuant to N.C. Gen, Stat § 160D-1405(8, this Petition for Writ of Cartorar is being led within thiny (30) days of Petitioners notice af the Board Order and this Peston hes ben ely Filed. 36. Petitioners presented competent, material, and substantial evidence during the eating to demonstiote tat the Zoning Administiator's determinations failed to comply withthe relevant provisions ofthe Town's Z0, 37. Respondents failed to present competent, material, and substantial evidence during the heting thatthe Zoning Adminstator'sdetecminains complisd with the relevant provisions ofthe Town's 20. determinations, with 38. The Board's decision to afiem the Zoning Administra ‘modification, is unlawful and must be reversed because itis In excess ofthe authority conferred upon the BOA hy statute or ordinances . Unsupported by competent, materia, and substantial evidence inthe record asa wiole; and . Alfected by erors of Taw.COUNT ONE: ERRORS OF LAW. 39, Peaitones incorporate hy reference the allegations contained in the above-stted paragraphs 40.__The legal conclusions made by the Board eroneously interpret end apply the Town's 20 and were an errr of lw. 441, The Board ered as «matter of aw in concluding that che May’ 2021 Applicaton was complete and legally submitted to the Town forthe purposes of permit choice under N.C. Gen, Sat, 1600-108 42, The Board ered as « mater of law in concluding tat the Developer appropriately 's request for additional information pursuant wo N.C. Gen. Stat § 143- responded to the To 185, 43, The Booed vied as @ matter of Iw in consing that dhe Developer ad placed its May 2021 Applisaton on old for over sx (6) months pursuant to N.C. Gen Sa. § 143.955, 46. The Boand ened as a matter of law in concluding that he version of the zoning ordnance in effect atthe time the May 2021 Application was provided t the Town was the ‘version tat shouldbe used to evaluate the proposed development pursuant, inter ala, N.C. Gen Stat. § 1600-108 45. The Board ered as a matter of law in concluding that that the October 2022 Application would be elssifiod asa multi-family development unde the 20. 46, The Board erred as a matter of law in concluding thatthe proposed development should only receive ministerial review by the Town's Planing Boatd pursuant tothe ZO.COUNT TWO: FAILURE TO DETERMINE CONTESTED FACTS AND "ACCURATELY REDUCE DETERMINATION TO WRITING 47. Petitioners incorporate by teference the allegations contained inthe above-stated paragraphs 8K Ge Stat F T6OD VGC) reqUIFes That the BOA determine contested Tacs |As evidenced by its deliberations, the BOA ered as a matter of law by failing to determine contested fact based onthe evidence submited at the hearing. Aditinally, the Order approved by the BOA on April 27,2028, dacs not accurately reflect he determinations made hy the BOA during its Match 9, 2023 deliberations and, as result, the Board and ated inconsistently with failure to accurately reflect the applicable procedures specified by statute. The Orde determinations made by the Board violates Section 160D-806(), Petitioners’ due process rights and possibly North Carolina's open meetings law, N.C. Gen, Stat. § 143-318.10(8) COUNT THREE: DECISION NOT SUPPORTED BY RECORD/ARBITRARY AN ‘CAPRICIOUS 49, Petitioners incorporate by reference the allegations contained inthe above-sated paragraphs 50. The BOA Orders not supported by competent, material, and substantial evidence in that a preponderance of the evidence in the record demonstates that the Zoning ‘Administrator's determinations didnot comply with the requirements of the Town's Ordinance. SI, The following Findings of Fact (“FOF”) andor Conclusions of Law (*COL") in the BOA Order, among others, are not supported by competent, material, and substan cvidence inthe rosond: FOF #13, 14, 16,17, 19,20, and 3206 & df 2); COL 5, 6,7, 8,9, and 1052, Because the BOA Order is not supported by competent, material, and substantia ‘evidence inthe record, itis arbitrary and capricious and eoastitutes an abuse of discretion, WHEREFORE, Petitioners respectfully pray as follows ane the Cort ate the Br oF Centar Respondent ab Wandin requiring hat the Town end BOA cenity to this Court the complete rsotd of the proceedings before the BOA 2. That the Cour, upon review af the record, reverse the HOA’s decision; 3. ‘That he Cour issue astay of the BOA Order pening review in this Curt 4. Tha, in accordance with NIC. Gen, Stat. § 160D-1402()(2, the Court alow Aiscovery onal appropriate issues and allow the record tobe supplemented with such evidence; and 5. ‘That the Cour grant such other and further rlietas it may deem just and proper Respectflly submitted tis the 26" day of May 2023, Asheville, NC 28802 (828) 2526500 Jnoou@iobers-stevens. Attorney for Petitionersexinn 1 STATE OF NORTH CAROLINA BEFORE THE TOWN OF WOODFIN BUNCOMBE COUNTY ZONING BOARD OF ADJUSTMENT INRE: APPEAL of Alex Bernstein, ‘ORDER ~dessica Bernstein; and Citizens for Responsible Land Use, Inc. This matter coming on for hearing before the Zoning Board of Adjustment (‘Board’) for the Town of Woodfin ("Town") upon the appeel of Alex and Jessica Bernstein and Gitizens for Responsible Land Use, Inc., ("Appellants") from the September 30, 2022 ‘Administrative Determination made by Shannon Tuch, Town Manageriinterim Planning Director and acting Zoning Administrator, conceming the Robinhood Road Development within the corporate limits of the Town and further identified by PIN 9740-26-B968 and 9740-29-9945 (sometimes hereatter called the "Subject Property’) ‘A quastjudicial evidentiary hearing was held on January 25, 2023, January 26, 2023, sanuaty 27, 2028, February 9, 2023, February 15, 2023, February 22, 2023, March 8, 2023, and March 8, 2023. The Appellants were presen and represented by thir altomey, ohn Noor, HS Robinhood Owner, LLC, ouner ofthe Subject Property, was presen! and ‘eprosented by ite attomeye, Joshua Porinoy and Joaae Swords, The Town was present ‘and represeniod by the Town Altomey, John Henning, The Board was advised bys ‘special counsel, Bran Gulden The Town presented testimony through Adrienne Isenhower and Shannon Tuch, ‘Appellants presented both factual and expert testimony through Jessica Bernstein and Gerald Green. HS Robinhood Owner, LLC, presented both factual and expert testimony through Ryan Vinson, Thomas Terrell Jr, Jason Cordon, Chris Day, Neil Waddle and Shannon Tuch. Testimony in this matters accurately refieced inthe transcripts of such hearings. ‘The Board, having heard and weighed the testimony presented, the documentary ‘evidence and related materials admitiad info evidence and after hearing and considering the statements and arguments of counsol for al parties and the properly owner's motion to dismiss, does hereby make the following: FINDINGS OF FACT 1) Notice of the quasi judicial hearing, pursuant to the Town's Zoning Ordinance ‘adopted on December 21, 2021 ('2021 Ordinance’) and state law was duly and timely given, the hearing was properly advertised, and the Subject Property was properly posted,2) 5) 6) ” 8) ‘The hearing was held pursuant to Chapter §4, Arico ill of the 2021 Ordinance and N.C.GS, §160D-405, on the appeal of Appellants from the September 30, 2022 Administrative Determination made by Shannon Tuch ("Tuch"), “Town ‘Manageriinterim Planning Director, concoming the Subject Property within the corporate limits of the Town. The matter is properly before the Board, is within the Boars jurisdiction under the 2021 Ordinance and is ipe for consideration, “The Subject Property consists of approximately 17 + acres and at all times relevant to this appeal was located in the Mountain Vilage MV") residential district within the planning jurisdiction ofthe Town. ‘Alex Bemstein and Jessica Bornstoin (together “Bomnstein’) own property al 36 Beaverbrook Road, Asheville North Carolina, which is lacalad across the street from and surrounded by the Subject Property. Bemstein by way of sworn expert testimony from Dr. Denlel Findley P.E. and Richard Robson, Mal, presented credible allegations showing damages special and distinct from the’ rest of the ‘community relatad to traffic impacts and doprociation in the value oftheir property. Party status was granted to Bemstein Citizens for Responsible Land Use, Inc. {"CRLU’), is @ nonprofit corporation established for the purpose of, among other things, preventing any high-density Savelonment an steen slope property by any legal means available. Bemstein is ‘a member of CRLU and CRLU was not created in response to the proposed ‘development of the Subject Property at issue in this appeal. Party status was {granted fo CRLU based on testimony provided by Bemstein, Dr. Findley and Mr. Robson, ‘Together, Bernstein and CRLU are Appoliants. ‘The Subject Property is currently owned by HS Robinhood Owner, LLC CHS Robinhood’). Jason Cordon, a principal at Hatteras Sky, presented testimony that Hatteras Sky owns 100% of HS Robinhood and that HS Robinhood owns the property thal is the subject of the appeal. Party status was granted to HS Robinhood ‘Tho Board's special counsel provided guidance to the Board conceming impermissible violations of due process. The Town, Appellants, and HS Robinhood were all given a full opportunity to Inquire of the Board members ‘conceming impermissible violations including, but not imited to, a member having a fixed opinion prior to hearing the matior that is not subject to change or undisclosed ex-parte communications.8) Since purchase of the Subject Property in 2019, HS Robinhood has desired to develop the Subject Property in a manner which was “by right" and avoid the need to seek approval other than ministerial approval rom the Town, 10) On or about May 17, 2021, HS Robinhood submitted to the Town a Zoning Compliance Permit Application and sito plan (logether, the “Application’) for ibject Property. The Application showed mutiple buldings — fon a single lot along with related site improvements, and included development data, project data, general notes, building notes and a graphie scale along with a professional's seal. Such Application is accurately reflected in the Record of Decision ("ROD"). 11) On May 17, 2021, the Town had in effect a zoning ordinance governing land development which had been previously adopted on October 23, 2018, (2018 Ordinance"). Administration procedures are contained in Article Il of the 2018 ‘Ordinance. Development standards for the MV distct are contained in Article IX, Sec. 54.249 of the 2018 Ordinance, 12) Aaicle Il, Sect. 54-35 of the 2018 Ordinance, sets out the necessary information Which needs to accompany an application for a zoning compliance permit, luding, but not limited to, dimensions and shape of the parcel, location and dimensions of proposed buildings or alterations and other sich information as may be necessary to determine compliance with Aricie Il a the 2018 Ordinance. 18) _ Development ofthe Subject Property wil lize public water and sewer as opposed to well water and septic; thus, preliminary written approval of the proposed water supply and sewer disposal facies as referenced undar Article Il, Sect. 54-37 of the 2018 Ordinance was not required as part of the Application. Even if such breliminary written approval from the County Sanitarian, Woodfin Water and ‘Sanitary District, and appropriate state agency was required, such writen approval ‘would only be needed prior to zoning permit issuance and not at the time the Application was submited, 14) All necessary information required under Article Ul, Sect. 64-35 of the 2018 Ordinance was presented to the Town in the Application. However, after reviow ‘of the Application under the development standards in he 2018 Ordinance, on or ‘about May 17, 2021, the Town's prior Planning Director, Adrienne Isenhower {Isenhower’), via email, asked HS Robinhood afew folow up questions and made Some comments concerning the Application. 18) On or about May 18, 2021, HS Robinhood made a request to the Town tha the Applicant not be placed on the upcoming June 2021 Planning Board agenda,16) 1” 18) 19) 20) at) 2) 23) 24) (On oF about October 13, 2021, HS Robinhood, through Its agent, submitted @ revised sito plan as part of the Application for tie proposed development on the ‘Subject Property. This revision showed multiple buildings on a single fot and responded (0 the follow up questions and comments presented by Isenhower in her May 17, 2021, email comaspondence. Such revision is accurately reflected in the ROD. ‘On November 12, 2021, and December 20, 2021, HS Robinhood, again, submited revised sie plans as part of the Application for the proposed development and use (of tho Subject Project. Each revision showed multiple buildings on a single lot. Each such revision is accurately reflected in the ROD. Each ofthe revisions to the Application submitted to the Town as of December 20, 2021, included development data, project data, general notes, building notes and ‘a graphic scale along with a professionals seal. ‘Al the time of ezch revision, the Town did not hhave a master plan checkist to ‘dentty what information was to be submitted to the Town for approval of a master plan, During the time of each of the submissions of the revised site plans, HS Robinhood, through its agents and attomeys, corresponded with the Town cconceming the development and use of the Subject Property and the lype of review required by the Town for approval ofthe Application. (On or about December 21, 2021, the Town adopted a new Zoning Ordinance ‘modifying certaln processes and procedures for the development of land within the Jurisdiction of the Town, including the Subject Property. (The 2021 Ordinance has previously been referred to herein and will hereinafter be referred to as the "2021 Ordinance’). ‘After the adoption ofthe 2021 Ordinance, correspondence between the Town and HS Robinhood continued conceming the process used for approval of the Application (On of about February 11, 2022, Isenhower confirmed, via email, to HS Robinhood that master plan approval forthe Application would need to go bofore the Planning Board for review. ‘On or about July 8, 2022, Isenhower determined that the Application had been ‘placed on hoid for a period of sic months or longer. However, on July 20, 2022, Isenhower communicated to HS Robinhood, via leltor correspondence, that the ‘Town had revised ils postion and that the Application had not been placed on hold‘any sooner than February 11, 2022, thus the Application was valid until, atleast, ‘August 11, 2022 25) On or about August 8, 2022, HS Robinhood submitted an updated Application for the development of the Subject Property which included a topographical survey, a comprehensive landscape plan and a revised site plan. The revised sito plan included development data,-design-stats, general- notes, building-notes-and-a— building summary table identilying building dimensions. The revisod site plan continued to show multiple buildings on a singlo tot along with related site improvements. Such updated Application is accurately reflected in the ROD. 26) After receipt of the August 8, 2022, updated Applicaton, the Town informed HS Robinhood forthe first time that muitiple buildings on a single lot would constitute 1 group development under the 2018 Ordinance requiring approval of the Application through a quast-udicial hearing, 27) Thereatter, on September 29, 2022, HS Robinhood sent a letter to the Town requesting a zoning determination related to the development of the Subject Property. In response, on September 30, 2022, Tuch determined that a site plan \Wiich showed all residential units and amenities consolidated into a single building would not be a group developmont but rather a multi-family building. Further, Tuch determined that such a revised sito plan, showing a muli-famlly building, woul Fequire @ ministerial review by the Town's Planning Board and that such review ‘would be based on the development standards set out in the 2078 Ordinance, 28) On or about October 18, 2022, HS Robinhood submitted an updated Application {for development ofthe Subject Property which included a topographical survey, 2 comprehensive landscape plan designed by a landscape architect and a revised site plan showing a single building on the Subject Property. The revised site plan included development data, design stats, general notes and building notes along with @ building summary table identiying building dimensions. Such updated Application is accurately reflected in the ROD. 29) Each revised site plan submitted by HS Robinhood to the Town contained a revision block that identified the previously submitted site plans, including the site plan submitted on October 18, 2022, which referenced the five (6) previously ‘submitted site plans. 30) On October 28, 2022, Bemstein and CRLU filed with the Town an appeal application appealing Tuch's September 30, 2022 zoning determination (the “Appeal”), The Appeal raised five errors with Tuch’s zoning determination, namely thatthe single building shown on the October 18, 2022 was a multi-family building: that the October 18, 2022 revised site plan showed a group development which ‘was a conditional use in the Mountain Vilage district requiring a quasi-judicialhearing; that the October 18, 2022 revision would be reviewed under the 2018 ‘Ordinance; that the August and October 2022 revisions to the Application were ‘materially and substantially differont and thus constituted new applications for a Zoning Compllance Permit; and, that the May 17,2021 Application was incomplete ‘and therefore not properly submitted. _.31} —The Appeal was-fled within thirty (20) days of the date of Tuch’s September 30, £2022, zoning determination latter. Information proviously communicated between the Town and HS Robinhood about the development of the Subject Property was not ripe for appeal 32) Competent, material and substantial evidence was prosented showing the following: a. The Appellants’ appeal of Tuch's September 20, 2022, zoning determination letter was timely. b. That the Application submitled by HS Robinhood on May 17, 2021, for the development of the Subject Property contained all necessary information, Including architectural design guidelines, and was validly submitted and complete pursuant tothe applicable provisions of the 2018 Ordinance; c. That none of the subsequent revisions or updates to the Application submitfod by HS Robinhood to the Town forthe development ofthe Subject Property amounted to a new application for a Zoning Compliance Permit requiring review under the development standards of the 2021 Ordinance; d, That review of the Application was nover placed on hold by HS Robinhood fora period of six (6) or more consecutive months; fe. That HS Robinhood never failed to respond to comments or questions from the Town nor to provide additional information reasonably requested by the TTown for a period of six (6) or more consecutive months; {, That the development standards in the 2018 Ordinance apply to the Application submitted on May 17, 2021 by HS Robinhood and all ‘subsequent revisions for the development ofthe Subject Property; and, 9. That the October 18, 2022, ravised site plan showing consolidation of all residential units and amenities into a single building is a multi-family dwelling and not a group development,‘Therefore, based upon the foregoing FINDINGS OF FACT, the Board hereby makes the following: D} 2) 3) 4) 5) 6) n 8) 9) 10) ‘CONCLUSIONS OF LAW ‘The Board has subject matter jurisdiction to hear and decide this matter and the Appellants” appeal-of Tuci's September 30, 2022, zoning determination is within the Board's jurisdiction to review pursuant to Section 54-77 of the 2021 Ordinance, Bomstein and CRLU have standing to appeal Tuch’s September 30, 2022, zoning determination and have the Board render a decision. HS Robinhood, as owner ofthe Subject Property, has standing to participate fully Inthe hearing ofthis matter. Each party's constitutional rights were protected by allowing each party the ‘opportunity to fully inquire of the Board members about impermissible violations under N.C.G.S. §160D-109, ‘The Application, when submitted on May 17, 2021, was validly submited, contained all necessary information requirod under the 2018 Ordinance, and wes ‘complete. ‘Subsequent revisions and updates to the Application did not amount to a now ‘pplication requiring review under the development provisions of the 202% Ordinance, The Application was not placed on hold by HS Robinhood for a period of six (6) ‘consecutive months or more afer its submission to the Town. HS Robinhood did not fall to respond to comments or provide additional information reaspnably requested by the Town for a periad of six (6) consecutive ‘months of more after It submitted the Application, ‘The development standards of the 2018 Ordinance in effect at the time of the Application’s submission to the Town on May 17, 2021 apply to the Application ‘and all its subsequent updates and revisions, including the last submission on October 18, 2022. Consolidation ofall residential units and amenities into a single building is a multe family building under the 2018 Ordinance,DECISION Based upon the foregoing Findings of Fact and Conclusions of Law itis decided by the Board of Adjustment for the Town of Woodfin that HS Robinhiood's motion to dismiss for lack of subject matter jurisdiction is DENIED and Shannon Tuch’s zoning determination made on September 30, 2022, be and is hereby AFFIRMED subject to the following ‘modification eae Written preliminary approval ofthe proposed water supply and sewage disposal system for the development of the Subject Property shall be given to the Town prior to being heard by the Town of Woodfin Planning Board. ITIS NOW THEREFORE ORDERED, ADJUDGED AND DECREED that consolidation of, all residential units and amenities into a single building is a mult-family building and that the rules in place on May 17, 2021, apply to the review and approval ofthe Application and all subsequent updates and revisions provided, however, that prior to such ministerial review of the Application by the Planning Board, HS Robinhood shall provide preliminary approval of the proposed water supply and sewage disposal system to the Town, ORDERED this 27 day of _Aow , 2023 ‘TOWN OF WOODFIN BOARD OF ADJUSTMENT By: Thad, Barunctt— iael Bennett, its Chair Attest: é othe fal 'nooneonaren § UNE 1974 ig