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County to appeal council’s mall vote

Immediately following the Salisbury City Council’s denial of a West End Plaza special use permit, Rowan County officials began working on an appeal.
During a closed session Monday, commissioners authorized the board’s attorney to move forward with an appeal if the city council denied the permit.
At stake is whether the county will be allowed to move government offices into the former Salisbury Mall, which the county bought last year for $3.45 million.
County Attorney Jay Dees said Rowan County has 30 days from the date of the city’s order to file the appeal. Dees said he is working with the city to generate a final order, which would allow the county to proceed with an appeal.
The appeal will come in the form of a petition or writ of certiorari to Superior Court.
Reasons Dees cited for the appeal include subjective statements made during the quasi-judicial hearing that was required for the special use permit’s approval. In an email, Dees argued that glaring misapplications of standards occurred during the city council’s decision-making process.
“In my experience as a zoning lawyer for the past 14 years, yesterday’s decision was difficult on many levels,” Dees said in the email Wednesday. “As a pure zoning case, there is no doubt that it should have been approved factually, and councilman (Brian) Miller had it correct that the simple question was whether this proposed use was appropriate for this location.
“After limiting the application to 40,000 square feet, the council still remained concerned over the long-term expansion of governmental services.”
Miller was the lone vote in favor of granting the request when the city council voted 4-1 to deny the special use permit for government services.
The city council first heard the county’s request three weeks ago and held off a decision on the matter until Tuesday. A few Rowan County residents spoke just before Dees and Rowan County Planning Director Ed Muire offered a concession to the council, limiting government space to 40,000 square feet of the 326,000-square-foot facility. The concession would’ve limited government departments being relocated to Veterans Services, the Board of Elections and Maintenance.
The concession left out other departments — namely Social Services and the Health Department — that were discussed as possible tenants of the former Salisbury Mall, now called West Plaza.
Rowan County Board of Commissioners Vice-Chairman Craig Pierce said the concession was offered because Veterans Services, the Board of Elections and Maintenance are the only departments that the county could afford to relocate currently.
“To even consider the other possibilities inside of this special use permit would be premature because we don’t have the funding agent in place to be able to do anything else other than those 40,000 square feet,” Pierce said.
Commissioner Mike Caskey said he was surprised by the city council’s decision, especially because of the county’s concession.
“I don’t think those are controversial things to do,” Caskey said. “For anything else we would’ve had to back to (the city council) anyway. That’s not really moving people from the downtown area.”
After Muire and Dees made their presentation, the city council closed the quasi-judicial hearing. One proposal raised during post-hearing discussion was for the county to submit a conditional district overlay instead of a special use permit. A permit requires sworn statements of fact and doesn’t allow subjective statements by city council members during quasi-judicial hearings. A conditional district overlay allows opinionated statements and city council members to speak openly about proposals, according to Salisbury Planning and Development Services Manager Preston Mitchell.
But Pierce said county commissioners aren’t currently considering a special use permit.
“(The city’s) planning board wanted us to do a special use permit, and if they wanted us to do a CD they should have told us that up front,” Pierce said. “Now, we’ve already wasted all this time. We still haven’t taken care of the needs of our Board of Elections and Veterans Services Office.”
Pierce said a master plan, required as a part of a conditional district overlay, would essentially be a guess.
“We don’t know as time moves forward what’s going to happen,” he said. “You can’t tell people to look into the future and that’s our whole point. We have an opportunity with the Plaza because it’s compartmentalized and we can move in and revamp our different departments as we see the need for it.”
He used the Rowan County Department of Social Services as an example of unpredictable growth. Six years ago, the DSS building was built and it has already outgrown the building, Pierce said.
Commissioner Jon Barber, who has taken an opposing view on multiple mall decisions by county commissioners, said the city’s directions to apply for a conditional district overlay were no different than the Local Government Commission’s previous requests, when the county was applying to take out a multi-million dollar loan to replenish the fund balance and pay for renovations.
“Here’s a novel idea: let’s work with the city council and figure this out for the greater good,” Barber said. “Let’s call time out on an appeal, save taxpayer money and let the newly seated board on Dec. 1st decide how they wish to move forward.”
Dees said he couldn’t determine whether the appeal is heard before new commissioners’ terms begin in December. After the 30-day deadline for the county to appeal, Dees said there’s usually a 15-day timeline to have a record of the hearing sent to Superior Court. He said the city is allowed time for responses, but then the appeal could go straight to a hearing within 60 days. He said some of the timing issues would be out of his control.
The Superior Court judge will ultimately decide whether any errors were made in the quasi-judicial process of hearing a request for a special use permit.
In his 10 years with Salisbury, Mitchell said special use permit appeals have been rare. Mitchell said the city of Salisbury wouldn’t have a say in how long the appeal takes.
Contact reporter Josh Bergeron at 704-797-4246

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