Commissioners to continue with appeal of special use permit denial

Published 12:00 am Thursday, November 20, 2014

Despite noted opposition from incoming commissioners, the county plans to proceed with its appeal of the West End Plaza special use permit denial.

The Salisbury City Council on Tuesday approved the final summary of the permit denial. With the approval, commissioners now have 30 days to submit their appeal, according to county attorney Jay Dees.

Dees received approval to proceed with the appeal on Oct. 6 during an executive session of the Rowan County Board of Commissioners. Shortly after, all but one commissioner candidate signed a letter asking commissioners not to proceed, but Dees and Commission Vice Chairman Craig Pierce said the county’s intent was simply to preserve the right to appeal. At the time, Dees cited a timeline that placed the deadline for the appeal submission before Dec. 1, when new commissioners take office.

After Tuesday’s vote — a part of the consent agenda — Pierce and Dees remained firm on the decision to file the appeal before new commissioners’ terms begin even though the 30 day window to file the appeal would end in mid December. The appeal would come in the form of a petition or writ of certiorari to Superior Court.

“Once we tell our county manager or county attorney to do something, we don’t have to tell them again,” Pierce said. “The appeal is going to be filed. The board already voted in closed session. We’ve never deviated from that and don’t intend on deviating from that.”

The main point of contention among county officials in regard to the special use permit denial is opinionated statements — rather than statements of fact — during a quasi-judicial hearing that spanned two city council meetings.

“The council did not consider individual findings of fact for the three standards, but rather they heard a prepared summary of objections, questions and information that was not only incorrect, but was not presented during the actual hearing, and then they just voted,” Dees said in an email.

When asked about plans to file an appeal, Dees and Pierce also addressed the long period of time between the special use permit being denied and the city’s summary being approved. The city denied the permit request on Oct. 7 and approved the final summary three meetings later. Pierce said the lengthy wait between the initial vote and final approval was an intentional effort to delay the process until new commissioners could have a say in whether to file an appeal.

“[The city’s] goal was to wait until they got to the three new commissioners because they were all fostered by the downtown groups anyway,” Pierce said about the delay. “We are going to proceed, period.”

Dees said he was disappointed by the delay, but understood the lengthy wait because of the various non-factual statements presented during the quasi-judicial hearing.

When asked about the delay, Salisbury Mayor Paul Woodson said it wasn’t the city’s intent to delay the final order until the new commissioners began their terms. Rather, Woodson said the delay was caused by careful examination of the special use permit application.

“This was not exactly somebody wanting two pool tables instead of one,” Woodson said about the attention to detail needed for the city’s decision.

Once the county files its appeal, which Dees said he is currently working on submitting, new commissioners could withdraw it when they are sworn in. All three commissioner candidates who were elected — Greg Edds, Jim Greene and Judy Klusman — signed a letter in October asking the county to drop its appeal.

When asked Wednesday about the county’s decision to proceed, Edds said he’s focused on working with the city council and still doesn’t agree with an appeal.

“I think probably what most of us had in mind when this came up is that we believed we could talk with the city council, begin to build trust and come up with an agreement,” Edds said. “I hope that’s possible and am counting on that being possible.”

One alternative to an appeal — specifically suggested by councilwoman Karen Alexander after voting against the special use permit — was a conditional district overlay. On Wednesday, Woodson said the conditional district overlay would give the city more control over how county government decides to use the former Salisbury Mall.

“The council is very cognizant of the fact that we want to keep a solid downtown,” Woodson said. “We just want to have control of what’s going out there [to the mall].”

A conditional district overlay allows opinionated statements and city council members to speak openly about proposals. It would also require a master plan for the former Salisbury Mall.

Contact reporter Josh Bergeron at 704-797-4246