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Graham city council being sued (again) for 3-2 vote against rezoning

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A developer is suing the Graham city council for denying his application for a special use permit that would’ve allowed for the construction of more than five dozen townhomes at the intersection of Little Creek Drive with Broadway Drive.

This marks the second suit of this nature to be filed within the past month, both involving 3-2 votes of the city council to deny a developer’s request for a special use permit.

Another commercial real estate developer filed a petition in Alamance County civil superior court last month, asking a judge to review a vote by Graham’s city council this summer that rejected an application for a special use permit to allow the construction of a tractor-trailer storage facility with 122 parking spaces on a vacant 5.5-acre lot off East Gilbreath Street near I-85/40. That matter remains pending.

Graham’s city council spent about an hour in closed session at Monday night’s meeting last week to discuss the lawsuit with the city’s attorneys.

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The latest developer, Guilford County-based Land Acquisition and Development Services, is asking a judge to review a separate 3-2 vote by Graham’s city council denying its application for a special use permit. The developer contends that the council failed to support its decision by “competent, material, and substantial evidence,” as required under the city’s development ordinances and a state law that governs “quasi-judicial” public hearings.

According to the petition for review that has been filed by Land Acquisition and Development Services, it had applied for and received a special use permit for the same project in 2021.

Following a required quasi-judicial hearing on May 11, 2021, the developer received the special use permit to allow construction of 70 townhomes, contingent upon three points of ingress and egress into the property, with one being Hanson Lane, according to petition for review that has been filed in Alamance County superior court.

However, the developer/petitioner submitted construction drawings for a second phase of the project, which included the Hanson Lane connection, on March 1, 2023, and was subsequently informed by the city’s engineer and public works director that the Hanson Lane connection didn’t meet the required standards due to the steep topography of that portion of the property.

The developer amended its plans to eliminate the Hanson Lane connection, which resulted in a reduction of the number of townhomes, from 70 to 68, according to the court file.

In August of this year, the city’s planner informed the developer that those changes represented a “major modification” to the special use permit that had been granted in 2021 and said the “amendment” would need to go back before the council for another quasi-judicial public hearing.

On October 10, 2023, the council voted 3-2 to deny a permit for the amended plan.

In its petition, Land Acquisition and Development Services asserts that the council “based its decision on conclusions unsupported by factual date” but instead by “speculative assertions, mere expressions of non-expert opinions, and hearsay evidence.”

Amanda Hodierne, the attorney for the developer whose attempt to close one connection, along Hanson Lane, was rejected by the Graham city council.

Among those things that the developer contends the city council used as evidence to support its decision were: a statement by one council member who described the project as “a monstrosity” and “I wish it had never been approved”; photographs of the project presented by a council member, “which were taken on her personal cell phone and not shown to the petitioner or entered into the record”; statements by one or more council members “that the Hanson Lane connection would be a very unlikely choice for drivers accessing the project due to its circuitous connection to a major thoroughfare.”

The council, according to the developer’s petition for review, concluded that the project would have too many townhome units to be “sufficiently served” without the Hanson Lane connection.

The petition cites North Carolina Appeals Court case law, which has established that “a governing body’s decision is arbitrary and capricious where the…decision was whimsical, made patently in bad faith, indicated a lack of fair and careful consideration, or failed to indicate any course of reasoning and the exercise of judgment.”

The developer is asking for a judge to grant its request to review the Graham city council’s decision, and to order the city to furnish for that review the entire record regarding the application, including minutes, exhibits, and video of the October 10 hearing.

Amanda P Hodierne of the Isaacson Sheridan law firm in Greensboro is representing Land Acquisition and Development Services.

A response had not been filed for the city by press time.

In both 3-2 votes, mayor Jennifer Talley and council members Ricky Hall and Joey Parsons voted for the denial, while council members Bobby Chin and Bonnie Whitaker voted against denying the respective special use permits.

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