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Graham council being sued after turning down truck parking lot 3-2


A commercial real estate developer has filed a lawsuit against the city of Graham, in order to have a superior court review a decision by the city council to deny a special use permit that would have allowed a tractor-trailer storage facility along the Interstate Service Road near I-85/40.

Graham’s city council voted 3-2 on July 11, 2023 to deny the special use permit (SUP) for the tractor-trailer parking facility, which would’ve had 122 parking spaces on a vacant, 5.5-acre lot off East Gilbreath Street for drivers to store or switch out their trailers.

The property is currently owned by Martin Properties ACNC LLC and is situated at an unaddressed location on Interstate Service Road, according to Alamance County tax records, which list the latest assessed value for the land at $150,294.

Graham’s planning board had voted 3-2 earlier this year to recommend approval – but with site-specific conditions – by the city council, according to the petition that has been filed in Alamance County civil superior court by Cone Commercial Real Estate Investments of Atlanta.

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Cone Commercial, the petitioner, cites two rulings by the state Court of Appeals, which established in 2002 and affirmed in 2013 that, “When an applicant for a conditional use permit produces competent, material, and substantial evidence of compliance with all ordinance requirements, the applicant” is entitled to the permit.

The property is currently zoned for Industrial Use, according to the petition. Prior to consideration by the city’s planning board, staff in the city’s planning department had determined that the application met the policies for Graham’s comprehensive plan (i.e., long-range land use plan) and other adopted plans, Cone Commercial asserts in its petition.

Noting that the process for issuing a conditional or special use permit is quasi-judicial, Cone Commercial contends that the city council failed to make required findings of fact “supported by competent, material, and substantial evidence appearing in the record.

The 2002 Appeals Court decision (in Howard v. city of Kinston) established that it is legally impermissible to deny a conditional/special use permit based solely on generalized objections and concerns of neighboring community members, Cone Commercial notes in its petition.

However, Cone Commercial contends “there was no evidence offered during the quasi-judicial hearing in opposition to issuance of the Special Use Permit,” adding, that when denial is unsupported by material and substantial evidence, “such action must be set aside for it is arbitrary.”

Graham mayor Jennifer Talley had questioned at the July 11 meeting whether the proposed tractor-trailer facility would be unsightly – even with a chain-link fence and black screening that the developer had offered – as well as potential security concerns, and the possibility that additional police patrols may be needed.

In the end, Talley, along with mayor pro tem Ricky Hall and councilman Joey Parsons voted in favor of her motion to deny the permit; council members Bobby Chin and Bonnie Whitaker voted against the motion.

Cone further asserts that Graham’s city council erred by “failing to make findings pertaining to whether the conditions specific to each use are not complied with” and to whether the use (a truck storage facility) “will materially endanger the public health or safety if located where proposed.” Cone Commercial also claims that the council failed to make findings showing that the proposed use would “substantially injure the value of adjoining property,” among other claims.

The site of the proposed truck storage facility is bounded to the east by an office/warehouse owned by Rolls Enterprises of Chatham County, according to Alamance County tax records and the county’s GIS mapping system. The bus garage for the Alamance-Burlington school system is located on the west side of the proposed truck storage facility.

Martin Properties also owns another office/warehouse at 410 East Interstate Service Road (directly behind the 5.5-acre lot that Cone Commercial had been under contract to buy earlier this year), which was built on 7.89 acres in 1966, according to the county’s tax records. The latest assessed value for that property is listed at approximately $1.3 million.

Cone Commercial is being represented by Burlington attorney N. Madison (“Matt”) Wall, II.
The city of Graham had not filed a response by press time.

Read coverage of the original July 11 Graham city council meeting (from July 13, 2023 edition of The Alamance News):

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