WE WON!!! Wake County Superior Court Judge Rules against City of Raleigh and 908 Williamson Developers

Here is the good news we have been hoping to report: a Wake County Superior Court judge indicated Monday, July 8 in a memorandum decision that the City of Raleigh Board of Adjustment (“BOA”) erred last summer when it approved the City staff’s approval of the application by Johnny Chappel and Concept 8 Development to build a Missing Middle compact subdivision comprised of 17 townhomes at 908 Williamson Drive.

Judge Bryan Collins ruled that the city staff and the Board of Adjustment made “an error of law” when it failed to properly apply section 2.3.1 (C) of the City’s Unified Development Code, as amended by the much criticized and wrongly enacted Missing Middle text changes from a couple of years ago. That provision requires that a developer provide for a transitional protective vegetative yard some 20-30 feet deep all around the perimeter of a parcel that it is being developed into a compact subdivision, or in lieu of that protective vegetative border, have “perimeter lots” all around the parcel that meet the dimensional standards for a conventional lot in the district where the compact subdivision is being developed. Either way, these rules provide for a transition on the perimeter of the parcel from the adjacent existing neighborhood to the denser development allowed in the interior of the compact subdivision.

Following these rules would have ended this townhouse project early, because the resulting area for development on this 2.4-acre lot after following these rules would have been minimized and the profit substantially reduced. Thus, the city staff and three of the five members of the BOA blatantly ignored these plainly written requirements.

It became obvious last summer that the city and staff would go to the most ridiculous lengths and say just about anything to get this project approved for Johnny Chappel and Concept 8 Development. They claimed that “perimeter lots” of the same minimal size as the existing neighborhood should be interpreted as one large, gerrymandered “lot” that would have been between one and five feet wide along the neighbors’ property lines. In other words, the City of Raleigh and this developer argued with a straight face that “perimeter lots” around a parcel is the equivalent of one narrow skinny strip of dirt that they generously called “a lot,” and further that such a one foot wide “lot” would serve nicely as a transitional protective yard.

Judge Collins saw through this nonsense, ruling that the city’s interpretation (described above) brought about “an absurd result” and was “not in harmony with the overall intent and purpose of the UDO.” He then reversed the ruling of the BOA and revoked the city’s approval of this ridiculous project.

This is an embarrassing result for the City of Raleigh and these developers, as it should be. It underscores the City’s failure to anticipate the many unwelcome results of the Missing Middle text changes; here, those text changes dropped the minimum requirement of eight acres for a compact subdivision to zero acres, but obviously a 2.4-acre parcel is simply too small to incorporate these perimeter buffers for existing neighbors.

The court also rejected their unbelievable argument that not even the neighbors immediately adjacent to such a project had standing to challenge it! Yes, you read that correctly – the City of Raleigh paid high-priced lawyers with your tax money to argue that essentially nobody has standing to challenge their staff’s decisions on Missing Middle projects. Not even the BOA fell for that. Well, two of them did.

We realize we just gave you a bunch of legal words – some of you want that, of course – but the simple version is WE WON!!!

Maybe the City and developer will appeal and pursue these pathetic arguments further; we’ll see.

Many thanks to those of you who have steadfastly supported this cause from the beginning. Please keep up that support, and if you haven’t given yet, please consider doing so, as the war isn’t over. You can mail or hand deliver a check made out to the Hayes Barton Legal Fund to Frank Gordon at 802 Williamson Drive, Raleigh, NC, 27608. As always, none of your money goes to Frank or his law firm or anyone else other than our outstanding co-counsel Craig Justus of Asheville.