Boone Board of Adjustment: Wintergreen case approved
By Frank Ruggiero

In a marathon four-and-a-half hour case, the Boone Board of Adjustment affirmed a Boone Development Services staff decision related to a resident’s property on Wintergreen Lane.

Joan Lynn White, a long-time resident of Wintergreen Lane, appealed a staff decision relative to the ongoing construction on the property located on N.C. 105, located east of Peabody’s Beer and Wine Merchants.

Earlier this year, Catacorner Investments, owned by Jeff Collins and Greg Parsons, owners of Peabody’s, unsuccessfully attempted to get a rezoning classification for the property in question, which they intend to develop.

The cast has a bit of history to it, starting in October 1996, when the town issued a grading and zoning permit to the property’s previous owner, Helen Yount. According to the Unified Development Ordinance (UDO), “All nonconforming projects on which construction was begun at least [180] days before the effective date of this ordinance, as well as nonconforming projects that are at least [10] percent completed in terms of the total expected cost of the project…may be completed in accordance with the terms of their permits, so long as these permits were validly issued and remain non-revoked and unexpired.”

However, Catacorner indicated to development services staff that work was begun on the site more than a year before the effective date of the actual UDO, meaning staff found that the related section was applicable.

In May 2003, White complained to Boone Public Works about dust and trucks leaving the construction site. According to the development services staff report, she and five fellow residents then sent a letter to Mayor Velma Burnley, “complaining of the use of Wintergreen Lane by trucks from Long Construction, Inc., the contractor that was working on the subject site.”

The report indicates that staff discussed the matter with Long Construction, which agreed to cease use of Wintergreen Lane and place a cable across the access, which led from the site on N.C. 105 to Wintergreen Lane.

In November 2003, the property’s title was transferred to Catacorner Investments, which retained the same grading contractor and continued work on the project.

In September 2005, attorney Charles Clement sent a letter on behalf of White, serving as a formal complaint regarding the development of the property. On Sept. 30, White filed an administrative review application.

Catacorner Investments requested an intervention in the matter, and took part in the board of adjustment proceedings. In his letter to the development services department, Clement argued that the property in question is being illegal graded without a permit, that the natural buffer between the R-3 (multi-family residential) and R-1 (single-family residential) portions of the property has been removed; that the natural buffer between the property and White’s property has been removed, exposing residents’ views to N.C. 105; and that Catacorner continues to use Wintergreen Lane as an access to their property.

As such, White and Clement requested a stop work order against Catacorner, the complete restoration of the protective barriers between the development and White’s property, and an order that Catacorner stop using Wintergreen Lane.

Development services staff, however, stuck to their conclusion. In response to Clement’s first request, planning supervisor George Cole replied that the property is being graded pursuant to the plans approved in September 1996. Regarding the second request, Cole said that the property has no R-3 zoned component, but that it is zoned B-3 (general business) and R-1 (single-family) and that there is no requirement that a buffer be provided between both districts.

Cole also answered that the buffer across from White’s property has not been removed or disturbed, and that Catacorner intends to construct a landscaped berm across the area to limit access and minimize visibility.

Regarding the use of Wintergreen for truck access, Cole told how Long Construction had a cable placed across the access, and that even though the contractor agreed to stop using the road, it is a public street with no town-imposed weight limits or other restrictions.

During his closing argument, Clement argued that the grading permit was terminated by its own actions, saying there was no mention of project cost and that the permit should have expired after one year if less than 10 percent of work was completed in terms of the total expected cost and the effective date of the ordinance. Clement also said that a permit is rendered invalid after work is undertaken but discontinued for a year.

Attorney David Paletta represented Parsons and Collins, saying the project plan allows for grading in the R-1 district. He pointed out that his client complied with the grading plan and development services staff.

Paletta said that Clement’s arguments don’t apply, and that White has the burden of proof. He said there’s been no injured party in this case, and that in order for the board to take action, there must be an injury.

In his rebuttal Clement continued to argue otherwise, saying it’s not too late to challenge the project plan, before inviting board members to visit the site.

After the public hearing segment closed, board member Richard Crepeau said the board needs to stick strictly to the language to review the staff decision, and that the board should not spend too much time talking about grading and buffers.

Board member Lee Stroupe said he did not see a whole lot of evidence that would support anything different than staff had found, and that even though the happenings were unfortunate, staff seemed to have made the right decision.

Board member Ron Darbo noted that Catacorner could have lawfully clear-cut the property, but chose not to, and board member Earl Keller reminded the board had to decide whether or not staff abided by the UDO.

The board voted unanimously in favor of staff’s original decision. White, however, has the option to appeal the board’s decision.