By Michael Praats | April 26, 2021 at 2:02 PM EDT – Updated April 26 at 5:34 PM
WILMINGTON, N.C. (WECT) – It’s a development that spawned resistance from folks in the Ogden community that opposed the development of 12, three story buildings, along with some other, smaller buildings off Lendire Road.
Almost one year ago New Hanover County Commissioners voted to deny a special use permit for the development. But that was not the end of the story – developers are persisting and have now appealed the county’s decision to the North Carolina Court of Appeals.
The case is currently held up in the appellate court after a superior court judge sided with the decision of the County Commissioners last year.
The development called for hundreds of apartments and approximately 7,500 square feet of commercial space – but folks living in the area had concerns about the project, specifically, related to traffic and stormwater issues that part of the county already sees.
Neighbors turned out to county meetings to voice their concerns with the proposed project, County leaders at first postponed the decision for three months before finally voting against it.
“Ninety days from here, I would like to see plans on paper to have Lendire improved and widened,” said Cynthia Boulay a concerned citizen. “And to see how the traffic is affected on Lendire going to the Military Cutoff Extension. Because that’s not open, we don’t know what’s going to happen with Lendire being a feeder road.”
The developers claim that the county, as well as a Superior Court judge erred in denying the permit claiming those opposed to the project did not provide ‘expert testimony’ or competent material evidence.
“Even accepting as true that the nearby road has “serious maintenance issues” and the area has experienced flooding “in recent years,” (see id. at 16, 19), that does not satisfy the requirement of materiality. The ordinance standard at issue is whether this project will materially endanger public health or safety. Even if the opponents’ lay evidence had been competent, it was not material because it did not address that standard,” a brief to the Appeals Court reads.
However, the county has filed its own brief and maintains its position, as well as the position of Superior Court, that there was sufficient competent, material, and substantial evidence opposing the request.
The developer is requesting the appellate court overturn the decision and allow the special use permit to move forward.
Tom Terrell, legal counsel for Tribute, says he is confident in the appeal
“The law on this is very clear, this was a special form of hearing that was supposed to have been treated similar to a court proceeding and the commissioners did just the opposite and ignored the legal standards – just ignored them. Their attorney advised them that they should not do it and they ignored her too,” he said.
New Hanover County declined to issue a statement citing pending litigation.
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