Judge rules against Parkside sale

The Parkside dispute has only grown more intense over the past year, with both the Asheville City Council and the Buncombe County Board of Commissioners (who made the controversial sale of public parkland to developer Stewart Coleman in 2006) saying they would delay any action until a judge ruled on a lawsuit contesting the sale.

Parkland in the balance: Joseph Ferikes, center, huddles with fellow attorneys during a break in an Aug. 25 District Court hearing. In the hearing, Ferikes argued on behalf of the Pack heirs that the sale of land to developer Stewart Coleman was improper. Photo By Jason Sandford

That day came Aug. 28, when Superior Court Judge Marlene Hyatt ruled in favor of the heirs of George Pack, who donated the land in what is now City/County Plaza to the county at the turn of the 20th century. Hyatt dismissed motions by the defendants in the case, Coleman’s Black Dog Realty and Buncombe County, to dismiss the suit outright or summarily find in their favor. Since both parties had requested a summary judgment rather than a jury trial, Hyatt simply informed the attorneys on both sides of her decision, instead of announcing it in open court.

At this writing, however, many questions remain concerning the property’s status and exactly what the Pack heirs are entitled to.

Still more to sort out

“There’s still a lot to be done, and there may need to be further hearings to determine exactly what kind of relief is granted,” Joseph Ferikes, the Pack heirs’ attorney, told Xpress just an hour after the ruling. “Also, the defendants obviously have a chance to appeal.”

Although Coleman still technically owns the land, Ferikes cautioned that it would be a “grave disservice” for him to try to build on or modify it—such as by cutting down the magnolia tree that’s become a rallying point for Parkside opponents (which Coleman has said he would do in early September).

Charlotte attorney Pat Kelly, who’s representing Black Dog in the case, said he thought it would be “premature for me to say” what the defendants’ next course of action might be.

“I envision that we’re going to sit down with our clients, and we’re definitely going to have some decisions to make,” said Kelly. “I’m a little puzzled, as there’s no written order right now. The plaintiffs [the Pack family] have asked for various forms of relief, including the property reverting to them. Does this mean that it reverts to them? Does it mean that the judge is saying the original sale was illegal and is ordering the county to buy it back? There are still a lot of practical questions to be resolved.”

Commissioner David Young, for one, is eager to see the matter settled. “The judge has ruled, and hopefully we can put this behind us,” he said. “Obviously, we were waiting on a decision in this case. Let’s pay back the $322,000 [the amount Coleman paid the county for the tiny piece of land] and move on.”

Public use

Three days earlier, on Aug. 25, about 50 people had packed the courtroom benches, many of them sporting anti-Parkside stickers or T-shirts proclaiming “Save the Magnolia.”

The lawsuit asserted that Pack had donated the land on the condition that it be preserved in perpetuity for public use—and that it would revert to his heirs if it were ever sold for private purposes, as the county did in 2006. Coleman had planned to build the nine-story Parkside condominium project on that land and an adjacent parcel he’d previously purchased.

“George Pack made it abundantly clear exactly what the purpose of this land was: It was meant for a courthouse, for county offices or for public purposes,” Ferikes told the court.

He read from the original deeds—one from July 1901 and another from December of that year—in which Pack stipulated the property’s intended use. Ferikes also read from the minutes of a 1900 meeting of the Buncombe County Board of Commissioners at which Pack first offered the land. In doing so, Ferikes argued, Pack had clearly set up a “dedication,” and the county had accepted it—meaning the land was irrevocably intended for certain purposes only.

Not so, countered the attorneys for the county and Black Dog Realty. Referring to the plaintiffs as “the alleged heirs of George Pack,” Black Dog attorney Kelly said that Pack had simply given the land to the county “fee simple,” meaning it could dispose of the property as it pleased—and that any notes in the deed about the property’s future use were irrelevant “statements of intent” and not legally binding.

Assistant County Attorney Michael Frue sounded a similar note. “The important thing is the statement that this is fee simple, clear and unmistakably,” said Frue. “Anything else [such as mention of the land’s intended purpose on the deed] has to be rejected as surplus. If Pack had wanted it to have conditions or revert to his heirs, he would clearly and decisively have stated so in the granting clause.”

He added that parts of the area had been used for purposes counter to Pack’s original intent before, including an old jail site that was also included in the parcel sold to Coleman.

Ferikes shot back that both Kelly and Frue were engaging in “legal gymnastics, telling your honor to ignore this or that part of the deed. This was clearly meant for a courthouse, for county offices, or for public use such as a park—and it has remained so from then until the present day.” He added that if the land reverted to the Pack heirs, they would immediately donate it or place it into a trust to maintain it for public use.

After hearing the arguments, Hyatt said she would read over the documents herself and come back with her ruling. At press time, Hyatt had not announced the rationale for her ruling, which was a significant victory for Parkside opponents.

Dixie Deerman, who has been camping out day and night beneath the old magnolia tree on the disputed piece of property, said Friday that she’s thrilled with what’s taken place.

“This was a magical act and I feel it was won by magic,” said Deerman, a pagan who led a group of people last year in casting a spell of protection over the tree. Deerman said she’s been thrilled by the show of support from people. “There’s been an outpouring of thanks and gratitude. It’s been really, really sweet.”

Despite the indication that the judge will rule to declare the land sale illegal, at press time the Hyatt hadn’t yet signed the paperwork making it official. For Deerman, that means the daily vigil beneath the tree will continue. “We have to continue until the judge signs the order.”