Judge rules on Parkside; Coleman to appeal alone

The public parkland Buncombe County sold to developer Stewart Coleman may not be used for private development, Judge Marlene Hyatt declared in a written ruling released Sept. 15.

Coleman intends to appeal the ruling, his attorney said. But the county, which argued the case along with Coleman’s company, Black Dog Realty, will not appeal. (See county commissioners report elsewhere in this issue.) If the current judgment stands, it puts an end to Coleman’s current plans to build a nine-story, high-end condominium Parkside building partly on the site. He could still build on the adjacent Hayes & Hopson Building site, however.

In the ruling, Hyatt agreed with a lawsuit brought by heirs of George Pack, the philanthropist who gave the land to the county around the turn of the 20th century, that Pack’s original donation constituted a dedication, meaning the land could be used only for certain purposes.

“The defendants are hereby permanently enjoined from allowing the property to be used in any way inconsistent with the dedication,” Hyatt wrote in the ruling.

Although the land remains in Coleman’s possession, he cannot use it for private development. “Neither [the county nor the Pack heirs] gets back the land, but she specified that it can only be used for what George Pack intended—that is, public use,” Pack family attorney Joe Ferikes told Xpress. “I don’t know of anything else he [Coleman] can do with it except leave it as it is.”

Such rulings aren’t that uncommon, he added, citing conservation easements, in which land remains privately owned but can’t be developed.

Nonetheless, Black Dog Realty plans to appeal, Charlotte attorney Pat Kelly told Xpress. “Obviously, we’re disappointed by the ruling, and we think it’s mistaken on a number of grounds. We believe we’ll be successful on appeal.”

The company will be fighting alone, however, as the county commissioners, meeting in closed session Sept. 16, decided they were done with the lawsuit.

“The Buncombe County commissioners have decided not to appeal the decision of Judge Marlene Hyatt prohibiting the private use of the property the county sold adjacent to the Hayes & Hopson Building in downtown Asheville,” a Sept. 17 county press release states. It goes on to quote Commissioner David Young, who said, “We appreciate the citizens’ love of this park space and will move on with addressing the many other issues facing the county and its citizens.”
To view documents related to the Parkside controversy, including Judge Hyatt’s ruling, go to www.mountainx.com/xpressfiles.