Buncombe County officials were within their rights to sell a piece of public land to a developer, the N.C. Court of Appeals ruled on Nov. 3. The decision reversed a lower court ruling and leaves the land in the hands of Stewart Coleman.
The decision also leaves open the chance that one day the property owner could build a new structure there. Coleman's former intentions to do exactly that are what prompted the contentious legal battle. Yet Coleman's current plan, he says, is to turn a neighboring building he owns into a tavern and leave the small parcel near City Hall as parkland.
The controversy started in 2006 when the Buncombe County Board of Commissioners sold an alleyway and a piece of public parkland to Stewart Coleman and his development company, Black Dog Realty Inc. The quiet sale exploded into blaring protests after the public learned that Coleman planned to combine those parcels with the Hayes & Hopson Building site and construct a nine-story condominium there. He called his project Parkside.
Critics accused commissioners of back-room dealing. Protesters camped out beneath an iconic magnolia tree on the land in front of Asheville City Hall, and local Wiccans held a ritual to save the tree. Activists petitioned to have county and city officials take the property back through eminent domain. Elected officials even considered buying back the land from Coleman, or swapping other publicly owned property for the slice of cherished property adjacent to Pack Square Park.
The issue came to a head when the heirs of the man who donated the land to the county more than 100 years ago filed a lawsuit to have the sale undone. The descendants of George W. Pack won in Buncombe County Superior Court with Judge Marlene Hyatt's 2008 decision that the property could not be used for public development because the land was deeded to the county for public use only. Coleman appealed that decision to the Court of Appeals in October 2008.
By then, the controversy had begun to recede. Coleman changed his tack and began moving forward with a major renovation of Hayes & Hopson, aiming to turn the building into a restaurant, bar and event venue. He has named the project Pack's Tavern.
The tavern plan roundly met with praise, and to move ahead with it, Coleman last month withdrew his application to build the condominiums.
The Court of Appeals ruling landed like a withered magnolia blossom — softly, and without much notice beyond the key players. Joe Ferikes, the attorney for the Pack heirs suing to undo the sale of the property, said he was disappointed with the decision, adding that his clients weren't inclined to appeal the unanimous decision by the three-judge panel.
"My clients felt like they were right all along, and I felt like they were right all along," Ferikes said. "Any time a piece of property is given to the county by a benefactor and designated for a particular use, then it ought to stay like that."
The Court of Appeals disagreed after reviewing two deeds that philanthropist Pack signed in 1901 to hand over land to Buncombe County. The court ruled that Pack's deeds, rather than restricting the land to public use forever, actually just intended the property in question to be used for a courthouse building.
Coleman said the Court of Appeals' decision "was a correct decision and that should have been made by the lower court." Coleman said it was unfortunate that it took three years to reach that decision.
"I was brutalized by the news media" over that time period, Coleman said, "but that has never seemed to bother me much. We've moved on."
The legal battle aside, Coleman said he's looking forward "to the path we've selected now. We're really happy with the direction we're going in."
Coleman said his new tavern, scheduled to open Feb. 12, 2010, will feature a 1930s theme and serve government workers, park users and those seeking event space. It will employ about 100 people and will fit in with the newly reconstituted Pack Square Park, which has been the site of a $20 million remodeling over the past four years.
"We put the lawsuit behind us eight months ago because of this Plan B that we elected to try to do, and we're going to do it right."
This unanimous ruling is a victory for private property rights, people who believe in the standard application of laws for all citizens, and that certain citizens should not be penalized for conforming with the process as it was laid out before them which later proved to be unpopular.
This unanimous ruling is a disappointment for Gordon Smith.
When asked if he still plans to only pursue building the tavern, or develop the parcel, Coleman said, “I think that I would like to leave all my options open”.
The threat to this parkland still exists – when the economy starts to rebound, look for Mr. Coleman to throw his tavern under the wrecking ball & reintroduce Parkside. City Council needs to look at eminent domain, and soon.
This unanimous ruling is a victory for people who believe in the equal application of the law for all citizens, private property rights, and that that certain people should not be harassed for simply following the law and public procedure because other people have different agendas.
This unanimous ruling is a disappointment for Gordon Smith.
The County Commissioners sold the land to Mr. Coleman (the City has nothing to do with all of this) … the Court of Appeals has ruled; do you honestly think the City would have a Magnolia’s chance in hell …
Can’t wait for the cutting of the tree ceremony, its going to be great!!
Thank you Mr. Coleman for putting a classy end to this unfortunate situation. Your tavern should be a wonderful addition to Asheville.
Which ‘classy end’ are you referring to? Mr. Coleman made it clear that he intends to “leave all my options open”, as he said in this AC-T article:
http://www.citizen-times.com/article/20091104/NEWS01/911040318
Meaning that he intends to see the property developed somewhere down the road, presumably when the economy is more welcoming to grotesque overpriced condominiums. Remember, by his own count as of last year, he has somewhere around $4 million invested in this. Are we all believing that he’s content to recoup that one beer at a time, if other opportunities presented themselves?
The Performing Arts Center just announced they are moving ahead with plans to develop the property behind Hayes Hopson. So far, I haven’t seen how they plan to get around the guy who wants to build condos on their front stoop. By his own account, this is why he bought the property in the first place, to cram his way into this massive development.
My guess is we’ll be revisiting this, unless City Council does something to prevent it before he resubmits his plans for Parkside…