As the saying goes, the devil is in the details.
That seems to be the case for neighbors organizing against a proposed apartment complex near the Woodland Hills subdivision outside Weaverville.
SW of Asheville wants to build a 228-unit apartment complex on 17 wooded acres at the junction of New Stock Road, Weaverville Highway and Leisure Mountain Road. The company has an option to purchase the property from Woodland Hills Associates, a partnership of commercial investors.
The property in question is in an area dominated by commercial and residential development. The wooded acreage wraps around a gas station at the traffic light at Weaverville Highway and New Stock Road; Leisure Mountain Road divides the property’s north side from a small shopping center anchored by an Ingles grocery store.
But Woodland Hills resident Charlotte Lackey points out that the late Jack Barfield (who originally developed Woodland Hills) placed a deed restriction on the property when he sold it — for a mere $20,000 — to the Buncombe County Board of Education in 1966. That restriction was meant to ensure that the land be used only for school and/or recreational purposes. But in 1987, the Board of Education sold the land to Woodland Hills Associates for $475,000. Lackey and other residents — who fear the new development will bring traffic problems and adverse environmental impacts — voiced their concerns to the Buncombe County Board of Commissioners last month.
County Attorney Joe Connolly said at the Board of Commissioners meeting that he didn’t think the county had any legal standing to insert itself into challenging the lifting of the deed restrictions, since the Board of Education no longer owns the land. And the commissioners noted that, since no zoning is allowed in the county, their hands were tied.
That assessment disappointed Woodland Hills residents, who were hoping that the deed restriction would protect them.
“Our community was shocked to find that a covenant in a deed, upon which we relied when purchasing our properties, may not be enforceable,” Lackey wrote to Xpress. “Recognizing the natural features of the property, [Barfield] believed such uses would provide an appropriate buffer for Woodland Hills residents from Weaverville Highway and other uses in the area. Prospective homeowners were told the land would remain true to the covenant and, based on that belief, they purchased homes.”
The deed states the following: “The Grantee herein, by the acceptance and recordation of this deed, and as part of the consideration therefor, covenants and agrees that the above described property shall be used by the Buncombe County Board of Education for school and/or recreation purposes, and for no other purpose.”
But that language does not appear on the 1987 deed conveying the property from the school board to Woodland Hills Associates. Barfield’s widow, Celia Barfield, declined to comment for this story.
Buncombe County Board of Education attorney Walter Currie and one of the property’s owners, John Powell (who is also a lawyer) find the legal language needed to enforce that restriction to be lacking.
“It just wasn’t done or put in the deed to make it enforceable as a restriction,” Powell says.
If the neighbors feel the property is essential to their quality of life, Powell suggests, they could buy the property instead of “bitching and moaning about it.”
In Powell’s opinion, the deed restriction is a nonissue.
“This is a pretty standard kind of situation where adjacent neighbors don’t want to see any change in their greater community, even if it’s an appropriate project on an appropriate property,” Powell declares.
In his legal opinion, Currie considers the restriction to have been an agreement between Barfield and the Board of Education. So when the property left the Board of Education’s control, the restriction had no effect, he says.
“That’s their fight,” says Currie, referring to the property’s neighbors. “The school board doesn’t have a dog in this fight.”
Generally, the courts don’t favor land-use restrictions, following the common-law principle that property should be freely traded, Currie explains. To get around that common-law theory — and have the restrictions stick — land-use limitations must serve some common, legitimate purpose. (Old restrictions against selling property to people of color, for example, clearly were not a legitimate purpose.)
Once there’s a valid reason to limit the use of the land, the restrictions must be properly structured in legal documents, says Currie. In the case of a subdivision, he says there needs to be a master plan. A well-done subdivision should be properly coordinated between the plat, the restrictions and on each deed, Currie notes.
“What they’re really complaining about is that there’s no zoning that covers this particular property,” he observes.
But Lyman Gregory, an Asheville lawyer representing the Woodland Hills neighbors, says only the courts can decide whether the deed restriction is still valid.
“I think the only way to know if it’s valid is to have a judge rule on it,” Gregory asserts. “There are a lot of different opinions about it. I will go so far as to say it’s not the best written deed restriction, but the only way to determine if it’s enforceable is to take it to court.”
Whether neighborhood residents will take the case to court remains to be seen. Gregory says he’s still talking with his clients about that option, which he thinks would probably be expensive.
Gregory acknowledges that the Board of Education followed the proper procedures in putting the property up for sale — and that they made a handsome profit in the process.
But Gregory notes that the Board of Commissioners had to sign off on the transfer of that deed, and by selling the property, the schools and the county abandoned the original intent to use it for school and/or recreational purposes.
“I think the Woodland Hills neighbors’ concerns are that the county didn’t really take the deed restrictions seriously,” suggests Gregory, which is why they brought the matter to the commissioners’ attention.
Gregory proposes that the Board of Commissioners use some of the money it set aside last year for preserving open space to buy the property and fulfill their original intent. However, he hasn’t floated that idea by the commissioners to gauge their reaction.
Although challenging the deed restriction may be a long shot, the Woodland Hills residents aren’t ready to roll over.
Rather than focusing on the deed restriction, Gregory says the neighbors’ main thrust now is in challenging state and federal permits needed by the developers to disturb wetlands and a stream called Wagner Branch that runs through the property.
The developers are applying for permits from the Army Corps of Engineers and from the state Division of Water Quality, notes Gregory. Generally, he says, the public has 30 days from the time of application to file comments.
Neighborhood resident Lackey points to the property’s large tulip poplars and white pines (some of which have been standing since the Civil War), as well as 300 plant species that she says have thrived because of the rich soil that’s found in a narrow band in just five North Carolina counties. All of this would be affected by developing the land.
“The property … is the last major piece of undeveloped land on Merrimon Avenue between downtown Asheville and Weaverville,” Lackey notes. “If this project is allowed to continue, chain saws and bulldozers will destroy forever what nature has painstakingly created over geologic time. With more destruction of our woodlands, we will lose our red-tailed hawks, great horned owls and an incredible nesting site for wood thrushes.”
But Powell says the property is covered with a lot of Virginia pine. “It’s not what anybody in the world would consider one of nature’s beauty spots,” he maintains.
Lackey (who has an undergraduate degree in biology) acknowledges that Virginia pine is what most people see from Weaverville Highway. The older trees are more toward the center of the property, she says.
“It’s not what you’d call an old-growth forest, but it’s a recovering forest,” Lackey explains, adding, “Our group vows to use every means to protect this property.”