Special Use Permit Hearing
The MRA went before Montreat's Board of Adjustment to request a Special Use Permit to build the proposed hotel. The permit hearing lasted for about 50 hours over eight sessions, beginning on October 21, 2021 and coming to an end on January 6, 2022, when the Board voted to grant the permit.
The Board's perfunctory, two-hour deliberation did not do justice to the prior hours of the hearing; they failed to consider the ample evidence that opposing lawyers presented or make the findings of fact that the law requires. Now, the MRA has the zoning permit they need to go forward with demolition and construction. This would have terrible repercussions for Montreat, changing the town and its environment in ways that could not be undone: a polluted creek, loss of 60 mature trees, demolition of three historic structures, damage to neighboring homes. All of this was shown plainly in the hearing.
A summary of each session can be found in the Black Mountain News articles available here, and recordings of each session are available at the following links:
December 15 BOA Hearing Recording
Dr. Barrett Kays' testimony on stormwater can be viewed in the Dec. 15 hearing beginning at: 7:11:40. His cross-examination begins on Jan. 4 at 0:11:55.
Cost to the Town of Montreat for the Special Use Permit Hearing
At the April 14 Board of Commissioners meeting, the Mayor reported on the direct costs to the Town for the hearing on the hotel.
The Town has spent over $100,000 to date on attorney fees alone. Adding in staff overtime and expected additional legal costs, the mayor estimates the total will be between $121,555 and $124,555. This represents an extraordinary 6% of the Town's annual budget.
The story was reported in the April 15 Black Mountain News: 'This is sobering': Montreat Board of Commissioners approves 6 budget amendments
Summary of Montreat Board of Adjustment Process
Compiled by Brendan Hayner-Slattery, based on the training given to the Board of Adjustment on August 24, 2021
The Board will need to determine who besides the MRA has standing to act as a party in the case.
Having standing means you have the right to participate fully in the hearing as a party, including presenting evidence, making arguments, cross-examining witnesses, objecting, etc. It is also necessary for appealing the outcome after the fact.
The Board will hear and rule on requests for standing at the very start of the hearing on the first day, before anything else happens.
To get standing, you need to be able to present a credible allegation that you could suffer specific damages from the outcome of the hearing, typically shown by some combination of proximity, impact on property value, and other effects (glare, odor, etc.).
Location alone isn’t determinative: you could live right next door and not get standing if you can’t show any reason to expect specific damages, or you could live a mile away and get standing if you can credibly assert that the development would cause you damage in some particular way (such as traffic).
Likewise, past cases have established that disliking the aesthetics of the proposed structure is not enough to establish standing. There needs to be an alleged damage that you would suffer.
Even people who don’t have standing might still be allowed to make a comment at the end of the hearing at the Board’s discretion, but their opportunity for participation is much more limited.
The Town of Montreat has a form that you can fill out by October 20th to request standing. This form does have a check-box option for persons who won't suffer damages but wish to be heard by the Board. The form can be found here: https://townofmontreat.org/wp-content/uploads/2021/09/Standing-Application.pdf
Those interested in obtaining standing are advised but not required to fill out the form in advance, they can also request standing in person at the beginning of the October 21st hearing.
To take part in a quasi-judicial hearing you must present competent, material, and substantial evidence. This means basically what it sounds like— you have to show meaningful evidence that has a bearing on the legal issues and could reasonably sway someone one way or the other.
There are two types of witnesses: lay witnesses (also called “fact witnesses”) and expert witnesses.
An expert witness is someone with qualifications and experience needed to make expert opinions (e.g. “their use would create an odor out to this specific range”).
A lay witness can be anyone, but they can’t testify to the sort of opinions that require expertise. They can only testify to facts they have knowledge of (e.g. “my house is this many feet away”).
Parties can object to evidence, for instance on the grounds that it’s irrelevant. The Chair makes the initial ruling on whether to sustain the objection (exclude the evidence) or overrule the objection (allow the evidence), but the party ruled against can request a full board vote.
Order of hearing
applicant calls their witnesses
other parties call their witnesses
Board may choose to allow testimony from people without standing
Immediately after a party calls and examines a witness, other parties and the Board have the opportunity to question that witness as well.
Whether anyone who’s not called as a witness by a party can testify is totally up to the Board’s discretion. They might allow anyone to present competent, material, and substantial evidence, but also might limit testimony to prevent repetitive or redundant evidence. Many boards put out sign-up sheets before the meeting so people who wish to testify can put down their name. If any of these additional people are allowed to speak at the hearing, they’ll be sworn in like everyone else.
Before the hearing, or between sessions of a multi-day hearing, the Board members can’t talk with anyone about the issues, including each other — those are “ex parte communications” and not allowed. They can do site visits or use other prior knowledge they have, but they have to disclose that.
Before the hearing, the Board will be given no documents about this case except for the MRA’s application and the Town staff’s report. At the hearing parties might present them with other documents — for instance, a binder full of tabs with different evidence — but the Board can’t actually look at them until a witness who can talk about them comes up to testify.
Before the hearing, Board members will be asked if they have any conflicts of interest. They have a conflict if they have a prior fixed opinion on the case that’s not subject to change, or if they have any close familial, business, or financial interest in the outcome.
After the hearing, a party might appeal the Board’s decision to a higher court. If so, that court can only substitute in their own judgment for matters of law — for matters of fact they still have to defer to what the Board determined.
Special Use Permits
In determining whether the Special Use Permit is granted, the Board must rely on the six criteria listed in Section 310.62 of Montreat’s Zoning Ordinance. An excerpt with the full text of these criteria can be found at this link; here's a summary:
The use won’t endanger the public health, safety, or general welfare
The use will meet all applicable development standards of the Town of Montreat (utilities, parking, access, stormwater, etc.)
The use will not substantially diminish the value of any property within 250 ft. of the edge of that parcel
The use will be in harmony with the area and will not injure the use and enjoyment of other property in the area
The use will be in general conformity with the Town’s adopted policies and plans (including the Comprehensive Plan)
The use will have adequate measures to provide ingress and egress, so as to minimize congestion on public streets.
If the Board decides the MRA’s proposed use meets all six of these criteria, they must grant the permit. If the Board decides that even one of the criteria is not met, they must deny the permit. In other words, all six of these criteria must be met.
In general, the burden to show that the use meets these criteria is on the MRA. If they meet that burden, it then falls on opponents to show that the use does not meet these criteria.
Exception: a prior case has established that a use is assumed to be in harmony with the area unless evidence is presented to the contrary.
The Board's attorney called the 250-ft. range for considering the effect on property values the “oddest element I’ve ever seen” because of its seemingly arbitrary specificity.
Another prior case established that the applicant need not negate every possible objection to the proposed use, just objections that are reasonable and backed by evidence.
This process was detailed by an attorney for the Montreat Board of Adjustment at a training session on August 24 for the Board members to learn about quasi-judicial hearings, evidence, and details of Special Use Permits. The 2-hour session was video recorded and may be viewed by CLICKING HERE.