Voices So Far

Brief filed in Superior Court against MRA, town of Montreat

Karrigan Monk

Black Mountain News

A petitioners’ brief has been filed with the Buncombe County Superior Court in the matter of the proposed Mountain Retreat Association lodge in Montreat.

The brief, filed by lawyers representing the Hayner, Jones, Berry and Fox families, said the Jan. 6, 2022, decision by Montreat’s Board of Adjustment to allow the lodge to move forward with construction should be overturned. The brief said the decision was “arbitrary and capricious, and violated Petitioners’ due process rights.”

The brief said that a total of five board members made financial donations to the MRA before and while on the Board of Adjustment.

According to the brief, three board members, identified as Board Members 1, 2 and 3, made more than $355,000 in contributions to the MRA between 2005 and 2022.

Two other board members, Board Members 4 and 5, who were appointed after the hearing, but voted to approve the lodge, made $1,625 in donations from 2007 to 2022 and $700 in donations from 1997 to 2006, respectively.

Tanner Pickett, vice president for sales, marketing and communications of the Montreat Conference Center, said these donations were made public and available to the court.

“What matters is that, at every hearing of the board, members were asked if they could impartially rule on these issues,” Pickett said. “At every hearing, the members affirmed that they could. The hearing was conducted fairly, judged fairly, and the record supports that conclusion.”

The site of the lodge, situated between Assembly Drive and Georgia Terrace, would do away with three original structures on the MRA property: Galax House, Chestnut Lodge and Lord Apartments. Although 60 trees will need to be removed to accommodate the lodge, the MRA plans to replant 80.

The lodge itself, outlined at 40,000 square feet, includes 40 guest rooms with private baths, a courtyard area and a 30-space parking garage.

The brief maintains the hearing was not conducted fairly and should be overturned because of a failure to “present competent, material and substantial evidence” in compliance with the town’s zoning ordinances.

Pickett said the MRA will “respond to the Petitioners’ brief promptly and are pushing for a speedy resolution as we have been all along.”

He said the project is moving forward with designs and fundraising and has been since the permit was granted in March.

Priscilla Hayner, a member of one the families in the petition, said the hearing “lacked” due process and “fundamental fairness.”

“Assuming that the judge would see that because it’s pretty clear as set out by the lawyer,” Hayner said. “We’ll see what that decision is, but I think there’s no question based on the information and the brief that the process as a whole was lacking and required due process and protections in basic fairness.”

Hayner said there are several reasons why preventing the lodge is important to her, including historical preservation and environmental issues. She said she was also concerned that several properties, including her families, will be damaged by the building of the lodge. Hayner said she also feels the lodge is not the right “feel” for Montreat.

“There’s other kinds of construction that would be perfectly fine that give them what they need,” Hayner said. “But this is the wrong fit. … Montreat is such a special place with such a special feel to it.”

She said she is not the only one who feels this way and pointed to the “over 100 properties” that have put up signs against the lodge.

“We all care about Montreat,” Hayner said. “I know the MRA cares about Montreat. I know that. The folks that have been working against the hotel care about Montreat. I think we all need to work to strengthen Montreat as a town, as a community, and that includes the MRA directly.”

Montreat Interim Town Manager Ben Blackburn said the town “takes the position that it does not discuss matters involving pending/on-going litigation.”

Legal fees and politics: Montreat Board of Commissioners hears concerns from public

Ezra Maille

Black Mountain News

MONTREAT - Discussions of fees, budgets and governmental systems made up the majority of the Montreat Board of Commissioners meeting May 12.

The commissioners also completed two appointments to town boards at the meeting.

"The legal battle over the lodge is draining the finances of this town," said Philip Arnold, a member of the town audit committee, addressing the board. "I have watched as the town has had to write check after check to lawyers, spending money we don't have, money that's not in the town budget."

At the Board of Commissioners meeting in April, Mayor Tim Helms announced the cost of legal fees for the town for the Mountain Retreat Association's lodge hearings totaled more than $100,000.

The Montreat Board of Adjustment on Jan. 6 approved a special use permit for the MRA to build a new lodge. Since then, the opposition to the lodge has stated intentions to fight the decision.

As the opposition continues to work on an appeal of the Board of Adjustment's decision with superior county court, community members such as Arnold have reservations about mounting legal fees.

"I know this council does not want to raise our property taxes," Arnold said. "We're a little town with limited resources."

Arnold proposed the idea that for the future, the opposition to the lodge reimburse the town for legal expenses incurred as hearings continue.

Other community members also addressed the board about the town's current budgetary needs, citing concerns of a late audit. In December, Montreat was placed on the state treasurer's Unit Assistance List due to the town having not submitted an annual audit for fiscal years 2020 and 2021.

"We're in this position financially in part because our cash reserves, our fund balance, seem to have dropped quite a lot," said Mary Standaert, a Montreat resident who addressed the board. "Under normal circumstances, we would have the 35% that was mandated by this council in cash reserves."

Although the current budget has yet to be finalized, Ben Blackburn, interim town administrator, said the town has estimated that the cash reserves will be at 32%. This fund pays for expenses such as the legal fees incurred during the MRA hearings.

Regardless of the Board of Adjustment's decision on the lodge hearings, Commissioner Kent Otto encouraged the public to treat the board members favorably. He said since the Board of Adjustment is made up of volunteers, they should be treated with respect as members of the Montreat community.

"It frustrates me when we don't have our house in order," Otto said. "I'm disappointed with some of the attacks that we've had."

Community members also raised concerns over the new system of government the town has been considering, moving from a Board of Commissioners and town administrator system to a Town Council and town manager system. Community members questioned if the new system would influence the political landscape.

Helms explained that currently, the town functions nearly identically to a council-manager system with very few differences.

"Right now, if I were influenced politically, I could steer a lot of things the way the government is set up now but I don't do that," Helms said. "The previous mayor didn't do that."

Historically, the town has trained town administrators to go on to become town managers. Helms said he hopes the new system will attract a more permanent position for potential town managers.

Finally, the commissioners completed two new appointments to town boards: Allen Crawford to the Planning and Zoning Commission and Danny Sharp from alternate to full time member of the Board of Adjustment.

The Montreat Board of Commissioners plans to meet May 26 at 6 p.m. for a budget workshop to continue to discuss finances.

'This is sobering': Montreat Board of Commissioners approves 6 budget amendments

Ezra Maille

Black Mountain News

Montreat Mayor Tim Helms delivered information concerning the town's legal fees at the April 14 Board of Commissioners meeting.

The Montreat Board of Commissioners approved six budget amendments at its April 14 meeting, covering legal fees and reallocating funds to various departments.

"This is sobering," commented Mayor Pro Tem Tom Widmer after all the amendments had been approved.

These amendments covered increased expenses incurred by the sanitation department, salaries and wages and additional legal fees pertaining to the Board of Adjustment hearings to grant the Mountain Retreat Association a special use permit for its new lodge.

Prior to the Board of Commissioners meeting, the town's bill for legal fees pertaining to the hearings was $74,000. Mayor Tim Helms announced the town just received another bill for $25,763, putting the total cost at more than $100,000.

Pay for the town employees present throughout the hearing process totaled $14,792, according to Helms.

As the opponents of the new lodge file an appeal of the Board of Adjustment's decision with superior court, the town anticipates additional legal fees. Helms read an estimation, saying after superior court, the total legal fees could range from $121,555 to $124,555 of taxpayer money.

"We're trying to serve this community and not raise taxes," said Commissioner Kent Otto.

Darlene Carrasquillo, the town's finance officer, said after the town received this most recent bill for legal fees, more funds needed to be reallocated. She said the budget money comes from revenues that were underbudgeted.

"While we underbudgeted expenses, fortunate for us, we also underbudgeted some of the revenues," Carrasquillo said. "We're now able to take some of the money we said we needed for revenues and move it in these expenses."

Carrasquillo informed the board the town required $80,000 to cover legal fees as the Board of Adjustment appeal moves to superior court. She said this amount will factor into the total estimation provided by Helms.

"We need an additional $80,000 just to get us through what we know is coming in legal fees," Carrasquillo said. "Anything over and above that we're going to have to also address but for now, $80,000 more is a given."

The board also approved two budget amendments to pay for increased expenses incurred by sanitation. According to Carrasquillo, by the end of February, 99% of the department's budget had been used.

For the first amendment, Carrasquillo said the money would come out of the police department's budget. She said Chief David Arrant had been helpful in accommodating for funding to be moved from his department's budget to sanitation.

Due to increased gas prices, the sanitation department was hit especially hard. For expenses applied to gasoline and auto supplies, salaries and wages and a dumpster contract, $10,300.58 was required to be moved the police department's budget.

"These costs are fixed," Carrasquillo said. "We can't not have dumpster service; we can't not have gasoline."

For all the various budget amendments, Carrasquillo said the town would not have to dip into the general fund, the main operating fund for Montreat.

Carrasquillo expressed her appreciation to the various departments that had lent a hand in reallocating budgets. She said for the next fiscal year, after seeing how well staff worked together, things should go more smoothly.

"These budget amendments may be confusing but it's putting money where it's supposed to be and can be payed out properly without the auditors going crazy," Helms said.

Montreat Board of Adjustment dismisses appeals in MRA special use permit follow up

Ezra Maille

Black Mountain News

MONTREAT - The Montreat Board of Adjustment voted March 16 to dismiss appeals submitted by the opposition to the Mountain Retreat Association's new lodge in a special call meeting.

Attorney Cindy Rice represented the town, presenting her argument for dismissal of the appeal.

In a 6-1 vote — Bill Solomon was the only board member to vote no — the board dismissed the appeal without hearing it after arguments from the town's attorney, the attorneys for the MRA and the attorneys representing Kate Hayner and the Jones family, the opposition to the MRA.

"I attended the hearings, I reviewed the proposal," said Board of Adjustment Chairman Mark Spence. "The order before the board accurately reflects, in my opinion, that determination made by the board to approve the MRA's special use permit."

On Jan. 6, the Board of Adjustment approved a special use permit for the MRA.

Two new board members, Arrington Cox and Danny Sharpe, who were voted onto the board Jan. 13, oversaw the proceedings with the rest of the board. Board member Eleanor James was absent, represented by alternate David Neel.

"We now have to look at next steps in terms of a bigger appeal," said Priscilla Hayner, Kate Hayner's sister. "We haven't decided on it, but we will decide quite shortly."

Though attorneys James Whitlock, representing Kate Hayner, and John Noor, representing the Jones family, filed separate appeals, they combined arguments due to the near identical nature of the appeals.

The appeals sought to overturn the testimony of Town Zoning Administrator Scott Adams, given Dec. 13 as part of the initial hearing process to grant the MRA a special use permit for its new lodge.

The town and the MRA each made motions to dismiss the appeals. All parties were given a chance to present arguments.

Prior to hearing arguments, the Board of Adjustment's attorney for legal counsel Brian Gulden explained the process and purpose of the special meeting. Gulden read from the state ordinance on quasi-judicial proceedings, explaining that the meeting was not a time to debate facts presented in the original hearing.

"Today, after many hours of hearings and a vote by a prior board, there was an order drafted that reflects the board's decision," Gulden said. "This board is here today to approve that board's decision. We don't get to rehash the facts. We don't get to debate."

Attorney Cindy Rice, representing the town, cited four reasons for dismissing the appeal, saying she needed to prove only one as all four were grounds for dismissal.

Rice said the appellants stated Adams' testimony was a final determination, something she said was untrue. If it had been Adams who made the final determination, Rice said, it would have been his decision and not the board's in writing.

"The second issue is we do not believe the appeals were timely filed," Rice said.

The third issue cited by Rice addressed the doctrine of collateral estoppel. In simple terms, the doctrine states that a settled issue cannot be raised again.

Rice explained that since the decision has already been given by the Board of Adjustment, the appellants cannot return to the same board for re-discussion. She said the appellants could file an overall appeal of the board's decision to a higher, county court, but not to the Board of Adjustment.

"They don't get a second bite at the apple," Rice said.

Finally, Rice said the appeal was premature.

New faces appeared on the Board of Adjustment with newly appointed members such as Arrington Cox ruling on the dismissal of the appeal.

Morphis, in presenting arguments for dismissal on behalf of the MRA, kept his comments brief, agreeing with Rice. He added that the opposition's appeals were now "moot," meaning the issue no longer stands before the board.

Whitlock began the appellants' argument with a few additional comments from Noor. Whitlock argued that a final determination from Adams was made possible by the transcription of the hearings from the court reporter.

"It was recorded, it was sworn testimony offered at a public hearing and in fact was recorded in writing," Whitlock said.

According to Montreat Mayor Tim Helms at a Board of Commissioners meeting on March 10, the town has spent $74,000 on attorney fees for the Board of Adjustment hearings. The series of hearings spanned nearly 50 hours and eight sessions over the course of four months.

With the permit approved, the MRA has begun next steps, according to the organization's President Richard DuBose on March 7.

The lodge plans to remove three original structures on the MRA property: Galax House, Chestnut Lodge and Lord Apartments. Sixty trees will also need to be removed, but the MRA plans to replant 80.

Planned to be built on the lot between Assembly Drive and Georgia Terrace, the lodge plans for 40 guest rooms with private baths, a courtyard and a 30-space parking garage. With the inclusion of the half-basement and garage, the area totals 40,000 square feet.

"At the end of the day, this building stands to support our mission and ministry for the next 50 to 100 years," DuBose said. "We're prepared to do what it takes to make sure we can do it."

Priscilla Hayner said the unintended consequences of dismissing her family's appeal before hearing its content will be significant for Montreat. She said the town will have to deal with the ramifications if development will be allowed unrestricted as a result of Adams' testimony.

"That has implications for Montreat as a whole," Prisicilla Hayner said. "If we appeal it would be a very strong case."

Montreat Stewards appeal Board of Adjustment decision to allow MRA lodge

Opponents to the Mountain Retreat Association's new lodge have announced intent to file an appeal of a decision by the Montreat Board of Adjustment to grant the MRA a special use permit.

The appeal will need to be submitted to the Buncombe County Superior Court based in Asheville within the next three weeks.

The opposition made up of Kate Hayner and the Jones family, whose properties sit adjacent to the site of the lodge, released a statement from the Montreat Stewards, a group of Montreaters organized by the Hayner family to oppose the lodge.

"There is a very strong legal case to overturn the board’s decision," the statement read. "Procedurally, the Board of Adjustment committed numerous due process violations."

The Stewards say the board failed to make its decision based on the evidence presented during the hearings and came as a result of a discussion that ignored expert testimony. Additionally, Stewards say the written order of the board's decision contains significant errors and "misrepresentations" of the board's deliberations.

"We certainly wouldn’t be appealing the case if we did not believe firmly that the evidence is absolutely in our favor, based on what was presented in the hearing," Priscilla Hayner, sister to Kate Hayner, said in an email.

The Board of Adjustment reached its decision Jan. 6 after roughly 50 hours of hearings spanning four months and eight sessions. The board voted 5-2 to approve the special use permit.

The written order of the board's decision was delivered March 25. According to Marc Shimberg, trial court administrator for Buncombe County, the opponents have 30 days to file an overall appeal to superior court.

"Then we have to get a transcript of the hearing," Shimberg said. "Once the transcript is filed, we basically can go ahead and set that for hearing."

Shimberg said the court will hear arguments from both parties before ruling on the appeal. Although he said the county doesn't received many appeals of this nature, and with the other cases already in its docket, it could be a while before the appeal is heard.

The Stewards say the appeal process will likely extend into the fall.

This latest announcement by the opposition came just three weeks after the Board of Adjustment dismissed an appeal of specific testimony heard during the hearings. On March 16, the board voted to dismiss an appeal of Town Zoning Administrator Scott Adams' testimony without hearing it.

"The parties in opposition to the MRA hotel are greatly disappointed in the process and the outcome of the lengthy BoA hearing," the Stewards stated.

In January, MRA President Richard DuBose said while the organization hoped it wouldn't come to an appeal, the MRA was prepared in the event it did.

"The essential question is whether the town of Montreat is going to allow us to develop this lodge on property that we've used for decades for lodging our guests for our mission and ministry," DuBose added. "That question was answered."

The site of the lodge, situated between Assembly Drive and Georgia Terrace, would do away with three original structures on the MRA property: Galax House, Chestnut Lodge and Lord Apartments. Although 60 trees will need to be removed to accommodate the lodge, the MRA plans to replant 80.

The lodge itself, outlined at 40,000 square feet, includes 40 guest rooms with private baths, a courtyard area and a 30-space parking garage.

The Stewards say more than 1,200 people signed a petition voicing opposition to the lodge.

"To allow this unjust decision to stand would be unacceptable," the Stewards wrote. "The large, modern construction that the MRA envisions would do unmeasurable damage to Montreat."

Black Mountain News, April 2, 2021: Montreat to review zoning ordinance revisions, town petitioning new lodge